[Eugene Volokh, 9:02 PM]
JEWS SEEKING WORLD DOMINATION, says Saddam Hussein in his letter to the United Nations:

In targeting Iraq, the United States administration is acting on behalf of Zionism, which has been killing the heroic people of Palestine, destroying their property, murdering their children and seeking to impose their domination on the whole world, not only militarily, but also economically and politically.

Andrew Sullivan points this out, and asks "I'm mystified why more hasn't been made of [this] . . . . When a figure like this simply echoes Nazi language, why isn't there universal shock and derision? Why isn't that the headline? Or have we become completely inured to the fact that the 1930s are alive and well and centered in Baghdad and the West Bank?" Note that the "their domination" pretty clearly refers to the Zionists, not the U.S. ("Zionism, which has been killing . . ., destroying . . ., murdering . . . and seeking to impose their domination").

     Great questions -- and let me add another. Belief that Jews are conspiring to dominate the world isn't just anti-Semitic; it's downright irrational. If Hussein feels Israel is a threat to him, he's right. If he feels Israel should be destroyed, he's evil but possibly rational. But if he believes that "Zionists" are seeking to impose their domination on the whole world, then he's loony. What does that do to the "Saddam is a rational man, so even if he does get nuclear weapons, we can be confident that we can deter him from using them" theory?

 
[Eugene Volokh, 8:52 PM]
DIVERSITY: John Rosenberg has a great post about some Hispanic political groups' stance on Miguel Estrada (a superbly qualified nominee for the U.S. Court of Appeals for the D.C. Circuit), and what it says about their supposed commitment to "diversity."

 
[Eugene Volokh, 3:13 PM]
HARVARD PRESIDENT LARRY SUMMERS ON ANTI-SEMITISM: As InstaPundit points out, this is a very good speech, but I was particularly struck by the last two paragraphs, which express views that I share:

I have always throughout my life been put off by those who heard the sound of breaking glass, in every insult or slight, and conjured up images of Hitler’s Kristallnacht at any disagreement with Israel. Such views have always seemed to me alarmist if not slightly hysterical. But I have to say that while they still seem to me unwarranted, they seem rather less alarmist in the world of today than they did a year ago.

I would like nothing more than to be wrong. It is my greatest hope and prayer that the idea of a rise of anti-Semitism proves to be a self-denying prophecy -- a prediction that carries the seeds of its own falsification. But this depends on all of us.

 
[Eugene Volokh, 2:34 PM]
"ALLIES SUPPORT STRONG STANCE TOWARDS IRAQ." And it's about time, I say. (Link via InstaPundit.)

 
[Eugene Volokh, 8:49 AM]
DUTY TO REPORT CHILD ABUSE: According to FoxNews.com,

Toogood's sister, 31-year-old Margaret Daley, who authorities say was with her at the store, was arrested and charged with a misdemeanor count of failure to report child abuse. Prosecutors later added a charge of assisting a criminal. Daley was released Friday after posting $2,150 bond.

Toogood, of course, is the inappropriately named mother who was caught on videotape apparently severely beating her child.

     My question: Does anyone know exactly what provision the sister is being charged under? My quick skim of the Illinois Abused and Neglected Children Reporting Act suggests to me that the duty to report is generally limited to professionals who encounter the child in a professional capacity. There might be a separate duty of people who have custody to the child to prevent injury to the child, but I didn't think that third parties -- including family members -- had any such duty. (Illinois is not, to my knowledge, one of the few states that generally imposes on all citizens a duty to report most serious crimes; even those states that have such statutes, though, often do not require people to turn in close family members.)

     If someone knows the answer to this, I'd love to hear it; please e-mail it to me at volokh at law.ucla.edu. I'm generally interested in this subject, and have even written a short article in the Georgetown Law Journal on a somewhat different question implicated by duties to rescue.

D'OH: Reader Matt Bower correctly points out that the Illinois statute doesn't apply, because, well, the offense didn't occur in Illinois; it occurred in Indiana. That's what I get for blogging when on the road, from a slow connection, lacking sleep -- and being from California, where we assume that if something is "about 60 miles east of Chicago," it's still in the same state as Chicago. (OK, by "we" I mean "some of us.") As I said before, d'oh!

     The Indiana statute is much broader -- it apparently provides that "an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article." I've got to say that I'm a bit troubled by the breadth of the law, which on its face requires people to turn in their parents, children, and siblings (albeit to protect people who are often their relatives as well), and which most people are probably unaware of. Yes, ignorance of the law is usually not a legal defense; but prosecuting people for violating such laws, especially under these particular conditions, still seems to me fairly troubling. Anyone have any more interesting perspective on this law (assuming I didn't flub it again by identifying the wrong one)? Signed, Clueless from California.

 
[Eugene Volokh, 2:26 PM]
EUROPEAN APPROACHES TO FREE SPEECH: When people tell you how Europeans have a much more "reasonable," "balanced," "less absolutist" approach to free speech, and argue that we Americans should learn from this more "nuanced" and "sophisticated" perspective, point them to this story:

France's most celebrated literary provocateur, Michel Houellebecq, delivered an unrepentant broadside against Islam yesterday when he went on trial charged with inciting racial hatred by attacking the religion and its followers. . . .

“I have never shown the slightest contempt for Muslims, but I still have as much contempt for Islam,” the author told the court at the start of a trial that is viewed as a test of freedom of expression.

The Paris Mosque and the other plaintiffs were offended by a quip in an interview with the magazine Lire that “Islam is the most stupid religion in the world”.

Speaking of his “hatred” for Islam, he added: “When you read the Koran, it’s appalling, appalling! The Bible is very beautiful because the Jews have a hell of a literary talent.”

Dalil Boubakeur, the Rector of the Paris Mosque, told the court that M Houellebecq had “abused, attacked and insulted” Islam. . . .

The plaintiffs are being backed by the French Human Rights League, which says the writer’s comments amounted to “Islamophobia” and should be punished under France’s laws against discrimination and racial hatred. . . .

(Thanks to Overlawyered for the link.) If that's the way they want to do things in France, that's their call. But I'm glad that in America, we're still free to condemn religious beliefs and religious works, whether it's Scientology, Satanism, Islam, Catholicism, Judaism, or whatever else.

 
[Eugene Volokh, 2:18 PM]
VICTOR DAVIS HANSON answers questions about Iraq. Much worth reading.

 
[Eugene Volokh, 1:51 PM]
BUSHISM OF THE DAY: Here's today's Bushism of the Day from Slate:

People say, how can I help on this war against terror? How can I fight evil? You can do so by mentoring a child; by going into a shut-in's house and say I love you.

Unless the President is being simply faulted for saying "say" instead of "saying," I take it the objection is to the rather cloying notion that you can fight evil just by saying "I love you." Now here's the broader context:

Oh, you'll hear a lot of war rhetoric. But I want you to know, my goal is peace. I long for peace. And I believe out of the evil done to America can come peace in places around the world that have quit on peace, including the Middle East and South Asia. (Applause.) I also want you to know -- I want you to know that we will be a better America, too. Because the strength of the country lies in the hearts and souls of our fellow citizens.

People say, how can I help on this war against terror? How can I fight evil? You can do so by mentoring a child; by going into a shut-in's house and say I love you; by running a Boy Scout troop or a Girl Scout troop; by being involved in your Boys and Girls Clubs; by joining the USA Freedom Corps. If you're interested in helping America fight evil, love your neighbor just like you'd like to be loved yourself.

An educated America, a working America, an America that understands the power of our faith-based and charitable organizations is an America that is going to be a better America. There is no question in my mind that out of the evil done to this country, that we will be able to help eradicate those pockets of despair and hopelessness which exist. In our land of plenty, there are people who hurt, people who cry, people who wonder whether or not the American Dream is meant for them. And this society of ours, this society of ours is going to change, one heart, one soul, one conscience at a time, because thousands of our fellow citizens are loving a neighbor just like they'd like to be loved themselves. (Applause.)

People understand in America now that a patriot is somebody who not only puts his hand over his heart and says, "I pledge allegiance" to one nation under God, but somebody who serves something greater than themselves. . . .

Does the text that Slate quoted sound different when presented in context? You decide. But wouldn't it be nice if Slate provided the broader context -- either by linking to it on the Web, or putting a longer excerpt on the Web itself and providing a link to that?

 
[Eugene Volokh, 1:28 PM]
INTERESTING NEW BLOG, all about trademark law. A bit specialized, but it's an interesting specialty, with lots of Fun Facts, always a plus in any area of the law. Worth checking out. (Just ran across it on my own -- don't know the person who runs it.)

 
[Eugene Volokh, 1:03 PM]
MORE ON WISE MEN AND SIMPLETONS: My friend Gil Milbauer points out that Pliny said "nemo mortalium omnibus horis sapit," which is translated "No man is wise at all times." A nice line, but surprisingly rarely used. Slightly more common, as a few correspondents suggested, is "Even Homer nods," though that's (1) still fairly uncommon, and (2) seems to suggest more that wise people might sometimes make slight mistakes -- the Russian "every wise man has his share of the simpleton" points more to serious blunders and not just small errors.

     Maybe Russian wise men are even more foolish than American ones . . . . Hard to imagine, but I guess it's possible.

 
[Eugene Volokh, 12:57 PM]
ICE CREAM: As readers might be able to tell from my recent "nucular" posts, I'm a descriptivist: I think that what is "right" and "wrong" in English is defined by actual usage, not by the Authorities (unlike, say, as to French, at least in the view of some in the French establishment). My view is made easier by the fact that most modern dictionaries are themselves organized on descriptivist principles, so even the prescriptivists who insist on appealing to Authorities often end up losing the battle. Many prescriptivists then say "Well, I refuse to look at all those modern dictionaries; I define 'right' and 'wrong' by what the Xth edition of the Y dictionary said back in 1936." But once the prescriptivist says that, then it seems to me that the weakness of the prescriptivist position becomes apparent.

     Still, I'm sure that many of you detected in me the Zeal of the Convert. Yes, I too was once a prescriptivist, until one day, while I was walking to Damascus . . . . Well, no, it wasn't there, but somewhere I saw the light and became a descriptivist. I can't point to the specific incidents that caused this change, but I can point to one that's emblematic of them; I don't for a moment claim that it alone proves all that much, but it does at least help explain why this post is titled "Ice Cream." Here it is, from the Merriam-Webster site:

In the late 1800s, usage commentators spilled much ink fretting over whether ice cream . . . should really be iced cream . . . . Richard Grant White blamed this supposed problem, which he called "a real confusion of language, if not of thought" on "carelessness in enunciation." Commentator Alfred Ayres explained, "What is called ice-cream is cream iced; hence, properly, iced cream and not ice-cream. . . . "

Logically speaking, Ayres had a point. But English idioms often defy logic, and ice cream . . . sounded right to the ear of most native speakers. As a result, [it has] become so well established that no one would think of questioning [it].

Why do we bring up this story? Simply as a reminder not to take today’s usage quibbles too seriously. . . .

So that's one of the things that drove my epiphany, or apostasy, or whatever it was.

 
[Eugene Volokh, 12:46 PM]
NUCULAR AND MUTUAL UNDERSTANDING: Several people correctly point out that linguistic conventions help promote mutual understanding (Mark Kleiman has a characteristically thoughtful and well-reasoned post on this score) -- and to a point that's surely true. It's especially true in writing as opposed to speaking; consider, as a thought experiment, someone who spoke with a Southern accent, saying, for instance, "Ah" instead of "I" and "fahr" instead of "fire," and someone else writing "Ah" instead of "I" and "fahr" instead of "fire." The latter would be much harder and time-consuming to parse than the former. More broadly, all of us talk with our own subtly different intonations, and our ears are much better at processing that than our eyes would be at processing text that's written with subtly different spelling. But even focusing on speech, we have all heard people -- even native English speakers -- with accents that are hard to understand.

     But "nucular" is not hard to understand. We all know exactly what "nucular" means. The word is pretty firmly embedded in the speech of tens of millions of people. "Nucular" and "nuclear" are alternate pronunciations, like "either" and "eether," "neither" and "neether," or for that matter "I" and "Ah." This isn't a matter of nipping the problem in the bud; the flower has long been in full bloom. The intelligibility benefits of trying to extirpate "eether" (or for that matter "either") are small; the costs, to those who would have to change their speech or be derided (in my view, unsoundly) as "wrong" are larger. Likewise, I think, for "nucular."

     What about Black English, Mark asks? (I hate the term "ebonics," by the way; I don't know who invented it, but it sounds like a parody name for a language, not a serious one. Not that there's anything wrong with it!) Wouldn't I have to say that it isn't wrong, either?

     Well, I do say it: Black English isn't wrong. There, I've said it. It's a dialect of English, with its own structure and grammatical rules. This might be radical, but it seems to me the only linguistically sensible position.

     Now it is somewhat less intelligible to most English speakers than Southern accent is, because it changes the rules of grammar and not just pronunciation; and while I have no expert knowledge on this, my sense is that changed grammar is harder to parse than changed pronunciation. (I set aside the fact that some black English speakers and people with Southern accents have accents that are so heavy that the pronunciation is hard to understand; that's true as to both accents, and I'm not prepared to say how more often it's true as to one rather than the other.) And, as Mark points out, I would want schools to teach Standard English and not black English, for the same pragmatic reasons that I would want schools to teach "nuclear" rather than "nucular" -- except that in our society, breaking kids of their black English accents is pragmatically much more important to them than breaking kids of their Southern accents. But that's not because black English is "illogical" -- it's simply because it's generally highly unprofitable for its speakers, if those speakers want to be taken seriously in mainstream American society.

     Still, I do agree that there is -- for reasons I mentioned earlier -- something of a difference between variations in grammar and spelling on the one hand, and variations in pronunciation on the other. The former mark a greater departure from linguistic norms, and mark an outright dialect; the latter mark more of an accent (I'm not sure these are the proper linguistic terms of art, but I think you see what I mean). This is why few people say "How can she say 'Ah saw a fahr'? How can he say 'Pahk the cah'? That's the wrong pronunciation!" They say "That's a Southern accent" or "That's a Boston accent."

     "Nucular" and "crick" are examples of a Southern/Midwestern accent (though to my knowledge the Nucular Zone and the Crick Zone are not fully coextensive). "This be good," in most situations, is an example of a Black English dialect (or of someone who's in an unusually subjunctive mood). If you want to condemn dialects, go ahead, though I'd still insist that "they're not wrong, they're just different" (I really am a radical on this, it's true.) But accents have always been much more flexible, in English and in other languages, in part precisely because they are generally (if mild enough) mutually intelligible with little extra difficulty.

 
[Eugene Volokh, 12:19 PM]
MORE ON NUCULAR: The "nucular" post obviously struck a chord -- I've gotten about as much e-mail on it as I have on pretty much anything else that I've blogged about. One suggestion was that

One reason that "Nucular" bothers me is that it leads me to believe that the speaker doesn't know what he's talking about . . . . I think that I assume that people who have learned about a subject have been exposed to, and are likely to adopt, the generally accepted terms and pronunciations associated with it; and that people who don’t know what they’re talking about imitate other people who don’t know what they’re talking about.

I can't say for sure that this is unsound, and of course people do often draw inferences about people's educational achievements from their speech. But a couple of responses may help remind us to be skeptical of such inferences. Here's one from Matt Bower:

Not only did Jimmy Carter pronounce it "nucular" -- I recently saw a tape of then-President Carter, in which he spoke the word -- he served on temporary duty with the Atomic Energy Commission, Division of Reactor Development and Naval Reactors Branch. He also assisted in developing the ("nucular") power plant for U.S.S. Seawolf, and was in training to become the engineering officer aboard Seawolf when he left the Navy. I suppose he's better qualified to decide the appropriate pronunciation than are most of us.

And here's one from Louis Wainwright:

[This is] a hot topic for my wife and me. She pronounces it "correctly" and claims authority from both the OED and her English degree. I pronounce it "incorrectly" and claim authority from my diplomas in Nucular Engineering.

I surely wouldn't confuse this for a scientific study, but then again those who would use "nucular" as a proxy for ignorance don't have scientific evidence, either. (As I said, I wouldn't teach my child to say "nucular," but that's a separate question.)

 
[Eugene Volokh, 10:24 AM]
JUDGE REJECTS OVERREACHING TRADEMARK CLAIM:

Gubernatorial candidate Tim Hagan can keep using Internet ads featuring Gov. Bob Taft's head on a duck's body, a federal judge ruled Tuesday, dismissing objections by AFLAC insurance. . . .
AFLAC had complained that the duck in Hagan's Web ads looks too much like the one in AFLAC's commercials, which feature a duck quacking the company name. But U.S. District Judge Kathleen O'Malley refused to block the ads, saying they represent protected political speech. . . .

AFLAC had asked for a temporary restraining order forcing Hagan's campaign to remove the ads from the campaign Web site, www.taftquack.com. In the ads, a duck with Taft's face shouts "Taftquack" in response to Taft's campaign commercials.

David Stewart, a lawyer for the company, told O'Malley the "Taftquack" duck could lead consumers to believe AFLAC was endorsing the Hagan campaign.

O'Malley agreed there is a danger that political campaigns will use successful commercial trademarks that companies have spent time and money developing. But she said the First Amendment still falls on Hagan's side.

Exactly right: Whatever role courts should have in policing potentially misleading commercial ads (as opposed to ones that are outright false), judges -- who are, after all, government officials -- have no business policing potentially misleading political ads; that's for the political process, the media, and for that matter bloggers, to do. The line between the false, which may be punished even outside commercial advertising (for instance, under the law of libel), and misleading may sometimes be vague; but it's pretty clear that these ads are at most misleading, and, if they are, should be punished by voters and not by government officials.

 
[Eugene Volokh, 10:19 AM]
"JUDGE TO WORLDCOM: BLOCK KID PORN."

 
[Eugene Volokh, 9:53 AM]
WHAT'S WRONG WITH "NUCULAR"? Today's Slate Explainer reminded me of this question, which I've thought about a bit in the past.

     One common answer is that saying "nucular" is wrong because "nuclear" is spelled, well, "nuclear," and not "nucular." But the standard rebuttal (mentioned in the Slate piece) is: How do you pronounce "iron"? I actually remember pronouncing it "iron" as a kid (as in "irony" without the "y"), and being told that this is not the usual pronunciation -- "iern" is probably the best way of representing how you're really supposed to pronounce it. If this phenomenon (called "metathesis") is OK in "iern," why isn't it OK in "nucular"?

     But this is just the tip of the objection -- the broader objection is that this is English we're talking about here. English, the language of "women," of "colonel," of "laughter" and "slaughter," of "get" and "gem." As reader Brian Dulisse points out, "forte" can be pronounced "fortay," "fort," or "fortee." "This pronunciation is wrong because it doesn't match the spelling" isn't much of an argument in English.

     It seems to me that the only sensible answer to "What is wrong with 'nucular'?" is "This is not the standard way that high-class people say it," coupled with "This term is a shibboleth that high-class people, and those influenced by them, use to sort those they'll call 'high-class' from those they'll call 'low-class.'" That's all the "wrong" there is here. Yes, I know this sounds like a leftist cultural critic position; but sometimes, as here, the leftist cultural critics are right. One day, "nucular" might be treated the same as "ah" for "I" or "crick" for "creek" -- a regional accent that's not wrong, but just different. It might even become the "correct" pronunciation, with "nuclear" sounding archaic or affected. It won't flow from a change to logic or morality, only a change of attitude by enough people in the influential classes, or by a change of who counts as the influential class.

     So what of it? Well, if you're teaching a child (or an adult) to speak, of course you should teach him to say "nuclear," simply as an instrumental matter -- sounding high-class is usually (not always, but usually) more profitable, especially where the shibboleths are concerned. If you're making a purely esthetic judgment, well of course you're free to say "'Nucular' sounds ugly to me," just like you can say "Picasso looks ugly to me" or "Broccoli tastes bad to me." And if you're trying to infer a person's educational level from very limited data, you might use his pronunciation as something of a clue, though be careful: As I understand it, quite a few educated Southerners use this term (consider Jimmy Carter and Bill Clinton, both to my knowledge quite well-educated).

     But before one says that "nucular" is "wrong," one should keep in mind just what a narrow and not terribly appealing definition of "wrong" one is necessarily using.

UPDATE: Two readers e-mailed me to point out that few people pronounce "nucleus" as "nuculus," and that it's therefore wrong to say "nucleus" but "nucular."

     But this too runs into the fact that, well, English isn't logical: We say "linear" but "line" -- nothing wrong with that, and I'm sure there are lots of other such examples. True, "linear" follows a common rule of English pronunciation -- but the important point is that there is no rule that in the "-ar" form the root must be pronounced the same as the root without the "-ar." Interestingly, quite a few "-ar" words actually undergo a nucleus/nucular change in the spelling rather than the pronunciation, probably under the influence of Latin, for instance "circle" to "circular" and "title" to "titular."

 
[Eugene Volokh, 8:22 AM]
MASS MURDER AS ART: There's yet another controversy brewing in which an artist is talking about how the attacks on the World Trade Center were great art. As you may recall, the first one happened shortly after the attacks, when a noted composer said the same.

     This is of course appalling, but it's helpful to think a bit about exactly why this was appalling -- and perhaps to consider an analogy to another area where labels of "greatness" are applied to evil people doing evil acts, also with some controversy, but with much less. That area is military strategy: Many people believe that Hitler, for instance, was a great military and military-political strategist in at least the early and middle parts of his career (though ultimately one who committed some massive strategic blunders). People likewise talk about Erwin Rommel as a great military leader, albeit one who fought in an evil cause. (Rommel was of course a much less evil man than Hitler; but that isn't saying much, and it seems to me that he is properly morally faulted for serving the cause in the high-level capacity in which he worked.)

     My sense is that most people would get somewhat annoyed if Hitler, Rommel, and others were called "great" a bit too enthusiastically and unreservedly, even if it was just as "great military leader." They'd like to hear a bit of condemnation or qualification going along with the praise. But ultimately they wouldn't be that annoyed, not nearly as annoyed as when Bin Laden is called a great artist.

     So why is it atrocious when Bin Laden is indeed called a great artist? One reason might be to say that, well, executing a military maneuver (whether or not against innocent civilians) just isn't art. Art is painting, music, sculpture. Military maneuvers are military maneuvers. But I don't think this is quite it; the notion that a well-executed act in any genre can be seen as "artistic" or as "a work of art" is something of a stretch, but not an unreasonable one.

     No, the real reason for outrage, I think, is that creating art is seen as a morally worthy act, in a way that military excellence is not necessary seen as morally worthy (it can be, of course, in the right cause, but not inherently). Now some artists and art theorists might deny this, and might assert that art is beyond morality (or, as the woman in the latest incident does, deny that there is any morality at all). But when it comes to urging arts funding, both by the government and private charitable foundations, art education in school, greater art appreciation, and so on, the art community most certainly does assert that creativity in art has a positive moral quality. Picasso might have been a bad person in everyday life (so I hear, though I'm not an expert on the subject), but -- the theory goes -- his creation of great art was not just a great act, but a good act. And this is true even as to works that lack any moral message: Artistic creation itself, the conventional wisdom (plausibly) has it, is itself morally worthy.

     When mass killing (let's not even say mass murder) becomes art, art becomes the moral equivalent of military science: An inherently amoral discipline that could be used for good or for ill, but that has no moral attributes on its own. Great art, like great military achievements, becomes something to be admired as a feat of skill, but not as a spiritually worthy act. That's not, I think, what artists would really like to see.

 
[Eugene Volokh, 7:24 AM]
"EVERY WISE MAN HAS HIS SHARE OF THE SIMPLETON": I've always thought that proverbs in one language should usually have equivalents in another, since they capture basic insights about human nature -- but I never could come up with a standard English equivalent of the Russian proverb "Na vsia*kovo moodretsa* dovol'*no prostoty*" [accents marked with *s] which translates as "Every wise man has his share of the simpleton" (or should it be "every pundit"?).

     Bill Quick's quote from Arthur Schlesinger, Jr. -- the one from a year ago explaining, in extremely confident terms, just how unsuccessful an American attack on the Taliban would be -- reminded me of this (link via InstaPundit); but surely we can all think of more examples. It's most common, of course, when a man who's wise in one field (say, a leading scientist) starts expostulating on another (say, international politics), but there's plenty of folly from the wise even within their own supposed zone of specialty. And, yes, I realize that the same applies to, say, law professors talking about things they know nothing about . . . .

UPDATE: I originally translated the phrase as "his share of folly," but on reflection changed it to "his share of the simpleton." The Russian "prostota" literally translates as "simplicity," in the sense of the quality of being a simpleton, which I like better than "folly"; but of course "simplicity" meaning "being like a simpleton" isn't in common usage in English, hence "his share of the simpleton."

 
[Eugene Volokh, 7:15 AM]
RAP STARS AS ANTEBELLUM SOUTHERN ARISTOCRATS: Great post by Geitner Simmons. (Link via InstaPundit.)

 
[Eugene Volokh, 4:04 PM]
THE T-SHIRT IN THAT NRA SPORTS SHOOTING CAMP CASE can be seen here. (Thanks to reader and former student Matt Bower.)

 
[Eugene Volokh, 2:05 PM]
NO DISCRIMINATION AGAINST TREES! From the Sabertooth Journal, quoting the Los Angeles Times:

A Santa Cruz, California couple was fined $5000 for trying to cut down a tree they deem to be a fire hazard on their own property. The couple was trying to cut down a blue gum eucalyptus tree, which has naturally oily foliage that easily ignites. The blue gum eucalyptus tree is cited as one of the causes of the devastating 1991 Oakland Hills fire.

Here's the best quote from the article from Celia Scott, an environmental lawyer and former Santa Cruz councilwoman. "A tree is a living being, and every one is valuable. I don't see any reason to discriminate or live in fear of them."

The L.A. Times link is up at the Sabertooth Journal site.

 
[Eugene Volokh, 1:46 PM]
THEY'VE GOT SOME ODD-SIZED PEOPLE IN ILLINOIS: "Cook County Judge Raymond Jagielski on Tuesday ruled that Deborah Graham won the primary by a 30.85 vote margin, ending a six-day trial," according to the AP (emphasis added). Thanks to fellow lawprof Rick Hasen, posting on a lawprofs' list, for the pointer.

 
[Eugene Volokh, 1:42 PM]
MAY THE POLICE SEARCH YOUR CAR WITHOUT A WARRANT IF THEY STOP YOU FOR A TRAFFIC CITATION? This and related questions came up on another blog, which asserts, quoting a correspondent, that:

A search of a car after a traffic stop is pretty much always fair game, so yeah, that search was okay. They were extra careful, though, and brought out the bomb-sniffing dogs (at least that's my recollection of the story). Once they alerted to the car, the cops had reasonable suspicion plus exigent circumstances (the danger), so they had extra good justification to search.

This turns out not to be the case; consider the following from Knowles v. Iowa (1998):

An Iowa police officer stopped petitioner Knowles for speeding, but issued him a citation rather than arresting him. The question presented is whether such a procedure authorizes the officer, consistently with the Fourth Amendment, to conduct a full search of the car. We answer this question "no."

Since the question has come up, here's a quick summary of a few rules about car searches (but only a few -- this is a very complex field):

1. The police may generally search your car if they have probable cause to believe that the car contains evidence of a crime. They may also detain it to wait for drug-/bomb-sniffing dogs to arrive but only on a showing of reasonable suspicion (a lower standard than probable cause, but one that still requires some articulable reason to think that drugs or bombs are present; thanks to reader Greg Rapawy for alerting me to the lower court cases that hash this out). The police do not need a warrant, as they would if they were searching a house. See Carroll v. United States (1925). Exigent circumstances are not require ; exigent circumstances may excuse failure to get a warrant if a warrant is required, but under Carroll the warrant is not required.



2. The police may search the passenger compartment of the car, not including the trunk, if they're arresting you. New York v. Belton (1980).



3. The police may search the passenger compartment of the car (and of course the driver) if they have reasonable suspicion to believe that the driver is dangerous and may get his hands on a weapon that's in the car; reasonable suspicion is a lower threshold than probable cause.
Michigan v. Long (1983).


4. If the police impound the car, for instance because the driver is arrested, they may search the entire car for inventory purposes if this is pursuant to a general inventory policy. South Dakota v. Opperman (1976).



5. If the police ask the driver for permission to search the car, and the driver says "yes," they may search the entire car.

So, at least in theory, searches and longish detentions of cars following a traffic stop are not always permissible, though the searches are certainly permissible if there's probable cause to believe that the car contains evidence of a crime, and may be permissible under some other circumstances.

     If this doesn't seem logical or right to you, please don't e-mail me about it. I don't make the law, I just report on it.

 
[Eugene Volokh, 1:15 PM]
SENATOR FEINSTEIN EMBARRASSED TO BE AN AMERICAN:

Sen. Dianne Feinstein, D-Calif., just back from Europe, said she detected growing opposition to the United States among America's allies. "The driver of a lot of this animus," she said, "is the Israeli-Palestinian conflict. To leave this unresolved and to attack an Arab country is going to be viewed as an attack on the Arab world."

She said the anti-American sentiment was so strong that she felt it personally.

"As an American, I have always been proud," Feinstein said. Referring to her U.S. flag pin, she said, "I was embarrassed to wear it."

San Jose Mercury News, Sept. 4, 2002 (emphasis added). (Thanks to Andrew Sullivan for the pointer; also noted in the Sept. 30 National Review.)

     Wow. I've e-mailed her office to see if they would confirm the accuracy of the quote; I'll post any response that I get.

 
[Eugene Volokh, 10:37 AM]
MORE ON GLASSES: Reader Bob English (who's also a former UCLA undergrad classmate of mine) adds, quoting an unknown source:

Engineers say that the glass is twice as big as it needs to be.

I've also seen it said that

Wine snobs say that the glass is full.

(Wine is often poured only up to the half-way mark or so in a glass, for technical wine-snobby [but good] reasons.)

 
[Eugene Volokh, 10:17 AM]
LAWSUIT AGAINST SCHOOL CHOICE PROGRAM FOR EXCLUDING RELIGION: The Institute for Justice, which has long fought on behalf of school choice programs, writes that it is challenging a Maine program that provided school choice for secular private schools but excluded religious ones. This is from a press release of theirs; I've found their press releases to be quite reliable:

[T]he Institute for Justice today returned to Maine to vindicate the promise of school choice and fight for the principle that government programs cannot discriminate against religion. In the first case in its nationwide school choice offensive, the Institute for Justice, the nation's leading legal advocates for school choice, is asking a Maine court to overturn a 1981 law that erroneously banned religious schools from the state's nearly 100-year-old school choice program.

In addition to arguing that the U.S. Supreme Court clearly gave a green light to including religious options, the Institute for Justice maintains that discriminating against families who choose religious schools through the state's "tuitioning" program is a violation of the Constitution. In a series of cases, the U.S. Supreme Court has ruled that the First Amendment makes illegal any law that singles out religion for exclusion.

The Institute represents six families from three small towns in Maine-Durham, Minot and Raymond-where the local school districts offer high school tuition for students to attend the schools of their choice-public, private, in-state or out-of-state-in lieu of maintaining public schools. For most of its existence, this statewide "tuitioning" system permitted the selection of religious schools. But about 20 years ago, the state came to believe that the inclusion of religious options violated the federal Establishment Clause and excised them from the system.

"Maine offers school choice to everyone except those who choose religious schools," said Richard Komer, Institute for Justice senior attorney and lead counsel for the litigation. "Under the Constitution, that's religious discrimination, and we intend to restore our clients' religious liberty."

IJ brought a similar suit, Bagley v. Town of Raymond, in 1997. In Bagley, the Maine Supreme Court upheld the law eliminating religious options from the choice program, but admitted that the State's only justification for doing so was the federal Establishment Clause, opening the door for today's lawsuit [given that the Supreme Court has recently held that the federal Establishment Clause does not mandate the exclusion of religious schools from such programs].

I have argued before that such challenges should win; I have no prediction, though, of whether they will indeed win before the Maine courts.

UPDATE: Check out Avi Schick's Slate piece that discusses this general question.

 
[Eugene Volokh, 8:58 AM]
FIRST BLACK MEMBER OF MARYLAND LEGISLATURE: An interesting factoid from Clayton Cramer. I'm generally skeptical of such interesting factoids, but Cramer is a reliable source for historical matters, and he's got some reliable-seeming sources of his own that he links to.

 
[Eugene Volokh, 8:50 AM]
TODD ZYWICKI: The Volokh Conspiracy is delighted to welcome our new co-blogger, Todd Zywicki, a colleague of Michelle's at George Mason University's law school. He does bankruptcy, law and economics, and evolutionary psychology; check out his impressive list of publications. To respond to his posts, e-mail him at tzywicki at gmu.edu.

 
[Eugene Volokh, 8:17 AM]
A BIT MORE ON SLIPPERY SLOPES: A pair of epigraphs that I have at the start of the Conclusion:

Sandra Starr, vice chairwoman of the Princeton Regional Health Commission and president of the Princeton Borough Board of Health, said there is no "slippery slope" toward a total ban on smoking in public places. "The commission's overriding concern," she said, "is access to the machines by minors."

(Princeton Proposes Ban on Many Cigarette Machines, N.Y. TIMES, Sept. 5, 1993, § 1, at 52.)

Last month, the Princeton Regional Health Commission took a bold step to protect its citizens by enacting a ban on smoking in all public places of accommodation, including restaurants and taverns. . . . In doing so, Princeton has paved the way for other municipalities to institute similar bans to protect the health of their citizens.

(Fred M. Jacobs, Follow Princeton’s Lead on Smoking, THE RECORD (Bergen County), July 12, 2000, at L7.)

 
[Eugene Volokh, 8:14 AM]
SLIPPERY SLOPES: Just finished doing a massive edit of my Mechanisms of the Slippery Slope (forthcoming in the Harvard Law Review early next year), and I cut it by over 35%. Amazing just how much flab you can find if you set the article aside for a few months and then give it two thorough editing passes, plus get some help from colleagues (though note that I had already gone through about five editing passes on the original version when I wrote it earlier this year). Since the piece is now 1.5 times shorter, I now proclaim it to be 1.5 times better (or is it 2.25 times better?).

     Anyone interested in reading the still quite long article -- or at least looking at the much shorter, and much improved, Introduction -- can find it in PDF format or in HTML format on my site.

 
[Eugene Volokh, 8:03 AM]
PEOPLE:
Some people say the glass is half empty.
Some people say the glass is half full.
Some people say "Why is my glass half empty, while his is half full?"
(Author: My friend Haym Hirsh.)

 
[Eugene Volokh, 7:58 AM]
WHAT ABOUT NONCITIZENS' RIGHT TO VOTE? Diane E asks a follow-up question -- if noncitizens are protected by the Bill of Rights, why don't they have the right to vote?

     Well, contrary to what most people assume, the right to vote is not explicitly protected by the Constitution. The Framers intentionally left the state governments with the power to define who gets to vote in state elections; and used this definition to decide who gets to vote in federal elections. (Art. I, sec. 2, cl. 1.) At the time of the Framing, many states limited the franchise to property-owners, though those limits fell away in the first several decades of the Republic, generally leaving pretty much all adult while male citizens over 21 able to vote.

     Over time, the Constitution was amended to prohibit certain kinds of discrimination in who gets the right to vote -- based on race, color, and previous condition of servitude (15th Amendment), sex (19th), payment of poll tax, as to federal elections (24th), and age (over 18) (26th). But this doesn't secure a right to vote, just like bans on race, sex, or age discrimination in government employment don't secure a right to government empoyment; discrimination based on other attributes is still allowed.

     That's the constitutional text; but starting with the early 1960s, the Supreme Court has indeed more or less created something of a right to vote using the Equal Protection Clause of the 14th Amendment. Discrimination in choosing who may vote, the Court has held, is generally unconstitutional, because it touches on a "fundamental right" -- albeit one that isn't mentioned in the Bill of Rights.

     I think this judgment by the Court was theoretically mistaken, because it departs from the pretty clear text of the Fourteenth Amendment, the original meaning of the Amendment, and the traditional interpretation of the Amendment. The second section of the Fourteenth Amendment made clear that discrimination in voting qualifications was understood to be quite constitutional; it tried to deter such discrimination by saying that "when the right to vote at any election for [one of many offices] is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation [in the House of Representatives] shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." And the very need to enact the Fifteenth Amendment, to bar race discrimination in voting, showed that the Equal Protection Clause of the Fourteenth wasn't seen as applying to "political rights" like voting. Justice Frankfurter's dissent in Baker v. Carr (1962) discusses all this, in my view persuasively. But whether the Court's decision was right or wrong, it's now the law, so voting has become more or less a constitutional right.

     Still, the Court has not taken the view that all discrimination in voting qualifications is unconstitutional -- traditionally nearly universal (but not constitutionally forbidden) discriminations, especially based on age (over 18), citizenship, lack of felony conviction, and residence in the jurisdiction, remain constitutional. Among other things, these discriminations are specifically mentioned in the Fourteenth Amendment, so it's hard to say that what one part of the Amendment explicitly endorses another part implicitly forbids. A few other discriminations in some narrow contexts, such as certain special-purpose voting districts, are also constitutional.

     So barring noncitizens from voting remains quite constitutional; and, to tie matters to the previous question, it was obviously constitutional in 1893, when the Supreme Court first made clear that "aliens residing in the United States for a shorter or longer time[] are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the constitution." So there was no real contradiction between noncitizens having constitutional rights but being unable to vote then, and there still really isn't now.

     There's a separate debate as to whether noncitizens should be allowed to vote -- not as a matter of constitutional right, but as a matter of legislative decision. Apparently they were allowed to vote in some places in the past; and while I would oppose this as to state and federal elections today, I think the matter might be different in some sorts of local elections. To take an example that's extremely local, many important decisions at UCLA School of Law, a government entity that spends government money on behalf of the California taxpayers, are made by votes of the faculty -- including several of my colleagues who aren't U.S. citizens. That makes a lot of sense to me. I wouldn't broaden it much, especially when we get to the laying of taxes and the making of rules that legally bind all people in some area, and not just government employers or students at government-run schools. But in principle, the question of when noncitizens ought to be able to vote (as opposed to when they are constitutionally entitled to vote, which is never) is not a trivial one.

 
[Eugene Volokh, 7:23 AM]
ANOTHER T-SHIRT CASE: This one is about an anarchist student whose speech seems to be leading others to threaten her. My prediction: If the facts are as they're described, she'll lose, and she probably should, under Tinker v. Des Moines Indep. Comm. School Dist. (1969). The government as K-12 educator is somewhat restrained by the First Amendment, but less so than the government as sovereign, when it's restricting the speech of people outside schools. If there really is genuine disruption of school activities, such as threats and seemingly likely violence, then it may restrict the disruptive speech, even if this means giving the critics of the speech a "heckler's veto."

     In the Youth Sports-Shooting Camp T-shirt case that I mentioned yesterday, the student seems likely to win, because there is no evidence of actual or even likely disruption. But if NRA T-shirts lead to threats and looming violence, then they could be restricted, too.

UPDATE: The Angry Clam (the angry Bruin clam!) has an interesting take on this; I'm not sure I fully agree with it, but it does make an interesting point.

FURTHER UPDATE: Reader Julian Sanchez points out what I hadn't realized when first reading the Court TV page, which is written in the present tense -- the page describes an actual case that was already decided, and has a link at the bottom to "The Verdict." The verdict, it turns out, is that "On July 12, 2002, the jury of five women and one man found that Katie Sierra was improperly denied the right to start a club, but was properly suspended and properly denied the right to wear her T-shirts. The jury awarded the nominal damages of $1." This is consistent with my "prediction" (postdiction?); I would guess that the jury was asked to decide whether the T-shirt was indeed likely to be disruptive, and it said yes. The page doesn't indicate whether the school has appealed.

 
[Eugene Volokh, 10:03 PM]
OVER 5000 UNIQUE VISITORS AGAIN TODAY: How, you might ask? Two words: Insta. Pundit. Thanks, IP, and thanks to all who visited.

 
[Eugene Volokh, 6:51 PM]
THE CONSTITUTIONAL RIGHTS OF NONCITIZENS: Diane E asks a question that I've often heard before -- are noncitizens protected by the Bill of Rights?

     The answer is "yes," at least as to noncitizens in the U.S., and it's not an invention of the Warren Court; the Court has taken this view at least since Fong Yue Ting v. United States (1893). What the Court said in that case remains true today:

[A]ll . . . aliens residing in the United States for a shorter or longer time[] are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility. But they continue to be aliens, having taken no steps towards becoming citizens, and incapable of becoming such under the naturalization laws; and therefore remain subject to the power of congress to expel them, or to order them to be removed and deported from the country, whenever, in its judgment, their removal is necessary or expedient for the public interest.

As per the last sentence, non-citizens may be deported with fewer protections than are applicable in a criminal trial (deportation is technically a civil proceeding), and they may be deported for things (such as their speech) that citizens may not be punished for, so long as Congress provides for such deportation. But so long as they're in the U.S., they're entitled to pretty much all the constitutional protections of the Bill of Rights. (There's a plausible case that if the Second Amendment is seen as securing an individual right, it should still be limited only to citizens, but that would be the one exception.)

 
[Eugene Volokh, 4:56 PM]
SADDAM HUSSEIN'S FRAUDULENT CONCESSIONS -- a great piece by Slate's William Saletan.

 
[Eugene Volokh, 4:12 PM]
THEY EVEN HAVE UNSOUND SURVEYS IN EGYPT: Little Green Footballs quotes some appalling-sounding results from a poll by an Egyptian newspaper; for instance "a majority of 52% think the US 'deserved' the attacks of September 11, and 39% believe they were perpetrated by Israel." (Thanks to InstaPundit from the link.) If indeed 39% of Egyptians believe the attacks were perpetrated by Israel, then this just further shows how pointless it is for the U.S. to play to the "Arab street" -- if so many Egyptians are so deluded about what actually happened, why should we think that we can get through to them on the right or wrong of the matter?

     But I'd be cautious about putting too much weight on the poll results, because according to the poll's source, "Our team sampled the opinions of 150 people selected randomly, but not according to exact statistical procedures, from a variety of locations and social classes, including North Coast resorts and Cairo's back streets." "Not according to exact statistical procedures" = Junk Science, in Egypt as elsewhere. I don't quite know what they mean by "selected randomly," but it sounds pretty clear that there's no reason to think that these 150 people are a representative sample of Egyptian society. It's tempting to say "Well, but this tells us something about what Egyptians think," but I don't think that even this is so: The 150 people might by sheer accident be somewhat representative of Egyptians, but we have no reason to think this -- they could be wildly unrepresentative in a variety of different ways. As the newspaper quite candidly acknowledges,

Our sample does not aspire to fully represent Egyptian public opinion, although we have made every effort to make it as representative as possible of the country's social composition. About 35 per cent of the respondents were under 20 years of age, as opposed to the actual ratio of 49 per cent for this age group. Our sample is also skewed towards the educated. Only 25 per cent of the Egyptian population hold a high school or higher degree, while our sample's share of that category was 75 per cent.

     Yes, I realize that it's hard to do really statistically valid surveys in a country where, for instance, telephones are less common than in the U.S. Hey, it's hard to do really statistically valid surveys here. The survey may seem like "the best we can do," or "a decent, unbiased effort." But, sad to say, this doesn't change the laws of statistics. Surveys like this simply give us no even halfway reliable i formation, it seems to me.

 
[Eugene Volokh, 3:59 PM]
POETRY ABOUT NORTH KOREA: Damian Penny reports that "the 'Korean Friendship Association' is sponsoring a 'literary contest' for poems or articles . . . 'about the Worker's Party of Korea, the Great Leaders Kim Il Sung and Kim Jong Il and the history of the DPRK.'" Penny also includes his own humble submission.

 
[Eugene Volokh, 2:41 PM]
A BIT MORE ON "REGULATE HANDGUNS" = "BAN HANDGUNS NOW": Reader Eric Williams points to (and UCLA Law School reference librarian Xia Chen confirms, having listened to the recording at www.npr.org) the following quote from Tom Diaz -- a Violence Policy Center analysist -- speaking on National Public Radio's "Fresh Air," Jan. 20, 1999:

Without going into too much details about the specific regulations, we would like to see firearms regulated in the same manner that every other consumer product in the United States is. Firearms are really the last holdout for regulation. So that means that there would be a regulatory body -- and we favor the Bureau of Alcohol Tobacco and Firearms because of their existing expertise -- that they would look at firearms and determine whether the design of the firearm from a point of view of public health and safety really was satisfactory. And, if not, that agency would be able to say either you could not produce this firearm, or you would have to take whatever the appropriate steps were, much in the same manner that when toys, or mattresses, or bicycles, or off-road vehicles are made in such a way that a reasonable person looking at the design and the intended use can say that this is going to cause a problem, then we wouldn't probably allow -- certainly we would not allow semi-automatic assault weapons to be manufactured and sold, and we believe that, ultimately, handguns would be phased out through such an agency.

So it really is quite clear: The Violence Policy Center's move to try to "regulate" guns is indeed an attempt to try to get handguns banned. Funny, though, that the site to the best of my knowledge never acknowledges this, even when it says "No, this bill does not ban guns" -- if I've missed some place where it does acknowledge the ban handguns agenda, please do let me know and I' certainly update this post accordingly.

 
[Eugene Volokh, 2:00 PM]
THE FIRST AND SECOND AMENDMENTS -- TOGETHER! According to an NRA press release (thanks to reader Christie Caywood for the link), the NRA is suing a school

on behalf of 12 year-old Virginia NRA member, Alan Newsom. The lawsuit charges the principal and vice-principal of the Jack Jouett Middle School and Albemarle County School Board Superintendent and Board members with violating Newsom’s civil rights when they banned him from wearing a NRA logo-ed Youth Sports Shooting Camp shirt to school last year.

On or about April 29, 2002, Alan Newsom was forced to remove his NRA Sports Shooting Camp t-shirt by the vice-principal and told to turn the t-shirt inside out because she considered the NRA shirt illustrations of individuals involved in shooting sports in violation of school policy. Although Newsom was ordered to forfeit his right to free speech and association under threat of school suspension, at the time of the demand there was no rule that prohibited clothing depicting shooting sports.

When the NRA notified school authorities that the action violated the student’s civil rights, the school subsequently added a provision for the 2002-2003 school year barring any clothing associated with “weapons” and “violence.”

“The facts are clear. Alan Newsom was singled-out by the vice-principal because he was wearing a NRA t-shirt. The t-shirt clearly depicts individuals involved in shooting sports. The images are in no way inappropriate or violent. This is a blatant infringement of young Alan’s Constitutional rights. I was dumbfounded when I learned of the facts of this case after Alan’s parents contacted us and didn’t hesitate to take up this challenge. I am proud to say that the NRA stands proudly with this brave young man,” NRA’s Executive Vice-President Wayne LaPierre said of the case. . . .

The lawsuit also challenges the ambiguity of the new school rule which will not only affect all NRA logos, but also the Great Seal of the United States, the United States Army logo and the state seal of the Commonwealth of Virginia -- all with images of “weapons” that would fall within the prohibitions of the school’s new policy. . . .

The lawsuit noted that, ironically, Jack Jouett Middle School is named for an American Revolutionary War hero who is known for his famous ride on June 3, 1781, in which despite the potential for personal peril, he rode through the night from Louisa, VA to Monticello to warn Thomas Jefferson, Patrick Henry and other parties that British troops were on their way to arrest Jefferson and others for signing the Declaration of Independence. In appreciation for this act of bravery the Virginia Legislature awarded Captain Jack Jouett a sword and a pair of pistols.

When I posted this on another list, a lawprof friend of mine e-mailed me to say that this was the first time he ever found himself in agreement with the NRA; and indeed, the school's actions -- if they are correctly reported -- seem to violate the First Amendment, see Tinker v. Des Moines Indep. Comm. School Dist. (1969).

 
[Eugene Volokh, 1:36 PM]
WOMEN AND WESTERN CIVILIZATION: InstaPundit has already quoted Cathy Young on this, but it's such a good point that it bears repeating:

However much we would like to see women's liberation as a natural right, it is the achievement of a complex, advanced civilization. Recent events remind us that this civilization is fragile and that its enemies are hostile to freedom for anyone -- but especially women. Feminists, perhaps more than anyone else, should realize that the West is worth defending.

Exactly right.

 
[Eugene Volokh, 1:30 PM]
UPDATE ON THE LAWSUIT AGAINST MCDONALD'S: Recall one part of Prof. Banzhaf's claim:

Banzhaf said "warnings and clear and conspicuous labeling of fat and calorie content" might solve his problems with the fast food chain.

McDonald's displays its nutrition facts in all restaurants and on its Web site, though federal law does not require them to, restaurant customer service representative Pito Martinez said.

But Banzhaf said the information on the Web site is difficult to read.

"They use four-point type," he said. . . .

Well, folks, see for yourselves: The nutrition information on burgers is here (thanks to reader Henry Carmichael for the link). I can't tell the exact font size, but it's quite readable, and it surely isn't in 4-point type; or am I missing something?

 
[Eugene Volokh, 9:28 AM]
UPDATE ON GREENE STORY: John Kass, a Chicago Tribune columnist, defends the paper's decision to force Greene out. I think Kass makes a good point, but ultimately I think it's not good enough. Here's the essence:

. . . It's part habit and part miracle, this thing between us [the newspaper and its readers].

It's bound by trust. . . .

A number of years ago, a high school student visited the Tribune Tower to interview Bob for a school journalism project.

He wrote a column about her. And either before or after he wrote the column, he took her to a hotel. . . .

She was in high school, brought to this newspaper by her parents. They trusted and respected him. They were in awe of him.

And he did what he did with their daughter. . . .

Her parents trusted the Tribune enough to bring their daughter here to interview a top columnist. A bit later, the columnist and the girl were in bed together. . . .

Technically, she was of legal age. And at that age, and just before, young women begin to learn of the power their bodies have over men.

But she was a kid, and he wasn't a kid. . . .

It seems to me that the heart of the claim must be the last sentence -- "she was a kid, and he wasn't a kid." If it weren't for the "kid" claim, then the part about parents trusting him strikes me as somewhat irrelevant. It's not like they were entrusting him with something that was theirs: The girl's sexual life was at that point hers to control, not theirs, and they had no right to insist that Greene not get involved with her.

     It's like the classic situation where John introduces his girlfriend Mary to his distant acquaintance Sam, and Mary ends up leaving John for Sam. John may be tempted to say "Sam, how could you do this? I trusted you!," but that can't be enough to make Sam's actions immoral. Mary's affections are not John's to control, and John had no right to insist that Sam not get involved with Mary. Perhaps if Sam were John's close friend, Sam's actions would be disloyal; but in the absence of such a friendship, they're not improper, even if they disappoint John's desires and expectations.

     So it all turns on the claim that this girl was still "a kid" -- over the legal age of consent (17 in Illinois) but, in Kass's opinion, not over what one might call the moral age of consent: still so young that grownups should realize that it's wrong to have sex with her.

     It is here that the crux of my disagreement with Kass and the Tribune lies. It seems to me that treating older teenagers as "kids" is a mistake, both moral and practical. Yes, many of them are foolish (though many grownups are foolish about sex, too). Yes, by definition they are less experienced. But at some point, they need to be treated as free people -- free to make choices and thus to make mistakes. Trying to shield them by calling them "kids" denies this freedom. It denies this freedom to them explicitly, by constricting their range of romantic choices. And it also denies the legitimacy of this freedom, by suggesting that, notwithstanding what the law says, they really are not entitled to make choices and mistakes the same way that adults are.

     Now of course we do have to draw the line somewhere between kids, who lack freedom, and adults, who have it. Illinois did draw it, as to sex, at 17, and I think that given modern conditions, that's about right; in past centuries, 13 or 14 might have been more like it, but today 16 or 17 is probably more sensible. Now it's true that one can argue that the line should be drawn at 18, or for that matter at 16. But Kass doesn't make this argument; and it sounds like the argument that he does make might apply equally to 18-year-olds, 19-year-olds, and whoever else Kass sees as a "kid."

     And that, I think, is the real problem. In retrospect, it's very easy in these sorts of cases to see the poor young thing as a "kid" (recall that some made similar arguments about Monica Lewinsky, who was in her early 20s), especially when it seems in retrospect that the person's decision was indeed foolish. But so long as this is the standard approach -- enforced by the threat of firing and serious damage to one's career -- then all people in that broad, vague zone from 17 to 21 or whenever it might be would be denied an important part of their freedom. They would be infantilized in two ways: they would be treated as children, and because they're treated as children and denied the freedom of choice, they would find it harder to grow up, since growing up largely comes from being trusted to make choices (even, perhaps especially, mistaken ones).

     In any event, those are my tentative and non-expert thoughts on the matter. I should, however, take back one thing I said in an earlier post -- the short title of the post, which was "I DON'T GET IT." I do get Kass's argument, and I probably did get it even then, though I hadn't thought much about it. The "moral age of consent" argument is indeed a plausible one, though one that I think on balance is unsound.

 
[Eugene Volokh, 8:45 AM]
CRIME-FACILITATING SPEECH: Reader Fredrik Nyman pointed me to the Nick Kristof N.Y. Times op-ed suggesting that the government impose "curbs on information about [building] bio-, chemical and nuclear weapons," including prohibitions on certain kinds of books.

     This proposed speech restriction raises again the old -- but surprisingly underexplored -- question of what the government may do about crime-facilitating speech. The Supreme Court has actually never squarely confronted it; it has discussed when the government may restrict speech on the grounds that it may persuade people to commit crimes, or that it may offend people, or that it may communicate false information about people. But it has never set forth a test for when, if ever, the government may punish speech that makes committing crime easier, either because it teaches general information (how to build a bomb) or gives specific information (what are the passwords for a certain computer, what is the new identity and address of a mafia informant who's now in the witness protection program).

     As in many such situations, it's clear that in some situations, the speech must be protected -- you can't ban a standard chemistry book because it discusses explosives, even though some bombers have learned how to make bombs from such standard textbooks. And in some situations, the speech isn't protected -- if I ask my friend the retired master burglar for advice about how to burglarize a house, and he tells me some special tricks about how to do it (even if he doesn't get a cut of the proceeds, and even if he actually doesn't want me to act on the information, because he wants me to retire as well, but just tells me in order to help a friend), he can be lawfully punished as an aider and abettor even though all he has done is communicated information. The question is where the line should be drawn in between these two extremes.

     I don't know the answer to this question; in fact, for two years I've been thinking about writing an academic article on this very subject, but it's been on the back burner, in part because I don't know the answer. In the meantime, though, I thought I could at least flag the problem, and point interested readers to the one court of appeals case that has dealt with the issue at some length -- Rice v. Paladin Press (4th Cir. 1997), which involved a civil lawsuit based on the contract murder manual case. I don't think that the Fourth Circuit's analysis is quite right, but it's much worth a read, if you're really interested in this issue.

NOTE: While this is an interesting First Amendment question, I don't think it's an interesting question related to the war against terrorism; I highly doubt that al-Qaeda terrorists would be much stymied by any such law, though it's possible that some considerably less organized domestic bad guys might be.

 
[Eugene Volokh, 8:07 AM]
THE ARABS AND ISRAEL: A good point from Jeffrey Collins:

Remember how we're often told that the real problem with the Israelis and Palestinians was the Israeli "settlements" on the West Bank? How many times have we been told that all the Palestinians want is their own country? Check out this unusually frank statement in the Guardian:

Although the Iraq crisis has taken center stage at the current session of the General Assembly, Arabs said the conflict with Israel continues to dominate their lives, as it has since the establishment of the Jewish state in 1948.

This conflict has dominated their lives since 1948? Wasn't this the year that the UN wanted to set up a Jewish state and and a Palestinian state? Wasn't this long before Israel "occupied" the West Bank? Yes and yes. This has never been about self-determination and its never been about the "occupation." It has always been about killing Jews.

I wouldn't put things quite as starkly as Collins (though I should stress that I'm not an expert on the subject): I do suspect there are some Arabs who really are willing to live alongside Israel, and who really are seeking a state for the Palestinians; and I think that some arguments for self-government for Gaza and the West Bank are at least quite plausible, and might be meritorious if they provided adequate assurance for Israeli security. But at the same time, it's worth remembering that the Arab attempts to destroy Israel date back to 1948, not 1967; that the PLO was founded in 1964, not in 1967; and a variety of more recent indications suggesting that at least many Arabs still want to destroy Israel, and would surely use any new Palestinian state as a tool in this campaign.

 
[Eugene Volokh, 8:03 AM]
MORE ON "REGULATE GUNS" = "BAN HANDGUNS NOW": From the RegulateGuns.org site, which is registered to the Violence Policy Center:

Ten Commonly Asked Questions About The Firearms Safety and Consumer Protection Act

2. Won't The Firearms Safety and Consumer Protection Act ban guns?

No, this bill does not ban guns. The bill does authorize the Department of the Treasury to ban the manufacture and transfer of specific firearms only if the agency determines that no other remedy would be sufficient to prevent unreasonable risk of injury.

From Josh Sugarmann, the executive director of the Violence Policy Center, writing in an article called Dispense With the Half Steps and Ban Killing Machines, Houston Chronicle, Nov. 5, 1999, at 45:

A gun-control movement worthy of the name would insist that President Clinton move beyond his proposals for controls . . . and immediately call on Congress to pass far-reaching industry regulation like the Firearms Safety and Consumer Protection Act . . . [which] would give the Treasury Department health and safety authority over the gun industry, and any rational regulator with that authority would ban handguns.

Hmm . . . . So, no, we assure you, the Act won't ban any guns! But, oh, we forgot to mention that we fully intend that the Act be interpreted to ban the single category of gun (handgun) that is the target of the most controversial ban proposals.

     I have not read the entire RegulateGuns.org site, but let me call on our readers -- is there anything elsewhere on the site that acknowledges that, while "this bill does not ban guns," its advocates want to see it used to ban all handguns? For that matter, is there anything else on the site that might be worth noting? I'd love to hear what people find.

UPDATE: See here for more on this.

 
[Eugene Volokh, 6:44 PM]
PROFESSOR SUES MCDONALD'S: According to The GW Hatchet (may require registration) writes:

Overweight Americans might already blame fast food meals for their size, but after a GW professor finishes his work on an upcoming lawsuit, obese individuals may send their medical bills to McDonald's. John Banzhaf, a GW law professor, is currently working on a case on behalf of Ashley Pelman and Jazlen Bradley, two overweight eight-year-old girls who "were lured into McDonald's with playgrounds and tiny toys," he said.

The complaint was filed in the New York State Supreme Court Aug. 22, but a trial date is yet to be set.

"To get the little toys, you have to buy the meal," Banzhaf said. Banzhaf contends McDonald's birthday parties, which include games and prizes along with hamburgers and fries, are also to blame because the girls have to eat "greasy" food if they want to be accepted into a particular social ring.

Although he noted individuals should take some blame for their obesity because they choose the foods they eat, Banzhaf said eight-year-olds are incapable of making health-related decisions.

"It is hard to argue that these girls have personal responsibility," he said. "If girls can't understand the consequences of sex at 16, it is hard to say that girls of eight can understand the consequences of eating greasy food." . . .

Banzhaf said "warnings and clear and conspicuous labeling of fat and calorie content" might solve his problems with the fast food chain.

McDonald's displays its nutrition facts in all restaurants and on its Web site, though federal law does not require them to, restaurant customer service representative Pito Martinez said.

But Banzhaf said the information on the Web site is difficult to read.

"They use four-point type," he said. . . .

Eating fast food is the choice of the customer, said John Doyle, co-founder of Consumer Freedom.

Consumer Freedom is an organization representing restaurant operators and individuals who want to preserve consumer rights to spend their money on foods they choose. . . .

"How did these kids get to McDonald's? Their parents drove them," Doyle said.

Thanks to Marc Levin for the pointer. As he points out, "Here's a hint -- if you just want the toy, buy a 99 cent burger, throw it away, and keep the toy." As you might gather, I think he and Doyle have the better of this argument.

 
[Eugene Volokh, 4:58 PM]
GLOSSARY OF BLOGSPEAK, from Samizdata. Blogspeak has the same plusses (sometimes needed to describe new concepts that otherwise don't have simple descriptions), occasionally amusing [especially when first coined], helps create an "in-crowd" feeling among its users) and minuses (incomprehensible to outsiders, annoying to outsiders who feel that it's an attempt to create an "in-crowd" feeling, seems affected, loses its amusement value quickly) as other jargon. But it's interesting to watch, and occasional glossaries (with proper credit given to the words' creators) are valuable resources. (Thanks to Porphyrogenitus for the pointer.)

 
[Eugene Volokh, 2:54 PM]
PET PEDANTIC PEEVE: I just ran across yet another post arguing that the United States isn't supposed to be "a true democracy" but is rather "a republic." This time it's in response to a Jesse Jackson speech in which Jackson complained that "democracy as we know it did not begin in Philadelphia, where a bunch of white men wrote the laws," and that the Voting Rights Act of 1965 was the start of "true democracy" in the U.S.

     There's lots wrong with Jackson's speech, but the rebuttal that a republic isn't a democracy just doesn't work. As dictionaries generally make clear, "democracy" includes democratic republics: To quote the first entry from dictionary.com, democracy is "Government by the people, exercised either directly or through elected representatives." Republics may thus be democracies, if the people generally get to vote; or they may be relatively undemocratic, if fewer of the people are allowed to vote. America began as a relatively undemocratic republic, and has gotten more democratic over time.

     If one is going to be pedantic, one should at least be correct; and the "republics aren't democracies" claim is generally not correct.

 
[Eugene Volokh, 11:34 AM]
GORE COMPLAINING ABOUT ASHCROFT'S CIVIL LIBERTIES RECORD: Doug Bandow has a very interesting column on this subject; I don't entirely agree with all the charges in it, but the general thrust -- that there's no reason to think that a Gore Administration would be any better than the Bush Administration on civil liberties -- seems to be quite apt.

 
[Eugene Volokh, 11:10 AM]
I DON'T GET IT: Columnist Bob Greene has apparently been forced to resign because a decade ago he had sex with a teenager -- one who was above the age of consent (which is 17 in Illinois, where I assume this happened). He met the teenager while writing a story about her; then, after the story was published, he asked her out to dinner and they had sex.

     As John Scalzi points out (thanks to InstaPundit to the link) this seems like gross overreaction. If this was a breach of journalistic ethics, it was a minor one; Greene had written the story already, and never wrote about the girl again. True, he met her through his work at the newspaper, but so what? People meet other people all the time through work. In a very few situations, such as psychiatrists having sex with patients, there may be good reason to prohibit this, because the relationship generally involves a tremendous degree of trust and reliance on a professional acting in the client's best interest -- but I just don't see how this would apply to journalists and people they write about. (Greene was apparently married at the time, so his behavior is certainly wrong on that score; but surely the Tribune doesn't fire journalists just because they commit adultery.)

     Now I think that the Tribune should have the legal right to demand Greene's resignation; it's a private business, and should generally be entitled to refuse to be associated with people who it thinks have misbehaved. I just think that its exercise of its rights was in this instance unwise and unfair.

UPDATE: Orrin Judd compares the Chicago Tribune's views about Greene with a Chicago Tribune editorial expressing its views about Clinton's misconduct. The matters aren't completely analogous, but I think Judd is right to point out the similarities.

 
[Eugene Volokh, 9:36 AM]
BLOGGING: "Blogging is holding forth from a life raft in the remotest acre of Ocean. What is this? A modest sized cruise ship full of people! They peer over the side and listen, hearing bits of what you say until the vessel pulls away . . . and then -- waves splashing, silence. You and God." From David Kreitman's Whigging Out (which contains a picture of Churchill, who I believe was a Tory -- but perhaps a Whiggish one).

 
[Eugene Volokh, 9:15 AM]
THANKS TO DAHLIA LITHWICK for corresponding with me about the "can we be legally at war without a declaration of war?" issue, and for mention my earlier post on the subject in her most recent piece. Dahlia promises more on this subject soon (her most recent piece flags the issue but doesn't discuss it further) -- I much look forward to seeing her thoughts on the matter.

     Thanks also to Howard Bashman for pointing out that my earlier link to Dahlia was busted -- I wrote the post in Word and then copied and pasted into BloggerPro, but I didn't remember to properly monkey with the quotes in the links. Whoops . . . .

 
[Eugene Volokh, 8:34 AM]
BLOGS AND PROTECTIONS FOR THE MEDIA: My friend, colleague, and fellow blogger Mark Kleiman asked me whether blogs are treated the same as other media outlets -- newspapers, magazines, and the like -- for legal purposes.

     The answer, of course, is "it depends," mixed with a healthy dose of "no-one knows for sure, at least as to some matters." When it comes to basic First Amendment protections, the rules are probably the same for a blog as they are for the New York Times: Both are free to publish most things, and both are constrained in certain narrow ways (e.g., by the laws of libel, obscenity, threats, copyright, and other narrow exceptions to First Amendment protection). The Court has generally treated the media the same for First Amendment purposes as nonmedia speakers, and has treated the various media similarly (with the exception of broadcast television and radio, which for historical reasons enjoy less protection than other media; but this exception doesn't seem likely to be extended to any other media.) The Court has never squarely declared "the First Amendment doesn't give institutional media speakers any special protection," but that seems to be the trend of the cases. And this makes sense, partly because of general principles of the equality of speakers, and partly because of the ever-growing difficulty of distinguishing the media from others.

     But some statutes (not a lot, but some) that provide extra protection for speakers -- beyond the protection required by First Amendment law -- do seem to provide extra protection to the media. For instance, laws restricting campaign expenditures tend to have exceptions for the media (or else most media editorials, which cost money to produce, would be covered as expenditures); whether blogs are covered depends on just how the law is written. Likewise for laws providing for libel immunity if a publication promptly retracts an allegation. Likewise, possibly, for laws that provide journalists with a special privilege to conceal the names of their confidential sources. Again, much depends on precisely how the law is written.

     One could, of course, argue that such discrimination among speakers based on their medium, frequency of publication, organization size, or whatever else is itself unconstitutional because it treats speakers unequally. I've seen some such challenges made, especially as to the retraction-gives-you-libel-immunity statutes that I mentioned. But while such arguments strike me as appealing in some ways, my tentative research suggests that they are generally rejected; and certainly under current First Amendment law, they're probably losing claims, though not ridiculous ones. The best bet for getting protection for blogs under these statutes, I think, isn't a constitutional defense but a claim that blogs literally fit within the statutory text; but that of course depends on the particular statute involved.

 
[Eugene Volokh, 8:30 AM]
A FLAWED ANALOGY: A reader and a frequent and thoughtful correspond writes:

Maybe it's just me, but I don't like the feel of some of the statements our government is making to justify war on Iraq. Bush and Powell have both made comments along the lines of: "If they have no weapons, what are they hiding?" The argument has persuasive power, but I don't think it's morally valid, and I don't think they should be using it.

There are plenty of other reasons that can be offered for pre-emptively attacking Iraq, and if this justification becomes morally acceptable in this instance then it can be applied elsewhere much more easily. The mere fact that someone doesn't want you looking through their stuff doesn't give you the moral authority to go ahead and do it.

As you've pointed out in response to some of my earlier emails, countries and people are different. However, it is the conservative side that normally rejects this argument, and if gets legitimized through explicit usage I think we'll lose valuable ground in other issues.

Analogies can form the basis for very powerful arguments; in a world where people often disagree on first principles but agree on specific cases, analogizing to those specific cases may often be the best way of persuading people -- if, of course, the analogy is sound.

     And this one, I think, isn't sound. What is it exactly that we're analogizing to? Most clearly, it's the principle that if I refuse to agree to a search, that refusal can't itself be treated as probable cause justifying the search (even if as an empirical matter, most people who refuse their consent do indeed have something to hide). A policeman stops me on the street and asks "May I search your car to see if there's a bomb in it?" I say "Not unless you have probable cause." The policeman can't then say "Aha! Your very refusal to voluntarily let me search means that you have something to hide, which gives me the probable cause I need to search."

     But even if countries can be analogized to individuals (and I'm not sure that such analogies are really helpful here, for other reasons), this is the wrong analogy. The better analogy is when a policeman says "Look, I have probable cause to search your car to see if there's a bomb in it." I say "I won't let you," or maybe even stop him while he's searching. He then decides to use force to search the house, because he's got probable cause and because my refusal to let him search further reinforces his notion that I do have a bomb in the car, and that he shouldn't let the matter slide. This decision is perfectly consistent with constitutional principles -- my refusal to let him search isn't being used as evidence of probable cause, since there's plenty of probable cause already. Rather, it's being used as an explanation for why a peaceful search might be turned into a forcible one. And that is the closer analogy to what's happening in Iraq.

     More broadly, let's step back a bit to see further just what we're analogizing to what. If we really did want to come up with something analogous to Iraq in the domestic context -- the context to which my correspondent is alluding, because that's the context where we have a strong right to generally keep the government from looking through our stuff -- the analogy would be something like this: I had attacked my neighbors a couple of time, once with a nasty and illegal weapon. For complicated reasons, I wasn't thrown into prison for it (already a distinction between the foreign and the domestic context -- an ordinary citizen who had behaved like Hussein in the domestic context would surely have been jailed for what he did to Mr. Iran and Mr. Kuwait next door). I then used this weapon against one of my roommates, but again wasn't punished for it. People who used to be my roommates report that I'm working to produce more illegal weapons.

     The police have tried to search my house several times, based on a warrant that was issued given this probable cause to believe that I had these weapons, but I've interfered with them and ultimately refused to let them back in the house. Now the police want to break down my door and search my house by force. Some neighbors say "Oh, don't mind him, we're sure that he really doesn't have those weapons any more; there's no need to make such a fuss about that." The police then say "But wait a second -- we've got lots of probable cause, though perhaps not proof beyond a reasonable doubt, to search the house, and the very fact that he doesn't let us in peacefully suggests that he really does have these weapons, and that we shouldn't just let the matter slide." No constitutional or moral problem here, it seems to me. So if you want to use these sorts of domestic analogies in foreign policy contexts (and as you can tell from this analogy, there are inevitably going to be lots of differences that might make such analogies unhelpful), then this is the better one to use -- and it's one that shows the U.S. government's argument to be quite sound.

     So the bottom line: Analogies can be great -- but make sure that the thing to which you're analogizing is really analogous.

UPDATE: Reader Gene Hoffman writes:

I think a much better analogy for Saddam Hussien and Iraq is a probation
agreement. Saddam signed a cease fire -- read probation agreement -- that agreed among other things to random searches for the illegal weapons he was using. Now he wont even let the police in.

Good point.

 
[Eugene Volokh, 8:07 AM]
A BIT ON CHILD PORN: Mickey Kaus (Slate) writes about a Wired child porn story, and mentions the following:

Silberman also never takes on the central argument of FBI kiddie-porn theorist Kenneth Lanning -- that the evil in child porn is what it does to the children in it, and if you look at it you create demand that encourages the abasement of more children. Couldn't you make the same argument about a lot of images? (Snuff films, most obviously, but also images of lesser crimes where Lanning's case might lose its power. Suppose some people liked to watch videos of robberies. Or highly dangerous and illegal car chases. Luckily nobody would be crazy enough to broadcast those.)

Since this touches on a field that I've actually followed pretty closely, I thought I'd pass along a few tidbits that aren't often mentioned:

1. Though there's often talk of "snuff films," which is to say films of people actually getting killed for the purpose of making the film, there is apparently some controversy about whether such things even exist. See, e.g., snopes.com; Stine, The Snuff Film: The Making of an Urban Legend, Skeptical Inquirer, May 1, 1999; Roeper, Do the Films Exist, or Are They Just Another Urban Legend? S’nuff Already, Chicago Sun-Times, Mar. 21, 1999; Caro, Legend Lives On, Despite No Proof Snuff Films Exist, Chicago Tribune, Feb. 26, 1999. It’s not clear what the facts exactly are (see, e.g., McDowell, Movies to Die For; Do Snuff Films Really Exist, or Are They Merely Popular Myth?, S.F. Chronicle, Aug. 7, 1994 (taking the view that they are probably a myth, but quoting some law enforcement officials who believe the contrary); United States v. Lambey, 974 F.2d 1389 (4th Cir.1992) (discussing conviction for conspiracy to kidnap a child in order to make a snuff film; no actual film was made)). (The Danny Pearl video might actually be a modern exception, but tha 's obviously different in a variety of ways.) And the "there are no snuff films" case is made more plausible by a practical considerations: Apparent deaths aren't hard to fake these days on film, and it's probably better for the producer to fake the death and claim that it's real than to risk a murder prosecution (though I realize that the analysis may be different as to movies made in foreign places where life is cheap enough).
   
        I'm not planning to do much investigation of the subject myself, especially since such investigations have been done by others in the past, with the results I mention above. But I thought it was worth at least flagging this as a possible myth, since I've often heard snuff films' existence simply assumed, and then used as the basis for a broader argument.



2. The argument that child porn should be illegal because of the harm it causes to the kids being filmed isn't just the FBI's position -- that's what the Supreme Court has accepted as the justification for a child porn exception to the First Amendment. See Ashcroft v. Free Speech Coalition (2002); New York v. Ferber (1982). I suspect Mickey knows this, but many people miss this, and assume that child porn can be banned because it supposedly causes people to molest children -- that is not the constitutional justification for banning child porn (though it may apply to child porn that also fits the legal test for "obscenity," a complex issue that I'll save for later).



3. Mickey's hypothetical about this child porn logic being applied to other situations, where it should lose its power, is actually quite real: The federal ban on distributing certain material that depicts cruelty to animals (so-called “crush videos”) was justified on exactly these grounds -- “Assistant District Attorney Tom Connors said the bill is modeled after legislation that bans the distribution of material that features child pornography. ‘Illegal conduct,’ he wrote the committee, ‘has never been given the constitutional protections of free speech.’" Timm Herdt, Committee OKs ‘Crush’ Video Ban, Ventura County Star, Mar. 15, 2000, at B1.
   
        I believe the ban is unconstitutional, precisely for the reason Mickey suggests: Though animal cruelty is a crime, and the distribution of films that show it may in some measure stimulate more animal cruelty, that itself shouldn't be enough of a justification to restrict speech (and for constitutional purposes, the distribution of films is treated as speech); you also need the extra factor that the crime is an extraordinarily serious one, which the sexual abuse of children is but animal cruelty isn't. Punishing actual animal cruelty, which is involved in the making of the movie, is constitutional, because that punishes conduct (abusing animals) rather than communication. But punishing the distribution of the movie is punishment of communication, and should be impermissible.



4. Finally, this "punish communication to deter people from the activity that makes possible this sort of communication" argument was also made -- and rejected by the Supreme Court, though just barely -- in Bartnicki v. Vopper (2001). In Bartnicki, a radio station was sued (though it might also have been criminally prosecuted) for broadcasting a tape of a cell phone call. On the tape, two union leaders were discussing possible criminal violence against management in the context of a labor dispute; the tape was made by an unknown third party who electronically overheard the call, and sent the tape to the radio station.
   
        The Supreme Court held that the radio station broadcast was constitutionally protected; the illegal taper could have been sued or prosecuted for his conduct, but the radio station couldn't be prosecuted for its speech. Though the plaintiff argued that the ban on communicating unlawfully intercepted conversations was necessary in order to deter the actual interception, the Court rejected that -- and rightly so. Among other things, if this logic had been accepted, then it would be very hard to distinguish newspaper publication of documents that were illegally leaked (e.g., in violation of nondisclosure agreements, a duty of loyalty, or trade secret law) as well as of communications that were illegally gathered (the situation in Bartnicki). And barring the communication by newspapers of illegally leaked information would dramatically undermine the ability of the press to report on misconduct in the government, labor unions, businesses, and other institutions.

So there you go: More than you ever wanted to know about odd matters connected to child porn law. Now, I've got to back to work.

 
[Eugene Volokh, 7:15 AM]
"REGULATE GUNS" = "BAN HANDGUNS NOW"? Some gun rights advocates argue that calls to "regulate guns as consumer products" are just attempts to let the government ban guns through the back door. This is not logically necessary -- of course lots of things are regulated without being banned -- but the claim is that in this case, regulation will just be a means to the end of prohibition.

     Well, we now see another piece of evidence for this -- as InstaPundit points out, there's a new site called RegulateGuns.org that purports to call simply for regulating guns, but the WHOIS directory shows that it has been registered by a group called the Violence Policy Center (something that the site apparently doesn't reveal). And the VPC, it turns out, also runs a site called . . . BanHandgunsNow.org. Pretty telling, no?

     Oh, and here's one more quote for you, from Josh Sugarmann (executive director of the Violence Policy Center), from an article called "Dispense With the Half Steps and Ban Killing Machines," Houston Chronicle, Nov. 5, 1999, at 45:

A gun-control movement worthy of the name would insist that President Clinton move beyond his proposals for controls . . . and immediately call on Congress to pass far-reaching industry regulation like the Firearms Safety and Consumer Protection Act . . . [which] would give the Treasury Department health and safety authority over the gun industry, and any rational regulator with that authority would ban handguns.

Next time you hear someone calling the NRA "paranoid" for worrying about the slippery slope from "reasonable regulations" to gun prohibition -- or next time you're tempted to do it yourself -- remember that paranoia is irrational fear. The slippery slope fears of the gun-rights advocates seem rational indeed, as the anti-gun forces seem bent on proving.

UPDATE: See here and here for more on this.

 
[Eugene Volokh, 6:23 AM]
UNDERGRADUATE SEMINAR ON GUN CONTROL: I'll be doing something new starting October 1 -- teaching undergrads for the first time. This will be a very short class, just 10 1-unit sessions on gun control issues, offered via the Honors Collegium. Pass/fail for the students (because it's just one unit of credit), and no grading for me; no work, but, I hope, fun and education both for them and me. (We'll see if I still think that after the class is done!) Here's the syllabus, in case anyone is interested; note that I deal only with the criminological questions, not the constitutional or tort liability ones, since the latter would require too much legal background.

     Incidentally, the UC Police Department (1) didn't object to my bringing ammunition to the class to show the students just what the difference is between a .22, a .45, and a shotgun shell, and (2) were kind enough to spontaneously offer to also send a police officer who can actually show the students a variety of guns (unloaded, I hope!), something that I probably couldn't legally do on campus. Much looking forward to that class visit. (I'll bring the ammo another day, just in case.)

UPDATE: Reader Joe Myers asks why the syllabus excludes John Lott's More Guns, Less Crime. My answer is that it (and the criticisms of it) strike me as too complex for undergrads, and too time-consuming for a class that takes up only 10 50-minute hours. I do assign long excerpts from it in my longer law school seminar.