[Eugene Volokh, 6:45 PM]
ONLY THREE HITS FROM THE .RU DOMAIN, out of nearly 30,000 since we put up our current hit counter. Rebiata! Shto takoye? My zhe tozhe Russkiye, kak i vy. Pochiemu vy nie chitayete nash blog? Nu pozhaluysta . . . .

     More broadly, assuming all the .com/.net/.edu/.org/.gov/.mil/.us hits are good red-blooded Americans, about 3% of the traffic is coming from outside the U.S. As one might guess, of that 1% is UK, 1% is Canada, 0.5% is Australia, and then fewer than 100 hits from any other place (though the leader of those is Japan, with 68). Not surprising, since most of the posts have a U.S. focus; but just thought I'd mention it.

UPDATE: As a recent message from Jonathan Osepchuk at a .com address in Japan confirms, the assumption that .com's are all Americans is in fact not quite accurate. And he's a Russian speaker, yet!

     Thanks also to Anatoly Vorobey, another Russian speaker, for his message from Jerusalem -- and again at a .com address. Apparently, he says, I have a transliterative accent in my Russian (well, not exactly, but close enough).

 
[Eugene Volokh, 3:37 PM]
LIBRARY FILTERING HELD UNCONSTITUTIONAL: A three-judge district court has just held today that the federal Child Internet Protection Act violates the First Amendment. CIPA required libraries (in schools and out) to filter Internet access as a condition of getting federal funds.

     A few key points:

1. The court held that under the First Amendment, public libraries, whether or not funded by the federal government, may not filter access for adults.



2. The court did not resolve whether public libraries or school libraries could filter access for children (see pp. 130-131 and footnote 32).



3. Most cases start out in front of a one-judge federal trial court, and can then be appealed to a three-judge federal appellate court; the Supreme Court may then be asked (using the so-called "petition for certiorari") to rehear the case, though the Court is under no obligation to do so, and can just ignore the case, without making any decision about the case's merits. This statute provided for an initial decision by a three-judge federal trial court -- this is the decision that just came down -- and then an appeal directly to the Supreme Court.
   
   The Supreme Court must consider the appeal; it can just affirm the lower court decision using a one-line affirmance, but it has to consider the merits of the case to do so. And in a situation like this one, where the lower court struck down a federal statute, it's highly unlikely that the Supreme Court will agree in a one-line opinion. The Supreme Court will almost certainly have to rehear this case, a prediction that I very rarely make.



4. For now, the federal government is enjoined not to enforce CIPA. What about public libraries, which are virtually all run by state governments? May they continue filtering adult access (and I don't know how many do -- I suspect that many don't, given a trial court decision four years ago in the Mainstream Loudoun case that also held library filtering of adult access to be unconstitutional), or must they stop?
   
   Well, the court didn't issue any such injunction; and its decision isn't even binding precedent as to states in any part of the country, since only appellate courts can set binding precedent. But the decision, handed down by a three-judge trial court rather than a one-judge court, is probably going to be persuasive to many lower courts. The chances that a local state or federal court will enjoin any particular library's policy of filtering adult access have just increased substantially.

    OK, that's what happened, and what might happen. What were the court's reasons?

     1. Libraries, the court held, are like the post office, or the public streets -- though they are owned and subsidized by the government (the post office certainly used to be a subsidized government agency, especially as to certain classes of mail), they are presumptively "open[ed] . . . for virtually unrestricted use by the general public for speech on a virtually unrestricted range of topics" (p. 95).

     This, the court reasoned, makes them "designated public fora," which the government then cannot selectively deny to particular kinds of constitutionally protected speech that the government dislikes. Just like the government can't say "We'll carry all sorts of mail, but not Communist advocacy," or "We'll allow all parades on this street, but no racist demonstrations," so the government can't say "We'll provide access to the entire Internet, but not this list of sites that contain constitutionally protected information."

     The court's argument here is plausible, and it's consistent with Supreme the Court's precedents, though not completely dictated by them. It also explains why libraries are still free to select which books they'll buy but not which Internet sites they'll block.

     The decision about which books to buy, the court said, is necessarily a selective decision, in which only a small fraction of all possible books are chosen (based on quality, topicality, accuracy, and so on). It's not a situation where "the government opens a forum for virtually unrestricted use by the general public for speech on a virtually unrestricted range of topics" -- a library's possible collection is, sadly, all too restricted. But the decision to provide Internet access is generally a decision to provide a vast range of material, without any up-front selection -- except for the prohibited selection process of choosing which material to then exclude.

     Now one response is that, hey, this is the government's money, so we can spend it as we see fit. But the Court has in some measure retreated from this, at least as to public fora. And appealing as I find this argument, given that the government (federal, state, and local) consumes 35% of the GNP, I do think that it makes sense to read the Constitution as applying to the government's trying to keep people from reading things using this awesome spending power as well as to the government's trying to keep people from reading things using its power to enforce criminal laws or civil lawsuits.

     2. What about the government's power to suppress constitutionally unprotected speech, such as obscenity, child pornography, or speech that's "obscene as to minors" and communicated to those minors? The court acknowledged that in principle the government may try to do this, for instance by evicting patrons who seem to be accessing obscene material (more on this below).

     But the court said that filtering adult access is an unacceptable means of serving this end, because all filters are imperfect: They block some material that proves to be fully constitutionally protected. "[I]t is the government's burden . . . to show the existence of a filtering technology that . . . avoids overblocking a substantial amount of constitutionally protected speech" (p. 122). And the government failed to satisfy this burden, because no such perfect or even near-perfect filtering technology exists.

     3. Finally -- and here I think the court was least persuasive -- the government had other "less restrictive alternatives that further the government's legitimate interests" in preventing computers from being used to access obscenity and child pornography (p. 126). Instead of filtering, it can "adopt Internet use policies," "requir[e] patrons to . . . agree[] to comply with the policy," and then enforce the policies "either through direct observation" (the "tap-on-the-shoulder" approach) or "through review of the library's Internet use logs" (pp. 127-128). Despite the court's argument, I believe these policies will prove to be highly ineffective -- they will not further the government's interests anywhere nearly as effectively as the filters, with all their flaws, would.

     In my view, the court is at its strongest when it argues that library filtering is unconstitutional simply because it blocks too much material. Even if filtering is the most effective way of preventing access to child pornography and obscenity, and the alternatives are not nearly as effective, that may just be the price that we must pay to get free speech. I wish the court had just grabbed the bull by the horns and said that this was so, rather than hiding behind what in my view are unpersuasive claims that the government can essentially have it both ways -- that it can enforce obscenity and child pornography laws with maximal effectiveness and avoid the overblocking caused by filtering.

     But in any event, the result of the court's reasoning is that filtering, at least of adult access, is unconstitutional -- at least until the Supreme Court revisits the question, probably by early July of 2003.

 
[Eugene Volokh, 3:03 PM]
HATE SPEECH AND FREE SPEECH: Andrea See, quoting Mike Sanders, writes that

Hate speech is not free speech and is not sanctioned by the law. The fine line between being anti-Israel and anti-Semitic is easily crossed and I have not yet found an acceptable set of guidelines for making the distinction. This is partly because it is not just the words that are being said, but who is saying them, and what have they said before.

     Well, it's a New York Times sort of mistake, but it's a mistake nonetheless. "Hate speech," under virtually any definition that I know of (and, folks, if you want to use this super-mushy term, please define it), is constitutionally protected free speech. The law doesn't need to draw the fine line between anti-Israel and anti-Semitic speech, because speech on both sides of the line -- speech that expresses either ideology, or for that matter anti-Muslim or anti-Palestinian or anti-PLO speech -- is constitutionally protected. That's pretty clear First Amendment law.

     True, death threats are unprotected. Some face-to-face insults likely to start a fight are unprotected. Physical attacks are unprotected. All these are unprotected whether motivated by hate, love, or anything else, and by bigotry, communism, or patriotism. Likewise, speech outside these narrow exceptions in constitutionally protected, regardless of the ideology that it expresses.

     There is a 50-year-old case, Beauharnais v. Illinois (1952), that held that false statements about a religious, racial, or ethnic group may be punishable as libel; that might cover the flier mentioned by Mike Sanders, though it emphatically does not cover the entirety of what some call "hate speech." But Beauharnais came before the revolution in libel law heralded by New York Times v. Sullivan (1964), and before the rest of the Supreme Court's highly speech-protective jurisprudence from the 1960s on. Most constitutional scholars believe it's no longer a valid precedent, and I know of no cases in the last three decades, in any U.S. court, that have upheld a group libel conviction.

     So saying "Hate speech is not free speech and is not sanctioned by the law" is a mistake. Asking "Is it hate speech or free speech?" is a mistake. That's U.S. First Amendment law for you.

     Thanks to Instapundit for the link to the Andrea See item.

 
[Eugene Volokh, 10:27 AM]
LIBRARY FILTERING UNCONSTITUTIONAL: A three-judge federal trial court has just struck down the Child Internet Protection Act, which required school and public libraries to filter Internet access as a condition of getting federal funds. As best I can tell from an early skim, the Court held that it would be unconstitutional for a public library to filter adult access (whether or not federal funds were involved), but possibly permissible to filter access by children. More details as I read the opinion.

 
[Eugene Volokh, 10:19 AM]
FAILURE: Reader Agim Zabeli writes: "If 20% of your students must get an A, another 60% must get a B, and the last 20% must get a C, how the hell does somebody fail your class?� Is it the policy of UCLA Law School that failure is impossible?"

     At UCLA Law School, we aren't mandated to give any Ds or Fs, though we certainly may if they are warranted. The norm, though, is to give them only for outstandingly poor performance; I've given 2 Ds and 2 Fs in the about a dozen large classes that I've taught here, and three of the four were to foreign students getting a special LL.M. (Master of Laws degree) -- these students sometimes have serious language problems, and sometimes just don't understand what's expected of them on law school exams. My sense is that the same goes for most other Top 20 law schools, and perhaps even the Top 50. (I do know that the B-median curve is the norm for Top 20 law schools.)

     I've never thought hard about whether this is a good policy, but my tentative sense is that it probably is. Top 20 law schools preselect their students quite well; the median incoming GPA at UCLA is about 3.6, which is to say just below an A-. I suspect that even the worst of our students are actually pretty sharp, and that even the worst of their exams are not abysmal -- just bad compared to the other students.

     As I mentioned in my earlier post praising the curve, it really is quite hard to measure students' performance absolutely -- the most we can usually say is "This student did very poorly [or very well] compared to the rest of the class." Nonetheless, my (possibly Pollyannish) guess is that virtually no students at UCLA are really D or F students in any absolute sense; and only when I see a grade that is way off the left side of the curve do I give a grade that low.

     By the way, it is possible to essentially fail out of school even without Ds or Fs -- I forget the exact rules, but if your GPA is roughly C or below for some time, you get put on academic probation, and might eventually end up getting discharged for academic reasons. That too is probably about right. What's more, people with really low GPAs understandably have a rather hard time getting jobs, even if they do end up getting their degree.

 
[Eugene Volokh, 7:45 AM]
CURVES: By the way, every time I grade my exams, I again thank the school for insisting on a curve (ours mandates 20% As, 60% Bs, and 20% Cs).

     Lots of people really oppose curves. Shouldn't people be graded on their own merits, they reason, rather than based on how other students have done? After all, they ask me, don't you know the difference between an A exam and a C exam?

     Well, yes, I do -- but I surely do not know the difference between an A- exam and a B+ exam. And this ties in to some of the reasons why grading on a curve is the lesser of evils:

1. Sometimes I draft a hard exam and sometimes an easy one. I often can't tell which is which, since they're all easy to me -- I know the material, after all! So something might look to me like a C exam not because this student is unusually bad, but because the exam was just harder than ones from previous years.



2. Even setting the previous factor aside, I've been in teaching for 8 years now -- but many professors are new, and don't even have the data points that I have. In some areas, such as legal writing, the typical teacher has even less experience. (Likewise, in undergraduate institutions, many classes are traditionally taught by relatively inexperienced teachers.) Where are they going to get the distinction between A-s and B+s?



3. Perhaps the curve is unfair to a class that consists of unusually strong students -- but the absence of a curve is unfair to a class that has an unusually harsh professor. And the variation in class strength, especially classes of 108 students (like my Spring Free Speech Law class), is likely to be much less than variation in professor harshness.



4. The pressures for grade inflation are quite real, and flow from basic human nature: Most people don't like giving students low grades, especially once they've spent many hours with them. When I have small classes that can't be curved as easily (since there are so few data points that there's a higher chance that the class is unusually strong or weak), I feel this pressure myself, even if the class is still blind-graded. And of course if a professor is known for resisting this pressure, then fewer and fewer students will end up taking his class.

There are, I'm sure, many more advantages to the curve; and I think these advantages vastly outweigh the disadvantages. Like democracy, grading on a curve may be the worst possible system -- except for all the alternatives.

 
[Eugene Volokh, 7:40 AM]
"FREE SPEECH OR HATE SPEECH?" That's part of the headline in Linda Greenhouse's New York Times article on the Virginia cross-burning case, which the Court agreed to rehear. I've also heard that dichotomy used many other times by other people.

     But it's a false dichotomy, certainly under U.S. constitutional law and, in my view, under a sound understanding of free speech. "Hate speech" is not generally a well-defined term, but under virtually any definition -- e.g., speech that expresses hatred, or speech that expresses racial, ethnic, or religious bigotry -- a lot of hate speech is perfectly protected by free speech principles. Even European countries that would ban some bigoted expression would not ban all expression that conveys "hate," or even all expression that conveys bigotry.

     There are certainly plenty of exceptions to free speech: incitement, threats, child pornography, and so on. Burning a cross, if it's reasonably understood as a threat of violence, may in fact be punishable under the threat exception -- but because it's a threat, not because it's "hateful." Threatening someone out of misguided love, or for completely cold-blooded reasons, is just as constitutionally unprotected as threatening someone out of hatred or bigotry. Conversely, expressing an ideology of hatred or bigotry is, under U.S. constitutional law, as constitutionally protected as expressing an ideology of love or liberty or socialism.

     Now people can certainly argue that some "hate speech" shouldn't be protected by the First Amendment, though I think that any such arguments should use a more precise definition than just the term "hate speech." But casual use of the dichotomy (e.g., "It's not free speech, it's hate speech" or "free speech or hate speech?") suggests that there's already some established legal rule that hate speech isn't free speech -- that it's outside the First Amendment's protections.

     Intentionally or not, such usage misleads readers. (By the way, I should stress again what most of you know -- headlines are written by special headline writers, not by the reporters, so the headline is not the fault of Linda Greenhouse, whom I much respect.) I can understand why some activists might intentionally do this, and I can understand why headline writers, who aren't legal experts, might erroneously do it. But readers should be aware that this practice is misleading, and should make others aware of this.

 
[Eugene Volokh, 5:25 PM]
ABORTION-CAMS AND THE INTERNET: In my earlier post on abortion-cams, I reasoned that photographing people going into abortion clinics and then putting the pictures on the Internet, while reprehrensible, is constitutionally protected. In NAACP v. Claiborne Hardware (1982), the Supreme Court upheld a similar practice used by people who were enforcing a boycott by black consumers of white-owned stores. "Store-watchers" stood outside the stores and recorded the names of blacks who weren't complying with the boycott; the names were then read aloud in church and published in a local newspaper. The Court held that this practice, while socially coercive and possibly physically menacing (there had been violence against boycott violators), was constitutionally protected. Likewise, I believe, with abortion-cams.

     Brian Sinclair, in the Daily Babble raises a counterargument that turns out to be pretty common, so I thought I'd touch on it briefly:

The case you cite makes logical sense except that there's one missing element: the Internet. The case you cite originally took place in 1966, and everything took place in plain sight. . . . [T]he difference is the news of [the events in Claiborne Hardware] wasn't broadcast to millions of people. This took place in Mississippi. I might not have known about it in Phoenix. However, thirty years later, due to the dawn of the information age, I see the website being shut down, or at least limited. We can't allow the Internet to be used as weaponry for extremists, and I hope that the courts will recognize that.

     As with many claims that "speech on the Internet is different, and thus should be more regulated than speech outside it," I don't think this stands up under analysis. The real question isn't whether the abortion-cams information can be seen by more people than the information in Claiborne. That something can be seen by lots of people isn't itself a reason for restricting it.

     Rather, one can avoid the precedential force of Claiborne only if the abortion-cams information is somehow much more coercive than the names of the boycott violators read aloud in church and published in the newspaper.

     And in fact the abortion-cams information is not materially more coercive. The coercion both in Claiborne and in the abortion-cams case may come from two sources: (1) the threat of social ostracism, and (2) the threat of violence by unidentified third parties. In Claiborne, there was plenty of both kinds of coercion: Even though the information was distributed only locally, it was distributed to everyone who mattered most -- the neighbors who might either ostracize or attack blacks who refused to go along with the boycott.

     True, the information wasn't distributed in Phoenix. But the Claiborne County residents who felt pressured to comply with the boycott didn't care what Phoenix residents knew: They cared about what their black neighbors knew.

     If anything, in the abortion-cams case, the information might be marginally less coercive, because fewer neighbors are likely to see the Web site than were likely to read the newspaper or go to church. Or perhaps not -- maybe the information, once learned by one neighbor, would get quickly passed through the gossip mill. But in any event, the information is not materially more coercive, even though it is theoretically communicated more widely.

     So again we see that changes in medium, while they may at first seem dramatic (my God, the whole world can see it now!), often end up making much less legal difference than one might at first think. As a general matter, the legal rules for online speech are the same as the legal rules for speech in more traditional media. And it takes a pretty significant difference to overcome this strong presumption.

 
[Eugene Volokh, 2:16 PM]
EXPANSION OF FBI AGENTS' POWERS: I'm not particularly troubled by the proposed new FBI agent guidelines (see the New York Times story), at least based on what I hear from press accounts. Still, I thought I'd pass along a point that my friend Tom Bell (a law professor at Champan University) made about the following excerpt:

Asked whether the change would lead to a rollback of hard-won civil-liberties protections, Ashcroft said the powers would be used only "for the purpose of detecting and preventing terrorism."

"It's not to be abused for other purposes,'' he said.

Ashcroft said nothing in the guidelines would permit the FBI to routinely build files on people or organizations.

"The abuses that have been alleged about the FBI decades ago . . . would not be allowed," he said, referring to the practice of keeping files and records on prominent figures.

The new rules allow agents to conduct "general topical research" and "pure surfing" designed to find Web sites, chat rooms or Internet bulletin boards with information about terror, bomb-making instructions, child pornography or stolen credit cards.

A new speed record for mission creep (from "the purpose of detecting and preventing terrorism . . . not to be abused for other purposes" to "find Web sites . . . with information about . . . child pornography or stolen credit cards"), no?

 
[Eugene Volokh, 11:22 AM]
MORE ON SEX AND VIOLENCE: Reader Jimmy Wales writes, in response to my Cops & Robbers / Prostitutes & Johns thought experiment,

I think there's a serious disanalogy between kids playing "cops and robbers" and kids playing "prostitutes and johns". In cops and robbers, kids are roleplaying "good versus evil". As far as I know (and can recall), the standard "script" for the game involves a huge shootout at the end in which the robber goes down in a hail of gunfire.

In "prostitutes and johns" there isn't a heroic character, nor a heroic script, nor play-acted moral lessons about bravery, crime-fighting, and so on.

     I think there's a great deal to that point, but it can only be made by people who do not think that all portrayals of fictional violence is bad (or for that matter comparable to portrayals of fictional sex, at least in a pornographic context). The reader suggests, quite plausibly (though what the sociological research says about this, I don't know), that portrayals of violence with a moral -- from High Noon to Saving Private Ryan to perhaps Dirty Harry, depending on what you think of that moral -- are OK, and it's just nihilistic, immoral, or amoral portrayals are bad.

     This may well be so, and it does distinguish Cops & Robbers from Prostitutes & Johns (though it's not clear to me just how much moral content there really is in Cops & Robbers). But critics of media violence generally criticize it even when it does have some moral component -- to my knowledge, for instance, most violence on television does come as part of a broader morality tale.

     So I think my thought experiment -- which would trouble you more: seeing your kids play Cops & Robbers, or seeing them play a game called Prostitutes & Johns? -- remains relevant, to those who think that media portrayals of sex are no worse than media portrayals of violence (without regard to whether the violence has a moral to it).

 
[Eugene Volokh, 10:51 AM]
BROWNBACK, CLONING, AND ABORTION: Instapundit mentions that "Some people are saying that the Brownback anti-cloning bill would also ban abortion from the moment of conception." Wired likewise says that "some experts . . . accuse conservative politicians of trying to chisel away at abortion rights through the back door with the bill."

     Intrigued, I read the bill, and I really don't see how the bill bans abortion, or even "chisel[s] away" at it. What am I missing here? The language seems pretty simple, and it doesn't seem connected to abortion.

     I suppose the claim might be that anything that establishes the government's power to regulate what is done with fetuses might lead the public to accept the notion that fetuses deserve rights, and might therefore eventually undermine abortion rights. I am not in principle opposed to such slippery slope arguments, and in fact defend the genre in a forthcoming Harvard Law Review article. But for the argument to work, it has to go beyond the metaphor (it'll chisel away at our rights) and get to the mechanism -- tell a plausible story about how decision A (banning reproductive cloning) will increase the likelihood of decision B (an abortion ban). I haven't heard such a story; and I certainly have seen no evidence that the Brownback bill would itself ban abortions.

 
[Eugene Volokh, 9:59 AM]
SHABBAT AND THE CALENDAR: So here's a related question: Every so often, you hear about calendar reform plans that would, for instance, break up the calendar into 13 months of 28 days (= 4 weeks) each, with 1 or 2 days each year being outside any month. (Presumably to sweeten the pot, the proposals suggest that those days be holidays.) The advantage is that you'd always know that, say, the 12th of each month is a Friday, and so on -- not a big deal, but it would be nice.

     Of course, this won't happen: The costs of switching over would be too vast, especially now that we're in (1) a computer age, where there'll be lots of computers to reprogram, and (2) a globalized age, where we'd either all have to shift together, or deal with huge intercalendar conversion problems.

     But I had another question -- if this happened, what would really observant Jews do? I presume that something as theologically inconsequential as a bunch of non-Jews changing their calendar can't affect the Jew's duty to observe the Sabbath every seven days. And if that means that this year the Sabbath isn't from Friday night to Saturday night but, from Monday night to Tuesday night, well than that's just too bad. For that matter, would really observant Christians insist that the Lord's Day comes on Tuesdays (under the secular calendar) one year and Thursdays another?

 
[Eugene Volokh, 9:50 AM]
JEWS IN SPACE, THE ARCTIC, THE ANTARCTIC -- MY GOD, WE'RE EVERYWHERE! Rabbi Yitzchok Adlerstein has the straight dope:

The earliest reference I know of opined by a figure of major importance is that of Rabbi Yisrael Lifshitz (1782-1861), the author of Tiferes Yisrael on the Mishna.�� At the very end of the first chapter of tractate Berachot, he conjectures that the laws of Shabbos in the Artic Circle follow the last place of habitation that the traveler departed from.� He argues, in fact, that two travelers might be sitting together at the North Pole, each one observing a different day as Shabbos.� One traveled from the US, and the other from Europe.� Each would set his time and calendar when he arrived at the Pole according to elapsed time from his jumping off point.

I am not sure if the question ever moved beyond the theoretical, although there is a distinct possibility that Chabad has an operation there, aimed at polar bears of Jewish descent.

 
[Eugene Volokh, 9:48 AM]
CHALLENGE TO THE D.C. GUN BAN: As I predicted -- well, it wasn't hard to predict, I admit -- the D.C. handgun ban is being challenged on Second Amendment grounds.

     The ban had been upheld in the late 1980s by the D.C. Court of Appeals, which is D.C.'s equivalent of the state supreme court; the court reasoned that the Second Amendment did not protect an individual right. The U.S. Court of Appeals for the D.C. Circuit, though -- the federal court that's in charge of purely federal litigation in D.C., as opposed to D.C.-law-based litigation -- has not passed judgment on the matter.

     From the Washington Post story, it appears that the Second Amendment defense has been raised in a D.C. trial court, rather than a federal court (when you're a defense lawyer, you often don't have much choice where you'll raise the defense), so it looks like the trial court would have to reject the claim, given the binding precedent from the higher court. Perhaps the hope is that the higher court will eventually change its mind -- but I suspect that if the D.C. gun ban falls (a big "if," since while I think the individual rights view is right, the question is whether the courts will accept that it's right), it will probably be in the U.S. Supreme Court or in the federal courts in D.C., and not in the D.C. court system.

     Instapundit has some other important details about this.

 
[Eugene Volokh, 9:28 AM]
EVOLUTION AND GRAVITY: Max Power takes me to task for suggesting that evolution has not been proven, writing:

Volokh also writes "Evolution has not been proven in any common sense of the term," but this is misleading at best. By that standard, astrology should be taught alongside astronomy and the theory of gravity, because conventional astronomy has not been "proven."

But I think this misses the point.

     First, I never suggested that intelligent design should be taught alongside evolution; in fact, as I mentioned in my original post,

One could also argue that teaching intelligent design is not pedagogically helpful: For all I know, intelligent design might be right and evolution wrong, but precisely because intelligent design rests on unfathomable mysteries, it can't really help much advance our thinking about biology. Evolution is thus the more useful hypothesis -- not because intelligent design is impossible or even unlikely (how can you measure the likelihood of something like that?), but because it's more productive of other interesting areas of investigation.

I think this indeed the strongest argument against teaching intelligent design. Some correspondents, including Rand Simberg and Max Power himself say that intelligent design claims are not science, which I think might be another way of stating the point, though I prefer to stay away from what could become a definitional game (though it is not one in Rand's post) and go to the heart: Intelligent design claims are ultimately not useful to biologists.

     Nonetheless, this should not lead people to overstate the case. To begin with, the most controversial claims of evolution -- for instance, that higher life forms, such as us, evolved from unicellular organisms and originally from non-living organisms -- have not been proven the same way as, say, the theory of gravity. They may have been proven to the satisfaction of whatever standard biologists use (which I think has a lot to do with the usefulness test that I keep coming back to), but it's important to realize the limits of such proof.

     The theory of gravity provides a testable hypothesis about future events (when an object falls, it will fall in this direction at that speed). We cannot, however, test whether humans have evolved from single-celled organisms; since this is a claim about the past, it's much harder to test than a claim about the future. I got some e-mails that pointed out that mutation and natural selection are proven, and of course that's so: But the controversy isn't over whether mutation, natural selection, and hereditary transmission happen, but over whether they by themselves account for the existence of humans. And that, has been at most demonstrated to be plausible, rather than demonstrated correct.

     Likewise, I don't think it's right to say, as Max Power does, that intelligent design is not consistent with the evidence. I am sure that some particular claims of some intelligent design theorists (likely quite a few) may be inconsistent with the evidence, just as some (though quite possibly fewer) claims of some evolutionary scientists have over time been proven inconsistent with the evidence.

     But the broader claim -- which is again the heart of the debate -- that humans and other species were created at least in large part by some intelligent force is perfectly consistent with whatever evidence you might find. In fact, that's the problem: It's definitionally consistent (an intelligent and especially ominpotent creator could have created anything, no matter how consistent it might also be with an evolutionary explanation), and as a result not very helpful to biological researchers.

     This is why I continue to say "But whatever might be wrong about teaching intelligent design, it's not that intelligent design is wrong." Max Power's response, which is "Not so. 'Intelligent design' isn't science in the slightest." seems to me to confound two claims --

1. the claim that assertions that humans were intelligently designed aren't "science," which I try to put more concretely as that these assertions do not really generate useful hypotheses,



2. and the claim that assertions that humans were, well, intelligently designed, are wrong, which is to say are empirically false.

The former claim I'm pretty happy to agree with. The latter claim, I think, much overstates the matter.

 
[Eugene Volokh, 7:30 AM]
INTELLIGENT DESIGN AND ASTROPHYSICS: So here's a thought experiment, merged with a Socratic dialogue. Work with me here.

     Q: Is it likely that we're the only intelligent species in the universe?

     A: Well, it's not clear that the word "likely" has much meaning here, given that we have absolutely no information on which we can evaluate anything that remotely approaches a probability. But at least we can say that it's not ridiculous to imagine that there are other species out there. In fact, some people might even say that it would be very strange if somehow we were so special as to be the only intelligent species in what does, after all, seem like a very big universe -- though again, these judgments shouldn't be confused for any actual estimates of probability.

     Q: OK, if we survive and keep progressing scientific, do you suppose that we'll eventually be able to create phenomena that are detectable across interstellar distances -- say, a nova, or a black hole, or a pulsar, or some such?

     A: Uh, we really can have no idea, because we have no idea just how far science will progress in the next thousand years, but I suppose that's possible. Again, we can't say that it's a ridiculous hypothesis. Yeah, I guess that might happen.

     Q: Well, if that's possible, and if there may be other intelligent species out there, then might it not be possible that they have already reached a level at which they can create phenomena that are detectable across interstellar distances?

     A: Well, maybe. I guess. Can't rule it out, exactly, though again we really have no idea, and can have no idea.

     Q: So given that this is so, why is it that astrophysicists spend so much time speculating about how various interstellar object might have arisen naturally (e.g., that's a thingamajigggy, it must have been a type-XYZZY star that this-and-that happened too -- look, I don't really know that much about astrophysics), when many of the particular items that we've observed could be an artifact of intelligent design? Not intelligent design by a God, but intelligent design by some alien species? After all, it doesn't take any faith in the supernatural to believe in that -- only an acceptance of the possibility that our species is not the only, or the most intelligent, species alive today (or that has been alive any time in the past many million years).

* * *
     Here's my tentative hypothesis about that: Astrophysicists operate on a theory that the universe has somehow naturally evolved, without intelligent help. But they don't do this because they've proven the opposite. Nor do they do this because it's somehow illogical to believe the opposite (i.e., to believe that at least some phenomena that we see in space are intelligently designed). Nor do they do this because somehow this intelligent design theory is provably unlikely.

     Rather, they do this for the most practical of reasons: It's the only way they're going to get any real advances in thinking about astrophysics, at least right now. If you assume intelligent design of some cosmic object, then where are you? You can't really figure out anything much about anything -- if someone created it, you have no idea how it fits with anything else. (If we were closer to these things and could actually examine them better, or under some other circumstances, then maybe the intelligent design theory might be useful, but it isn't now.)

     If you're going to get anywhere, you might as well assume that astrophysical objects evolved without intelligent help. You might be wrong, but if you're right, then you'll get a lot of interesting theories. Assuming intelligent design of the universe, or even some corner of the universe, will yield you virtually no interesting theories.

     So if someone says "I think that object X out there might have been created by an intelligent, advanced alien species," you can't say he's wrong, the way that someone who says 2+2=5 is wrong or that someone who denies the theory of gravity is wrong. Nor can you say "You don't have any evidence for that, so we'll assume as a scientific matter that it's not true" -- there just is no rule in science (as opposed to in law) that things for which we have no evidence must be considered not true.

     But you can say "Wow, that's interesting, but it's completely useless; on the other hand, my alternative theory is useful, because it's producing interesting testable hypotheses." That may not be as satisfying -- but it's sound, and it's good enough for scientists to shift their attention to the natural evolution theory as opposed to the intelligent design theory.

     As you might gather, I think this approach is also relevant to the debate about evolution vs. intelligent design in biology.

 
[Eugene Volokh, 10:40 PM]
TRAFFIC REPORT, for the curious: According to our gostats hit counter, this site has been getting about 2200-3100 unique visitors per day (assuming the counter software's measurement of unique visitors is accurate, which of course is a big assumption); we get about 2500-3600 page views per day. This is for weekdays; weekends are considerably lower (by a factor of 3 or so).

 
[Eugene Volokh, 8:15 PM]
THE LONG NIGHTMARE IS OVER! I have finished grading the last of my 108 Free Speech Law essay exams. The word limit for each was 5000 words, and most came close to that.

     Figuring 10 words per line and 40 lines per page, think of it as a collection of 108 badly written short stories (look, even good essay answers are generally not great marvels of prose), each about 12 pages long. And each one has exactly the same plot as all the others.

     Arggh!

     But now it's over, and I can get back to more interesting work. Actually, first I'll do something that I really enjoy: call the students who got the As and A+s (11 total, as per our curve) and congratulate them. Though law school exams are blind-graded -- we see exam numbers, not students' names -- we can get the names once we turn in the grades, which I just did.

 
[Eugene Volokh, 5:20 PM]
EVOLUTION AND 2+2: Max Power writes

SOME CONGRESSMEN ARE BOOTSTRAPPING non-binding conference report language to try to muscle school districts into teaching intelligent design. Unfortunately, the Washington Post article suffers from faux objectivity whereby the intelligent design proponents state that two plus two equals five, and the evolution proponents say, no, it's four, and that there's somehow a legitimate controversy.

     The difficulty is that intelligent design is not at all like two plus two equals five. Intelligent design (to which, by the way, I do not subscribe) does not posit something that's clearly false (2+2=5). Rather, it posits something that may or may not be true (organisms "look like they were designed because they were designed," to quote one proponent of the intelligent design school, UC Berkeley law professor Phillip Johnson) -- and that is in fact more plausible to many people than evolution is.

     Nor can one argue that intelligent design is unproven, but evolution is proven. Evolution has not been proven in any common sense of the term -- true, it's (to my limited knowledge) more or less consistent with the evidence, but intelligent design is consistent with the evidence, too. Intelligent design, in turn, is neither proven nor disproven; it may not even be disprovable, absent some quite remarkable and uncontrovertible divine revelation.

     Now one could argue that teaching intelligent design is impermissible because of the Establishment Clause; I don't want to express any judgment on that quite complex question here. One could also argue that teaching intelligent design is not pedagogically helpful: For all I know, intelligent design might be right and evolution wrong, but precisely because intelligent design rests on unfathomable mysteries, it can't really help much advance our thinking about biology. Evolution is thus the more useful hypothesis -- not because intelligent design is impossible or even unlikely (how can you measure the likelihood of something like that?), but because it's more productive of other interesting areas of investigation.

     But whatever might be wrong about teaching intelligent design, it's not that intelligent design is wrong.

 
[Eugene Volokh, 5:05 PM]
OPEN-MINDEDNESS IN THE BLOGOSPHERE: First PejmanPundit changes his views on gun issues, based on his consideration of the evidence (how, well, pre-postmodern). Now, Max Power is persuaded by an e-mail exchange to change his views on the Ninth Circuit's prisoner artificial insemination case.

     I stress "by an e-mail exchange," because a strong counterargument on someone else's blog post might pressure one into a public reaction -- but if you get a counteargument in an e-mail, you can just ignore it with no-one being the wiser. Appalling. Where is pigheaded obstinacy and blind self-confidence when we need it?

     Actually, blogging is particularly well-suited to this sort of intellectual honesty, for a couple of reasons. One less obvious one is the practice of short, frequent posts: One can correct one's errors without making a big deal out of it -- just a paragraph one hour, and you can put up some more posts the next. A weekly columnist might have to devote a whole column to a correction, which many people are understandably reluctant to do.

     What's more, the casual nature of blogging actually takes off some of the pressure against publicly changing one's mind. We expect a Real Pundit to have Real Wisdom that means He's Always Right -- or else why does he have this vast stature that so exceeds that of the great unwashed? But when one is posting self-consciously quick, off-the-cuff remarks, alongside many other people who are doing the same with no credentials other than ownership of a computer, it's a lot easier to say "Hey, I now realize that the better view is X."

 
[Eugene Volokh, 3:49 PM]
FEDERAL ANTIDISCRIMINATION AGENCY FINED $386,000 FOR FRIVOLOUS LITIGATION: Yup, that's right, a federal district court has held that the Equal Employment Opportunity Commission was not only mistaken in suing on behalf of some allegedly discriminated-against employees -- it held that the lawsuit was so lacking in foundation that it was "frivolous, unreasonable or without foundation."

This case involved allegations that 12 female employees, including attorneys and secretaries, were sexually harassed by Reeves or were fired because they were pregnant. Several women complained that they were subjected to inappropriate touching, leering and sexual remarks. Reeves denied the allegations.

[Judge Dickran] Tevrizian wrote in his May 6 order that the EEOC could have pursued three of those claims as potentially valid. Instead, he said, the agency brought a class action on behalf of a dozen women, "four of whose claims it knew had absolutely no foundation, and five others which it knew or should have known were groundless."

Ultimately, he dismissed all of the claims, saying they did not rise to the level of misconduct under the law.

 
[Eugene Volokh, 2:58 PM]
MORE ON DICTUM: I just realized that another famous case has the same structure as Jackson and Strickland (see the Second Amendment dictum post below), and my friend Stuart Buck e-mailed me about yet another one.

     In Everson v. Board of Ed. (1947), the Court decided that the Establishment Clause applied to the states and not just to the federal government; and the Court also defined in some measure (though rather ambiguously, in important ways) the scope of the Clause. Nonetheless, the Justices went on to conclude that the Establishment Clause was not violated by the practice at issue in this case.

     Likewise, in Korematsu v. United States (1944), the Court for the first time held that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" and that therefore "courts must subject them to the most rigid scrutiny." This was the birth of the so-called "suspect classification" / "strict scrutiny" approach to governmental racial classifications. Nonetheless, the Justices went on to conclude that the racial classification there (the interment of Japanese-Americans) passed even this rigid scrutiny, because of the exigencies of wartime. This ultimate conclusion is of course quite controversial, but the initial judgment -- that federal laws that discriminate based on race must generally be subject to strict scrutiny -- is still very much the law.

     Thus, both cases have the same structure as Emerson (as well as Jackson and Strickland): The court decides that a particular right exists. It then sets a forth a test for how the right is to be applied. But it ultimately concludes that the claimant loses, because his claim is outside the right's scope.

     The decisions in Everson and Korematsu about the right's existence and about the proper test are universally seen as binding holding, and not as dictum. The same must go for Emerson.

 
[Eugene Volokh, 10:04 AM]
THE UNILATERALIST BANDWAGON: Good post from Josh Chafetz at OxBlog on how the media find some theory about a public figure's personality and then run with it regardless of the facts.

 
[Eugene Volokh, 9:49 AM]
THE FIFTH CIRCUIT'S SECOND AMENDMENT DECISION (EMERSON): I generally liked Michael Barone's recent column on race-based affirmative action and on the Second Amendment, but had a quibble that I thought might be worth airing. It's a small point, but possibly important.

     After the U.S. Court of Appeals for the Fifth Circuit decided United States v. Emerson last year -- becoming the first federal court of appeals to adopt the individual rights view of the Second Amendment -- some critics of the decision (starting with one of the judges on the panel, who concurred in the result but not in the individual rights reasoning) argued that the court's ruling was dictum. Dictum, in legal usage, means a part of the opinion that isn't the official holding of the case because it's superfluous; if, for instance, a court says "We lack jurisdiction to decide this question, but if we did have jurisdiction, we'd conclude that the proper legal rule is X," the "we'd conclude that the proper legal rule is X" is classic dictum. And this label matters, because dictum is not binding legal authority; it's at most persuasive, and even there it's less persuasive than the court's actual holding.

     Now why do people say that the Emerson discussion of the Second Amendment was dictum? The court's ruling went more or less like this:

1. Emerson claims that the law barring people who are under a domestic restraining order violates the Second Amendment.



2. To resolve this question, we first have to figure out whether the Second Amendment secures an individual right.



3. For the following reasons [long discussion omitted], we conclude that the Second Amendment secures an individual right.



4. Now we have to figure out what the scope of the individual right is, and whether the right is broad enough to invalidate this law (analogy: if this were a speech restriction case, it wouldn't be enough just to say that the freedom of speech secures an individual right -- we'd also have to figure out whether the freedom of speech covers flagburning, obscenity, commercial advertising, or what have you).



5. For the following reasons [short discussion omitted], we conclude that the individual right to bear arms is limited in the following way: It does not include a right to bear arms while one is under a domestic restraining order that is based on a specific finding that the person may well be dangerous.



6. There was such a finding in Emerson's case [this part was actually controversial].



7. Therefore, Emerson loses.

     Those who say that item 3 (the individual rights holding) is dictum reason that the court could have just skipped item 3; it could have said "even if we assume, without deciding, that the right is individual, Emerson loses because of the reasoning in item 5 about the hypothetical right's scope." Therefore, the theory goes, item 3 is unnecessary to the court's reasoning, and is therefore dictum and not part of the case's binding holding.

     I believe that this dictum argument is mistaken: The fact that the court could have reached the result some other way doesn't turn into dictum the reasoning that the court engaged in to reach the result. To decide whether a person's rights are violated, a court would normally first decide what the scope of the rights are. Items 3 and 5 were both determinations of the scope of Second Amendment rights; and the fact that the court could have used more conditional reasoning doesn't eliminate the precedential force of the reasoning it actually used.

     But my argument isn't just conceptual; rather, there are (at least) two tremendously important Supreme Court cases which have the same structure that Emerson has -- they (A) decide that a particular right generally exists, (B) decide its scope, and (C) ultimately conclude that the claimant of the right nonetheless loses. And no-one, to my knowledge, has ever said that these two cases' holdings as to A or B are dictum, even though the Supreme Court could have said "Even if we assume without deciding that this particular right generally exists, the claimant loses because he is outside the hypothetical right's scope."

     These cases are Jackson v. Virginia (1979) and Strickland v. Washington (1984) (the latter, incidentally, was at the heart of yesterday's Supreme Court decision in Bell v. Cone). Here's how they were structured:

1. Jackson claims that there was insufficient evidence to convict him in his state trial, and that she has a federal Due Process Clause right to have her conviction reversed on these grounds. Strickland claims that his lawyer provided ineffective legal assistance, and that this is a violation of the Sixth Amendment right to counsel.



2. To resolve this question, we first have to figure out whether the Due Process Clause and the Sixth Amendment secure such rights (a matter that was quite unresolved at the time, and that was contested by the Virginia and Washington prosecutors).



3. For the following reasons [discussion omitted], we conclude that the Due Process Clause and the Sixth Amendment secure such rights.



4. Now we have to figure out what the scope of each right is, and whether the right is broad enough to invalidate the conviction in this case.



5. For the following reasons [discussion omitted], we conclude that the rights are limited (and quite significantly limited) in the following ways: The Due Process Clause is violated only if "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." The Sixth Amendment is violated only if "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "[j]udicial scrutiny of counsel's performance must be highly deferential . . . [--] a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"



6. There was adequate evidence for a finding of guilt in Jackson's case; counsel's performance was adequate in Strickland's.



7. Therefore, Jackson and Strickland lose.

     So, as I said, these two Supreme Court cases are structurally identical to Emerson: A right is generally found to exist. The right's boundaries are defined. The claimant is found to fall outside those boundaries. The claimant therefore loses.

     The court could have reached the same conclusion by saying "We needn't decide whether the right generally exists, because even if it does exist, the hypothetical right's boundaries would be such that claimant falls outside them." But the court didn't use this approach.

     As I mentioned, I haven't heard anyone ever say that Jackson's and Strickland's very important holdings are actually dictum -- everyone agrees that if a court finds the existence of a right and defines a right's boundaries on the way to a conclusion that the right nonetheless doesn't apply, the court's conclusion is holding. The same must likewise apply to Emerson.

     Whew. That took a while. Any questions? Remember, this will be on the exam. Now you know why they pay us the big bucks.

UPDATE: For two more noted Supreme Court cases that fit the same mold, see here.

 
[Eugene Volokh, 9:04 AM]
ABORTION-CAMS: Reader Robert Racansky responds regarding remarks . . . OK, this has got to stop. In any case, he asks:

Is there a difference between abortioncams.com, and Michael Moore setting up a web cam pointed at Lucianne Goldberg's apartment?

     This is an excellent question, and fortunately it has a pretty clear answer. Moore is free to stand with a camera outside Goldberg's building -- this is no different from what the media normally do when they're hounding someone for a story. If he persuades a neighboring property owner to let him mount the camera on its property, that's fine, too.

     On the other hand, if he goes into the building with his camera, the owners might notify him that he's no longer welcome, and evict him as a trespasser. And if he tries to attach the Web-cam to city property outside the building, the city can take it down. (People have a First Amendment right to walk and carry signs on city sidewalks, but not to attach signs to city property.)

     The chief protection that we have against intrusive news-gathering, then, is traditional real property law: We can keep people off our property, but we can't keep them off the public sidewalk, even if they're trying to gather embarrassing information about us. (The same answer would have applied in NAACP v. Claiborne Hardware.)

 
[Eugene Volokh, 8:56 AM]
JEWS IN SPACE: Reader Josh Furman writes:

I just read your "Space Sabbath" blog. Good stuff. In the end you mention that the issue should have been resolved in the Arctic and Antarctic circles. While I am no expert in this area I think the standard halachic answer to Shabbos in those regions is to go by the calendar of the closest city with a Jewish population that has "normal" days.

In Antarctica I think the standard is Christchurch, New Zealand (kind of ironic, isn't it?). In space this solution would be mildly problematic since the closest city kind of loses its meaning when you go hurtling passed it at hundreds of miles per hour.

There is a famous story (it may be apocryphal) that I've heard about [the late] Rabbi Yitzhak Hutner (the former head of the Yeshiva Chaim Berlin in Brooklyn and a famous luminary in the circles that make rabbis famous). He was asked by a student back in the 50's or 60s when to keep the Sabbath on the moon.

He replied "Here is a Quarter, call me when you get there." Well I guess that time has come.

 
[Eugene Volokh, 6:32 PM]
MORE ON CARDOZO: Responding to my post about Justice Cardozo being the first Hispanic Justice, my friend Tom Waldman suggests that Alberto Gonzales might still be the first Latino Justice (as opposed to Cardozo, who was the first Ladino one, in a manner of speaking). But doesn't that presuppose a definition of Latino that's different from Hispanic, and that would exclude Cardozo?

     I could find no such definition in the Code of Federal Regulations (which is where I found the definition of "Hispanic" that I gave in the previous post). The closest I could find is a definition of "Hispanic or Latino" in 45 CFR 1355 app. A, which likewise turns on whether a person "is of Mexican, Puerto Rican, Cuban, Central or South American origin, or a person of other Spanish cultural origin regardless of race" -- this might exclude Cardozo because I suspect he's of Portuguese cultural origin, but that would be a really funny way of defining Latino. After all, the Portuguese might be seen as not Hispanic, but surely they're just as Latino as the Spaniards.

     My New Shorter Oxford does define Latino as "A Latin American inhabitant of the United States," which would indeed exclude Cardozo -- but would equally exclude all Americans of merely Spanish, as opposed to Latin American, extraction. This might be a sensible definition, but it's not the one in the Code of Federal Regulations.

     But wait! What about Antonin Scalia, a Justice some of whose ancestors might have actually come from Latium itself? Yes, I know, etymology doesn't equal meaning; but it's still fun to play with this.

 
[Eugene Volokh, 4:03 PM]
RIGHTS TO ONE'S OWN LIKENESS: N.Z. Bear asks, apropos my Abortioncams post, "Could any kind of an 'improper use of name or likeness' argument be made here? I poked around the web site in question, and didn't see any requests for donations, which might have made that kind of attack easier. But surely some benefit is accruing to the fellow hosting this web site by using these women's photos."

     I've actually written a bit about this so-called "right of publicity," supposed rights of privacy, and the First Amendment; check out a section of my "Freedom of Speech and Information Privacy" piece. The short answer to the question is this: Even if the Web site operator is getting some financial benefit from posting the photos, newspapers and TV stations often get a financial benefit from displaying people's photos. But the First Amendment protects their right to do it -- while the right of publicity may bar the use of another's name or likeness in advertising (e.g., using Bette Midler's voice in an ad for Ford cars without her permission) or merchandising (e.g., selling Three Stooges T-shirts or, more controversially, busts of Martin Luther King, Jr.), it doesn't apply to news reporting or political commentary.

     The abortioncams Web site, much as I condemn it personally, is just as entitled to First Amendment protection for its commentary as are the New York Times or CNN (or for that matter, as were the boycott organizers in Claiborne Hardware).

 
[Eugene Volokh, 3:14 PM]
COULD VIOLENCE IN THE MEDIA SOMETIMES BE GOOD? A colleague of mine, whom I much respect, responded to the sex vs. violence post below by saying that he really is strongly opposed to his children seeing violence, and that seeing kids play Cops & Robbers makes him feel awful. One reason he doesn't have a TV set, for instance, is that there's too much violence on television and he doesn't want his kids to see it.

     I'm not sure that violence in the media teaches kids to be more violent, or at least to be more open to violence, but I find the theory to be quite plausible. Kids do learn by imitation, and kids who watch material that glamorizes violent people and violent conduct, might well become more open to using violence. And of course there's a lot of benefit to having a society filled with people who have a revulsion towards violence (I'll assume, for now, that this won't much interfere with proper personal self-defense, since the instincts towards this are pretty strong), or at least have as little tolerance and openness towards violence as possible.

     At least that's true 95 years out of the century. For the remaining 5 years, when the country is at war, you want a nation of people who are willing to inflict appalling violence on the enemy, and to themselves deal with the risk of violent death for themselves and their loved ones. You don't want to enter World War II, or for that matter the War on Terrorism, as a nation of pacifists.

     So how do we, as a society, train our children not just to be peaceful, but to peaceful in most situations but willing killers in one rare but very necessary set of situations? Is the optimal strategy the same for individual parents as for broader social decisionmakers? Might it differ for parents who have special reason to fear that their kids will get involved in criminal violence (recognizing that this is indeed a risk for all kids, but perhaps higher for some than for others)? These are not rhetorical questions -- I genuinely don't know the answer to them, but I just think that they have to be asked whenever the "problem of violence in the media" is considered.

     Moreover, to return to the question that I set aside, is there some risk that trying to insulate kids from violence might hurt them even in defensive situations? I've heard some people say that they find it hard to imagine using deadly force even to defend their own lives. I think they have the right to make this choice, but I wouldn't want my child to make it (especially when the child ends up refusing to use deadly force even to defend others -- such as my grandchildren -- and not just himself or herself).

     Finally, I suspect that violent movies provide more than just examples of how people can be violent -- they also provide examples of how others can react courageously and intelligently to violent situations. Maybe it would be great if we could show kids models of physical courage and coolness under fire without actually showing the physical violence itself; but it seems to me to be hard to do (or am I mistaken?).

     All this having been said, I stress again that I see the possible benefits of teaching kids to be as pacifistic as possible. Even a laudable desire to defend oneself can be dangerous, for instance when running away may seem less courageous but ultimately more prudent (which it sometimes is and sometimes isn't); and of course many kids (and many adults) don't have the experience or good sense to decide when self-defense is needed and when it's not. (And of course I can certainly see why one might want children to watch violent movies with good morals, such as High Noon, rather than nihilistic ones.)

     I just wonder how we -- both as parents and as people trying to influence social decisions -- balance the costs of openness to violence against the costs of pacifism.

 
[Eugene Volokh, 2:02 PM]
WORDS OF CAUTION: University of Washington law professor Donald Clarke pointed me to a story on an interesting and potentially dangerous condition that we should all be aware of.

 
[Eugene Volokh, 1:57 PM]
PEJMANPUNDIT ON THE SECOND AMENDMENT: Check out PejmanPundit's FoxNews piece on the Second Amendment -- very nicely done. I'm particularly pleased because:

1. It shows further how the mass media is trying to co-opt the talent available among bloggers (a win-win-win proposition, for the media, the bloggers, and the public).



2. When I first met Pejman Yousefzadeh (at a law school panel on firearms manufacturer liability), he took the states' rights view of the Second Amendment, which regrettably remains the norm in law school environments -- but after looking into matters more closely, he changed his view, which I think speaks well both of the arguments for the individual rights view, and for his open-mindedness and scholarliness.



3. Pejman's e-mail signature file contains one of my favorite poems of all time, a stanza from Omar Khayyam's Rubaiyat:

   The Moving Finger writes; and, having writ,
   Moves on: nor all your Piety nor Wit
   Shall lure it back to cancel half a Line,
   Nor all your Tears wash out a Word of it

 
[Eugene Volokh, 1:29 PM]
ABORTION-CAMS: Today's Wall Street Journal has a page 1 story titled "Photos of Women Who Get Abortions Go Up on Internet." There's a network of people who stand outside abortion clinics and take pictures of people who go into the clinics; they then send the pictures to Neal Horsley, who puts them on a Web site (abortioncams.com). "Shame enough women into realizing that eternal damnation awaits them if they murder their baby and the abortionists won't have any work to do," one of the photographers says. But, as others point out, the photos may be more than just shame -- they may also be used by those who want to actually commit violent acts in retaliation for the women's conduct.

     I sympathize with the people who are involuntarily getting their photographs taken. I'm generally pro-choice myself, but I like to think that even if I wasn't, I'd want to keep the individual women out of it. The view that "the personal is political," whether from the Left or from the Right, often leads to excesses that are ultimately lose-lose propositions -- they hurt the individuals who are caught up in the activism, and at the same time hurt the activists' cause by alienating moderates. On the other hand, I realize that perhaps I take this view just because I am indeed pro-choice; if I really thought that abortion really was tantamount to murder, I might take a different view towards the murderers, even when they are just pregnant women.

     But in any event, the constitutional issue strikes me as quite clear. As the Wall Street Journal mentions (though twenty paragraphs into the story), the Supreme Court faced a very similar question in NAACP v. Claiborne Hardware (1982) (the same precedent that I've mentioned in relation to the Nuremberg Files case). In Claiborne, the organizers of a black boycott of white-owned stores stationed "store watchers" outside each store; these store watchers took down the names of the black shoppers who violated the boycott, and the names were then read aloud in church and published in a newspaper. Some of the boycott violators had shots fired through their windows. Others were beaten or otherwise attacked.

     The Court nonetheless held that the recording and the publication of the names was protected, even though the purpose of the behavior was to shame people, and one possible effect was to make it easier for others to commit crimes against them:

Petitioners admittedly sought to persuade others to join the boycott through social pressure and the "threat" of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action. . . . "[O]ffensive" and "coercive" speech [is] nevertheless protected by the First Amendment.

I think this was probably the right decision, though I'm not sure. But I am sure that once this has been found to be constitutionally protected when done by the civil rights movement, the same has to be protected when done by the pro-life movement.

     The only credible distinction that I've heard between the two cases is that one involves a "private" activity such as getting abortions, while the other doesn't. But, first, deciding whether to shop is also the kind of decision that many people don't want publicized (especially when publicizing it may cause social ostracism). And, second, I don't think the First Amendment distinguishes publishing the names of people who you think are doing evil because (in your view) they lack solidarity with their fellow blacks from publishing the names of people who you think are doing evil because (in your view) they are murdering their babies. The two political movements are equally entitled to the First Amendment's protection.

     So if the Court overturns Claiborne and holds, for instance, that one may not try to accomplish political goals by targeting private individuals going about their daily lives, then abortioncams.com could be shut down. Again, I think that would probably be wrong, but at least there'd be a credible argument. But while Claiborne is the law of the land, it seems to me to squarely protect what the abortioncams people are doing, offensive as we might find it.

UPDATE: More on why Claiborne applies to the Internet here.

An answer to a reader question about where abortion-cams may be placed here.

 
[Eugene Volokh, 11:54 AM]
CROSS-BURNING: The Supreme Court just agreed to rehear a Virginia Supreme Court decision that struck down the Virginia crossburning ban. Should be an interesting First Amendment case (which will be called Virginia v. Black).

     I tentatively predict that the Court will agree with the lower court, and will hold the law to be unconstitutional: A general ban on threats is permissible, but a ban that singles out threats that convey one particular viewpoint is not, per the Court's decision in R.A.V. v. City of St. Paul (1992).

     Why, you might ask, did the Court agree to rehear the case, if it agrees with the lower court? Because lower courts had reached different results on this issue, which the Court treats as a strong reason to step in and resolve the conflict.

 
[Eugene Volokh, 9:05 AM]
KPCC LISTENERS: You can find the most recent Ninth Circuit U.S. Court of Appeals decision in the Nuremberg Files case by clicking here.

     The leading precedent in this field is the U.S. Supreme Court's decision in NAACP v. Claiborne Hardware (1982), available here.

     An important part of Judge Kozinski's dissenting opinion, which explains why under Claiborne Hardware the defendants' speech is protected, is excerpted here.

     My Wall Street Journal op-ed, written after the earlier decision that the Ninth Circuit has just reversed, is here.

 
[Eugene Volokh, 7:51 AM]
SPACE SABBATH: From The National Post:

Jerusalem, we have a problem.

As if weightlessness, cramped conditions and the enormity [sic] of the galaxy were not worrying enough, a crew member of the
next space shuttle mission is facing an additional problem: How do you observe the Sabbath when it occurs once every 10 1/2 hours in orbit?

Colonel Ilan Ramon, who will become the first Israeli to leave Earth as part of the crew of Columbia in July, has caused consternation among rabbis by asking how -- or more precisely, when -- to mark Judaism's day of rest.

The problem stems from the fact Jews are required to observe the Sabbath "every seventh day," starting at sunset on Friday evening and ending the following day "when three stars are seen." . . .

Aboard the space shuttle, however, Col. Ramon will orbit the earth every 90 minutes, with each orbit counting technically
as a day because from his perspective the sun has risen and set. The stars will be visible to him at all times. . . .

While Col. Ramon is not the first Jew to become an astronaut, the 47-year-old pilot is the first to want to practise his faith in orbit, to the extent that NASA has already agreed to provide him with kosher space meals.

Rabbi [Jonathan] Romain did, however, offer a different way out of Col. Ramon's difficulty. "His fellow crew members are unlikely to
appreciate him taking time off during what is likely to be a very intense mission, especially as it might endanger their lives. There is a Jewish principle which says that saving life takes precedence over all religious rituals, so on those grounds he could be relieved of his obligations." . . .

Question: Wouldn't this issue have already arisen, though with unusually long days, beyond the Arctic and Antarctic Circles?

 
[Eugene Volokh, 7:37 AM]
FIRST HISPANIC SUPREME COURT JUSTICE? Conventional wisdom says President Bush will appoint the first Hispanic U.S. Supreme Court Justice, quite possibly Alberto Gonzales, the current White House Counsel and former Texas Supreme Court Justice. It turns out, though, that under one common definition of Hispanic -- a definition that's officially used by the U.S. government itself -- there has already been a Hispanic Supreme Court Justice.

     Who was this great man? Justice Benjamin N. Cardozo, one of the leading lights of the bench and bar of the first half of the 20th century, who served on New York State's highest court with great distinction and then served on the U.S. Supreme Court from 1932-38. (Curiously, Cardozo is more remembered for his pre-U.S.-Supreme-Court work, perhaps because he died so soon after being appointed.)

     Note the Hispanic surname, a traditional way of testing Hispanic status; actually, I think the name is Portuguese, but if it's good enough for the U.S. government, it's good enough for me: Title 49, section 26.5 of the Code of Federal Regulations (the definition that's used in the contracting race preference programs administered by the Department of Transportation) defines "Hispanic Americans" as

persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race.

There's no doubt, to my knowledge, that Cardozo was indeed of Spanish or Portuguese origin; in fact, a recent biography describes the shaping experiences of Cardozo�s youth as including participation in a leading Spanish-Portuguese cultural organization. True, his family probably left the Iberian Peninsula over 350 years before his birth, but that's true of many Hispanics as well. And he likely had no American Indian blood, but that's true of many Hispanics, too.

     As it happens, Cardozo was a Sephardic Jew, which is to say (at least in his instance) a Jew whose family lived on the Iberian Peninsula but was eventually expelled in the 1490s. The Spanish-Portuguese organization was New York's Spanish-Portuguese Synagogue, a prominent Sephardic congregation.

     Actually, I can certainly understand both why many Hispanics would be enthusiastic about having a Hispanic appointed to the Court, and why they wouldn't count Cardozo as one of them: Ethnicity tends to be defined in practice by felt cultural bonds, and not by Code of Federal Regulations definitions. Still, it's an amusing little factoid, so I thought I'd pass it along.

 
[Eugene Volokh, 7:34 AM]
SEX AND VIOLENCE: People often argue that it's wrong for the law, society, and parents to treat depictions of sex worse than depictions of violence: For instance, they ask, how can the law ban the distribution of sexual imagery (e.g., Hustler magazines) to teenagers when people are free to distribute violent imagery to them? Or, more broadly, why should parents treat their kids watching a pornographic movie differently from their watching a horror movie or a Sam Peckinpah movie?

     I think this is an important argument, which deserves a response; but I'm ultimately not sure it's quite right, and one reason is the following question that came to me when I was writing something about this (for the Teacher's Manual to my textbook): Which would trouble you more -- seeing your kids play Cops & Robbers, or seeing them play a game called Prostitutes & Johns?

     Assume that in the latter game, all the sex is completely pretend, with absolutely no nudity or physical contact, just as in Cops & Robbers the violence consists solely on pointed fingers and shouts of "Bang!"

     (Thanks to Eve Kayden for jogging my memory with a similar thought experiment on a related issue.)

 
[Eugene Volokh, 7:30 AM]
JOHN WALKER LINDH AND THE SECOND AMENDMENT -- two hot subjects in one National Review article, from the estimable Dave Kopel. Among other things, the piece further illustrates how during the Civil War, it was quite clear to everyone that the Second Amendment secured an individual right. (Thanks to InstaPundit for the link.)

 
[Eugene Volokh, 7:23 AM]
From Sasha -- BACK IN MUNICH: Sorry I haven't given you any exciting and informative posts recently -- I popped off to Prague, for a friend's wedding, and back.

Before leaving Munich, I visited Dachau. It was mildly emotionally gripping, but not as much as, say, the Holocaust museum in Washington, D.C. It becomes more emotionally gripping if you decide, as I eventually did, to skip the audioguides entirely. It's much better than the L.A. Holocaust museum, but that really says more about the L.A. museum, which, as I recall, was too focused on a 'What can we learn about the Holocaust?' line, which quite naturally leads to silly commentary on U.S. race relations and possibly a subtle theme of 'Every conservative is a Nazi waiting to get out.'

Also, the Dachau exhibit (unlike the Holocaust museums) is not so fixated on the Jewish experience, which is a welcome change of emphasis. (Not that the emphasis on Jews is a bad thing, it's just that the Holocaust museums are telling the story as part of The Jewish Story and not as part of The History of World War II, and both perspectives are nice.)

Later, saw a movie, Im Toten Winkel: Hitlers Sekret�rin (Blind Spot: Hitler's Secretary), which is the personal reminiscences, 50 years later, of Hitler's personal secretary, who also spent the last days with Hitler in the bunker. Kind of interesting, but not great like Bella Martha and Vaya con Dios, the movies I'd recommended before.

And on to Prague by night train, where I bought a Svejk key ring (pronounced 'shvake' to rhyme with 'bake') -- this guy is the national figure of the Czechs, a bumbling drinking soldier who never gets into a battle. Prague, like Salzburg, is a bit too tourist-oriented -- there are streets (as well as the famous Charles Bridge, not related to the mighty river Charles in Boston) filled with nothing but vendors of chachkes. In the Jewish quarter, for instance, you can buy not only marionettes of Svejk, Pinocchio, and Harry Potter, but also of an orthodox Jew with a fiddle. Just think how much fun it would be to play with a Jew! I would have gotten one, but I just don't need another Jew.

I almost saw Don Giovanni performed by marionettes -- the Czech marionette tradition is one of the best in Europe! -- but I missed that and instead saw Star Wars dubbed in Czech (Klony �toc�). (There is some subtitling, but that's when the aliens speak Alien and are subtitled in Czech.) My friend Michael Scoville's wedding was lovely; my friends Garrett Moritz and Kelly Jaske from school showed up too, though it turned out that Kelly is against both marionettes and Marc Chagall (whose big stained glass in the Frau M�nster I had brought up as one of the advantages of going to Zurich). Imagine!

And back to Munich (I had fun in Prague trying to teach the proper pronunciation of 'M�nchen' -- that 'ch' is nontrivial), where I had a good time at the Deutsches Museum, one of the best technology museums around. One of the famous Volokh family puzzles was illustrated at the Museum -- suppose you have a bunch of bricks of length 1 (as many as you like), and you want to make a leaning tower by stacking bricks on top of one another. How far out can you make the tower stretch? (Say the left end of the bottom brick is called 0, the right end of that brick is called 1, and you're trying to make the tower stretch as far out as you can toward the right.) No glue or external supports; all the bricks have to rest solidly, and only the first brick can be touching the ground. My father would appreciate that particular brick display, which was about bridge-building.

He also would have appreciated how, in Vaya con Dios, the German journalist lady, named Chiara, was played by the attractive Chiara Schoras. (It's been a long-time idea of my father's to have actors play characters with the same name, for efficiency reasons.) You wouldn't have seen her in anything, except maybe The Cat's Meow.

Also yesterday, had dinner with Darcy, a graduating law student from Alberta whom I met on the train from Prague, and her mom. Today, I got to participate in a survey on cordless phones. I told the lady I was a tourist from America, but she didn't mind, and took me into an office in this building where they gave me a glass of water and started asking me questions. But when the questioning guy found out, because I told him, that I was a tourist, he left the table, and then I heard some shouting along the lines of: 'We said, only people who live in southern or western Germany!' Then they let me go, but at least I got a chocolate bar out of the whole thing. Also, saw Star Wars: Angriff der Klonkrieger.

No news from Germany today, but the Frankfurter Allgemeine Zeitung does have a news item on arsenic poisoning of drinking water in Bangladesh. Arsenic is apparently odorless, colorless, and takes a long time to have any effect, so people keep drinking the water (it doesn't help that there sometimes aren't nearby alternative sources), but the effects aren't too pretty. The author says (note that I'm just taking the author's word on all the facts here, including the effects and extent of arsenic poisoning):

Back in the '70s, when the nation of Bangladesh emerged from the former East Pakistan after a bloody civil war, people got their drinking water mostly out of ponds and rivers. Cholera and other gastro-intestinal diseases were rife as a result of this water contaminated with bacteria.

With the best of intentions, Unicef, the children's aid organization, began to encourage the construction of hand pumps, to promote germ-free groundwater. Around 11 million of these pumps were sunk between 15 and 30 meters deep into the ground -- most of them privately financed. Presumably these measures saved the lives of hundreds of thousands, mostly children.

'But no one thought about arsenic,' says Colin Davis in the Unicef headquarters on the fifth floor of a high-rise in Dhaka. Davis's job is now to bring the evil spirits of that good deed back under control. No easy task: 'We have found 500 villages in which there is not a single clean source. We have to move quickly to solve the problem. Tell people that they should only drink water from clean wells. We have to build rainwater collection containers.'

This is an experienced development worker speaking who has spent too much time at the office. Because only in theory can the problem be solved simply and easily. . . .

And the article goes on to explain the behavioral barriers to a simple strategy (people don't like unfamiliar wells; they can't see the effects of arsenic immediately; red dots for bad wells and green dots for good wells don't work in some places because people don't have enough experience with traffic lights to know that red is bad and green is good).

What does this tell us? First, it illustrates the tendency of some in the public health community, and some in the development community (and some in the intersection of those two communities), to treat problems as though they were somewhat mechanical and ignoring the behavioral response of the actual people who will be affected.

Second, and more importantly, it illustrates a particular application of the law of unintended consequences -- the pervasiveness of eco-dilemmas. Everything has consequences, even efforts to solve health or environmental problems, so that the very concept of 'good' or 'bad' for 'the environment' may be at best difficult, at worst incoherent or not well defined. Try solving cholera; you may introduce some arsenic poisoning. (Incidentally, these are both naturally occurring.) Deroy Murdock wrote an excellent article about this; it appeared in National Minority Politics in October 1995; but I can't seem to find it on the Internet.

Not that this means you shouldn't do anything -- on the facts reported in this article, it seems pretty clear that it's better to have today's arsenic problem than yesterday's cholera problem (but then again, the article doesn't give enough information to say that for sure). All I draw from the article is that public health and development planners -- and any policymaker -- should have a sense of humility about the solutions they propose.

And on that note, it's off to bed, and to Paris in the early morning, where I will spend a week with the lovely Eve Kayden, who just arrived there this morning.

 
[Eugene Volokh, 7:05 AM]
MORE ON TURKISH STAR WARS: Reader Onur Sarisaban writes:

As a Turk who has seen the "Turkish Star Wars" movie many times on TV, I can tell you that the review is accurate. The "Turkish Star Wars" (actual title:"The Man who Saved the World")has long been a symbol in Turkey of all that is wrong with the country (i.e. "A country that can produce this -- thing -- must be so insane that it has no chance of joining the Western civilization).

     What the reviewer doesn't mention (probably because he doesn't know) is that the producers also blew up one of the oldest prehistoric caves in the world with dynamite to make room for the set for the cave dweller scenes. Archeologists around the world were astonished. Turks were not.

 
[Eugene Volokh, 8:21 PM]
RADIO: I'm scheduled be on KPCC-FM (89.3) in Los Angeles Tuesday morning from 9 am until probably 10 am talking about the Nuremberg Files case; the program should also probably be rebroadcast from 7 pm to 8 pm Tuesday evening. As always, subject to change without notice.

 
[Eugene Volokh, 9:24 PM]
WELL, MAYBE ONE TIME MORE: Jeff Jacoby has a good piece on the "Why didn't the Administration connect the dots before Sept. 11?" question, echoing (and citing) William Saletan's similar comments recently in Slate:

It is easy after the fact to ask why the dots weren't connected and precautions taken. After the fact we know exactly which dots to search for and what the final picture is going to look like. Before the fact, it isn't always clear that the dots are dots, let alone what pattern they fit or how credible they are.

 
[Eugene Volokh, 12:46 PM]
OK, JUST THIS ONCE: Check out the review of the weird Turkish Star Wars ripoff. I don't know whether the review is accurate or not, but it's pretty funny nonetheless. A sample excerpt:

Long ago in a Turkish-speaking galaxy far, far away, the universe is being imperiled by a quartet of evildoers: two bush-haired men wearing Mardi Gras costumes, a slutty babe dressed as Cleopatra, and a blue robot with an ambulance light on his head. (I am not making this up . . . I could not possibly make this up!) Their fleet of spaceships go to war against the flying saucers of a heroic group of rebels, and for several minutes the screen is filled with F/X footage from a battered print of "Star Wars." There's no Luke Skywalker here, but instead we have two middle-aged space jockeys (Cuneyt Arkin and Ayetkin Akkaya) who are leading the rebel attack. Unfortunately, there was no budget for a spaceship set here, so the heroes are photographed in very tight close-ups while footage from "Star Wars" plays on a rear projection behind them.

 
[Eugene Volokh, 9:52 AM]
NO MORE BLOGGING (PROBABLY) THIS WEEKEND: Will be back Tuesday. Have a great Memorial Day!