[Eugene Volokh, 6:32 PM]
HOW THE ACLU IS LIKE AL QAEDA: OK, I don't think they're similar. But they are, under the logic of Thomas Friedman's New York Times article yesterday.

     Friedman is writing about people who are objecting to the University of North Carolina requiring incoming students to read portions of the Koran (though there's some factual controversy about how required this was). Here's how his piece starts:

The ruckus being raised by conservative Christians over the University of North Carolina's decision to ask incoming students to read a book about the Koran -- to stimulate a campus debate -- surely has to be one of the most embarrassing moments for America since Sept. 11.

Why? Because it exhibits such profound lack of understanding of what America is about, and it exhibits such a chilling mimicry of what the most repressive Arab Muslim states are about. Ask yourself this question: What would Osama bin Laden do if he found out that the University of Riyadh had asked incoming freshmen to read the New and Old Testaments?

     Well, what would the ACLU do if it found that an American public university asked incoming freshmen to read the New and Old Testaments? My strong suspicion is that it would balk, and for quite plausible reasons. Asking all students (not just those who signed up for a class on comparative religion) to read the religious books of one faith does seem, at least potentially, like a governmental attempt to indoctrinate students in that faith. The ACLU might, of course, inquire about the context -- much would depend on what students were asked to do with the material, and what other material they were asked to relate it to. (For instance, a requirement that students read moral teachings from the New and Old Testaments, from Kant, from Ayn Rand, from Karl Marx, and from Buddhist writings would probably raise far fewer objections than a requirement that they read just the New and Old Testaments.) It may well be that the objection to the UNC assignment is misguided -- but surely the reason is not that Bin Laden or the ACLU or American Atheists would object to government-run universities requiring students to read the New and Old Testaments.

     But wait, there's more; here's Friedman's third paragraph:

[Bin Laden] would do exactly what the book-burning opponents of this U.N.C. directive are doing right now -- try to shut it down, only bin Laden wouldn't bother with the courts. It's against the law to build a church or synagogue or Buddhist temple or Hindu shrine in public in Saudi Arabia. Is that what we're trying to mimic?

Hmm. (A) No-one is burning any books. (B) No-one is even trying to make it against the law to sell them. (C) No-one is even trying to make UNC stop using any books in normal classes. They're just trying to stop the UNC from making a book that quotes the Koran part of the possibly required but at the very least strongly suggested reading for all incoming freshmen. This may be a pedagogical error -- but it's not remotely like what Bin Laden would want to do, much less "exactly" like it.

     More broadly, this example illustrates how this sort of "You're doing just what Bin Laden would do!" argument is almost always (1) unsound on the facts (Bin Laden wouldn't do quite the same thing), (2) logically irrelevant (if Bin Laden told his followers to wash more often, would this make frequent washing a bad idea?), (3) unfair (as analogizing minor misdeeds to Bin Ladenism tends to be), and (4) highly unlikely to persuade anyone who isn't already squarely on your side (do you think analogizing your opponents to Bin Laden, or for that matter to Hitler, is likely to persuade either them or people in the middle?).

     The sad thing is that the rest of the article actually makes some good points about the value of exposing American college students to a religion and culture that -- in both its more benign and more malign forms -- is tremendously important in the world today. Good substantive arguments, which are only delegitimized by the overheated and irrational introduction.

 
[Eugene Volokh, 4:27 PM]
"ASHCROFT'S SECRET SPY COURT": The table of contents for Thursday's Slate contains the headline "Even Ashcroft's secret spy court puts limits on his snooping," with a link to Dahlia Lithwick's piece on the Foreign Intelligence Surveillance Court's decision that's been so much in the news.

     But how exactly is this court "Ashcroft's secret spy court"? It was established in 1978. It consists of federal district court judges selected by the Chief Justice -- members of the judiciary, not in any way "Ashcroft's." The Justice Department misstatements that the FISC decision points to happened predominantly during the Clinton Administration, as Dahlia Lithwick's piece points out (the government admitted 75 such misstatements in September 2000, and then some more in March 2001).

     Actually, Lithwick's piece is generally quite thoughtful (like most of her writing) though at times a bit too rhetorical. The Table of Contents entry, though (for which I suspect she's not responsible, since writers generally don't choose their headlines or table of contents entries), shows the worst Ashcroft-bashing instincts out there. Federal court? Too blah. Federal secret spy court? Still doesn't conjure quite the right image of menace. Ah, "Ashcroft's secret spy court" -- menacing and gets to slam Ashcroft around some. And "Even Ashcroft's secret spy court puts limits on his snooping" -- better yet, since it sounds like even Ashcroft's own subordinates or appointees are rebelling against his overreaching. Catchy, flashy, exciting. But false.

STANDARD DISCLAIMER: I actually generally quite like Slate; I complain about it more than I do about other magazines simply because I read it more than I read other magazines.

 
[Eugene Volokh, 3:16 PM]
ONLINE POLLS: Patrick Ruffini, whom I usually quite like, has an online poll on his Web page. He precedes it with:

BE A DATA POINT! Since I'm going away for Labor Day and I'm unlikely to post anything from the road, I thought I'd put this out there when it might get a few extra eyeballs. It's a poll -- my first effort to get a clear picture of political attitudes in the Blogosphere, among readers and authors alike. Crunching crosstabs is like crack to me, and I want some good, solid data. How many ultra-liberal women are defense hawks? I'll tell you, but first I need a meaningful sample to know. Please take this, no matter how meaningless or unthinking you think your answers might be. Thanks!

Sorry to get on my hobby-horse again here, but self-selected polls don't get you a clear picture of anything. The poll won't let Patrick tell us "how many ultra-liberal women are defense hawks," since it will only reveal how many of the people who take his survey describe himself as ultra-liberal women defense hawks.

     It will say absolutely nothing about any broader group of people, such as ultra-liberal women generally. It won't give "a clear picture of political attitudes in the Blogosphere" or provide "good, solid data" about blog readers' views or even about the views of Ruffini's readers. It will describe only the likely quite unrepresentative group of people who happen to take his survey. A randomly selected sample of Blogosphere members (however you define them) may yield good, solid data on the view of the Blogosphere generally; obviously, such a sample is virtually impossible to take, but that's what it would require.

 
[Eugene Volokh, 2:58 PM]
OUT OF CONTEXT QUOTE OF THE DAY: Slate's Bushism of the Day column comes up with the following:

"There's no cave deep enough for America, or dark enough to hide."�Oklahoma City, Okla., Aug. 29, 2002 (Thanks to Michael Shively.)

Tee-hee. That inarticulate President of ours. What a dope. We'd never misspeak like that.

     Here's some context, though, that wasn't mentioned or linked to by Slate; I found it on LEXIS, and then tracked down a Web-based version:

And remember, it's a different kind of enemy. You see, you used to be able to measure the strength of an enemy by counting his tanks, or airplanes, or ships. These are the kind that go to a cave and send youngsters to their suicidal death. That's the kind of people we're fighting. But there's no cave deep enough for America, or dark enough to hide. No matter how long it takes, one by one we're going to hunt them down and bring them to justice. (Applause.)

The message is perfectly clear: Our enemies are hiding in caves. But there's no cave deep enough that America will be thwarted, or dark enough to hide from us. We're going to hunt them down in those caves, no matter how deep and dark the caves might be.

     Could Bush have said things a little better? Sure, a little, though the difference would have been tiny. Did the audience have any doubt about what Bush was saying, or even found it particularly inarticulate? I highly doubt it. Would any of us make mistakes like this in the middle of a long speech? Of course, that and worse. In context, does this statement make sense? Perfect sense.

     But does it make sense for the media -- and especially a generally smart, thoughtful publication like Slate -- to completely ignore the context, and to mock Bush for something that, in context, doesn't seem the least bit worth mocking?

NOTE: For more on this question, see the post several weeks ago on How Slate's "Bushism of the Day" Is Like the Independent Counsel. Between this post, that post, and three others linked to by that post (see the last paragraph), I suppose this is the fifth in a series.

 
[Eugene Volokh, 12:37 PM]
SPIN IN THE "NEW SCIENTIST": Stats.org points to what seem to be pretty serious spin in the supposedly objective New Scientist, in two stories on munitions and one on genetically engineered food.

 
[Eugene Volokh, 12:35 PM]
STATS.ORG DEBUNKS CLAIMS ABOUT EPIDEMIC OF CHILD ABDUCTIONS BY STRANGERS.

 
[Eugene Volokh, 11:13 AM]
MORE IN THE HAMDI MILITARY DETENTION CASE: I've just put the government's petition to appeal the district court's latest order in the Hamdi military detention case on my Web site. It's fairly legalese, but still worth reading. Thanks to The National Institute of Military Justice for scanning and circulating the petition.

 
[Eugene Volokh, 10:32 AM]
WORLD WAR I AND THE GULF WAR: James S. Robbins in The National Review reminds us about an interesting little prediction that Ted Kennedy made in 1990 -- in the words of the Boston Globe, Dec. 9, 1990 (I checked this myself on NEXIS), Kennedy's view was the Gulf War would be "an avoidable debacle 'that will look more like World War I and trench warfare than anything we've had.'"

 
[Eugene Volokh, 10:24 AM]
BOB BARR DEFEAT: Michael Barone makes a point that I hadn't heard before (but, hey, I haven't been following this that closely):

Most of the commentary paired the defeats of McKinney in the state's fourth district and GOP Rep. Bob Barr in the seventh district: Two extremists given to explosive rhetoric were defeated by voters more interested in calm, constructive citizenship. But the two defeats were very different. Barr was defeated by another Republican incumbent, John Linder, in a new district drawn by Democrats. Linder had represented much more of the new district than Barr had. Anyone looking at the boundaries of the new and old district, without knowing anything else, would have predicted that Linder would beat Barr by a nearly 2-to-1 margin. That is exactly what happened.

The rest of the piece, which is mostly about McKinney, is also very good.

 
[Eugene Volokh, 10:07 AM]
UNIVERSITY OF SOUTH FLORIDA AND SAMI AL-ARIAN: I've often been asked whether First Amendment rights have been jeopardized by the reaction to September 11. My general answer is that they haven't -- there've been a few incidents of people being penalized by the government for pro-terrorist speech (such as the prosecution of two people in New York City for praising Bin Laden to a hostile crowd), and a few incidents of people being penalized by the government for supposedly anti-Arab/anti-Muslim speech (such as the attempts to punish an Orange Coast Community College professor for his in-class statements about Muslims), but all in all very few.

     One pretty troublesome incident was the University of South Florida's attempt to fire Prof. Sami Al-Arian based in part on his pro-terrorist statements. According to The Foundation for Individual Rights in Education, it looks like USF has disclaimed any attempt to punish Al-Arian based on his speech, and is now proceeding against him solely based on other conduct. I'm not sure who's right and who's wrong on the facts as to that other conduct, but at least I'm very glad that the USF is implicitly or explicitly acknowledging that Al-Arian couldn't be fired based on his public statements, and any precedent set by this case therefore wouldn't endorse any such firings.

     Here's the press release from TheFIRE; in my experience, their press releases are generally quite factually accurate, though they are at times a bit rhetorically overwrought (as press releases generally tend to be):

University of South Florida Makes a U-Turn: FIRE and the Case of Sami Al-Arian

TAMPA, FL--Vindicating FIRE's position, the University of South Florida (USF) has abandoned its claim that negative reactions to Professor Sami Al-Arian's otherwise protected speech constituted appropriate grounds to fire him. USF now has set forth charges of sanctionable and criminal behavior against the tenured professor of computer science, against which he now must have the opportunity to defend himself in an appropriate and impartial forum. USF now bears a substantial burden of proving the serious charges it has lodged against its faculty member.

On September 26, 2001, Sami Al-Arian, an outspoken Palestinian activist, appeared on the television program The O'Reilly Factor. The host represented Al-Arian as sympathetic to (and possibly involved with) terrorist activity, which Al-Arian denied. USF claimed that it received numerous death threats as well as angry calls from donors and alumni complaining about the program and about the professor's tenure at USF. In December 2001, USF sought to fire Al-Arian on the grounds that outside responses to his views had created too great a "disruption." Firing Al-Arian would have granted a "heckler's veto" (in this case, a "thug's veto") to his critics. FIRE vigorously opposed this fatal assault on academic freedom.

Last week, on August 21, 2002, USF President Judy Genshaft announced that the University was changing its claims in its effort to dismiss Al-Arian. USF now charges that Al-Arian engaged in a pattern of sanctionable and criminal activity by aiding terrorists and financing their activities. The University has also filed a complaint for declaratory judgment in Florida's Thirteenth Judicial Circuit Court, requesting the guidance of the Court as to whether or not their new rationale for terminating Al-Arian, assuming it can be proven, would violate his constitutional rights.

"This new set of charges is a complete about-face by USF," said Harvey A. Silverglate, codirector of FIRE. "In response to pressure from FIRE and other groups, USF has backed away from its previous and untenable justification for dismissing Professor Al-Arian. If such a rationale had been accepted, it would have been the end of academic freedom, because it would have given anyone willing to make death threats the power to determine who gets to exercise the right of free speech on a university campus."

Silverglate added, "By making specific and, in some cases, criminal charges, USF is unmistakably renouncing the heckler's veto arguments it made earlier in seeking to justify last year's termination of Professor Al-Arian. This means that all parties involved will now directly address the heart of this controversy--whether Professor Al-Arian engaged in anything that would justify his dismissal by a public university that must honor the First Amendment."

While the change in USF's approach avoids the thug's veto of its previous justification, issues of due process still remain. The Court has been asked to decide if the charges would, if proven, be sufficient to terminate Al-Arian. If the Court decides that USF is not precluded from firing him, then, Silverglate noted, "USF will have the burden of proving the truth of its allegations in a hearing at which Al-Arian would be accorded due process. FIRE has no special knowledge and hence no position on the truth or falsity of the charges of criminal conduct made against Professor Al-Arian."

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, religious liberty, due process rights, freedom of expression, and rights of conscience on our campuses. FIRE's efforts to preserve academic freedom and the Bill of Rights at the University of South Florida and elsewhere can be seen by visiting www.thefire.org.

Contact:
Harvey A. Silverglate, FIRE: 617-523-2933; [email protected]
Greg Lukianoff, FIRE: 215-717,3473; [email protected]
Judy Genshaft, President, USF: 813-974-2791; [email protected]

 
[Eugene Volokh, 3:38 PM]
NEW SHARDS POEM, permanently archived alongside the others at the Shards site. Please keep the submissions coming, and ask others to submit as well; click here for submission guidelines.

[speceng at visi.com]

[Permission hereby granted by John M. Ford to make one or two copies for personal use, but please do not reprint except by permission of the author. Thank you.]

 
[Eugene Volokh, 3:24 PM]
A BIT MORE ON HOME SCHOOLING: I got lots of disagreement, as I mentioned, with my home schooling post, where -- in the course of generally defending home schooling -- I mentioned that "I have little trouble with the government imposing certain output requirements on home schooling, for instance requiring the kids to get good results on periodic tests. (Failing to make sure that one's kids are adequately educated seems to me to be a form of child abuse, and I think the government is morally entitled to protect kids against this, though there are obvious pragmatic and public choice risks even with such requirements.)" Let me elaborate briefly on this.

     1. First, an observation -- modest testing requirements are generally a political boon to the home schooling movement. California's attempt to clamp down on home schooling reflects the reality that many people, in the education establishment and out, are skeptical of these sorts of do-it-yourself measures. They probably shouldn't be skeptical, but they are. Politically, which is the more effective way fight this skepticism? By saying "OK, impose these testing requirements; you'll see the great results that home schooling produces, and won't have to worry about the possibility that some kids won't be learning their reading, writing, and arithmetic"? Or by saying "No, we will educate our kids ourselves, and we refuse to let you impose any testing requirements"? I thought it was telling, incidentally, that one message (from reader Tim Archer) pointed out that "homeschooled children generally test in the 80th percentile on most national standardized tests" -- a great tool in pro-home-schooling arguments, I think, and one that's made especially powerful if all home-schooled kids do indeed take these test.

     2. But wait, some may say: We have a categorical right to teach our kids with absolutely no governmental interference. For reasons I've mentioned in another post, I just don't buy that. Parental rights to control their kids -- which is to say, rights to nearly dictatorial control over another human being, enforced with the help of the government's coercive power (when the government, for instance, helps return runaway kids, or prevents third parties, such as grandparents, from taking the kids away from the parents) -- ought not, I think, be absolute. This isn't just the standard libertarian right to control your own body and property; it's a right to control someone else. I would tolerate considerably more restraints on such rights to control one's kids than on rights to control oneself.

     3. What about possible political manipulation of the tests? Well, there is some risk of that. I would surely oppose tests that test students' "knowledge" of the proper attitudes on racism, environmentalism, patriotism, and so on. But I have little trouble, as I said (subject to possible pragmatic and public choice concerns) with tests that test students' knowledge of reading, writing, math, and even some basic science and history. There are some risks of abuse here, but they seem to me to be quite modest.

     4. How, some people ask, can you decide exactly what the tests should say? Wouldn't any potential design be in some measure arbitrary? Sure. But there are all sorts of tough judgment calls that have to be made where laws relating to treatment of children are involved. How much physical discipline is too much? When does a diet become neglect? When are parents at fault for failing to provide proper medical treatment to their kids, and when is their action a reasonable decision? Tough questions, and often call for some pretty arbitrary line-drawing -- and, what's more, for line-drawing that is a lot vaguer than a test, and that may yield to much greater penalties for the parents (criminal charges as opposed to just an insistence that the parents send the child to an accredited school). Some such judgment calls are inevitable whenever the community chooses to in some measure limit parents' otherwise absolute power over their children, as I think it in some measure must. (Of course, one important proviso is that the mandated standards be relatively low floors, with lots of flexibility given to parents in most cases -- I surely don't think the test passage thresholds should be tremendously demanding.)

     5. Finally, lots of readers said things like "I don't have a big problem with the periodic testing [requirement] -- as long as the same requirement applies to public schools" (in the words of Clayton Cramer).

     I actually support mandatory testing (probably not on the federal level, but at the state level) of students in government-run schools; and I support programs that give parents of failing schools a way out (as in Florida), or that let the state take over failing local schools (though again the devil is often in the details). There are surely problems with across-the-board testing, but better to have some benchmarks, however imperfect, rather than none. More broadly, there do have to be various ways in which we can objectively even if imprecisely measure the quality of the schools that our agents run and that we pay for.

     But getting this sort of accountability is a slow process, and even if there are political glitches with accomplishing this, I don't think this eliminates the need for accountability in home schooling. If we see that some school lunch programs are failing to provide proper nutrition, or that some county hospitals aren't treating kids properly, that's reason to try to fix those government programs. But even if for political reasons those programs can't easily be fixed, that doesn't relieve the parents of an obligation of providing proper food and medical care to their kids; and the community retains the right to demand that parents provide the proper care themselves, or have the care provided for them by the community. Likewise for education.

     Of course, if the particular school to which home schoolers would have to send their kids is a disaster (and one can usually tell this even without a standardized testing system), then it does make little sense to insist that home schoolers whose kids fail standardized tests send their kids to that school. No point in turning in one substandard education for another, perhaps still more substandard. But many schools are indeed quite decent -- even if not great -- and if home-schoolers withdraw their kids from that school, then they need to be able to provide at least a minimal quality education, and prove that they're doing so.

     In any case, this has been an interesting subject, and I hope I've at least generally responded to people's remarks. Now, sad to say, back to work . . . .

 
[Eugene Volokh, 10:04 AM]
TENURE STANDARDS: Here�s a little story, from a Ninth Circuit decision handed down a couple of weeks ago (emphasis added) -- to the best of my knowledge, no news outlets have covered it yet:

     California State University, Hayward hired Mohamed Osman Elsayed Mukhtar, a Muslim of Sudanese origin, in 1990 as a tenure-track professor in its Mass Communications Department to teach broadcast television and other foundational courses. He was the first black tenure-track professor hired by the department. . . .

     While the Ph.D. degree is normally a pre-requisite for hire in CSUH tenure-track positions, the University makes exceptions for applicants close to completing the doctorate. Nondegreed candidates, such as Elsayed when he started at CSUH in 1990, are generally expected to complete the Ph.D. within their first year of employment. Elsayed, however, did not receive his Ph.D. from the University of Missouri until December 1995. His consistent failure to obtain his Ph.D. during his five-year probationary period at CSUH was a source of great concern among Elsayed�s superiors.

     During that five-year period, he did not publish a single article. He did, however, consistently receive positive student evaluations and was named departmental Teacher of the Year for the 1995-96 and 1996-97 academic years. He mentored students of color, served on the Multicultural Council, and was active in the Black Faculty Association. Elsayed also participated in international humanitarian and community organizations, such as the Islamic African Relief Agency and the American Society of Humanitarian Aid and Development. He made oral presentations in numerous workshops and seminars, but none involved presenting written work.

     Elsayed testified that it took him five years to receive his Ph.D. because one committee chair died, the second left to teach elsewhere, and the third took a sabbatical. Thus, he had to take frequent trips to Missouri to recruit three new chairs and familiarize them with his methodology, literature review, and preliminary analysis and findings.

     At the time he applied for tenure, Elsayed reported completing his dissertation and anticipated receiving his Ph.D in December 1995. He also reported that his article, �Elijah, Wallace and Farrakan: The Growth and Schism of the Black Muslims as Reflected In Their Newspapers, 1930-1984,� had been accepted for publication in the refereed journal of the International Institute of Islamic Thought, The American Journal of Islamic Social Sciences (�AJISS�). Contrary to his original report, the article had simply been recommended for publication sometime in 1996. It was never published. Elsayed testified that he asked AJISS to suspend publishing his article because Dean Navarro and President Rees had told him that AJISS was not an appropriate scholarly publication.

     The Mass Communications Departmental Committee, by a vote of 2-1, recommended Elsayed for tenure. . . . The ALSS School Committee, by a vote of 4-1, also endorsed Elsayed. The dissenter found �that the areas of [teaching] strength did not compensate for an overall weak profile of achievement and contribution.� . . . Dean [Carlos] Navarro recommended against tenure, finding a �dearth of evidence in the area of professional achievement.� He did not regard AJISS as a journal of Elsayed�s peers, and Elsayed had not produced any other papers or documentary films during his five years at CSUH. Also lacking was any �significant evidence of contributions in the area of committee or faculty governance work.�

     Dean Navarro received the report of an outside reviewer he commissioned to evaluate Elsayed, Professor John Hewitt. Dr. Hewitt found Elsayed�s professional achievement �a bit thin,� but �would expect him to blossom out in the next few years with more work.� Regarding internal university contributions, Hewitt noted that he �would expect more from a junior faculty member.� Nevertheless, Hewitt recommended Elsayed for tenure. The University Committee voted 3-2 in favor of tenure.

     Cal State Hayward President Norma Rees, who had the final decisionmaking authority, ultimately concluded against tenure. Elsayed then complained internally about various supposed procedural violations in his case, and eventually sued, charging race discrimination. He won at trial, but the court of appeals reversed, concluding that the trial court improperly admitted evidence from a supposed expert on job discrimination without first evaluating the reliability of the expert�s techniques.

     Now for all I know, Elsayed may indeed be the victim of race discrimination -- if Cal State Hayward had given tenure to other equally unqualified white candidates, but not to Elsayed, then Elsayed would have a good legal case. I just don�t know enough about the facts to pass judgment on that question.

     But I do know that it�s appalling that a department at a research university is willing to give tenure to some based on zero publications. The whole point of research universities is that the faculty should be doing research, and not just teaching; that�s why we�re asked to teach comparatively light loads -- we teach part-time and get a full-time salary because the other part of the time we�re supposed to be trying to add to the body of knowledge. �Publish or perish� is the phrase because you�re being paid in part to publish; if you don�t want to do that, and just want to teach, you should take a job in an institution that just pays you for teaching.

     There can be a lot of debate about tenure standards. How many publications should be required? How does one weigh quantity and quality? How does one evaluate quality, when the standards are necessarily subjective? Which sorts of publications should qualify? Hard questions. But until now I had thought that �I�m not writing anything� was not an acceptable answer.

 
[Eugene Volokh, 9:44 AM]
HOME SCHOOLING: I've gotten lots of disagreement with my lack of objection to output requirements for home schooling (though curiously no disagreement with my general support for home schooling in that post, which might reveal something about the political skew of our readers!). I'm swamped right now and can't get to them, but I wanted to acknowledge that I've received them, and that I hope to be able to post a bit more about this in the next few days (beyond just my follow-up post that explained why I'm skeptical to claims of absolute parental rights here).

 
[Eugene Volokh, 9:24 AM]
WHAT LIBERTARIANISM DOESN'T MEAN: A reader writes, apropos my berating Jackie Mason for racism:

Jackie Mason doesn't want to appear on a bill with a Palestinian. I see absolutely nothing wrong with that choice. I don't think it needs to be defended, nor is it susceptible to attack on moral grounds. It's simply the way he feels.

You are a libertarian, and being a libertarian means allowing people the right to choose. People don't always choose for rational reasons; sometimes their choices are emotional.

(The reader proceeds to say that Mason was morally wrong because he induced the club to break the contract with the Palestinian comedian, but argues that otherwise Mason's actions would not have been improper.)

     I'm not sure how libertarianism affects the analysis here. Libertarianism, even of a fairly pure form, doesn't mean a refusal to judge people's choices -- it means a refusal to allow the government to punish people for certain choices.

     Refusing to deal with someone because of sheer accident of his birth is, I think, generally morally wrong: It shows that you are making your decisions (and decisions that in some measure affect another's livelihood) based solely on irrational dislike for the person. There's a reason we condemn racists, most of whom after all act based "simply [on] the way [they] feel[]"; when what one feels is hatred, contempt, or even dislike for a person based on a completely morally and practically irrelevant characteristic that the person has no control over, one is acting badly. The racist may have the right to do it; but we have the right to criticize him for it.

     More broadly, I think it's important that both libertarians and others recognize that libertarianism is generally and primarily a view about people's liberty to do certain things free of government regulation, and not free of private censure. In fact, the absence of government regulation often makes private censure an even more important force. Many things, from unkindness to rudeness, are well within a person's legal rights -- and well within our rights, and sometimes our moral obligations, to condemn.

 
[Eugene Volokh, 1:44 PM]
AW, SHUCKS . . . . Thanks very much to blogger Jim Miller, who very kindly writes that "The Volokh Conspiracy is a triumph of substance over style. It uses a simple format, but consistently has thoughtful and balanced entries." He also is "almost as impressed" by our "consistent fairness." Much appreciate the kind words!

UPDATE: The Kolkata Libertarian calls us "mostly harmless" (shades of Hitchhiker's Guide to the Galaxy?). He also says that we're "a clear, well-written and widely read weblog," but the important thing, folks, is that we're mostly harmless. So don't worry, there's no danger, you can read in safety (mostly).

 
[Eugene Volokh, 1:19 PM]
RACISM FROM JACKIE MASON, if this FoxNews.com press account is correct:

A comedian scheduled to open for Jewish comic Jackie Mason was told hours before the show he couldn't perform because he is Palestinian, Mason's manager said.

Ray Hanania was supposed to open for Mason on Tuesday night at Zanie's comedy club in Chicago, but the club phoned him a few hours before to tell him his act was canceled.

Mason has been an outspoken member of the Jewish community. His manager cited recent Israeli-Palestinian violence and delayed peace talks in explaining the decision.

"It's not exactly like he's just an Arab-American. This guy's a Palestinian," said Jyll Rosenfeld, Mason's manager. "Jackie does not feel comfortable having a Palestinian open for him. Right now it's a very sensitive thing, it's just not a good idea." . . .
Rosenfeld said the issue is more about avoiding an uncomfortable situation.

"Don't turn this into a racist issue, because it's not," Rosenfeld said. "We just felt this is not a good idea at this time."

Hmm -- someone is excluded because of his ethnicity (yes, technically it's a question of ethnicity rather than race, but neither "ethnicist" nor "nationalist" means bigoted based on ethnicity, so "racist" is the best analogy), and it isn't "a racist issue"?

     There's no allegation that Hanania's material is anti-Semitic, anti-Israeli, or even pro-Palestinian -- Mason's own manager says that he's excluded because of who he is, not what he says. Of course much anti-Semitism is based on the same sort of group guilt claims, from Jews supposedly killing Christ (yes, I know that there are theological and historical arguments that this wasn't factually true, but the important moral point is that this wouldn't justify anti-Semitism even if it were true), to Jews supposedly being guilty of various economic misdeeds, to Jews being Socialists (and this part was true in many instances), to Jews being oppressors of Palestinians. The fundamental moral response was that, regardless of what you think of the misdeeds of some Jews (or blacks or whites or . . .), this doesn't justify hating or discriminating against other Jews.

     It's wrong when non-Jewish racists do it with regard to us Jews, and it's wrong when Jewish racists do it with regard to other ethnicities. I've always been appalled by the openly (sometimes proudly) stated refusal of some Jews to buy German cars -- as if the current employees or stockholders of Mercedes or Volkswagen themselves killed Jews in World War II. But there at least there was some distantly plausible, though in my view still morally unsound, claim of the supposed moral guilt of the corporation as a whole. With this Palestinian comic, there isn't even that.

     This is just awful stuff, and Jewish leaders should sharply and promptly rebuke Mason for his conduct (assuming the press account accurately reports the manager's statement, and the manager accurately reports Mason's sentiment).

 
[Eugene Volokh, 9:43 AM]
"THE REAL STORY IN GEORGIA", from an op-ed yesterday by Prof. David Lublin (American University, department of government) in the Washington Post:

In the rush to celebrate the defeats of Republican Bob Barr and Democrat Cynthia McKinney, the media missed the real story coming out of the Georgia primaries: Two African American Democrats running in majority-white districts appear likely to clinch their party's nominations for open seats and then win the general elections. Their victories would signal that African Americans can win in such districts, opening the way to future gains in black representation.

African American representation in the House leapt dramatically in 1992 after the creation of numerous majority-black districts. But blacks will not experience the same post-redistricting gains in 2002. Since Shaw v. Reno in 1993, the Supreme Court has sharply curtailed the drawing of bizarrely shaped majority-black districts. A narrow majority on the court believes that making race the dominant factor in redistricting violates the Constitution's equal protection clause.

The victories by two black Georgia Democrats last Tuesday demonstrate that black congressional representation may continue to expand despite the limits on new majority-black districts. In Georgia's 13th District, state Sen. David Scott dominated a crowded field to win the Democratic nomination with 55 percent of the vote. Scott is the strong favorite in November in the heavily Democratic district, even though it is only 41 percent black. . . .

McKinney's defeat in Tuesday's primary demonstrated that alienating white voters leaves even entrenched incumbents vulnerable to defeat by savvy black candidates, such as Denise Majette, aware of the rare political opportunity to capture a congressional seat from an incumbent. And politicians, such as McKinney, who drive away whites often erode key segments of their base among black voters as well. . . .

Prospects for further black political advances appeared bleak after Shaw v. Reno. Even without this attack on racial redistricting, blacks would have made few gains in 2002. Not many additional majority-black congressional districts could have been drawn. And blacks already hold all the existing majority-black districts.

Ambitious African American candidates such as Scott and Walker may be the sole additions to the Congressional Black Caucus in 2002. But their victories in majority-white districts map out a strategy and provide hope for further advances.

 
[Eugene Volokh, 9:17 AM]
THE FAT FARM: So I've sent my ridiculously long Mechanisms of the Slippery Slope article to the fat farm, and at this point it's 30% leaner and meaner, down to a mere 100 pages from its original 145-page length. Unfortunately, this fat farm is just my own editing eye, but at least I've had two months away from the article, plus some excellent suggestions from my colleagues. It's just amazing how much flab there is in everything we write (and the 145-page version was itself the result of about five full editing passes). Only a merciless cleansing flensing can turn our writing into something actually readable (cross my fingers).

 
[Eugene Volokh, 9:02 AM]
BALANCE OF POWER AND EUROPE'S CREDIBILITY: InstaPundit already pointed this out, but it struck me as an important enough point to mention again (from WhiggingOut, Aug. 25, 10:45 am; sorry, no direct link available):

Will someone explain to me why America expects European concurrence in any of our affairs militarily or otherwise? Any European history dilettante knows that balancing power between states has been the modus operandi in the foreign affairs of their nation-states dating back to the Middle Ages. One waits in vain if he expects them to walk away from 700 years of habit. Often this old world realpolitik was entirely defensible. America is the world's sole superpower today, and thus will the Europeans see themselves as the counterweight to our strength. While to us this posture looks absurd, to them it is merely instinct.

Of course, this doesn't mean that the Europeans' advice to us is mistaken -- perhaps here their suggestions are helpful, from our perspective as well as theirs. But this does suggest that we shouldn't just assume, as some do, "If all the European countries say X and we say Y, we're probably wrong." It may well be that X seems sensible to the European countries because it's in their own self-interest -- or within their own traditional understanding of their own self-interest -- and yet Y might be sensible for us because it's in our interest (or, to be precise, in the interest of protecting Americans' lives).

 
[Eugene Volokh, 8:46 AM]
"LET'S NOT ATTACK OUR SELF-ANNOUNCED ENEMIES NOW; IF NEED BE, WE CAN ATTACK THEM LATER, WHEN THEY HAVE NUCLEAR WEAPONS." On thinking more about the Iraq debate, I realized that the above line is a pretty apt summary of the bottom-line plan that the anti-preemption forces advocate. Now it's true that they give lots of arguments in favor of this position, and I don't mean to pooh-pooh those arguments -- though I've explained my disagreement with them here (see posts on this blog from the last two weeks), I think many of the arguments are quite serious and need to be confronted.

     But the bottom line of the plan does seem to be as I describe it -- and that alone, it seems to me, shows the pretty serious problem with it.

 
[Eugene Volokh, 7:32 AM]
A BIT MORE ON HOME SCHOOLING: A few people have e-mailed me to disagree with my statement that

I have little trouble with the government imposing certain output requirements on home schooling, for instance requiring the kids to get good results on periodic tests. (Failing to make sure that one's kids are adequately educated seems to me to be a form of child abuse, and I think the government is morally entitled to protect kids against this, though there are obvious pragmatic and public choice risks even with such requirements.)

Not a very libertarian attitude, they suggest.

     Well, that's true. But it's also not very libertarian for the government to give dictatorial power to one person over another, and then to enforce that power through legal sanctions. That, of course, is what the law does for parents with regard to their children.

     On balance, I think this sort of parental power is generally good, for a variety of reasons related mostly to (1) the reality that in most cases, parents know and love their children more than any other person does, and (2) the long-term danger to democracy and liberty posed by the government having broad control over a child's moral education. But to the extent that we recognize this power, we are not in a zone of pure libertarianism any more; more generally, where children are involved, we can't be in a zone of pure libertarianism. And it seems to me morally permissible, and pragmatically at least potentially helpful (though subject to the usual dangers of unintended consequences and poor bureaucratic implementation) for the government to impose some constraints on this dictatorial power, such as a requirement that parents provide for the child at least the minimal education that the child will require once it becomes a free adult.