The Volokh Conspiracy

Liberty Counsel points to these these excerpts of an interview with Justice Ginsburg on Egyptian television, and argues:

In a recent interview with Egyptian television, Supreme Court Justice Ruth Bader Ginsburg insulted the U.S. Constitution and advised Egypt to look somewhere else when drafting its own constitution. Justice Ginsburg was asked to give insight on this crucial topic for the post-Mubarak government but focused more on liberal human rights, rather than traditional American freedom.

When describing the nature of a constitution, Justice Ginsburg did appropriately recognize the importance of a constitution and the duty of the citizens to defend it. Justice Ginsburg did not, unfortunately, take her own advice. She undermined insight of its crafters and stated, “I would not look to the US Constitution if I were drafting a Constitution in the year 2012.” Instead, Justice Ginsburg referred to the constitutions of more supposedly progressive countries, like South Africa, Canada, and the European Convention on Human Rights. She stated, “I can’t speak about what the Egyptian experience should be, because I’m operating under a rather old constitution.” This directly refutes the U.S. Constitution’s relevance today.

For a United States Supreme Court Justice, entrusted with the duty to interpret the Constitution, this type of statement is unacceptable. Justice Ginsburg failed to respect the authority of the document that it is her duty to protect. When given the opportunity to promote American liberty abroad, Justice Ginsburg did just the opposite and pointed Egypt in the direction of progressivism and the liberal agenda.

Mathew Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law, said, “For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg’s comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”

This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today?

To be sure, our Constitution has the merit of having endured with only one really huge constitutional crisis — the Civil War — for a long time, and of having produced a very rich and free country; that’s good. But much of that, I suspect, comes not from the constitutional text, but from the constitutional traditions that have emerged since then, both in the courts and elsewhere; adopting the U.S. Constitution would not adopt those traditions.

And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions — for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own states’ constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesn’t tell us that it would work well for Egypt for the coming years.

Nor do I think that there’s something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it’s just sensible and sensibly (not excessively or falsely) modest.

And, returning to my first point, none of this tells us whether Justice Ginsburg is committed to following the U.S. Constitution in the U.S. Maybe you think she is so committed and maybe you think she isn’t, but you’d have to figure that out from other sources than from the advice she gives to a different country about whether to adopt the constitutional text in a completely different political and legal requirement.

I’m on the run now, so can’t analyze it in detail, but I thought I’d pass it along: Gonzalez v. City of West Milwaukee (7th Cir. Feb. 2, 2012). Thanks to John Tuffnell for the pointer.

An interesting opinion in United States v. Stone (E.D. Mich. Jan. 30, 2012); this isn’t my field, so I can’t opine on it with confidence, but the decision strikes me as likely right. Here’s an excerpt:

On November 30, 2011, the Government notified Defendants that it intended to call an “Academic Expert,” Professor Michael Barkun, to testify concerning his research into conspiracy belief and theories. In response to Defendants’ motion to preclude Dr. Barkun’s testimony, the Government admitted that a hearing pursuant to Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ( “Daubert hearing”) was necessary to test the admissibility of Professor Barkun’s testimony.

Before the hearing, the Government provided Defendants with a longer, more concrete Rule 16(a)(1)(G) summary of Dr. Barkun’s proposed testimony, containing notice that Dr. Barkun will testify about conspiracy subcultures, beliefs and theories; and theories such as “stigmatized knowledge,” “New World Order” and the “Illuminati.” The Government also intends to ask Dr. Barkun questions to elicit conspiracy theorists’ beliefs about the history behind Federal Emergency Management Agency (“FEMA”) detention centers and the role of the internet in spreading conspiracy belief literature and thought. Dr. Barkun also plans to testify about significant events in conspiracy belief and how conspiracy theorists view these events. The events listed in the Rule 16 summary include: Ruby Ridge, Waco, the Oklahoma City bombing and the 9/11 attacks.

The Government states:

As he testifies about each of the concepts above, Professor Barkun will also be asked whether he has reviewed some of the materials seized during the search warrants executed at the defendants’ residences and some of the recorded conversations and whether this material is consistent with the conspiracy beliefs about which he is testifying. The government found a great deal of material in numerous locations which espouse these beliefs, shedding light upon the defendants’ intent and motive, as well as linking the co-conspirators to the goal of the charged conspiracy in Count One.

… Dr. Barkun’s testimony will not assist the jury, as required by Rule 702…. At the Daubert hearing, the Government insisted it would use Dr. Barkun’s testimony as evidence of Defendants’ “intent and motive” to forcibly and violently oppose the Government under the Seditious Conspiracy count. However, the Government failed to connect the proposed expert testimony to the issues in dispute under that count.

For instance, Defendants asked the professor whether there is any literature on what people who read the conspiracy belief books, charts and other items seized from some of the Defendants’ homes, do with the information contained there, i.e, whether studies demonstrate whether these individuals lead normal lives or act out violently pursuant to their beliefs. Dr. Barkun replied that he is not aware of such studies. Similarly, when asked whether it was possible to predict what a conspiracy theorist will ultimately do with his or her beliefs, Dr. Barkin admitted it was impossible to predict.

Continue reading ‘District Court Judge in Hutaree Case Rejects Government’s Conspiracy Theory Expert’ »

Fair Housing Council v. Roommate.com (9th Cir. Feb. 2, 2011) holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

The opinion is by Chief Judge Kozinski, joined by Judge Reinhardt. Judge Ikuta concurs as to federal law, but concludes that state law does apply to roommates; she would therefore remand for further briefing in district court on the constitutional question. Thanks to How Appealing for the pointer.

UPDATE: Link fixed, sorry about that.

The Deseret News reports:

Former Naples Police Chief Steven C. Guibord is charged with criminal defamation, a class B misdemeanor, in Uintah County. Prosecutors allege that he used the name of the city’s current police chief [Mark Watkins] to post derogatory comments on the online memorial pages for the two fallen Border Patrol agents….

Guibord — posing as Watkins — posted comments on memorial pages for two Border Patrol agents that are offensive to law enforcement officers, according to state investigators….

Clark’s page on the Officer Down Memorial Page website included a comment attributed to Watkins that said, “I realize that the Border Patrol is just a security organization, but we, in the police services recognize your sacrifice.”

Rojas’ page contained a similar comment, also attributed to Watkins, that referred to the Border Patrol as a “security business.”

For those in the law enforcement community, being identified as a security guard is considered a serious insult….

The theory is that Guibord’s use of Watkins’ name — which essentially states to readers that Watkins posted the comments — is a knowing falsehood that injures Watkins’ reputation. One could argue that the falsehood isn’t defamatory, because a reasonable reader wouldn’t perceive the statements as that derogatory, and therefore wouldn’t have a dimmer view of Watkins. But given the audience, and the fact that Watkins is a police chief, I suspect that the attribution of the statements to Watkins would indeed injure Watkins’ reputation.

And if this is so, then the criminal libel prosecution would likely be permissible: Though Garrison v. Louisiana (1964) held that criminal libel laws must require a showing that the speech is a knowing or reckless falsehood, Utah Code § 76-9-404 — which says, “[a] person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule” — embodies such a requirement. (For more on this, see I.M.L. v. State (Utah. App. 2002), which struck down a different Utah criminal libel statute.) Though most states have repealed their criminal libel statutes, the remaining statutes, if sufficiently narrow (as Utah’s seems to be), are likely constitutional.

Thanks to Dan Laidman for the pointer.

So concludes the Oregon Attorney General, in Op. 2012-1 (Jan. 19, 2012):

The requirement in ORS 475.323(2) to return marijuana likely is preempted by provisions of the federal Controlled Substances Act that prohibit the distribution and possession of marijuana….

Based on the reasoning in Emerald Steel [a recent Oregon Supreme Court decision], the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution…

Question …: Assume an individual is arrested and has a lawful amount of medical marijuana under Oregon law in his or her possession; the individual is lodged at the county jail; and the jail staff inventories and stores the individual’s marijuana along with the individual’s other personal possessions for safekeeping. If a jail staff member returns the marijuana to the individual upon the individual’s release from custody, does the jail staff member or the individual, or both, violate federal law?

Short Answer: Based on the reasoning in Emerald Steel, the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution. The recipient of the marijuana would violate federal law by possessing marijuana and also may be subject to federal criminal prosecution.

Sounds right to me, given the continuing federal ban on marijuana possession and distribution, with no medical marijuana exception. A state may, by excluding possession for medical purposes from state marijuana laws, choose to ignore medical marijuana possession (and distribution, to the extent that is legal under state law). But it can’t affirmatively give medical marijuana to someone, even in the process of returning the property to its owner.

Note: If you want to condemn — or praise — the AG’s analysis, please read the opinion first. The AG’s job, after all, is to describe what the law is, given the existing precedents, not to revert to first principles about what the law ought to be.

Here’s another London School of Economics Students’ Union resolution:

Union believes …
3. Anti-Semitism includes but is not limited to:
* Denying, trivializing and misconstruing the Nazi Holocaust. This includes denying the fact, scope, method, or motivation for the genocide of 6 million Jews at the hands of the National Socialist regime. It also includes the accusation that Jews or the state of Israel have fabricated, cause or over-exaggerated the Holocaust.
* Calling for, aiding or justifying the killing or harming of Jews for the sake of their Jewish religion, ethnicity or identity.
* Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such. This includes accusations of Jewish control of the world, government, media, as well as blaming Jews for imagined and real atrocities.
* Questioning the loyalty of Jews to their nation of citizenship simply on the basis of their Jewish identity. This includes claims that Jews as a collective or a community subvert or mislead the general population, as well as the claim that Jews are more loyal to the state of Israel than their country of citizenship.
* Claiming that Jews do not have the same rights as any other ethnic group. This includes the right to free speech, free practice of religion, free use of native languages (i.e. Hebrew, Yiddish, Ladino, etc.) and self-determination.
* Equating Jews or maliciously equating Jewish Foundations of the state of Israel with the Nazi Regime. This includes, but is not limited to equating Zionism with Nazism and claiming that ‘History is repeating itself’ with regards to the Nazi Holocaust and the state of Israel. This also includes using Jewish symbols and religious imagery alongside Nazi symbols and imagery. This does not necessarily include analogies between historical events.
* Using Jewish symbols to antagonize, harass, and intimidate Jewish students.
4. Legitimate criticism of the Israeli government and its actions are not inherently anti-Semitic.

Union resolves …
2. To ensure all anti-Semitic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the school and, if appropriate or requested by the victim, the Metropolitan Police.

Now apparently LSE students are supposed to be “dealt with swiftly and effectively” for analogizing Israeli conduct to the Holocaust, or claiming that Israel shouldn’t exist (since I take it that this would be seen as denying Jews’ “self-determination”), “blaming Jews for imagined and real atrocities,” “using Jewish symbols to antagonize … Jewish students,” or claiming that Jews are generally more loyal to Israel than to their country of citizenship. As it happens, I think that such speech is generally bunk. But the point of Western universities, it seems to me, is to be places where bunk can be debunked — not “dealt with swiftly and effectively” through administrative sanctions (or, “if appropriate or requested by the victim,” by the police), including when it isn’t even said in university programs but “online” “by LSE students.”

So holds Galbreath v. City of Oklahoma City (W.D. Okla. Jan. 27, 2012), holding that the plaintiff “faces a credible threat of future prosecution” and thus has standing to seek an injunction against the ordinance’s application to cross-dressing. The plaintiff had been arrested for disorderly conduct before — apparently with little basis, other than being a pretty obvious cross-dresser — and the charge was eventually dropped.

I should note that I’m skeptical of the claim that either a man or woman is likely to be “doing [one's] morning exercises” when wearing shoes with a 2.5 inch heel, though that surely doesn’t mean that the plaintiff was indeed guilty of disorderly conduct.

That’s what the London School of Economics Students’ Union — as best I can tell, the British equivalent of a student government here in the U.S. — resolved, with Islamophobia defined to include “hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur’an as a manual of hatred.” Here’s the resolution:

Union believes
1. In the right to criticise religion,
2. In freedom of speech and thought,
3. It has a responsibility to protect its members from hate crime and hate speech,
4. Debate on religious matters should not be limited by what may be offensive to any particular religion, but the deliberate and persistent targeting of one religious group about any issue with the intent or effect of being Islamophobic (‘Islamophobia’ as defined below) will not be tolerated.
5. That Islamophobia is a form of anti-Islamic racism.

Union resolves
1. To define Islamophobia as “a form of racism expressed through the hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur’an as a manual of hatred”, …
4. To ensure that all Islamophobic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the School ….

Here’s the problem: What does it mean to “believe[]” “in freedom of speech,” if you can’t express your view that the Koran is a manual of hatred, or that Islam — or Catholicism or Scientology or atheism or any other belief system — should be hated or feared? How you can have a sensible “[d]ebate on religious matters” about the worth or dangerousness of these belief systems if the view that some of the systems are evil is “dealt with swiftly and effectively” by the School and its student government?

The Daily Mail (UK) reports:

Two British tourists were barred from entering America after joking on Twitter that they were going to ‘destroy America’ and ‘dig up Marilyn Monroe’.

Leigh Van Bryan, 26, was handcuffed and kept under armed guard in a cell with Mexican drug dealers for 12 hours after landing in Los Angeles with pal Emily Bunting.

The Department of Homeland Security flagged him as a potential threat when he posted an excited tweet to his pals about his forthcoming trip to Hollywood which read: ‘Free this week, for quick gossip/prep before I go and destroy America?’ …

Leigh was also quizzed about another tweet which quoted hit US comedy Family Guy which read: ’3 weeks today, we’re totally in LA p****** people off on Hollywood Blvd and diggin’ Marilyn Monroe up![']

A New York Times blog post suggests the story is indeed correct, and quotes a Customs and Border Protection response that seems to acknowledge at least some details.

If the facts described in these stories are correct, this strikes me as a pretty unsound decision on the government’s part. To be sure, the government has broad authority to exclude people from the country, even based on their speech — see Kleindienst v. Mandel (1972) — and the authority would be properly exercised for people who really do seem to be threats. But I don’t see the reported Twitter messages as being an adequate basis (again, if they were the extent of the basis) to justify the government’s decisions here. Likewise, while I realize that when someone is excluded from the country they have to be held somewhere until they can leave, locking them up with people who likely genuinely are serious criminals strikes me as improper treatment.

UPDATE: I erroneously faulted TSA for the actions here — the agency involved was Customs and Border Protection, which is also part of the Department of Homeland Security. My apologies for the error, and thanks to commenter Decius for the correction.

The New York Times reports:

[M]any in Tunisia, both pious and less so, were taken aback by the brief scene in which God was personified — speaking in Tunisian slang no less. A week later, a crowd of Salafis — the term used for the most conservative Islamists — attacked the house of Nabil Karoui, the station’s director, and he was soon charged with libeling religion and broadcasting information that could “harm public order or good morals.”

The trial, which Human Rights Watch called “a disturbing turn for the nascent Tunisian democracy,” was originally scheduled for Nov. 16, then postponed until January [and has since been postponed again, until April].

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

From today’s United States v. Strandlof (10th Cir. Jan. 27, 2012):

As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.

One judge dissents from the panel decision, reasoning:

The majority holds that such statements — at least when made knowingly and with an intent to deceive — are categorically beyond the protective universe of the First Amendment. In contrast, I believe that the First Amendment generally accords protection to such false statements of fact. Consequently, because it is a content-based restriction on speech, the Stolen Valor Act must satisfy strict scrutiny. This it cannot do.

The Supreme Court will have the last word on this, when it decides the same question this Term in United States v. Alvarez; but I suspect that the Tenth Circuit judges’ opinions in Strandlof, which are long and detailed, will be considered carefully by the Court.

From Montana Code § 13-35-218, titled “Coercion or Undue Influence of Voters,” first enacted by referendum in 1913 and still in effect:

A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person’s religious duty or the interest of any corporation, church, or other organization.

Today, this would be pretty clearly seen as an unconstitutional speech restriction, but apparently in 1913 it was seen as a good government measure. Similar laws were enacted in Nevada and Oregon around the same time.

That’s by Christopher Gore, Massachusetts Governor, speaking in 1809, and reminding us that there is nothing new under the sun:

Already, we have but too much reason to deplore the violence and animosity of party spirit. It has gone far to destroy social intercourse, and all the endearing charities of life, between ancient friends and neighbours, and to substitute political opinions for virtue, intelligence, and patriotism. Already the wise and good of all parties, entertain apprehensions, lest the interests of the people and the duties of government, might be forgotten in the solicitude for party power, and the hatred of political opponents.

A commenter on the thread about the 1901 case in which the court rejected (on statutory grounds) a prosecution for expelling someone from church based on how he voted writes:

It goes almost without saying that religious freedom was not at issue in this case because the First Amendment would not be incorporated against the states until Gitlow v. New York, 268 U.S. 652 (1925), a quarter of a century later.

Actually, that’s not so (even besides the detail of exactly when the Free Exercise Clause was incorporated against the states). Throughout American history, each state has had its own Constitution and, almost always, its own Bill of Rights; before incorporation, the chief protection against state government action was precisely those Bills of Rights. The 1776 North Carolina Constitution, for instance, provided that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their own conscience” and that “all persons shall be at liberty to exercise their own mode of worship: Provided, that nothing herein contained shall be construed to exempt preachers of treasonable or seditious discourses, from legal trial and punishment.”

As a result, courts before incorporation could and did consider whether state government action violated its state religious freedom provisions, state free speech provisions, and so on. So if the litigants could well have raised a religious freedom argument in this case; if they had, and if the court had concluded that statute did indeed purport to limit church expulsion decisions, the court would have had to consider the constitutional objection.

Whether the challengers of the statute would have succeeded under this counterfactual is a different question. But while nearly all free speech, free press, and religious freedom challenges were generally rejected by early courts, I suspect that this was largely because the restraints were usually well-established and endorsed by tradition, which counted a lot to early courts (and still counts a lot to courts today). A restraint on churches’ ability to break off relations with their members would have been so unusual that I think it might well have been held unconstitutional under the North Carolina Constitution. But of course the court avoid this by concluding that there was indeed no such highly unusual restraint.

I’m delighted to report that Prof. Brian Kalt will be guest-blogging this week about his new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies. From the book summary:

The United States Constitution’s provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. In this compelling and fascinating book, Brian Kalt envisions six such controversies, such as the criminal prosecution of a sitting president, a two-term president’s attempt to stay in power, the ousting of an allegedly disabled president, and more. None of these things has ever occurred, but in recent years many of them almost have.

Besides being individually dramatic, these controversies provide an opportunity to think about how constitutional procedures can best be designed, interpreted, and repaired. Also, because the events Kalt describes would all carry enormous political consequences, they shed light on the delicate and complicated balance between law and politics in American government.

I much look forward to Prof. Kalt’s visit.

State v. Rogers, 38 S.E. 34 (N.C. 1901) (paragraph breaks added); I would suspect that today there wouldn’t even be a prosecution in such a case, even if the statute were more broadly worded:

The defendants were indicted under section 2715 of the Code …: “Any person who shall discharge from employment, withdraw patronage from, or otherwise injure, threaten, oppress or attempt to intimidate any qualified voter of the state, because of the vote such voter may or may not have cast in any election, shall be guilty of a misdemeanor.”

The indictment charges the defendants with having injured, threatened, oppressed, and attempted to intimidate the prosecutor, a duly-qualified voter, by expelling him from the church of which he and they were members, on account of his having voted the Democratic ticket at the election held in August, 1900. The statute, being penal, must be construed strictly, not by implication, or otherwise than by its strict words and plain signification.

The object of the statute is to secure to the voter the exercise of the elective franchise free from pecuniary loss, personal injury, or physical restraint, neither element of which is embraced in his expulsion from the church. The injury or oppression, if any, done to the voter, was not of a physical nature. While he may have felt mortified or humiliated in being excluded from the fellowship of his associates in the exercise of the rites of that body of Christian believers holding the same creed and acknowledging the same ecclesiastical authority, and to that extent injured and oppressed, yet he suffered no loss of property or gain, nor was he in any way restrained of his liberty or otherwise controlled in the exercise of his personal conduct…. [Quashing of the indictment a]ffirmed.

UPDATE: By the way, it turns out that North Carolina was closely split in 1900, with 54% of voters voting for the Democrats. The expulsion was thus likely based on the particular views of this church, and not on some broad social anti-Democrat sentiment.

FURTHER UPDATE: I just ran across a 1891 Arkansas statute that did ban threat of expulsion from a church based on one’s vote: “No person shall coerce, intimidate or unduly influence, any elector to vote for or against the nominee of any political party, or for or against any particular question or candidate, by any threat or warning of personal violence or injury, or by any threat or warning of ejectment from rented or leased premises, or by the foreclosure of any mortgage or deed of trust, or of any action at law or equity, or of discharge from employment, or of expulsion from membership in any church, lodge, secret order or benevolent society, or by any oath, or affirmation or secret written pledge.” I could find no cases, though, applying this statute.

I’ve recently seen a couple of cases in which someone seems to be promoting lawyers’ Web sites using spam blog comments. Here’s a sample of the most recent incident (with the name of the lawyer blanked out, because he assured me that he told his SEO company to stop doing this):

Aattorney
electricalexamanswers@gmail.com
27.0.111.218
Submitted on 2012/01/14 at 2:41pm
Hi Todd Zywicki,
Mr __ __ like like as attorney cleveland tn.
He is also a law blogger.After he visited your site.He explained some great news from your site.
thanks….

Aattorney
__.__123@gmail.com
27.0.111.218
Submitted on 2012/01/12 at 8:31am
Thank you for your great article.
attorney cleveland tn
cleveland tn attorneys
attorneys in cleveland tn
us attorney cleveland
lawyers in cleveland tn

The first comment included one link to a page on the lawyer’s blog; the second included five such links. When this sort of thing happened (on two occasions, involving two different lawyers), I got in touch with the lawyers, who reported that (1) they had hired some company to get their sites better placed in search engine results, and (2) now that they had learned what the company had done, they were telling the companies to stop doing it (or stopped working with the companies altogether) — understandable, since this sort of thing is a good way to get unfavorable attention online rather than favorable attention.

In any case, I think this might be a helpful alert to lawyers who are hiring someone to try to promote their sites: It’s possible that the promotion might consist of behavior that is par for the course for purported penis enlargement products, but not really in keeping with the sort of reputation that lawyers generally seek to cultivate.

Congratulations to Orin on having an article of his, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004), be cited once by the majority and twice by the four-Justice concurrence in the judgment in today’s United States v. Jones Supreme Court decision.

The most recent batch of attacks began Friday, but continued today.

The radical Islamist terror group Boko Haram, believed to have carried out over 500 terror attacks last year, has already claimed responsibility for the violence in Kano. The group, whose name can be translated as “Western education is a sin,” said that the onslaught was a protest against the government’s refusal to release its members from prison.

The sometimes critical reaction to the criminal division chief of the Arizona U.S. Attorney’s Office decision to take the Fifth Amendment in the Congressional investigation of Operation Fast and Furious led some people to wonder whether there was a similarly critical reaction with regard to Oliver North’s and John Poindexter’s decision to take the Fifth during the Iran/Contra hearings. I did a quick search, and came across these quotations, which I should stress are only a small subset of what was doubtless said:

[Michael Kinsley, Wash. Post, Dec. 18, 1986:] Five men have now taken the Fifth Amendment rather than tell a congressional committee about their role in the Iran arms deal. Moist-eyed Lt. Col. Oliver North says there’s nothing he’d like better than to reveal all, then declines, with a tragic sigh, to say anything. Strong congressmen swoon. Oliver North has a perfect right to take the Fifth. What he has no right to do is to strike a pose of heroic innocence, prattle on about upholding the Constitution and expect anyone to believe him.

[Steve Gerstel, UPI, Dec. 16, 1986:] Although Byrd and Dole both said that Vice Adm. John Poindexter and Lt. Col. Oliver North, two key figures in the scandal, had the right to invoke the 5th Amendment against self-incrimination in their appearances before congressional committees, they made it clear they felt uniformed military men had a higher obligation.

[Dorothy Collin, Chicago Tribune, Dec. 13, 1986:] The chairman of the Senate Intelligence Committee on Friday angrily accused three military officers who also have served as President Reagan’s national security aides of “deserting their country” by refusing to testify about the secret sale of arms to Iran and the diversion of money to the Nicaraguan contra rebels. “These guys are being praised as national heroes,” Sen. David Durenberger (R., Minn.) told reporters. “If they are such heroes, why are they deserting their country when they are finally being put to the true test?”

[Dimitri Simes, San Diego Union Tribune, Dec. 12, 1986:] I have to confess, despite the obvious pain in Lt. Col. Oliver North’s voice when he was taking the Fifth Amendment before the House Committee on Foreign Affairs, that my sympathy for his predicament was limited. Refusing to testify on the grounds of possible self-incrimination is an important constitutional right. Yet nobody is obliged to use it. Certainly not a man who began his statement by emphasizing his devotion to the public service. And certainly not an active-duty officer who had the bad taste to take the Fifth while wearing his uniform with an impressive collection of decorations on his chest. In the moment of trial, both North and his former boss, Vice Adm. John Poindexter, appeared to put their personal well-being above the interests of President Reagan and indeed the interests of the Republic.

I express no opinion on whether such views are right or wrong, either with regard to North and Poindexter or with regard to Patrick J. Cunningham, the federal prosecutor who is taking the Fifth in the Fast and Furious investigation.

A North Carolina statute, § 163-274(a)(6), makes it a misdemeanor “to discharge or threaten to discharge from employment … any legally qualified voter on account of any vote such voter may cast or consider or intend to cast.” North Carolina employment law also generally makes it civilly actionable to fire an employee “in contravention of express policy declarations contained in the North Carolina General Statutes,” which I suspect means that actions that violate this criminal statute would probably also be tortious.

Say that a private employer in North Carolina fires an employee for expressing support for a candidate or a proposed constitutional amendment that the employer views as highly reprehensible. Say, for instance, the employee says “Newt Gingrich is the best presidential candidate out there,” though without an express statement that “I’m going to vote for him,” or “I’m glad that a constitutional proposal to expressly forbid same-sex marriage is finally on the ballot.” And say that the employer then fires the employee based on that statement.

Should that be viewed as discharging the employee “on account of any vote such voter may … consider or intend to cast,” and therefore actionable? Or would it likely be viewed as discharge based on the employee’s pro-candidate speech rather than the employee’s perceived intended future vote, and therefore not actionable? (North Carolina is not one of the 16 states that generally bars private employer discrimination based on an employee’s speech or partisan political activity.) I ask this because I’m finishing up an article that would list the state and local laws that ban private employer discrimination based on speech or certain kinds of political activity, and I’m trying to decide whether to categorize this statute as a possible protection for speech supporting or opposing a candidate or constitutional amendment.

The Telegraph (UK) reports:

An Indonesian civil servant who posted a Facebook message asserting that God did not exist was taken into protective custody after being badly beaten by a mob, some of them his colleagues.

The atheist identified as Alexander, who goes by just one name, now faces five years imprisonment for blasphemy after police officially arrested and charged him on Friday.

The Indonesian Council of Ulema, the Islamic religious authority, reported him over his remarks on a Facebook page he moderated which said: “God does not exist[.]” Mr Alexander, 31, turned up at his government planning offices in Dharmasraya, western Sumatra, on Wednesday to be confronted by a group of men who beat him and then took him to the police.

Thanks to Opher Banarie for the pointer.

Reader John Lunde points to the story about the criminal division chief of the Arizona U.S. Attorney’s Office taking the Fifth Amendment in the Congressional investigation of Operation Fast and Furious, and asks: What if the witness is given immunity from prosecution — which normally blocks the invocation of the privilege against self-incrimination — but “still refuses to testify for fear of Mexican prosecution? Would that be a valid defense?”

The answer is that fear of foreign prosecution does not suffice to allow the assertion of a privilege against self-incrimnination, see United State v. Balsys (1998) (7-2) (Ginsburg & Breyer, JJ., dissenting), at least absent some deliberate attempt by the U.S. and Mexico to use this as a plan for gathering information for a Mexican prosecution. “Concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause,” unless (for instance) “the United States and its allies had enacted substantially similar criminal codes aimed at prosecuting offenses of international character, and … the United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries” (in which case “that prosecution was not fairly characterized as distinctly ‘foreign’”).

The New York Daily News reports:

A bigot named their WiFi signal “F— All Jews and N—-” — and now cops are investigating.

The hateful signal I.D. popped up on the iPhone of a 28-year-old mom inside a Teaneck, N.J. recreation center, where her 3-year-old daughter was attending dance class….

The Teaneck Police Department Juvenile Bureau and the Bergen County Prosecutor’s Office Computer Crime Unit are investigating it as a “possible bias crime,” Wilson said.

It should go without saying that the WiFi guy is scum, but scum have First Amendment rights, too. He has the First Amendment right to put up a sign in his window saying “Fuck All Jews and Niggers” — or burn a flag on his front lawn, or display blasphemous images where others might see them — though such speech would be understandably offensive to neighbors and passersby. Likewise, he has the right to attach such a name to his WiFi network, even though the name would be visible to neighboring WiFi users.

UPDATE: A commenter suggested that “fuck” could be banned as an “obscenity.” Not so, said the Court in Cohen v. California (1971) (holding that the wearing of a “Fuck the Draft” jacket may not be banned on such grounds). Another suggested that the words are punishable “fighting words.” But as cases such as Cohen and Gooding v. Wilson (1972) have made clear, speech can be punished as fighting words only if it is reasonably likely to lead to an immediate attack by a personally offended listener against the speaker; no such attack is likely when the speaker is not physically present, and can’t be readily identified even by those who want to immediately go and seek him out.

Another commenter suggested that the FCC has extra authority to regulate such speech, under FCC v. Pacifica Foundation (1978). I don’t think so. First, though the Pacifica decision is quite vague, it focused on traditional radio broadcasting and I doubt that it would be applicable to wireless network names (even if it is survives the Court’s reconsideration of the issue in the pending FCC v. Fox Television Stations case). Second, if the objection is to the racism and anti-Semitism and not just the word “fuck,” that would run afoul of the Pacifica plurality’s acknowledgment that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection”; viewpoint-neutral restrictions on vulgarity on radio broadcasting are constitutionally permissible, the Court held, but viewpoint-based bans on bigoted speech would not be. And, third and most important, Pacifica rested heavily on the FCC’s special authority in the area — and, to my knowledge, there is no FCC regulation restricting vulgar WiFi network names, and in any event that does not seem to be the legal avenue that the local police department seems to be pursuing.