Today's order, in Doe v. Reed, No. 09-5456BHS (W.D. Wash. July 29, 2009), reads in relevant part:

Plaintiffs seek to enjoin Defendants from releasing copies of the Referendum 71 petition to any third party. Specifically, Plaintiffs seek to prevent Defendants from releasing the names, addresses, and other contact information of individuals who signed the petition. Plaintiffs contend that release of this petition would result in a violation of Plaintiffs , and others' First Amendment rights....

To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary relief; (3) a balance of equities tips in the favor of the moving party; and (4) that an injunction is in the public interest.

Having considered Plaintiffs' motion, Defendants' failure to appear or otherwise object to Plaintiffs' motion, and the remainder of the record herein, the Court concludes as follows:

1. For purposes of deciding Plaintiffs' motion for a temporary restraining order only, Plaintiffs have pled a colorable First Amendment claim, and have sufficiently demonstrated a reasonable likelihood of success on the merits.

2. Plaintiffs have demonstrated a reasonable likelihood of irreparable harm if Defendants release the contact information of those individuals who signed the Referendum 71 petition.

3. The balance of equities weighs in favor of Plaintiffs. Defendants and interested third parties will not be unduly prejudiced by delaying the release of this information until after this matter has been fully briefed, should Defendants ultimately prevail on Plaintiffs' motion for preliminary injunction.

4. A temporary restraining order is in the public interest. Plaintiffs' complaint raises constitutional issues potentially affecting over 100,000 voters....

The order lasts until Sept. 3, 2009, which is the date set for the hearing on a longer-lasting preliminary injunction pending a full decision on the merits. The plaintiff's constitutional argument — which the court said has "a reasonable likelihood of success on the merits," but which the court has not more expressly endorsed (since this is just a temporary restraining order aimed at maintaining the status quo pending a full hearing), is here, and here is an excerpt:

KnowThyNeighbor.org and WhoSigned.org[] have stated that they intend to make the names of the 138,500 petition signers available and searchable on the internet in an attempt to encourage Washington citizens to have a personal and uncomfortable conversation with any individual that has signed the petition. Ironically, the creators of WhoSigned.org have exercised their First Amendment right to remain anonymous, a choice the petition signers cannot make because of the Public Records Act. A temporary restraining order and preliminary injunction are necessary to protect Plaintiffs from suffering immediate and irreparable deprivations of their First Amendment liberties that will occur if Defendants release copies of the petition pursuant to the Public Records Act. As shall be set forth below and in Plaintiffs’ Verified Complaint, individuals whose names are already connected with Referendum 71 have been subjected to threats, harassment, and reprisals simply for exercising their First Amendment freedoms of speech and association. If a temporary restraining order and preliminary injunction are not issued, each of the 138,500 Washington residents who signed the Petition will suffer similar deprivations of their First Amendment liberties.

For more on the subject, see the prevailing lawyer's press release.

My thought: I think there are plausible arguments that voter signatures shouldn't be publicly released by the government. Just as we have a secret ballot for the ultimate votes, we could have at least a quasi-secret signature system for the signing of referendum, initiative, recall, and candidate nomination petitions. It might not be fully secret — for instance, the government would know what you signed, though it doesn't know how you voted, and it's possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there's just one signature per page, and each page is concealed after it's signed). But there are good reasons why we might choose to make it as close to a secret ballot as possible.

Yet I don't think that such a system is constitutionally mandated by the First Amendment, just as I don't think that a secret ballot is constitutionally mandated by the First Amendment. Signing a petition is a legally significant act, and if the government chooses to publicize the names of people who have taken such an act, I don't think this abridges their freedom of speech even if the revelation might indeed have a deterrent effect on some people. Not all government action that deters people's exercise of their free speech rights is unconstitutional, and in particular government speech revealing signers' identities is not, I think, unconstitutional.

Even overt government condemnation of certain speakers is not a First Amendment violation, though such condemnation might deter speakers. The same is even more true, I think, of a simple release of over 100,000 names, though again I can't deny that there would be a deterrent effect. The judgment about how secret signatures or even ballots should be is a judgment that should be made legislatively (or by voter initiative). The First Amendment and First Amendment caselaw does not preclude either option.

Let me tell you an interesting story, from Ake v. Bureau of Professional & Occupational Affairs (Pa. Commw. Ct. May 20, 2009), and see what you think of it.

1. In 2001, Kevin Allen Ake was living at a YMCA in Illinois, apparently "so that he could assist an elderly member of his church who lived there." Several months after moving in, he was evicted, in his view because of his "efforts to begin a bible study program at the YMCA." As a result, he left a bunch of messages on the voice-mail of the YMCA's executive director, who was a lesbian; he denies that the messages contained explicit threats, but says he "basically shared what the Bible talked about was -- with that kind of unnatural lifestyle -- about lesbians and homosexuality."

Ake was then prosecuted and convicted for telephone harassment, which covers telephone calls made "with intent to abuse, threaten or harass." Two newspaper accounts reported that he was found guilty of leaving threatening messages, but nothing in the Illinois indictment, or in the Pennsylvania opinions that I read, makes it clear -- it seems possible that the finding was simply that he made the calls with the intent to "abuse ... or harass" rather than with the intent to threaten. In any case, though, telephone harassment, even harassment that isn't expressly threatening, is a crime; the laws banning it are generally seen as constitutionally permissible speech restrictions (with some exceptions); and the story here is in any event not about that conviction, which may well have been perfectly sound.

2. Now generally speaking, telephone harassment is a misdemeanor. But Ake was apparently motivated at least in part by the executive director's homosexuality, which made it a felony hate crime. Ake was thus convicted of a felony, and sentenced to 14 days' in prison, with credit for time served before trial, plus 2½ years' probation, 200 hours of community service, and a $2000 fine. In February 2005, Ake was discharged from probation.

3. So far, we have a normal "hate crime" story, though one in which the underlying crime was comparatively minor (and consisted of unprotected speech rather than physical violence). But there's a twist: Ake is an accountant, and in 2007 he applied to reactivate his Pennsylvania CPA license. He had it reactivated despite his felony conviction, but then the State Board of Accountancy moved to revoke the license because of that conviction. And the Board did revoke the license -- not just because of the conviction itself (which wouldn't automatically disqualify him, especially since the conviction didn't involve the sort of financial misconduct that most directly bears on fitness to be an accountant), but because of his continuing hostility to homosexuals and his perception that he was victimized by homosexuals:

[T]he very nature of Respondent's offense -- involving an irrational hatred of the victim -- is plainly a manifestation of a character defect. Although [Ake] had completed all requirements of his criminal sentence as of February 2005, the Board has grave doubts as to whether [Ake] fully rehabilitated.

In his testimony at the formal hearing, [Ake] expressed the view that his conduct in harassing the victim because of her sexual orientation, while regrettable, did not rise to a level requiring criminal sanction. He maintained that he was prosecuted because of the district attorney's sexual orientation, and he objected to his original mental health counselor because of the counselor's sexual orientation. These facts powerfully suggest that [Ake] has not reformed his views....

The Board is of the view that the revocation of [Ake's license] ... is warranted ... (1) to eliminate the risk of harm that [Ake] ... might pose to those with whom he would have professional dealings as a certified public accountant; (2) to deter other certified public accountants who might be tempted to commit felonious acts outside the practice of public accounting in belief that there would be no consequences for their professional credentials; and (3) to provide assurance to the public that only individuals of unquestioned moral character are permitted to be counted among the ranks of certified public accountants.

4. In May, the Pennsylvania Commonwealth Court reversed the Board's decision, and two weeks ago refused to reconsider its judgment.

That's the decision in which the Circuit held that the Second Amendment was incorporated against the states, and also that counties could — despite that — bar guns from county property (at least the fairgrounds and the fairground parking lots involved in that particular challenge).

As is usual with decisions to take the case en banc, the order provides that "The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." This technically means that there's no longer a circuit split on the subject, which diminishes the likelihood of Supreme Court review of the Second and Seventh Circuit decisions rejecting incorporation. (The Seventh Circuit decision involved the Chicago handgun ban.) But those two circuit decisions stressed that they felt themselves bound by Supreme Court precedent. That precedent is old and inconsistent with modern incorporation approaches (as D.C. v. Heller itself acknowledged). And over two thirds of the states (including California) support certiorari on this question, and support incorporation. This suggests that there's still a very good chance that the Court will agree to hear the incorporation issue, notwithstanding the Ninth Circuit's decision to review the matter en banc.

At the same time, I should acknowledge that I had wrongly predicted that the case probably wouldn't be taken en banc. So please view my other guesses about what courts will do with suitable skepticism.

UPDATE: According to the Ninth Circuit, "En banc oral argument will take place during the week of September 21, 2009."

That's the advice from an e-mail quoted by Prof. Glenn Reynolds (InstaPundit):

As you can tell by my e-mail, I work for [name omitted] Law School. I am one of the faculty assistants; we sort the incoming mail for the professors. We get a LOT of mail from law schools looking to advance in the U.S. News Rankings -– and I’ve worked for both faculty hiring committee chairs and new professors, so I know that this is a lot of mail, everything from postcards and brochures to law school alumni magazines.

If I could say just one thing to all law schools who do this, and the deans who think it’s a good idea: STOP. It is a bad idea. It has no effect on your rankings, and in all likelihood it’s hurting them. The professors who receive this pile of extra junk mail call it “law porn.” Every professor that I know of who gets these instructs us assistants to put it all straight into the trash. They call it a waste of paper -– very expensive glossy paper. One told me that it’s actually a negative –- the more law porn a school sends him, the more he marks it down on the rankings -– and I’m not sure he was kidding. Most of it is academic conference brochures for schools on the other coast in subjects the professors receiving them do not teach in. 50+ page alumni magazines are probably the biggest wastes. But one law school went the extra mile and actually sent separate postcards announcing each of its new faculty hires for the last year, four or five in all, which particularly annoyed the professors here. If these schools want to improve their US News rankings, it’d probably be better to take the money spent on this law porn, which nobody will read, and use it for something else that does improve rankings – more library volumes, for instance. Or better professors.

I can't say that "the more law porn a school sends [me], the more [I] mark[] it down on the rankings"; I don't have the spare neurons to keep such a hit list. But indeed, all those glossy publications go straight into the recycling bin.

UPDATE: The post title was originally "Stop Law Porn," since these mailings are sometimes called "law porn." But I changed that, since there's nothing at all titillating about them.

The case is U.S. v. McCane, decided yesterday. The majority rejected the defendant's Second Amendment claim by simply saying that the Court "explicitly stated in Heller that 'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,'" and citing a recent Fifth Circuit opinion echoing this. But Judge Tymkovich wrote a concurring opinion, which said:

I join in Judge Murphy's cogent opinion, but write separately regarding certain issues raised by our Second Amendment holding ..., for two reasons....

My first point is that the felon dispossession dictum may lack the "longstanding" historical basis that Heller ascribes to it. Indeed, the scope of what Heller describes as "longstanding prohibitions on the possession of firearms by felons," is far from clear. To be sure, some sources would support the proposition. But more recent authorities have not found evidence of longstanding dispossession laws. On the contrary, a number have specifically argued such laws did not exist and have questioned the sources relied upon by the earlier authorities. Instead, they assert, the weight of historical evidence suggests felon dispossession laws are creatures of the twentieth — rather than the eighteenth — century. Together these authorities cast doubt on a categorical approach to felon dispossession laws.

This uncertain historical evidence is problematic in light of Heller's Second Amendment interpretation. Central to the Court's holding are a detailed textual analysis and a comprehensive review of the Second Amendment's meaning at the time of its adoption. After conducting this analysis and review, Heller concludes the right "to keep and bear arms" is a corollary to the individual right of self-defense. At the "core" of the Second Amendment right, the Court found, is self-defense in the home.

Knowing the meaning of the Second Amendment right and having identified its individual nature, the issue becomes what limits the government may place on the right.... For example, the broad scope of 18 U.S.C. § 922(g)(1) — which permanently disqualifies all felons from possessing firearms — would conflict with the "core" self-defense right embodied in the Second Amendment. Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons. The validity of § 922(g)(1) was not at issue in Heller, so presumably the lower courts would be left to sort out this restriction — as well as other restrictions — and to wrestle with any complexities in applying Heller. But the issue was not really left to the lower courts.... Heller's felon dispossession dictum is particularly noteworthy considering the scope of the § 922(g)(1) ban. The statute prohibits firearm possession by any person convicted of a felony, irrespective of the nature of the felony, the length of time elapsed since the felony conviction, and the treatment of the felony by the state in which the felon resides. Every individual right has exceptions, of course, and the application of § 922(g) to a violent felon such as Mr. McCane would appear appropriate under any Second Amendment reading. After all, felons lose out on fundamental rights such as voting and serving on juries, and face discrimination that need only survive rational basis review. The question may be less clear, however, where the underlying felony is non-violent, such as financial fraud, perjury, or misleading federal investigators. But § 922(g)(1) encompasses these (and other) non-violent felons as well, permanently restricting their Second Amendment right to self-defense.

This brings me to my second point. The Court's summary treatment of felon dispossession in dictum forecloses the possibility of a more sophisticated interpretation of § 922(g)(1)'s scope. Applying Heller's individual right holding to various regulations would be complicated, and it is of course possible (if not probable) that different courts would articulate different standards. Already a number of commentators have considered and proposed approaches to the existing gun laws and the proper level of constitutional scrutiny. But the existence of on-point dicta regarding various regulations short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts. In this case, for example, we need not address the standard of review applicable to gun dispossession laws — strict scrutiny, intermediate, rational basis, or something else — or the examination of the governmental interests in light of the standard of review.

Rather than seriously wrestling with how to apply this new Second Amendment rule, therefore, courts will continue to simply reference the applicable Heller dictum and move on. And in light of the Supreme Court's clear direction, this is perhaps how it should be. After all, "our job as a federal appellate court is to follow the Supreme Court's directions, not pick and choose among them as if ordering from a menu." I nevertheless wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.

Note also that Judge Tymkovich's view is especially important in light of U.S. v. Engstrum, where a federal district court in Utah held that a defendant who is prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor has a Second Amendment right to present an affirmative defense "that he posed no prospective risk of violence." (I take it this must mean no prospective risk of violence beyond that posed by the average person.) The jury, under the trial court's approach, 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.

The government has filed a mandamus petition, asking the Tenth Circuit to review this decision; Judge Tymkovich might be called upon to consider this petition, either if it comes to him as a panel member, or if a panel decision in the case leads to a call for en banc review.

Thanks to How Appealing for the pointer.

Radley Balko (The Agitator) writes:

A Virginia woman has been arrested for blogging about the members of a local drug task force. The charge is harassment of a police officer. She apparently posted on the blog one officer’s home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home....

Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it’s a tougher call when the officers in question work undercover. Naming them, posting their photos, posting their addresses, are all pretty clearly efforts to intimidate them, and it isn’t difficult to see how doing so not only makes it more difficult for them to do their jobs, but may well endanger their lives....

This is indeed a tough issue, and a special case of another tough issue, which I discussed at some length in my Crime-Facilitating Speech article: When may speech be restricted because it provides others with information that may help them commit crimes? Here, the information may help people kill police officers, or at least conceal their crimes from police officers (once the undercover officers' covers are blown). But similar crimes could also be caused by a TV station's running a story about undercover police officers, or a newspaper's publishing the name of a crime witness, or a civil rights boycott organizer's publishing the names of people who aren't complying with boycotts, or a neighborhood watch group's publishing the name of a sex offender who has recently moved into the neighborhood, or IndyMedia's publishing the names and addresses of Republican delegates, and so on. And the broader issue arises even with less personalized data -- what if a Web page, a research paper, a novel, or a chemistry textbook provides information that can help people commit crimes in general, and not just information about particular prospective crime targets? I give more examples, and citations, in the article.

One thing I stress in the article is that much (though not all) such crime-facilitating speech does have value to law-abiding readers as well. Knowing the identity of an undercover police officer can help noncriminals know which of their acquaintances aren't what they seem, and can help criminal defense lawyers figure out how to better defend their clients. Even knowing a person's home address could be useful if you want to organize picketing of their homes. Such residential picketing could be restricted by city ordinance, but in some cities it isn't; and even if focused residential picketing is banned by a city ordinance, parading through the targets; neighborhood in order to express your message of condemnation to the targets' neighbors is constitutionally protected. See Madsen v. Women’s Health Ctr., 512 U.S. 753, 775 (1994); Frisby v. Schultz, 487 U.S. 474, 480-81 (1988).

One can certainly argue that the speech is so dangerous when revealed to criminals that it should be restricted despite its potential value to law-abiding readers. But I don't think one can assert, as I've heard some people assert, that such speech has no value to the law-abiding.

Thanks to Joe Olson for the pointer.

The question about whether Congress can single out abortion for special taxation reminds me of this item I wrote about taxes on guns, in my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda; the analysis for taxes on abortion should be pretty similar. (Note, incidentally, that the gun tax question would arise as to state taxes under the 40+ state constitutional individual rights to bear arms in self-defense, quite apart from the various Second Amendment debates.)

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

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

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

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

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

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

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

Law Librarian Blog reports: "Horizon Group Management, of Chicago, who filed a libel lawsuit against a former tenant who tweeted 'Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s okay.'" The blog post has a pointer to the complaint, and a news story.

Libel law generally speaking applies equally to newspapers, blog posts, Twitter, and pretty much any other written medium. And the important medium distinction — that under 47 U.S.C. § 230, online services aren't liable for things posted by their users, while offline institutions such as newspapers and even bookstores potentially are, especially if they are notified that the material is libelous — doesn't apply here, since the lawsuit is against the author, not against Twitter. Still, this struck me as worth noting, since it's one of the first Twitter libel lawsuits I've heard of. Many thanks to Vicki Steiner for the pointer.

UPDATE: I should note that, as this Chicago Breaking News post points out,

In March a Texas-based fashion designer sued Courtney Love, the wife of the late Nirvana frontman Kurt Cobain, claiming Love defamed her on Twitter.

The suit alleged Love called Dawn Simorangkir a "nasty lying hosebag thief," said she was a drug addict and a prostitute and accused her of stealing thousands of dollars.

Also, as the Chicago Breaking News post points out -- and as followers of cyberspace libel law (and even libel law more generally) have long known -- such lawsuits tend to be pretty bad for the plaintiffs even if the plaintiffs are in the right, since they vastly increase the audience for the original libel.

when the employee is more than 5 years older than the student. That's HB 1385, which just went into effect. (Arkansas and in Louisiana have similar laws.)

As I argued before, this strikes me as quite wrong. It might be unprofessional conduct that would justify firing the employee, but not sending the teacher to prison.

The "abuse of a position of power" rationale doesn't work here, I think; a 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. And the law applies to even less powerful employees as well.

Nor does the psychotherapist analogy work; the teacher-student relationship strikes me as quite different from the psychotherapist-patient relationship: It involves far less likelihood of emotional fragility on the alleged "victim"'s part, and a professional relationship that is far less likely to involve revelation of deep secrets and the seeking of important life advice. Criminal punishment, and especially felony punishment, of sexual behavior should be reserved for genuine force, fraud, imposition on children, or situations where there seems to be a real risk of extraordinary psychological or physical harm, or harm to social institutions — not to consensual sex between adults, even when one adult is a school employee and the other is a student.

Thanks to Fred Ray for the pointer.

UPDATE: I originally said that psychotherapist-patient sex doesn't, to my knowledge, lead to felony criminal punishment (as opposed to professional patients). But Kent Scheidegger pointed out that at least in California, it might: California law treats such sex as a misdemeanor, or a felony if it's committed with two or more "victims." I've therefore revised the post to focus on the difference between the teacher-student relationship and the psychotherapist-patient relationship. (I should say that the California law also criminalizes sex between physicians and patients, including when the patient is no longer a patient but "the [professional] relationship was terminated primarily for the purpose of" having a sexual relationship. I would likewise oppose criminal punishment in that context as well, and quite likely even professional discipline, at least unless something beyond a physician-patient relationship is present.)

that David Bernstein's "Why Marry?" post (which points to Megan McArdle's question) is right next to my "Alienation of Affections -- Still Alive" post. I would not suggest that even North Carolinians should choose marriage simply because it might give them a cause of action against their spouses' potential future lovers (or because the availability of an alienation of affections lawsuit would deter such potential future lovers).

Mark Tapscott (Washington Examiner) writes:

It's ... long been the rule among prudent politicians with national aspirations to say nothing unkind about anybody's religious faith. But the silence that has greeted Vice President Joe Biden's use of "Jesus Christ" as an expletive in an on-the-record interview with The Wall Street Journal, suggests that such prudence has been tossed aside.

Biden isn't the first nor will he be the last politician to abuse the name of the man revered for two millennia by Christians of every denomination as the Savior, the God-Man who created and sustains the universe, and who at His Second Coming will someday return to Earth to judge all men. Jesus Christ is, in short, a heavy dude, if He is indeed the dude He claimed to be.

I have no idea what the vice president believes about Jesus. What I do know is that he apparently thought nothing of taking the name described in Holy Scripture "as the only name given under Heaven by which men are saved" and used it the same way most people routinely use the words "damn," "hell," and others unfit to print in a family newspaper.

Having myself uttered such words on too many occasions, I can hardly fault Biden if this particular incident was simply an unintentional slip of the tongue. One would assume that if such was the case, Biden would have by now offered an apology.

But there is no indication on the public record that he has since recognized the offensiveness of what he said and apologized or otherwise sought to make amends. Queries to Biden's spokesmen went unanswered yesterday.

So the question must be asked: Did Biden intend to offend millions of his countrymen who worship Jesus, one of whom happens to be his boss, or did he just not care if they were offended?

Either way, had Biden used the name Mohammed in this manner, Muslims would be crying foul. Quite possibly rioting in the streets, to boot. And if the vice president had used "gay" or "Black" as swear words, folks would be rightfully angry about that, too.

Hate speech is hate speech, whether it is aimed at Christians, Muslims, Gays, or African-Americans. Whether or not it should prosecuted or, as Thomas Jefferson argued, left undisturbed as a monument to tolerance and the strength of rational argument is a different issue. Here, it is sufficient to note that hate speech is speech meant to demean, ridicule, and discredit all who are associated with its target.

So where is the outrage about Biden's hate speech against Christians? We've not heard a peep of protest from the Southern Baptist Convention. Nothing from the U.S. Conference of Catholic Bishops. Nothing from the Presbyterian Church U.S.A. Nothing from the United Methodist Church.

And neither have we heard from Biden's boss, whose spokesman had other things to do yesterday than discuss another veep flap....

Biden's uncorrected cursing is indicative of the slow strangling by the unrelenting forces of political correctness of the religious tolerance that is Christianity's greatest gift to America.

We've reached a point in which the nation's second highest official can without fear insult and degrade the name revered by millions of Americans, but woe unto him who says a word even remotely critical of the PC flavors of the day.

It may well be that actual insults of Christians or Christianity are treated less seriously by some than actual insults of Muslims or Islam, or of other groups. And I agree that the term "hate speech" has been much stretched by some people.

But it seems to me that the typical use of "Jesus Christ" as an expletive — the Biden quote was, "I can see Putin sitting in Moscow saying, 'Jesus Christ, Iran gets the nuclear weapon, who goes first?' Moscow, not Washington." — is not "hate speech" under any sensible definition of "hate speech." It is generally not intended to convey hatred of Christianity, or even hostility to Christianity, nor "to demean, ridicule, and discredit all who are associated with [Christianity]." Nor is it generally reasonably understood that way.

To be sure, it is seen as offensive by some Christians. My sense is that most Christians, including devout ones, view it as at most mildly offensive — a sign of lack of sufficient respect for Christianity and for one of the Commandments. But I doubt that most Christians see it as even deeply offensive, much less a sign of an intention to express hostility to Christianity.

And this, I think, is pretty clearly visible from normal practices among Christians in a mostly Christian country. "Jesus Christ!," "Jesus!," and the like, are in my experience pretty common exclamations. This both reflects their being seen as being at most only slightly offensive, and further reinforces that: A typical Christian, I suspect, would have heard the words used often this way by other Christians (even if not the most devout ones), and would therefore not associate the words with a likely message of hostility to Christianity. He may disapprove of the words, but he wouldn't interpret them as deliberate insults, or as "hate speech" "aimed at Christians."

In fact, Tapscott himself acknowledges that he's used Jesus Christ as an exclamation himself, and not just once or twice. Why would he have done that if the phrase were "meant to demean, ridicule, and discredit all who are associated with its target" (presumably all Christians)? Why would he have done that if it wasn't just at most mildly disrespectful, but "insult[ing] and degrad[ing] the name revered by millions of Americans"? I take it that he doesn't regularly mean to demean, ridicule, and discredit Christians, or insult and degrade Jesus's name. The fact that he — and others — use "Jesus Christ" as an expletive suggests that it is not indeed inherently seen as insulting, degrading, demeaning, ridiculing, or discrediting of Christ or of Christians. (Naturally, it could be used in a context where other factors suggest that the speaker is trying to insult Christians; but no such contextual cues are evident in Biden's quote.)

Nor is it particularly telling that Biden didn't apologize. Presumably he doesn't see there much reason to apologize here, or he thinks that an apology would become more of a story than the original quote itself. One might argue that this bespeaks insensitivity to the views of those who are offended by the taking of Jesus's name in vain, but even if that's so, it still doesn't suggest any attempt on Biden's part to insult, degrade, deman, ridicule, or discredit.

Now I think that the lack of Christian condemnation of Biden's use of "Jesus Christ" is a sign of maturity on the part of most Christians. Even if you think that the term is mildly offensive, there's little reason to publicly condemn such mildly offensive behavior, or even to call for a public apology. The violation of the Commandments would not itself be much of a basis for public condemnation; most Christians rightly don't publicly excoriate politicians for worshipping idols, or breaking the Sabbath, and see it as chiefly a matter between the politician and God. And the offensiveness of the words to the hearer, I suspect, is quite mild, for the reasons I mentioned above — there was likely no deliberate desire to insult, and thus likely no reasonable perception of insult, so at most there is a slight sort of disrespect of what others see as holy.

But even if there is a basis for some mild condemnation here, accusing Biden of "hate speech" — especially under the "speech meant to demean, ridicule, and discredit all who are associated with its target" definition — strikes me as simply inaccurate, given the way Biden's use of "Jesus Christ" was likely to have been intended and reasonably understood.

I should note that I've corresponded briefly with Mark Tapscott about this, and confirmed that his argument was indeed serious, rather than an attempt to perform a reductio ad absurdum of various "hate speech" claims. (I thank him for his gracious responses to my questions, which led me to refine my argument in some measure.)

UPDATE: Mark Tapscott has also allowed me to post the following response that I got to an earlier version of the post that I sent him. (My paragraph about Biden's not apologizing is in large measure a reaction to the first paragraph I quote below.)

[I]t depends upon the sense in which Biden intended it, assuming that he had any intent at all. As I pointed out in the column, if it was not an intentional use, then there is no reason for Biden not to offer an apology. Had he done so on his own or through his spokesman, the matter would have been ended. He hasn't and two of his spokesmen declined opportunities to do so on his behalf. The question then becomes whether Biden's use constitutes "hate speech" or mere mendacity. Either way, it conveys at a minimum a disrespect that is inappropriate coming from a public official speaking in an official capacity. Others are certainly free to disagree with my conclusion on that point.

Whether the silence of various Christian bodies bespeaks the maturity you describe or something else, only they can definitively say. My point is that it comes in a public policy context in which for many years public expressions of a Christian nature (prayers at public high school events, Christmas displays, etc.) have been actively discouraged due to what I suspect we both would view as politically correct doctrines, while little or no official discouragement meets expressions hostile to Christianity and its values. If Biden intends his words to be taken in some context other than that, it is his public responsibility to do so; otherwise, he should not be surprised that some significant portion of the community he represents concludes that he meant to be offensive to them.

As for my own confession of failure, there are two key differences between Biden and me in this matter. First, he did it in an official capacity whereas in my case, our fellow citizens have never had to decide whether to entrust me with any official duties (and my expectation is that they, wisely, never will). Second, as a believer, I regret using such language on every occasion, have asked for forgiveness (i.e. apologized), and recognized it as evidence of something Paul described in Romans 7:21-25, the continual presence of the Original Sin that afflicts all of us, according to orthodox Christian belief. Fortunately, God is far from finished with me, as Paul makes clear in Romans 8:1.

Alienation of affections basically consists of a defendant’s (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff’s spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child’s best interest such behavior might not be “wrongful.” In practice, it has generally been applied to people who supposedly seduce away one spouse from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant’s attentions). The related tort of criminal conversation basically consists of a defendant’s having adulterous sex with plaintiff’s spouse, though of course such conduct may also often lead to an alienation of affections claim.

Many people assume that these two torts are dead. But some states -- Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah -- still recognize them (or at least recognize the alienation of affections). And it turns out that they still account for a significant amount of litigation, not much less than some well-established torts whose viability no-one doubts.

It seems that the main jurisdiction in which there's a good deal of alienation of affections litigation is North Carolina. My search through the NC-CS and NC-TRIALORDERS databases in Westlaw uncovered 38 cases from 2000 to mid-2009, and it seems likely there were more (since those databases don’t offer a complete list even of decided cases, and entirely exclude ones that were filed but were settled before any decision). By way of comparison, the well-established tort of slander (oral defamation) seems to be litigated only slightly more often than alienation of affections in North Carolina. The well-established right of publicity seems to be litigated in North Carolina much less often than alienation of affections (2 cases since 2000 in the NC-CS and NC-TRIALORDERS databases, as opposed to 38 for the alienation of affections).

Even on a national basis, a search for sy(“right of publicity” ((misappropriat! appropriat!) +5 (name likeness image))) & date(> 1/1/2000) through the ALLCASES database yielded 150 cases, while sy((alienat! +3 affection) "criminal conversation") & date(> 1/1/2000) yielded 66, of which 50 were in jurisdictions that still recognize one or both of those torts. Now naturally these results may not be representative of all cases litigated through trial, or of all cases filed in court. (For instance, there might be reasons why people might be more or less likely to settle right of publicity cases than they are to settle alienation of affections cases.) Also, my right of publicity query might have excluded some cases in which the matter is discussed solely as "invasion of privacy" (from which the right of publicity derived).

Still, the comparison suggests that alienation of affections claims are not vastly less common than right of publicity claims, which no-one treats as moribund. In many states, it has indeed been abolished, so it's not of practical importance to lawyers who litigate solely under the law of those states (though even California lawyers might come across it if, for instance, their clients acted tortiously in North Carolina, or perhaps even in California with a visiting North Carolinian). But I think it should still be seen as being of scholarly and pedagogical significance to tort scholars and teachers, untainted by a sense that it is somehow entirely moribund.

Andrew Tauber and Craig Canetti of Mayer Brown LLP and I worked on this amicus brief on behalf of the National Coalition Against Censorship and the College Art Association, and I thought I'd pass it along in case some of our readers are interested. Here's an excerpt from the Summary of Argument:

The government contends that the criminalization of “depiction[s] of animal cruelty” effected by 18 U.S.C. § 48 is constitutional because it outlaws only a narrow category of expressive material emanating from the “netherworld of animal cruelty” that is forbidden in this country. But in fact, as we will show through practical examples throughout this brief, Section 48 criminalizes, and thus chills, numerous forms of protected expression in the service of a government interest -- the prevention of animal cruelty -- that, by the government’s own admission, already is comprehensively served by State and Federal statutes that directly target the objectionable conduct.

I. By its plain terms and in its practical application, Section 48 extends far beyond “depictions of illegal acts of extreme cruelty.”

A. In fact, Section 48 criminalizes any depiction (intended to be placed in interstate commerce for commercial gain) that shows an animal being wounded or killed by a person acting in violation of any Federal or State law, including laws intended to conserve natural resources, ensure public safety, or regulate the use of dangerous weapons. The statute thus criminalizes depictions of people engaged in acts ranging from hunting with weapons (such as crossbows) that are allowed in some States but not in others, to hunting out of season, to bullfighting.

B. The government’s confidence that depictions having “serious value” will not be subject to prosecution under Section 48 is misplaced. The history of conceptual and avant-garde art, for example, is replete with instances in which the public scorned work later deemed to be groundbreaking and influential.

C. The inadequacy of the protection purportedly afforded by Section 48’s “serious value” exception is compounded by the fact that the statute does not require that the value of a depiction of animal cruelty be assessed in the context of the entire work in which it appears. Viewed in isolation and without context, a depiction of violence to an animal might easily be judged to have no “serious value,” although the larger work within which it is embedded possesses such value.

As written, the statute poses a particular threat to participants in the stock photography industry, who do not create, sell, or possess their images for any “serious religious, political, scientific, educational, journalistic, historical, or artistic” purpose (18 U.S.C. § 48(b)), but rather for an exclusively commercial reason, namely, for sale to third-parties.

Stock images depicting violence to animals -- for example, images of bullfighting, cockfighting, and dogfighting -- thus fall squarely within the ambit of Section 48 yet enjoy no protection under the “serious value” exception.

II. Section 48 does not define the statutory term “serious value.” As a result, criminal liability under Section 48 depends on prosecutors’ and jurors’ subjective, ad hoc assessments of whether a depiction of animal cruelty has such value. That unavoidable subjectivity invites not only inconsistent application of the law, but viewpoint discrimination as well.

III. Section 48 chills protected expression. Criminal liability under Section 48 encompasses anyone who, for commercial gain, “knowingly creates, sells, or possesses” a work containing a depiction of animal cruelty. 18 U.S.C. § 48(a). The reach of the statute thus extends to the many layers of participants involved in the production, distribution, and display of artistic and other works, such as motion pictures, magazines, photographs and video art. If just one necessary but risk-averse participant in the process decides, out of an abundance of caution, not to join in the production, distribution, or display of a work that includes statutorily defined depictions of animal cruelty for fear that it might subsequently be found by a prosecutor or jury to lack “serious value,” the dissemination of protected expression could be deterred. That danger flows directly from the absence of any criteria in Section 48 to guide the application of the “serious value” exception, which makes it impossible for any of these participants to determine prospectively and with any reasonable certainty whether a particular work will be found by a prosecutor or jury to violate Section 48.

You might notice that parts of the brief are based on responses to this bleg of mine. My apologies for not giving credit to the commenters -- had this been a law review article rather than a brief, I would have certainly given credit where credit is due.

I should note that I'm a part-part-part-time Academic Affiliate for the Mayer Brown firm, and worked on this case in that capacity.

Some responses to my pepper spray post suggested a gun instead of pepper spray. My friends live in jurisdictions (such as Los Angeles) in which a concealed carry license is very hard to get. I also suspect that some of them would be reluctant to carry a gun even if they could get a license (whether that's a sound view or not, I leave to them).

Still, most Americans live in places where concealed carry licenses are fairly easily available to law-abiding adults, at least those age 21 and above; and presumably because of that, reader George Phipps asked,

Since several responses have suggested a pistol as a more efficacious alternative, would EV consider a new post, with more or less the same requirements, that would ask for comments on a pistol for his friends, provided of course that they would consider a firearm for self-defense?

I am happy to accept the suggestion, and am therefore putting up this post.

In keeping with my original query, I'd like to ask commenters to specially consider what might be preferred by women, or to be more precise (1) by people who might be on the smaller side, or (2) by people who might want to carry in a purse rather than in a holster. On the other hand, if you think you have a good unisex answer, or have advice only for men and not for women, please feel free to post it -- just note whom your advice is focused on.

A reader writes:

Periodically a crop of paralegals departs the [name of prestigious government agency omitted]. We give them a parting gift [with funds contributed by the lawyers in the office]. Since almost all go to law school, it has become a tradition to give them inscribed copies of your Academic Legal Writing.

The reader also asked me for personally signed bookplates for the books, which I was of course delighted to send.

UPDATE: Reposted, because comments were broken on the original post. (Honest!)

The Rhode Island ACLU, which is representing the woman, reports:

In a case raising important issues of freedom of speech, the Rhode Island ACLU has intervened in Family Court on behalf of a Barrington woman who has been barred by the Court from posting on the Internet any details about a pending Family Court custody proceeding in which her brother is involved. In a motion filed with the Court, RI ACLU volunteer attorney H. Jefferson Melish calls the ban a violation of Michelle Langlois’ First Amendment rights. The motion also argues that the Family Court had no jurisdiction to issue the order because the proceeding was filed in Kent County, even though neither party lives in that county.

Ms. Langlois’ brother is involved in a child custody case with his ex-wife. After Ms. Langlois posted information about the case on her Facebook page, the ex-wife filed a “domestic abuse” petition against her, claiming that Ms. Langlois’ postings constituted “harassment.” The ex-wife’s petition sought a court order barring Ms. Langlois from posting any information about the case on the Internet. In late June, Family Court Judge Michael Forte issued such an order. When Langlois contacted the ACLU about the matter, the ACLU agreed to provide her representation to challenge the constitutionality of the Internet restriction.

RI ACLU executive director Steven Brown said today: “The court order issued in this case is a significant intrusion on the First Amendment. Every person has the right to comment on public court proceedings, and the court order that prevents Ms. Langlois from doing so on the Internet is precisely the sort of prior restraint on speech that the First Amendment was designed to protect against. Ms. Langlois should no more be barred from speaking out about this case than should a reporter seeking to post information about it on a newspaper web site. We are hopeful that this troubling order will be dismissed.” Michelle Langlois added: “I do not believe the truth was coming out in Family Court. I was simply using the internet to publicize my brother’s plight.”

I've seen the order, which indeed says that Michelle Langlois "is restrained and enjoined from posting details about the children and the pending Family Court proceedings on the Internet." The order strikes me as pretty clearly unconstitutional; I hope the Rhode Island ACLU prevails on this. An order that bars certain constitutionally unprotected publications might be constitutional (for instance, information that a party has gotten using coercive discovery, or some other category of communication that may be constitutionally restricted). But I see no justification for categorically prohibiting the defendant from posting (1) any comments about a government proceeding, to which she is not a party — including, for instance, criticism of the judge's behavior — and (2) any information about her young relatives.

Some women friends of mine are interested in getting pepper spray. If any of you have researched which products or product designs are most effective and most convenient, or have had experiences that lead you to favor one or another, I'd love to see your recommendations in the comments. I'm looking for a device that's the best mix of effectiveness, reliability, ease of use, and ease of carrying. Cost matters very little. Thanks!

I blogged late last year about a Georgia woman who "was jailed ... after a judge found her in contempt of court for refusing to remove her hijab, the head covering worn by Muslim women." I'm pleased to report that the Georgia courts just announced a headgear policy that expressly allows religious headgear:

The Georgia courts have adopted a new policy on head coverings that will take effect in every court in Georgia. At a meeting Wednesday of the Judicial Council of Georgia –- the policy-making body of Georgia’s courts -– judges from around the state voted unanimously to endorse the measure permitting headgear in court that is worn for religious or medical reasons. Other types of head coverings will continue to be prohibited in courtrooms.

The policy is designed to balance a court’s legitimate security concerns with a person’s right to practice his or her faith in a public place. Under the new policy, if a security officer wanted to conduct a search, the person would have the option of having the inspection performed in a private area by an officer of the same gender.

The measure stems from the December 2008 arrest of Lisa Valentine after she refused to remove her hijab, the head scarf worn by Muslim women. She said to do so would violate her faith. But Judge Keith Rollins of the Douglasville Municipal Court found her in contempt of court and ordered her to serve 10 days in jail. The incident prompted a formal complaint from the U.S. Department of Justice. The Anti-Defamation League, Council on American-Islamic Relations and American Civil Liberties Union also lodged complaints. On June 12th, Ms. Valentine testified before the Supreme Court of Georgia Committee on Access and Fairness in the Courts.

“If this had been a nun, no one would have required her to remove her habit,” said Chief Justice Carol Hunstein, who chairs the Judicial Council. “I think this is a good rule, and I think it’s clear.”

Specifically, the adopted policy states: “Head coverings are prohibited from the courtroom except in cases where the covering is worn for medical or religious reasons. To the extent security requires a search of a person wearing a head covering for medical or religious reasons, the individual has the option of having the inspection performed by a same-sex officer in a private area. The individual is allowed to put his or her own head covering back on after the inspection is complete.”

As I wrote last December, this not a new or Muslim-specific issue (just as many of the religious accommodation questions involving Muslims have arisen in the past with non-Muslims). Trial judges have, for instance, applied no-hat rules to demand that parties or witnesses remove yarmulkes, see, e.g., Close-It Enterprises, Inc. v. Weinberger, 64 A.D.2d 686 (N.Y. App. Div. 1978), or their Catholic or Episcopalian priestly garb, People v. Drucker, 418 N.Y.S.2d 744 (N.Y. Crim. Ct. 1979); O'Reilly v. New York Times Co., 692 F.2d 863 (2d Cir. 1982); Ryslik v. Krass, 652 A.2d 767 (N.J. Super. App. Div. 1995). The priest cases didn't involve headgear, but one can easily imagine similar issues arising as to nuns' habits. And nearly all the appellate courts that have considered the matter have expressly held that such rules should not be so applied to people who wear headgear or religious garb for religious reasons. For instance, a Seventh Circuit opinion by noted conservative judge Frank Easterbrook put it well:

The Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules, and therefore does not entitle anyone to wear religious headgear in places where rules of general application require all heads to be bare or to be covered in uniform ways (for example, by military caps or helmets). Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement.

Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority's. The best way for the judiciary to receive the public's respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating.

It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.

Whatever might be the symbolism of wearing a normal hat indoors, surely there's no disrespect that's usually intended, or likely to be reasonably perceived, when someone is wearing religiously mandated garb. A judge need not feel insulted by an Orthodox Jew's wearing a yarmulke, or a Muslim woman's wearing a hijab.

So there's no important government interest really being served here. But the burden on the religious objectors is very great: A no-religious-headgear rule in court means that if they are to comply with their felt religious obligations, they can't participate in one of the most important functions of American civic life. In some cases, the religious objectors might be accompanying relatives to court, itself a pretty important function. In other cases, they might be parties, witnesses, or even criminal defendants, whose presence may be legally mandated for some purposes. Even if they are not legally forced to be in the courtroom, they may still have to forgo adequately litigating their cases, or defending their liberty, as the price of complying with their religious obligations.

This is precisely the sort of situation where religious accommodation makes perfect sense — just as the constitutionally specified accommodation of witnesses and officeholders who refuse to swear, and instead must affirm, makes perfect sense. As I've written before, requests from minority religious groups for accommodation are a longstanding and respectable part of the American tradition of religious freedom. Where religious pluralism goes, multiculturalism is indeed a traditional American value. To be sure, not all religious beliefs have been accommodated, and not all should be accommodated. But when accommodation is cheap — where the only matter at stake is the judge's sense of decorum, which shouldn't even be seen as undermined by the wearing of religious headgear, as opposed to a baseball cap — and the religious objector's interests in participating in a government function are important, the religious objectors should indeed be accommodated.

To be sure, under Employment Division v. Smith, which I generally approve of, such accommodation probably wouldn't be a constitutional obligation (at least unless some other constitutional right, such as a criminal defendant's right to participate in her trial, or to put on witnesses, is involved). If a judge evenhandedly cites for contempt Orthodox Jews, Catholic nuns, and Muslim hijab-wearing women who refuse to remove their headgear, his actions might not violate the Constitution. But state court systems should aspire to something more than just constitutionally minimal religious accommodation; the Georgia courts' decision thus strikes me as quite right.

Thanks to Religion Clause for the pointer.

UPDATE: A commenter asks whether the policy would also apply to face coverings (such as veils) or just to hats and scarves that leave the face visible. I think it wouldn't.

Literally a veil is indeed part of a "head covering"; in fact, it covers more of the head than a yarmulke or a nun's habit. But I suspect the courts were using "head covering" in the more common sense of something that covers the top of the head (and perhaps the sides and back), rather than the face. Among other things, face coverings raise various concerns about judging a witness's demeanor (and ascertaining a person's identity) that the press release didn't discuss, and that the judges likely didn't focus on in making the rule. And of course the case that triggered the adoption of the policy, discussed in the press release, involved a hair covering, not a face covering.

These factors might matter less with a statute or a constitutional provision, which might well be literally interpreted according to its terms. But I expect that Georgia judges will interpret this policy (itself made by Georgia judges) to focus on hair coverings, not on face coverings.