[Eugene Volokh, 5:37 PM]
Religious freedom statutes and legislative commands: Many people have talked about the the veiled Muslim woman case as if it were a constitutional claim, and there's good reason for that -- it's brought under a statute, the Florida Religious Freedom Restoration Act, that is intended to apply rules much like those that the Court applied under the Free Exercise Clause from 1963 to 1990.

     But it's not actually a constitutional case, in which a judge is asked to decide whether to set aside a legislative judgment. Rather, the judge is having to choose between two legislative judgments -- (1) the legislative judgment that driver's licenses should include photos, and (2) the legislative judgment that religious objectors should often be entitled to exemptions from generally applicable laws. This latter statute quite explicitly says:

The government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person:
(a) Is in furtherance of a compelling governmental interest; and
(b) Is the least restrictive means of furthering that compelling governmental interest.

And the test it uses for when a government action should be permitted -- "the least restrictive means of furthering [a] compelling governmental interest," the so-called "strict scrutiny" test -- is a test that has historically been quite demanding. Strict scrutiny is the test used for deciding whether race discrimination is allowed (and it almost never is), and whether content-based speech restrictions are allowed (and they almost never are).

     In the past, the test has been applied with more deference to the government in religious freedom cases, especially in such case from the 1980s as opposed to the 1960s and 1970s, when the test was fairly demanding. Gerald Gunther once famously said strict scrutiny is, in most fields, "strict in theory, fatal in fact" (because very few laws survive it), but Chris Eisgruber and Larry Sager have said that in the religious fredom context, it's "strict in theory, feeble in fact." Still, there's as much precedent for reading the test in a very demanding way (and it does ask for interests that aren't just important, but "compelling," and means that aren't just helpful, but "the least restrictive") as in a more forgiving way.

     So if the court does hold in favor of the Muslim woman, it won't necessarily be ignoring the legislative judgment behind the identification requirement -- it will be respecting the legislative judgment that religious accommodations are very important, and that they often do trump generally applicable laws. What's more, unlike with constitutional decisions, the court's decision won't be final. If the legislature decides that it really does insist on requiring photographs on driver's licenses, the legislature can mandate this by simply modifying the statute to say "Nothing in this act shall be construed to circumvent the requirement that driver's licenses contain photographs." (This language is borrowed from a provision that already exists in the statute, Fla. Stat. sec. 761.05(4), that makes the religious freedom act inapplicable to drug laws.) There'd be no need for a cumbersome constitutional amendment, which is what would be required if a court decides on constitutional grounds -- a simple statutory amendment would suffice.

     State Religious Freedom Restoration Acts thus simply affect the burden of legislative momentum. Without them, religious objectors would have to get the legislature to enact special exemptions. With them, religious objectors may get the exemption, and then those who oppose the exemption would have to ask the legislature to repeal it. This shift in momentum is significant, for various reasons; it's hard to get the legislature to do something. But, unlike with constitutionally mandated religious accommodations, it still leaves the democratic process free to act.

     This phenomenon is why I support the Court's decision in Employment Division v. Smith (which held that religious accommodations aren't constitutionally mandated by the Free Exercise Clause) but also support state RFRAs (which provide such religious accommodations as a matter of state statute) -- why I oppose constitutionally mandated religious exemptions, but support similar regimes mandated by state law. I defend this position in much more detail here.

     Now none of this directly addresses whether Ms. Freeman is entitled to a religious exemption under the statute. I think there are decent arguments for why the photograph requirement is the least restrictive means of serving a compelling governmental interest in enforcing traffic laws. But given the vagueness of "compelling," and "least restrictive means," and the body of law that does treat strict scrutiny as very hard for the government to satisfy, I think there's a decent argument in Freeman's favor, as well.

     So if the judge does hold that Freeman is entitled to an exemption, people shouldn't be too outraged:

1. The judge will be plausibly implementing the legal command of the Florida Legislature, which enacted the Florida RFRA only five years ago.



2. If the Florida Legislature disagrees with the judge, it can without extraordinary difficulty amend the Florida RFRA to prevent this result
.


3. The judge's decision would thus be much less intrusive on the democratic process -- and, if mistaken, much less dangerous -- than similar constitutional (as opposed to statutory) decisions would be.

 
[Eugene Volokh, 5:13 PM]
Religious freedom and traffic regulations: A National Review Online piece argues against the religious freedom claim to have a photo-less driver's license; among other things, it says:

Courts have always held that religious expression is not a blanket "freebie card" that exempts the practitioner from having to abide by laws and regulations involving public safety and/or the rights of others. For example, being Amish doesn't mean you don't have to abide by traffic laws.

     Well, actually it does mean that, at least as to those traffic laws to which the Amish seem to object and in those states that have religious exemption requirements (and the Florida Legislature has indeed mandated religious exemptions, via the Florida Religious Freedom Restoration Act): Three state courts have held that the Amish are entitled to a religious freedom exemption from laws requiring slow-moving vehicles (such as horse-drawn buggies) to display orange reflective signs. See State v. Miller, 196 Wis. 2d 238 (Ct. App. 1995); State v. Hershberger, 462 N.W.2d 393, 397-99 (Minn. 1990); People v. Swartzenburger, 170 Mich. App. 682 (1988). (My quick search revealed no courts that have applied religious exemption regimes -- such as the one that's the law in Florida -- but held that the Amish weren't entitled to the exemption, though if I'm mistaken, please let me know.) Maybe these cases are wrong -- maybe being Amish shouldn't give you any special exemption from traffic laws; and it's quite possible that in any event this case is different in relevant ways from those. But the assertion in the NRO piece doesn't seem quite accurate.

 
[Eugene Volokh, 2:44 PM]
Legal doggerel: I have a vague recollection, from my law school days, of a book that had humorous poems reciting the facts of then-leading cases. The two snippets I recall were from a poem about Paradine v. Jane -- "Rupert the Alien, came the thief / Turned my oxen into his beef / Sheep into mutton" -- and from another poem about a case whose name escapes me -- "I'd return with zest to that useful test / The reasonable man."

     My own search for this has proven unavailing, so I thought I'd call on my readers' knowledge in this matter. If any of you can point me to this book, I'd be much obliged (and I'll also post excerpts from the poems, if they are as amusing as I remember them).

 
[Eugene Volokh, 1:35 PM]
Whoppers and not-so-whoppers: Timothy Noah's "Whopper of the Week" in Slate points to Ari Fleischer's statement that:

"The prisoners in Guantanamo are . . . receiving far better treatment than they received in the life that they were living previously."

He then points out that "18 detainees have tried to kill themselves . . . and . . . there were 27 total attempts by these detainees since the Guantanamo facility was opened in January 2002. . . . Roughly 680 prisoners are being held at Guantanamo." These suicide attempts, the column reasons, give the lie to Fleischer's claims. "Chatterbox believes that the best indication of how someone is being treated is that person's own testimony, and until a poll is taken ('Are you better off than you were two years ago?'), he will let the rate of suicide attempts serve as the leading indicator."

     I don't think this is quite right. First, here's Fleischer's statement in context (note that, unlike the Bushism of the Day column, the Whopper of the Week column does provide links):

The prisoners in Guantanamo are being treated humanely. They're receiving medical care, they're receiving food. They're receiving far better treatment than they received in the life that they were living previously. And it's a reminder, also, that these people are terrorists who still want to wreak harm and havoc on the United States and our people. They are very dangerous people.

Fleischer's reference to "treatment" might thus be primarily to medical care, and on that he may well be right.

     But second, whenever someone talks about the treatment of prisoners, he's necessarily talking about those aspects of the treatment other than the fact that they're prisoners. Naturally, they're being treated worse in one way: They're locked up, and before they weren't. Fleischer obviously can't be denying that, and no-one would think he's denying that. Beatings, starvation, lack of medical care, and the like would be considered bad treatment of prisoners. Lack of liberty just isn't part of what anyone would understand as the "better [or worse] treatment" of prisoners.

     Now it might still be the case that some aspects of the treatment other than the mere fact of confinement -- for instance, perhaps, the size of the cells -- might be causing the suicides. But the suicides might be caused by other things: the detainees' knowledge that they lost the war, their sense of shame at being locked up even now, or their apprehension that they might be detained for a long time (either because the war against al-Qaeda will last a long time, and even lawful combatants can be detained for the duration of the war, or because they're unlawful combatants and may be tried and sentenced for their acts of unlawful combat).

     So the rate of suicide attempts is not the leading indicator of what most people think of as "treatment" of prisoners -- it may reflect the humaneness of the treatment, but it may also reflect other factors that are rarely thought of as "treatment" of prisoners (such as the fact of confinement itself, or the expectation of future confinement, or the knowledge that one's political or religious cause seems to have lost). No-one who heard Fleischer's statement would think that he's referring to those aspects of "treatment"; it's hard to see, then, how the suicide attempts themselves show that Fleischer's assertion is a "whopper."

 
[Eugene Volokh, 12:38 PM]
Blogging, powers, and alliances: Hugh Hewitt, in his 10 am and 8:10 am posts today (the site doesn't seem to allow links directly to the posts) has an interesting theory about blogs. I'm not sure how accurate it is, but it's certainly interesting:

[8:10 am post:] . . . There are four major powers in the blogosphere of 5/29/03: Instapundit.com AndrewSullivan.com, Kausfiles.com and Volokh.com. A dozen others are in the second tier of allies of the Big Four, including KenLayne.com, MattWelch.com and Virginia Postrel. Dozens of others aspire to ally status, much as various powers hoped to be proclaimed "Friend of the Roman People" during the late Roman Republic.

But the blogosphere is rapidly changing, and new powers may be rising. I refer to Blog Alliances.

The first Blog Alliance grew in the wilds of Minnesota, and consists of the Northern Alliance of Blogs --Powerline, Lileks, FratersLibertas, ShotintheDark, and SCSU-Scholars.

The Alliance actually executed a combined blog-exercise Wednesday --on the subject of John Carroll's mea culpa memo-- and opened my eyes to the power of synchronized blogging.

Although the Northern Alliance was originally conceived as a defense against Canadian ideas (and a very weak defense, considering that Lileks holds the flank) it may emerge as an engine of focus. If all five of these Minnesota blogs agree to debate a particular subject on a particular day, such a debate would probably filter through to the various decision-makers in the Gopher State. That could be an interesting development in the world of blogging.

Currently blog-momentum appears random, but is heavily controlled by the Big Four. These four can drive the blogosphere in a single direction, but new blog-forces will rise soon that will push the commentariat in new directions. I suspect these will be organized along Northern Alliance lines.

Blog Alliances that agree to cooperate in the pushing of a story/stories may soon dominate the blogosphere. . . .

[10 am post:] My prediction on the formation of blog alliances -- see below, in the day's first post -- is generating a lot of e-mail. Please let me know if there are any other blog alliances already functioning.

The Big Four are a quasi-alliance, and thus they have the ability to conjure up opinion storms. Others, like Joshua Micah Marshall, do not operate in loose or formal alliance with any other bloggers, and thus his attempt to generate an opinion storm over the Texas story has fallen flat. (Instapundit threw Josh a bone this morning, but nothing like the sort of support needed to get a storm going.)

I would also like to hear from the e-mailers on their perceptions of the power blogs. Other than the Big Four, who has sufficient juice to make the weather in the blogosphere? Traffic stats matter, of course, but so do many other intangibles. Results of this informal survey next week. . . .

For links, Hugh's e-mail address, and the rest of the posts' text, go here.

     By the way, while I'm of course flattered that the Conspiracy is included in the Great Powers, I suspect our readership is at least 5-10 times less than that of any of the other three (InstaPundit, Andrew Sullivan, and KausFiles).

 
[Eugene Volokh, 12:17 PM]
Animals: Reader Troy Loney writes, apropos the "animal" post below:

The first places I recall hearing that term used in the manner you describe were professional sports and the military (specifically, by some Marines discussing Vietnam action); I don't know which group it began with, however -- I can see it migrating either way, although sports --> military makes a bit more sense. And it must go back nearly thirty years -- I don't recall it from college, but I certainly was familiar with the usage by the mid- to late-seventies.

As for meaning: I always took it to imply unbridled ferocity in the pursuit of a goal, actions bringing forth the picture of a top predator
mercilessly (and bloodily) securing its lunch. And I always felt the application of the term outside sports/military commentary was funny, precisely because of the inherent overstatement (within the sports/military context, of course, it may be quite a bit more literally accurate... I'm imagining an opposing lineman at the snap, for instance).

Reader Larry Salzman has a similar theory:

I also like the term "animal" for its positive connotation. I more frequently use the term "maniac" for the same thing. A related common oddity to describe a similar person or phenomena is to say someone is a "machine." I think the key is that it's usually reserved for talking about someone's work or avocation: "That guy's an animal--he's been here 16 hours today" or "He drives the ball down the court like an animal."

The pejorative sense of the term is, of course, that someone is uncivilized or worse. Using the term animal is a twist on this. The essence of being human is the capacity to reason. By contrast, you don't negotiate with an animal. An animal is relentless when in the grip of an instinct or purpose; the drive is total and all-encompassing and there is no persuading them to slow down, stop, or back away. Competing with an "animal" blogger is like being chased by a bear.

Calling someone an "animal" is a way for fellow travelers to note that someone is a bit unreasonable in their pursuit of some purpose or activity, but in a winking, benevolent, admiring way.

 
[Eugene Volokh, 12:05 PM]
The "sensibilities" of Catholic, Muslim, and Jewish students: A National Review Online opinion piece reports that:

At Princeton's Bernstein Gallery, an exhibit boasts images of naked female torsos arranged in the shape of a cross, a ripped image of the Sacred Heart of Jesus, and Catholic devotional items linked under the title "Shackles of the AIDS Virus."

The sponsor? The Woodrow Wilson School of Public and International Affairs. . . .

Now whether Princeton should sponsor exhibits that are hostile towards Catholicism is an interesting and complex question. I don't think that religions should be immune from criticism, including criticism by universities; on the other hand, universities also shouldn't engage in unfair criticism, which this exhibit may well be. But what's striking (if accurate) is the following:

Looking for answers, some 60 students and faculty attended a forum organized by Wilson Dean Anne-Marie Slaughter to determine who prevails when artistic vision collides with sacred belief. As several students pointed out, the debate over "Ricanstructions" [the work involved] is not one of free speech, the benefits of provocative art, or the alleged sins of the Catholic Church; it's one of fairness and equal respect. By sponsoring "Ricanstructions," the Wilson School is singling out Catholic symbols for special abuse.

Dean Slaughter, in a moment of candor she may regret, acknowledged it was unlikely she would sponsor art that abused the symbols of other campus groups -- such as Muslims. (I believe her: It's impossible to imagine the Wilson School welcoming a collection that included, say, an Islamic crescent in a jar of urine, or Star of David surrounded by elephant dung -- although prestigious museums have welcomed "art" featuring such abuse of Catholic symbols, to cheers from liberal art lovers.) . . .

If that's so -- if Princeton would balk at similar exhibits aimed at Islam or Judaism, but treats exhibits aimed at Catholicism differently -- then Princeton ought to be condemned for this. As a private university, Princeton has a constitutional right to act this way; but we have a constitutional right to fault them for it.

     The NRO piece also refers to the Princeton speech code, which says (relevant provisions emphasized):

Respect for the rights, privileges, and sensibilities of each other is essential in preserving the spirit of community at Princeton. Actions which make the atmosphere intimidating, threatening, or hostile to individuals are therefore regarded as serious offenses. Abusive or harassing behavior, verbal or physical, which demeans, intimidates, threatens, or injures another because of his or her personal characteristics or beliefs is subject to University disciplinary sanctions . . . . Examples of personal characteristics or beliefs include but are not limited to sex, sexual orientation, race, ethnicity, national origin, religion, and disability. . . .

I don't think Princeton should have such a speech code (though it might choose to adopt it as a policy for those programs that it selectively sponsors). But if it does, then it's hard to see how it can justify treating the "sensibilities" of Catholics differently from those of Muslims or Jews.

 
[Eugene Volokh, 11:16 AM]
Bigotry: An excellent piece on the subject, here. Before people object, I fully agree that this isn't identical to all other forms of bigotry -- but it's not terribly different from many. Substitute "asshole Catholic," for instance, and the connection should be pretty clear. Thanks to InstaPundit for the pointer.

 
[Eugene Volokh, 10:40 AM]
An animal: The Chronicle of Higher Education article on blogging contains the following paragraph:

Daniel J. Urman, one of Mr. Chafetz's collaborators on OxBlog, says with a laugh that "Josh is an animal. He's capable of spending 16 hours a day online. . . . Josh and David [Adesnik, another OxBlog author] will blog even when they're on vacation. It's like an IV or something."

This reminded me about the term "an animal," which is occasionally used in a complimentary way to mean . . . what exactly? I think I have a good sense for it, but it's not easy to put into words: Presuamably it means someone who is passionate about something, and willing to commit time and effort to it. (Of course, Josh Chafetz is also an animal in the sense that all humans are animals, but I take it this isn't what Daniel Urman meant.) But is this quite right? And, if so, why "animal"? I actually quite like the term, partly because its mild absurdity makes it a bit amusing.

 
[Eugene Volokh, 10:30 AM]
Chronicle of Higher Education chat on academic blogging: Here's a Chronicle e-flyer about this:

Scholarly web logs are sprouting like mushrooms. Do "blogs" contribute to academic discourse? How do they change it? What should academics who want to blog know about the medium?

The Chronicle of Higher Education invites you to join a live, online discussion June 4 (1 p.m. Eastern Time) with Eugene Volokh on issues facing scholars who have web logs. Mr. Volokh, a professor of law at the University of California at Los Angeles, is the founder of The Volokh Conspiracy, an academic blog.

For more details, and a link to a Chronicle of Higher Education article on academics' blogs, go to http://chronicle.com/colloquylive/2003/06/blog/.

 
[Eugene Volokh, 10:21 AM]
"Scholars Who Blog": The Chronicle of Higher Education has an article on this. The opening line is pretty catchy: "Is this a revolution in academic discourse, or is it CB radio?"

 
[Eugene Volokh, 10:15 AM]
A bit more on the veiled woman driver's license case: The Orlando Sentinel reports:

Freeman, a former utilities-company engineer and Pentecostal churchgoer from Illinois, converted to Islam in 1997 and began wearing a veil shortly after that. Testifying Wednesday, she said she does not believe in graven images or photographs and goes as far as scratching faces from cereal boxes for her 2-year-old daughter and 6-month-old son.

Actually, as the article later points out, Freeman's theory is the same one that leads a few Protestants to object to driver's license photos. Thus, Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), which I cited in earlier posts, and which held that the motor vehicles department had to accommodate the objector's beliefs, involved a Protestant woman who

believes in a literal interpretation of the Second Commandment, which states,

Thou shalt not make unto thee any graven image or likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.

Exodus 20:4; Deuteronomy 5:8. Quaring believes that the Commandment is violated by creating a likeness of God's creation.

This, of course, neither weakens nor strengthens the Muslim woman's claim -- she's entitled to have her past beliefs influence her interpretation of her new religion, or for that matter to mix and match her religions any way she sees fit (so long as she sincerely believes her claims). But it does illustrate that this isn't just a Muslim issue, but also one that applies to other religious believers.

 
[Eugene Volokh, 9:32 AM]
Rights: Xrlq writes, apropos the "is driving a right or a privilege?" question,

To the extent that a "right" exists only at the sufferance of the state itself, it scarcely deserves to be called a "right" at all.

I don't think this is quite right; rather, it shows the influence of the Constitutional Law Fixation that unfortunately pervades some public discourse (and even legal discourse) about American law.

     "Rights" do not just mean "constitutional rights," and they never have meant this. A right, as that term is used in American law, is basically a legal entitlement. (Some people have tried to distinguish different kinds of this entitlement by labeling them with different terms, but for better or worse the distinctions haven't stuck.) You can have:

1. Rights against the government, e.g., a constitutional right to free speech, or a statutorily secured right to drive a car on the public streets, or a statutorily secured right not to have to testify against one's spouse in court, or a contractually secured right to keep a job teaching law at UCLA until one does something really dreadful.



2. Rights against private parties, e.g., a right not to be negligently injured by others (originally developed through common law), a statutory right to keep others from copying your copyright-protected work, a statutory right not to be discriminated against based on race in employment, a constitutional right not to be enslaved (the very rare right against private parties that's secured by the U.S. Constitution), or a contractual right to live in an apartment pursuant to the terms of a lease.



3. Rights secured by the constitution, such as some of those listed above.



4. Rights secured by federal or state statute or judge-made common law principle, such as others of those listed above.



5. Rights secured by contract, such as still others of those listed above.

Curiously, the only occurrence of the term "right" in the body of the Constitution appears in the Copyright/Patent Clause, which allows Congress to statutorily protect authors' and inventors' exclusive rights in their works -- not a constitutional right as such (Congress has no constitutional obligation to create such rights), but an authorization to create statutorily protected rights. (Once a copyright or a patent is created, I think Congress can't just repeal the protection, because that would constitute taking of private property [though there's some controversy about this]; but that just shows that statutorily protected or common-law protected rights can, once they are created, yield certain constitutional rights. Congress could certainly abolish copyright and patent protection for any works created after the abolition statute is passed.)

     So there are plenty of rights besides constitutional rights -- and many of the rights that are most important to us are not constitutional rights. If there were no more constitutional rights, our nation would still function, and perhaps would function tolerably well: In England, for instance, Parliament isn't legally constrained by any Constitution; the British Constitution is really a set of important, fairly old, and relatively politically entrenched statutory and common-law provisions, which Parliament is free to change at any time. I prefer to live in America than in England, but it's clear that England is a livable and pretty free country.

     But if a nation abolished contractual rights, that would be its ruin -- it's not possible to run a decent modern country, I think, without some protection for contracts, protection that is important both to prosperity and to liberty. (Incidentally, the federal courts have largely stopped enforcing the constitutional protection for preexisting contracts that's provided by the Contracts Clause; now, state legislatures are practically able to interfere with past contracts, despite the language of the Clause, as well as with future contracts, to which the Clause doesn't apply. But while I think this is wrong, contractual rights generally do remain powerfully protected by the legal system, even though they aren't meaningfully protected any more by the Constitution.)

     So while constitutional rights are often important, they are just one small aspect of the legally defined rights that make our lives and liberties possible. The state may abolish or change those rights -- for instance, may prohibit the making of any contracts of a certain kind, or may ban various occupations, or may abolish future copyrights and patents, or may forbid anyone from suing for negligently inflicted injuries -- because the Constitution leaves them for majoritarian democratic decisionmaking, rather than protecting them using massive supermajority constraints. But so long as they exist (and they are in fact quite likely to exist, for important practical and political reasons), they are tremendously significant to our lives.

 
[Eugene Volokh, 7:18 AM]
How to avoid Senate confirmation: Judge O'Scannlain's speech contains, among other things, this great story:

The death of Chief Justice Salmon P. Chase in 1873 led President Ulysses S. Grant to nominate Roscoe Conkling of New York, who promptly turned the nomination down -- historians tell us he had grander ambitions than to be Chief Justice of the United States. Grant’s second option was his attorney general, George H. Williams, an Oregonian, indeed the only Oregonian ever nominated to the Supreme Court. Williams’ nomination, however, ran into stiff political opposition.

As it turned out, Williams had fired a United States’ Attorney for Oregon for no other reason, it seemed, than the prosecutor’s zealous investigation of political fraud back here. This blot on Williams’ nomination was followed soon after by the revelation that the Attorney General had used public funds to purchase for personal use a horse-drawn carriage, two horses, and the services of a footman. These were, as one commentator noted, "perquisites not enjoyed by senators." The fate of Williams’ nomination in the Senate was little aided by the fact that his wife apparently had been informing the wives of several senators that soon, as the wife of the Chief Justice, she would outrank them socially. Faced with imminent defeat, Williams withdrew his name from consideration. . . .

 
[Eugene Volokh, 7:16 AM]
Judge O'Scannlain on the federal judiciary and Senate confirmations: Ninth Circuit Judge Diarmuid O'Scannlain gave a very interesting graduation speech on this topic -- graduation speeches often aren't very substantive, but this one is -- and was kind enough to let me put it on my Web site. Much worth reading if you've been following the confirmation controversies.

 
[Eugene Volokh, 5:56 AM]
Poem for the day: We were informed from birth that we were better
Our mothers marked our worth in every letter
For some it was a curse, a silver fetter
For all, it made us what we are today.

 
[Eugene Volokh, 5:33 PM]
Internal L.A. Times memo on liberal bias: This story prompted what appears to be a memo from L.A. Times editor John Carroll that took reporters to task for liberal bias:

To: SectionEds
Subject: Credibility/abortion

I'm concerned about the perception---and the occasional reality---that the Times is a liberal, "politically correct" newspaper. Generally speaking, this is an inaccurate view, but occasionally we prove our critics right. We did so today with the front-page story on the bill in Texas that would require abortion doctors to counsel patients that they may be risking breast cancer.

The apparent bias of the writer and/or the desk reveals itself in the third paragraph, which characterizes such bills in Texas and elsewhere as requiring "so-called counseling of patients." I don't think people on the anti-abortion side would consider it "so-called," a phrase that is loaded with derision.

The story makes a strong case that the link between abortion and breast cancer is widely discounted among researchers, but I wondered as I read it whether somewhere there might exist some credible scientist who believes in it.

Such a person makes no appearance in the story's lengthy passage about the scientific issue. We do quote one of the sponsors of the bill, noting that he "has a professional background in property management." Seldom will you read a cheaper shot than this. Why, if this is germane, wouldn't we point to legislators on the other side who are similarly bereft of scientific credentials?

It is not until the last three paragraphs of the story that we finally surface a professor of biology and endocrinology who believes the abortion/cancer connection is valid. But do we quote him as to why he believes this? No. We quote his political views.

Apparently the scientific argument for the anti-abortion side is so absurd that we don't need to waste our readers' time with it.

The reason I'm sending this note to all section editors is that I want everyone to understand how serious I am about purging all political bias from our coverage. We may happen to live in a political atmosphere that is suffused with liberal values (and is unreflective of the nation as a whole), but we are not going to push a liberal agenda in the news pages of the Times.

I'm no expert on abortion, but I know enough to believe that it presents a profound philosophical, religious and scientific question, and I respect people on both sides of the debate. A newspaper that is intelligent and fair-minded will do the same.

Let me know if you'd like to discuss this.

John

I can't verify the memo's authenticity, but I know of no evidence that it's not authentic. Thanks to L.A. Observed and OxBlog (David Adesnik) for the pointer.

 
[Eugene Volokh, 4:53 PM]
Another cool legally themed cartoon from Stu's Views: I love that site.

 
[Eugene Volokh, 4:17 PM]
Possibly questionable arrest of Saudi student in Idaho: Bob McGrew at the Cardinal Collective cites a recent Wall Street Journal story on this case; it's hard to tell without more details, but what I've seen seems rather questionable.

     Sami Omar Al-Hussayen, a Ph.D. computer science student at the University of Idaho, raised funds ($300,000 over five years) and provided computer services for the Islamic Assembly of North America. IANA sites apparently contained various pro-jihad and pro-suicide-bombing items, though there has apparently been no allegation that Al-Hussayen actually provided this material; he seems to have just run the site. The federal government also claims that IANA funds were being funneled to terrorist organizations.

     But Al-Hussayen isn't being prosecuted for knowingly aiding a terrorist organization; rather, as best I can tell from reading the Journal article and the federal government's criminal complaint against the him (Sami Omar Al-Hussayen), the criminal charges are that:

1. Al-Hussayen lied on his visa application, because he signed a document (form I-20) saying "I certify that I seek to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study," and wrote on his form DS-156 that the purpose of his entry into the U.S. is "study." This, the government says, was a lie, because he was entering the U.S. not solely to study, but also to help IANA.



2. Al-Hussayen fraudulently omitted IANA from form DS-1257, where he was told to "[l]ist all Professional, Social and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked)."

     But is this conduct really criminal? First, "solely for the purpose of" can't literally mean "solely" in the sense of "I plan on doing nothing except studying." Students don't just study: They engage in hobbies, they participate in various organizations, they enjoy the beach, they goof off, they fall in love. Presumably the government can't prosecute someone saying "Aha! You said you came here solely to study, but your buddies will testify that you told them that you also wanted to find some American women to have sex with. You're going to prison for that." Why? Because people who are signing these forms will understand "solely for the purpose of . . . study" in its normal, commonly understood sense of being a student and doing the sorts of things that students do, such as trying to get sex, or seeing the sights, or engaging in political or religious activities in your spare time.

     Just imagine that you were given this form when you went to study in, say, England, and you were planning on studying, seeing friends, checking out the sites, maybe finding a girlfriend, putting up a Web log, and being involved in some American expatriate social and political activity. Would you think you were lying if you signed the form, with its use of the term "solely"?

     Second, the omission of IANA from the form is fraudulent only if Al-Hussayen treated IANA as a "professional, social [or] charitable organization[]." (Remember, the allegation is of fraud -- intentional wrongdoing -- and not just innocent error.) But IANA might well be seen as a political or religious organization instead; just check out its site. It's not unreasonable to call it a "social or charitable" group; but it's also not unreasonable to call it a "political or religious" group instead. Again, imagine that you were asked this question, and you had been involved with the NRA, the Anti-Defamation League of B'Nai Brith, and some Jewish education groups. Would you think you were lying if you concluded that they weren't "social" or "charitable" organizations, and thus didn't list them?

     Now my analysis here has nothing to do with whether Al-Hussayen (1) was trying to help terrorist groups, (2) should be deported (he has apparently been ordered deported because he did $200 worth of piad work for IANA, in violation of his visa terms), or (3) has a constitutional right to stay here even if he helps pro-terrorist groups spend their message. Rather, the question is whether what the government said he did is a crime, which may lead him to being convicted and imprisoned. From what I've seen so far, I'm pretty skeptical, for the reasons I've given; but if I'm missing something, I'd love to hear it.

 
[Eugene Volokh, 3:36 PM]
Demographics: I had an idea about how sites -- especially ones with tens of thousands of daily visitors -- might figure out their visitors' demographics. We're probably too small to do it ourselves, but I thought I'd pass it along in case others want to try the same. (And of course if anyone wants to implement the code and hand it off to us, I'd be glad to be the guinea pig.)

     Obviously, two possible survey mechanisms are nonstarters: (1) The site can't just solicit reader responses to a survey, since only a tiny fraction will respond. (2) If the site forces people -- either all readers or a randomly chosen fraction -- to respond, by popping up a survey before the site content is presented, very many people will refuse to take the time to answer a battery of dozens of questions.

     Here's my idea: The site should ask randomly selected visitors (e.g., every thousandth visitor) one question. Pop up a box that pitches to the reader how helpful his answer will be, and how one answer is all that is required. This should work particularly well, I suspect, for sites that have a solo author and are seen as labors of love, and as favors to the readers; I'd guess that many readers will think "OK, I'm willing to answer one question to help out this person who's providing a valuable service." Then, the site should ask another randomly selected sample the second question; another randomly selected sample the third; and so on. The results should be just as valid, I would think, as if all the questions were answered by one sample.

     The main advantages:

1. Many more people should answer, because they know they need to answer just one question.



2. If some people are put off by one question, that will lead to a lower response rate for that question, rather than turning off the respondents from all subsequent questions.



3. Because the questions are asked of random visitors, rather than of every visitor, as with newspaper registration sites, if the questions turn off readers, only a little bit of traffic will be lost.



4. If a site with 60,000 daily visitors gets a 2/3 response rate, and ask each question of 1/1000th of its visitors, it would still get about 40 responses to each question a day, which means it can poll 1000 people in a bit under a month -- which is probably more reliable than doing it all in one day in any event.

If enough people start doing this, users will get tired of answering questions on a bunch of different sites. But if a site is the first or one of the first to do this, I think it should get a pretty good sample.

     The obvious question, of course, is whether the response rate for the one-question poll, even if higher than for the multi-question poll, is high enough; but that's part of the experiment. I suspect that the polling code should be pretty easy for a professional site (e.g., a newspaper) to implement; and personal high-volume sites might be able to get it by asking for help from volunteers among loyal readers.

     In any case, I don't know for sure whether it will work, but I think it's a promising option. If anyone tries this, please let me know.

 
[Eugene Volokh, 3:18 PM]
PicoSearch: I've changed the search function on this blog to use PicoSearch instead of google -- so far, it seems a little better in several small ways. Remember that to use this, you should just click on "SEARCH" at the upper left-hand corner of our page, or just go to the very end of the page, which is where the search box lives. Thanks to Les Jones for tipping me off to this.

 
[Eugene Volokh, 2:44 PM]
Empower America (Kemp and Bennett's organization) has a new blog: Check it out.

 
[Eugene Volokh, 12:58 PM]
Religious objections: Reader Mike Parker writes, apropos the veiled Muslim woman religious accommodation claim:

Can't the state also just show that the uncovered-photo objection isn't supported by the muslim religion? Would showing that many muslim countries require uncovered photo id's be enough to do it?

Finally, some questions to which there's a clear answer -- and the clear answer is "no." Religious accommodations are equally available (or unavailable) to people whose views are shared by most members of their religion, some members of their religion, or no other members of their religion. The question is whether the beliefs are sincere, not whether they're widely shared, or scripturally supported.

     Here's what the Supreme Court had to say about this in Thomas v. Review Board (1981); this decision was rendered under the Free Exercise Clause, which was at the time interpreted as mandating certain kinds of religious accommodations, but the analysis would be the same under state Religious Freedom Restoration Acts, such as the Florida RFRA that's at issue in the veiled Muslim woman case (emphasis added):

[The issue] is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others . . . .

In [deciding against the claimant], the Indiana court seems to have placed considerable reliance on the facts that Thomas was "struggling" with his beliefs and that he was not able to "articulate" his belief precisely. It noted, for example, that Thomas admitted before the referee that he would not object to "working for United States Steel or Inland Steel . . . produc[ing] the raw product necessary for the production of any kind of tank . . . [because I] would not be a direct party to whoever they shipped it to [and] would not be . . . chargeable in . . . conscience . . ."

The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments. But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is "struggling" with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.

The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was "scripturally" acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences . . . . One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection . . .; but that is not the case here, and [protection] is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.

 
[Eugene Volokh, 12:27 PM]
Complaint in the church / guns case: Reader David Gross was kind enough to pass it along, and I've posted it here. This is the case where a church demands a religious exemption from a Minnesota concealed-carry law that gives people the right to carry even on private property (with some exceptions); more on the details here.

 
[Eugene Volokh, 12:21 PM]
Rights and privileges: One correspondent suggests that the state wouldn't, as a legal matter, face any obstacle in denying the veiled Muslim woman her driver's license, because "driving is a privilege that the state may or may not extend to you." I've often heard that phrase as a justification for the state doing various things -- but it turns out to be more misleading than helpful.

     There is no constitutional right to drive. (One can, I suppose, make arguments in support of such a constitutional right, but I doubt that they'll work.) The state may, for instance, refuse to issue driver's licenses to people who are under 25, or who are over 70, or who live in certain areas. In this respect, driving is like a wide range of other activity that is not forbidden by the state, that is in some measure regulated by the state, but that is not constitutionally protected. You do have a right to drive, but it's a statutorily recognized and regulated right, not a constitutionally secured one.

     But this does not give the state the unlimited right to control what you do when you drive, or to deny you the right to drive based on your exercise of other constitutional or statutory rights. The government does not have unlimited power to search your car, or even to pull you over; the Fourth Amendment still applies to you when you're driving. (The Fourth Amendment covers cars less than houses, for a variety of reasons; but whether that's right or wrong, the justification is not that driving is a "privilege" rather than a constitutional right.) The government may require you to submit to blood tests when you're pulled over for drunk driving, but the case upholding that didn't rest on a "driving is a privilege theory." (Some legislators have justified some such requirements on an "implied consent" theory -- by choosing to drive, you implicitly consent to submit to blood tests -- but that's not how the Supreme Court has justified it.)

     Likewise, the state may not deny you a driver's license because of your speech -- or even specially control your speech while you're driving, e.g., by restricting the content of your bumper stickers (at least outside the narrow exceptions, such as threats or libel, that are recognized for all speech). And, as I read the Florida state Religious Freedom Restoration Act, the state may not require you to violate your religious beliefs as a condition of getting a driver's license, unless the requirement is narrowly tailored to a compelling government interest. The state RFRA doesn't specifically speak of licenses, but it does bar the government from "substantially burdening" your religious beliefs -- and the caselaw interpreting the "substantial burden" requirement recognizes that the denials of benefits (such as unemployment benefits) may constitute substantial burdens, so the denial of a driver's license would, too.

     Now this doesn't mean the woman will win: It's quite possible that the state can show, to the legal system's satisfaction, that the photograph requirement is narrowly tailored to a compelling government interest. But that's the inquiry that the law requires -- and that there's no constitutional right to drive doesn't materially affect the analysis.

 
[Eugene Volokh, 11:44 AM]
The Reasonable Man: My old friend Gil Milbauer, a thoughtful libertarian, has an interesting new blog, called The Reasonable Man. (You be the judge of how accurate that is!) Topics range from humor to which roll of toilet paper to use in a public restroom and beyond; definitely worth checking out.

 
[Eugene Volokh, 11:35 AM]
The slow crawl to normalcy: Our archives are now on our new site, though the internal links to other posts them are still pointing to the slow blogspot archives. Hope to have that fixed soon, too.

 
[Eugene Volokh, 8:51 AM]
Poem, by Eve Tushnet: I read it yesterday on her blog and really liked it, so I thought I'd pass it along:

Each year the sea chews further up the beach;
The tide that never ebbs, the years that seize,
Draw things unreachable more out of reach:
The way the Romans really said their V's,
The songs the Vikings sang on Viking seas--
Our ignorance is sea-deep, old, and vast.
We live conditioned; therefore, on our knees.
Learn from the past detachment from the past.
Time is regret; eternity alone will last.

 
[Eugene Volokh, 6:13 PM]
Blogger bug: Because of a blogger bug, the Sex Kills post below was originally put up without its little mini-title, which made the opening line ("No, it's not a to-do list for a fun weekend . . . .") mighty perplexing. The title is now up, and it's "Sex, cars, alcohol, drugs, and guns."

 
[Eugene Volokh, 11:24 AM]
The Village People meet Gulf War II: It's a bit late for this, but I just ran across this little animation -- very cute. Thanks to fellow lawprof Myron Moskovitz for the pointer.

 
[Eugene Volokh, 11:11 AM]
More "hate crime"-like legislation: Reader Tom Parmenter passed along a link to this story:

A bill pending in the Texas state legislature that outlines penalties against criminal behavior by animal rights protestors has critics concerned that it would outlaw all environmental advocacy. Similar bills are pending in New York and Pennsylvania. . . .

The bill, Texas HB 433, authored by Representative Ray Allen of Grande Prairie, a Republican, would amend Chapter 28 of the state's penal code with a section under the heading "Animal Rights and Ecological Terrorism." . . .

The bill establishes as a crime obstructing "any lawful activity involving the use of a natural resource with an economic value," including mining, foresting, harvesting, or processing natural resources, or obstructing a lab being used for research on animals, a circus, rodeo or zoo, if it is done with "political motivation," or by someone "acting on behalf of an animal rights or ecological terrorist organization."

"Political motivation," according to Allen's bill, means an intent to influence a governmental entity or the public to take a specific political action.

The bill defines an animal rights or ecological terrorist organization as "two or more persons organized for the purpose of supporting any politically motivated activity intended to obstruct or deter any person from participating in an activity involving animals or an activity involving natural resources." . . .

The bill text is available here; the operative provision seems to be this:

(b) A person commits an offense if the person, with political motivation or while acting on behalf of an animal rights or ecological terrorist organization:
(1) prevents an individual from lawfully participating in an activity involving animals or an activity
involving natural resources by:
(A) obstructing the use of an animal or a natural resource owned by the individual, if the obstruction is for a period of time sufficient to significantly decrease the value or enjoyment of the animal or the natural resource to the individual;
(B) damaging or disposing of an animal or a natural resource owned by the individual, if the damage or disposal substantially reduces the condition or usefulness of the animal or the natural resource; or
(C) detaining an animal or a natural resource owned by the individual and demanding compensation in exchange for release of the animal or the natural resource; or
(2) prevents an individual's use of an animal facility without the effective consent of the facility's owner by:
(A) damaging the facility or property in the facility;
(B) physically disrupting the operation of the facility;
(C) unlawfully entering or remaining in the facility and engaging in an activity described by Subdivision (1);
(D) unlawfully entering or remaining in the facility despite notice denying entry; or
(E) entering the facility to take photographs or a video recording with the intent to defame the facility or the facility's owner.

     I don't in principle oppose the outlawing of much of this behavior; some items seem troublesome -- for instance, the last one, which would require courts to speculate about whether the person intended to defame the facility, or intended to make truthful statements, or statements of opinion, about the facility -- but many are already illegal.

     But that's precisely the problem: They are already illegal, without regard to whether they're done out of a "political motivation" or by people "acting on behalf of an animal rights organization." I don't think that a person's political motivation, or his membership in a group, should change the person's punishment (just as I don't think, in the hate crimes context, that a person's bigoted motivation should change his punishment). Damaging property for political reasons is bad. So is damaging it because you're just a petty vandal, or because you're a competitor or an extortionist.

     I recognize that one can draw some distinctions between these sorts of behavior, and that the law does sometimes properly consider people's motives (e.g., killing for money is treated differently from killing because one is in the heat of passion). But on balance, I think these distinctions aren't tremendously important in this case, and they're potentially quite troublesome, for at least three reasons:

1. These political-motivation-focused laws unduly shift the focus of law enforcement and trials from people's behavior to people's motives; the police and the jury would end up spending a good deal of their time focusing on what the defendant's political views were, rather than just on what damage he did or didn't do -- not something that should happen if we can avoid it.



2. Such laws also risk deterring constitutionally protected speech and organization mebership as well as unprotected violence. If you've heard about someone getting extra punishment because he did something out of a political motivation, then you might be quite reluctant to express that political view even if you don't plan on committing any crime -- if you somehow get caught up in a police investigation in the future, you don't want to be even suspected of being one of those "animal rights or ecological terrorist[s]."



3. Finally, these laws undermine what should be the core moral message underlying the law: Don't damage or interfere with other people's property. That's what we should be teaching people -- don't mess with others' stuff, whether you're doing it for political reasons or other reasons.

 
[Eugene Volokh, 10:05 AM]
Muslim woman who insists on wearing a veil in a driver's license photo: This case is in the news again, so I thought I'd repeat a post of mine from last June, which briefly touched on the question. It turns out that the woman's claim is quite plausible, because of Florida's Religious Freedom Restoration Act, though the government also has a plausible response:

A reader pointed me to a fascinating story in today's New York Times: "A Muslim woman who says the state is violating her religious rights in demanding that she remove her veil for a driver's license photograph will be in court this week to try to regain her driving privileges." Florida has a Religious Freedom Restoration Act (RFRA) that generally allows people to get exemptions from laws that violate their religious beliefs, unless the government shows that the law is "narrowly tailored to a compelling government interest." (I wrote an academic article a while back about these RFRAs; it's too long, but I hope it's otherwise relatively readable by laypeople.)

     The article does not mention that a similar issue came up in the 1980s, and a court -- though not in Florida -- upheld the religious objector's claim (see Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), affirmed by an equally divided court, 472 U.S. 478 (1985)), in large part becase the state already gave various other exemptions from the photograph requirement. I'm not sure that courts today would or should follow this decision, especially if Florida had an across-the-board policy of requiring people's faces to be exposed on their photos, and didn't make exceptions from this policy for nonreligious reasons. But I still thought I'd mention Quaring, because it's the one precedent that's most closely on point.

Note that the more recent article bears on the question whether Florida exempts some people from the photograph requirement:

[Howard Marks, an ACLU lawyer who is representing Freeman] and [Sultaana] Freeman also say the state should exempt her from unveiling because the state already makes exceptions for temporary-permit drivers, foreigners and military personnel with out-of-state licenses.

As evidence, Marks cited the more than 4,361 temporary licenses issued without pictures in the past five years to drunk drivers, suspended motorists and others with impaired health and bad vision.

"An exemption is an exemption," Marks said in his opening salvo. "If you're going to give it for secular reasons, you have to give it for religious reasons."

The article also points out that Freeman has a criminal history, though that shouldn't, as a legal matter, materially weaken her claim.

 
[Eugene Volokh, 9:12 AM]
InstaPundit site down -- I hope for only a short time: In the meantime, Glenn is blogging at http://instabackup.blogspot.com.

 
[Eugene Volokh, 1:13 AM]
Sex, cars, alcohol, drugs, and guns: No, it's not a to-do list for a fun weekend (at least not for purposes of this blog post); it's a list of things that kill thousands of people each year, many of them innocent bystanders. To focus on sex: AIDS is just the latest deadly sexually transmitted disease -- syphilis is a classic scourge of the past, and there are plenty of others that are quite harmful and sometimes even deadly today (e.g., Hepatitis B, possibly also the genital warts virus [HPV], some of the forms of which have been linked to cervical cancer, and possibly others). Even when AIDS is cured, as I suspect it will be, there'll be other such diseases. I'm not a medical expert, but I understand that sexual transmission is inherently a very effective way for various diseases to spread. Naturally, most of the diseases can be spread in other ways, too, but sex is a major vector of transmission.

     Moreover, these diseases don't just affect the parties to the act. Besides burdening taxpayers, the diseases can also be spread to those who are relatively careful sexually. A straying husband can infect his wife, who doesn't know and has no reason to know that she's engaging in risky behavior. Certain sexual physical practices, such as anal sex, are apparently especially dangerous. So are certain sexual social practitioners who have many partners -- prostitutes, the substantial fraction of homosexuals who are hyper-promiscuous, and the smaller fraction (though perhaps higher number; it's hard to tell for sure) of heterosexuals who are hyper-promiscuous.

     This is significant because it illustrates the limitations of the Harm Principle as an argument for sexual liberty. For purposes of this post, I'll define the Harm Principle as "People should be free to do what they please, so long as they don't harm others [except consenting adults who freely agree to be exposed to the risk of harm]." The difficulty is that sex, like cars, alcohol, drugs, and guns, does harm third parties. Like those things, it has substantial benefits to its users. Like some of those things (such as guns and cars), it has substantial benefits to society. But like those things, it also imposes substantial costs on third parties.

     Some hardcore libertarians -- either people who are libertarian as to all things, or liberals who are libertarian as to sexual matters but not economic or self-defense matters -- would define "harm" quite narrowly for purposes of the Harm Principle. The law, they would argue, may only punish specific instances of behavior that actually harm others, or at least poses a very substantial risk of harming others: It may punish crimes committed with guns but not gun ownership (of any gun by anyone anywhere, except perhaps minors or felons); it may punish people killing each other while driving drunk, but not drinking itself; it may punish unprotected anal sex by people who know they have HIV (at least unless they warn their sexual partners), but not unprotected anal sex generally. The aggregate risk of harm from an entire range of behavior -- e.g., drinking alcohol or using cocaine causes lots of death of unconsenting third parties (e.g., drunk or drugged driving victims) -- just doesn't, in their view, qualify as "harm" for purposes of the Harm Principle.

     To some people with highly libertarian views, this argument is theoretically sufficient; but others, even those who are what I call "presumptive libertarians" -- those who believe that liberty is valuable for its own sake, and ought not be restricted except to prevent some pretty substantial harm to unconsenting third parties -- aren't quite satisfied by it. Drunk driving, for instance, doesn't by itself kill people. I suspect that a relatively low fraction of drunken trips actually cause harm. But many people, even those with libertarian inclinations, conclude that drunk driving should be criminalized because (1) drunk driving causes enough aggregate harm, and (2) it's impossible to tell up front which particular drunken trip will lead to carnage. The same might be said, for instance, about at least certain designs of cars, or certain kinds of guns (such as machineguns), or certain kinds of drugs. (Of course, those judgments are quite controversial, and many libertarians would oppose such prohibitions, but many liberals with libertarian views on sex would support them.)

     Promiscuous sex, especially certain forms of promiscuous sex, such as promiscuous sex without a condom, and especially promiscuous anal sex without a condom, is much like drunken driving in this respect. Most instances of this conduct don't end up harming anyone, but a very few cause tremendous harm, including harm to downstream third parties -- for instance, when a man picks up a sexually transmitted disease from a prostitute or other partner and then infects his wife, who doesn't know of his infidelities. (I know some people will argue that this harm is really "consensual," because the wife, and especially a girlfriend or some other more casual partner, should have known that sex is a risky business; but that broad a definition of "consensual" doesn't, I think, make moral sense -- under that definition, there's no "harm" when someone dumps infected material into the water supply, because other people should know that drinking water without boiling and purifying it first is potentially risky.) What's more, while the probability of harm varies depending on the person's specific practices (e.g., how selective is the person in choosing partners?), it really is impossible to effectively sort the harmless behavior from the harmful. Thus, particular kinds of sexual practics and practitioners are potentially harming others by their conduct, in the sense that each of them poses a substantial risk of harm to others, and there's no way of sorting those people for whom the risk turns into reality from those who luckily manage to avoid harming others.

     But let's not fool ourselves into thinking that this is just harm caused by a small highly irresponsible minority. Even what we might call The Normally Horny -- people who aren't hyper-promiscuous, but who do have several sexual partners over their lifetimes -- may transmit diseases (and again, may end up contributing to their transmission to unconsenting third parties). There might be some hyper-cautious people, who always use condoms (with all forms of sex), or always wait for months until after an HIV test to have unprotected sex and then only have it with people who they know to be faithful, whose conduct creates only a very small risk of disease. But people who have normal numbers of sexual partners, and who are normally cautious (which is to say sometimes cautious and sometimes not), do end up increasing the risk of serious disease to others -- just as, to the best of my knowledge, people who drive with a blood alcohol level of .04 or .06, definitely below the legal limit, do substantially increase the risk of injury to themselves and to others. Your (if I may be so bold, dear reader) and my past behavior has not, I suspect, been entirely free from danger to others.

     Now none of this shows that, for instance, fornication laws or sodomy laws (or alcohol prohibition or drug prohibition or gun bans) are a good idea; but I think it does highlight that the argument against them isn't just an open-and-shut application of the Harm Principle. If we believe that people ought to be able to have substantial freedom to have sex, drive cars, drink, use drugs, and own guns, it has to be despite the harm these activities cause, rather than because these activities are harmless. The argument has to be that the costs of banning the conduct outweigh the benefits of such a ban (of course defining "costs" and "benefits" broadly, not just focusing on money) -- not that the conduct itself has no morally relevant costs. Some such possible reasons might be:

1. The importance of sex to people's emotional lives, coupled with the difficulty of legally distinguishing emotionally important sex from emotionally unimportant sex. (I recognize the dangers of interpersonal utility comparisons, but I think such comparisons are often necessary in formulating law, and especially so here.)



2. The relative difficulty of enforcing these sorts of laws.



3. The tendency of these laws to breed collateral harms, such as blackmail, the need to lead important parts of one's life in secret, and the dangers of unfair selective enforcement.



4. What I've called the anticooperative effect of law: Once people's conduct becomes illegal, they become reluctant to cooperate with the government in all sorts of ways, partly out of a sense of alienation from the legal system and partly from a fear of their criminality being discovered. And this anticooperative effect may interfere even with public health measures themselves (e.g., screening prostitutes for disease, persuading high-risk groups to engage in safe sex, tracing partners of infected people, enrolling people in various groups in medical studies, and so on), to the point that criminalization of certain sexual practices may cause more sexually transmitted disease rather than less.

I'm sure there are many more. Moreover, the disease argument in any event wouldn't support certain restrictions on sexual practices -- for instance, to the best of my knowledge lesbian sex, and, in particular, cunnilingus (whether lesbian or heterosexual) are especially unlikely to cause disease, and prohibitions on such behavior strike me as especially hard to justify. And I freely agree that many existing sexual regulations, and attempts to enforce those regulations, were actually motivated by other and much less worthy reasons (though I'm generally more interested in the effects of laws rather than the motivations of their drafters).

     But I do think that it's important to recognize that the case for sexual liberty is not just a matter of abstract libertarian reasoning, unless one really is a very thoroughgoing libertarian indeed. Like many important moral issues, it rests in part on pragmatic concerns as well as purely philosophical ones; like many important liberties, it is protected despite the harms that it can cause, and not because it's harmless. And this suggests that certain restrictions -- for instance, attempts to close gay bathhouses that (at least by some accounts) make the most dangerous forms of sex easier -- might be possibly justifiable (subject, of course, to plausible objections both on immediate pragmatic grounds and on slippery slope grounds).

     Incidentally, I should give credit to Clayton Cramer for some posts of his (such as this one) that led me to blog about this, though he and I disagree on a considerable amount here.

 
[Eugene Volokh, 9:51 PM]
Another fine piece by David Horowitz on homosexuality, conservatives, religion, and politics: It's here, and it's definitely worth reading. Thanks to Andrew Sullivan for the pointer.

 
[Eugene Volokh, 2:05 PM]
Change to the "read selected bloggers" option: With our move, the syntax for our "read selected bloggers" option has changed; now, for instance, if you just want to read (say) posts by Sasha, Michelle, Jacob, and Orin, you can enter the URL

http://volokh.com/?bloggers=sasha,michelle,jacob,orin

As I've mentioned before, I do not recommend this -- I think all of us cobloggers are worth reading, and I hope that most of you think the same. But if you do prefer to read just some subset, that's the way to do it; and you can also add the URL to your favorites list so you can access it easily.

 
[Eugene Volokh, 1:50 PM]
Securities law blog: The 10b-5 Daily is a new blog devoted to securities law -- if you're interested in this field, this blog seems to be worth checking out. Here's the introductory post from a few weeks ago:

In the wake of recent corporate scandals, securities litigation has once again leaped into the legal and legislative spotlight. The 10b-5 Daily is devoted to tracking news and events relating to class actions brought on behalf of investors against companies, with an emphasis on judicial developments. A few words about the creator of this web log: My name is Lyle Roberts and I am a partner with Wilson Sonsini Goodrich & Rosati's securities litigation group in its Reston, Virginia office. My practice consists of defending public corporations in class actions, derivative actions, and SEC enforcement actions. I also counsel clients with respect to securities regulatory issues, including listing and delisting on the Nasdaq Stock Market. I have been published on securities law topics, with articles in the Legal Times, Insights, and the University of Chicago Law Review. I am a graduate of The Johns Hopkins University (B.A., M.A.) and the University of Chicago Law School (J.D.). Following law school, I clerked on the U.S. Court of Appeals for the Fourth Circuit for Judge Donald S. Russell.

Despite my background on the defense side of the aisle, The 10b-5 Daily is designed to be a general resource and a cooperative effort. As Congress said in the PSLRA: "all facts, with particularity." Of course, I will try to point out what I view as the key developments in the cases. . . .

 
[Eugene Volokh, 1:38 PM]
The Language Police: A reader complains that "Not satisfied with making up the news, the Times now makes up words!," and points to an article that uses the word "unfeasible."

     "Unfeasible," however, was made up long before the Times: My New Shorter Oxford reports that it has been in use since late Middle English. ("Infeasible," the equally correct version, is listed as having been in use since the middle of the 17th century.)

     To his credit, my correspondent does say that "Actually, there are a couple of dictionaries that have this word" -- a pretty sure bet, in my view, that it's perfectly proper to use it -- "but it sure isn't standard, e.g. Google 69,100 unfeasible, 103,000 infeasible." But that a word is used less often than a synonym doesn't make the word "nonstandard"; nor does the Times have an obligation to always use the most common variant of a word. And, as it turns out, a LEXIS NEWS;CURNWS search reports that "unfeasible" is actually considerably more common in LEXIS-available newspapers than "infeasible."

     The lesson: In language, the answer is often "both." Which is right -- "infeasible" or "unfeasible"? Well, both. Does "presently" mean "in the near future" or "at present? Both. Is the proper pronunciation "neither" pronounced "neether" or "nye-ther"? Both. Lots of the errors of the Language Police come from falsely assuming that there's only one authorized way of saying something, or only one proper definition. This assumption is just not so, even if one believes that language is defined by the Authorities (such as dictionaries), as the Authorities themselves often acknowledge.

 
[Eugene Volokh, 10:04 AM]
Chavez v. Martinez: The Supreme Court just decided Chavez v. Martinez, a case I blogged about a bit last year. The main issue is this: Say the government interrogates someone in violation of Miranda, or the Sixth Amendment rule against interrogating someone who has been arraigned and asked for a lawyer at the arraignment, or the Fifth Amendment right not to be subject to coercive interrogation. (Let's set aside for now the case of plain physical torture, which might be somewhat different.)

     It's clear that a confession gotten this way is inadmissible at the subject's trial; the same is true even of evidence that is gathered indirectly as a result of the suspect's confession. But does the actual getting of the confession itself violate the Constitution? Are these rights only rights not to be convicted based on evidence gathered in certain ways, or rights to be free of these evidence-gathering methods in the first place? Are they rights that focus only on the fairness (beyond merely the truth-finding aspect) of the trial process, or are they rights that focus on the propriety of police questioning as such?

     This, it turns out, is very important. It's one thing to say "If you question the guy this way, you might not be able to use the results to convict him" -- it's another to say "You can't question the guy this way at all, and if you do you're acting unconstitutionally." (Perhaps either legal rule is just wrong where terrorism is concerned, but they are different.) So the main Chavez question was: May the government lawfully use certainly potentially coercive methods (but again ones that stop short of physical torture, which is a separate, though important, question) in the civilian justice process, so long as it's willing not to use the results in the questioned person's trial? Or is even the questioning itself unconstitutional?

     If the answer is the latter, then it looks like Miranda and the other rules could be very substantial barriers to using the civil justice system to deal with terrorism -- and military detention thus becomes a comparatively more powerful tool. If the answer is the former, then the marginal drawbacks of the civil justice system, and the marginal advantage of the military system, decrease.

     In any event, the Court just resolved the question: (1) A Miranda violation is not per se a constitutional violation, so long as the evidence is not itself used against them in a criminal proceeding. On this, the vote was pretty much 8 to either 0 or 1 (Justice GInsburg didn't join any of the opinions that so held, though her opinion didn't squarely hold the opposite).

     (2) More importantly, there is generally no Self-Incrimination Clause violation if the compelled incriminatory statement isn't used against them in a criminal proceeding, even if there was actual evidence of compulsion (short of torture and other extreme physical abuse, see item 3 below), and not just a Miranda violation. (People can still assert the privilege against self-incrimination before trial, in order to prevent the possibility that they'll say something that can be used against them; but if they're still compelled to testify, the Clause isn't violated unless the evidence is actually used against them.) On this, the vote was 6-3 (Rehnquist, O'Connor, Scalia, Souter, Thomas, and Breyer in the majority, Stevens, Kennedy, and Ginsburg dissenting). Justices Souter and Breyer suggested that in some situations, the rule might possibly be different, but as a general matter he agreed with the position with which I started this paragraph.

     (3) The Court did not decide what I called the "separate, though important, question" whether this interrogation wasn't just a Miranda violation or otherwise coercive, but went further and violated the Due Process Clause. The Due Process Clause, the Court had earlier held, is violated when the police use tactics that aren't merely coercive but "shock the conscience," such as physical torture or other sorts of abuse. This is obviously a pretty vague standard, and the Court split 3-3-3: Rehnquist, Scalia, and Thomas concluded that there was no Due Process Clause violation here, Stevens, Kennedy, and Ginsburg concluded that there was one, and O'Connor, Souter, and Breyer expressed no opinion and would leave the matter for the Ninth Circuit to resolve on remand. (Souter and Breyer said this explicitly, and O'Connor, I think, implicitly took this view by not joining any opinion that took a position on the substantive due process question.)

     Martinez, the plaintiff here, had been questioned while he was in pain and thought he was dying. Those who saw no substantive due process violation argued that the questioner (Chavez) didn't interfere with Martinez's medical treatment, and that the police hadn't inflicted the pain in order to get any information from Martinez. Those who did see a substantive due process violation argued that, despite this, Chavez "made no effort to dispel the perception" -- though it was an inaccurate perception -- "that medical treatment was being withheld until Martinez answered the questions put to him." It'll now be up to the Ninth Circuit to decide on one or the other position.

     Incidentally, I'd made a prediction about items 1 and 2 (I expressed no opinion on item 3):

• Result: Chavez wins; the Supreme Court holds that failure to comply with Miranda simply means that the confession will be unusable at trial -- if the confession isn't used at trial, there's no violation of the Fifth Amendment and thus no violation of Miranda and no right to sue for damages. (Beatings of suspects would still be legally actionable, but not simply questioning without Miranda warnings, or continued questioning after the suspect says "I don't want to talk more," or "I want to call my lawyer.) My confidence in the prediction: High.



• Lineup: I'll go out on a limb and say 9-0, partly because even Justice Thurgood Marshall, writing in dissent in Quarles v. New York (1984), seems to have taken this view. My confidence: Moderate.



• Alternate lineup: If it's not 9-0, it might be 7-2, with Justices Stevens and Ginsburg dissenting. My confidence in this, if I'm wrong about 9-0: Relatively slight; I just think this is the likeliest of the non-9-0 outcomes, but I can imagine others that are also plausible.

I was therefore close to the mark, though not quite on it: There was an 8-0 or 8-1 vote that failure to comply with Miranda doesn't itself make the police conduct unconstitutional, but on the more important question of whether actually coercive practices (short of torture) are unconstitutional, the vote was closer to my alternate lineup: 6-3, with Justices Kennedy (the surprise to me), Stevens, and Ginsburg dissenting.

 
[Eugene Volokh, 8:50 AM]
Discrimination in Colonial Williamsburg: Well, there certainly was plenty of that -- but how much should go on in its reenactment? Eric Muller has an interesting story; I'm not sure what I think of this legally and ethically, but factually it's certainly an interesting tidbit. Here's an excerpt:

The trials are very popular events, and the courthouse doesn’t accommodate a lot of people at once, so long lines form outside the courthouse well in advance of each “session.” My family and I were waiting for the 2:00 p.m. court session. At about five minutes before the hour a gentleman in period costume (he would turn out to be the courtroom bailiff) stepped in front of us to explain what we would be seeing. He explained that they would need some volunteers to serve as justices, and that these volunteers would be given the opportunity to participate (if they wished), both by asking questions and by voting on the outcomes (although he made clear that the cases were deliberately quite one-sided so that the outcomes would not really be in question). Good law professor that I am, I thought, “gee, this would be fun,” and I prepared to volunteer. Then the bailiff explained that the members of the panel of justices would have to meet the requirements of the period -- they would have to be white, male, Protestant, over a certain age (I don’t remember what it was), and land owners. Then he said, “the law at the time would have required you to swear an anti-papist oath too, but” -- and here he broke into a broad smile -- “we’re not going to push it that far.” Many in the crowd laughed. . . .

 
[Eugene Volokh, 8:45 AM]
People defending pro-animal-rights vandalism of researchers' homes: Here's something from the "Primate Freedom Project":

I used to teach adolescents the history of civilization. My students sometimes asked why people allow atrocities to happen. I tried to instill some hope by pointing out the courage that a few people have shown. Helping people along the Underground Railway and hiding Jews were good things, and the people who took those risks were heroes. My students and I hoped that if we ever found ourselves in similar situations that we would be willing to violate unjust laws to help others. . . .

[T]he few who do care about the suffering and who do recognize the immensity of the problem are forced to look for ways to breach the barriers to public discussion. One tactic is to act directly against those who hurt animals.

The recent vandalism at the home of two of UCLA's monkey vivisectors John Schlag and Madeline Schlag-Rey is a good example. Researchers' stoic refusals to debate publicly, the Daily Bruin's endless refusals to print letters of criticism, and the university's stonewalling response to repeated requests for public documents contributed to the need to act directly. The Schlags claim that the vandalism and demonstration at their home was ineffective. But a few days later, the Vice Chancellor for Research mailed nearly 60,000 people a written defense of UCLA's use of animals.

The message from the university and its representatives is crystal clear: it will discuss the matter only if provoked by vandalism and late night visits to vivisectors' homes.

Such direct action is the only choice available when all other attempts at open discussion are brushed off. The university's resistance to public discussion is proportional to the frustration it engenders by doing so. To those awakened to this holocaust, inaction is morally impossible. Escalation seems sadly inevitable in light of the university's refusal to talk about the suffering occurring within its laboratories.

This position has a moral logic to it: If indeed you think that research on animals is the moral equivalent of slavery or of the Holocaust, and you think vandalizing animal researchers' homes will help your cause, then this becomes morally permissible, just as it would have been morally permissible to act against those who performed medical experiments on Jews or slaves. In fact, there's no reason to stop at vandalism -- violence and even killing would also be morally justified. The same goes for anti-abortion terrorism; if indeed you think that abortion clinics are the new Auschwitzes, then you're perfectly justified in bombing them and killing those who work there (and perhaps even, incidentally, innocents who happen to be there as well), just as people would have been justified in bombing Auschwitz.

     But the comprehensibility, and even the internal consistency, of this moral position shouldn't affect the actions of those of us who do not share the moral premises on which these people act. From the legal system's perspective, which I think is the correct perspective in this instance, these people are criminals, and they're criminals who are trying to use their vandalism to accomplish their political objectives through private force and the threat of force. That's a tremendously dangerous force in any democracy, and the legal system should crack down hard on this sort of behavior, just as it should crack down on anti-abortion vandalism and terrorism.

 
[Eugene Volokh, 10:38 AM]
Publicity for new blogs: N.Z. Bear, the creator of the Blogosphere Ecosystem, has an interesting new project:

I'm happy to announce a new feature of the TTLB Blogosphere Ecosystem.

I've always been interested in locating brand-new bloggers who are just finding their voices and joining the vast fray of the Blogosphere for the first time. At the same time, I also have wished there was a way that new bloggers could have a better chance to get exposure to the "big guns" and other bloggers in general.

To this end, I've decided to take matters into my own hands, and make my own attempt at creating a space where new bloggers can get a jump-start.

Microbes on Parade: The New Weblog Showcase is a new section of the The Truth Laid Bear which will allow new bloggers to submit a sample post of their best work to be considered in a weekly contest. Voting in the contest is simple: other bloggers cast their votes just by linking to the new bloggers post, and these links are tallied each day by the Ecosystem's morning scans.

At the end of the week, the blogger whose sample post garnered the most links will be declared the winner, and their prize shall be to have their blog listed at the very top of the main Ecosystem page for the following week.

The text of my announcement post is included below, sans links and formatting.

If you find this effort interesting, I would naturally welcome links, and would ask that you link directly to the Showcase itself at http://www.truthlaidbear.com/newblogshowcase.php.

Great idea.