[Eugene Volokh, 2:56 PM]
WHY ARAB ARMIES TEND TO LOSE: An interesting article in the National Post.

 
[Eugene Volokh, 2:32 PM]
THE WAGES OF PACIFISM: Dave Kopel, Paul Gallant, and Joanne Eisen, in NRO tell a sad story of how a self-consciously pacifist Polynesian tribe was crushed. They close with:

A popular bumper sticker says "If you can read this, thank a teacher." If you're a pacifist who hasn't been murdered or enslaved, thank a soldier.

UPDATE: Mark Kleiman cautions that respect for the soldiers who protect us shouldn't blind us to the dangers of militarism, and I entirely agree -- and I'm sure that Dave Kopel, who has often written about the need to maintain political constraints on government force, would agree, too.

 
[Eugene Volokh, 6:05 PM]
TELEMARKETER "DO NOT CALL" LIST: This California Department of Justice site purports to let you preregister for the national "do not call" list; your information will, they say, be forwarded to the right place when the national list goes online. Seems worth doing.

 
[Eugene Volokh, 5:44 PM]
MIXED MEDIA: Someone seems to be doing a TV show about bloggers. Doesn't seem promising to me, but I thought I'd pass it along.

 
[Eugene Volokh, 5:26 PM]
CHALLENGE TO CNN: Rand Simberg writes:

Now that we know how the game is played, please tell us why your reporting from Damascus, or Gaza, or the West Bank (as just three examples) should be given any credibility whatsoever. How much of Arafat and Assad's thuggish behavior have you been covering up? And if you now propose to tell us, why should we believe you?

A very good question. (Thanks to InstaPundit for the pointer.)

 
[Eugene Volokh, 4:42 PM]
PROPOSED CNN HEADLINE: Reader Bob Christensen suggests:

We had to suppress the news in order to cover it.

Actually, as I acknowledged below, such a headline might actually be something of a genuine defense -- sometimes the media does conceal some information in order to reveal more information. The classic example is promises of confidentiality given to sources: The media rightly wants to cover the big story, so it promise to conceal the name of the source, which maybe a story of its own. Another example is when embedded reporters are given access but only if they promise not to reveal certain militarily sensitive information, such as the unit's location.

     But at least if CNN had said this up front, it would have been acting more candidly. We ought to take it to task for not doing so. We ought to ask whether the suppression of some news, and the spin imparted to what news was reported, was so distorting that the costs outweighed the benefits. And we ought to remember it next time the media are reporting from an environment where they're beholden to a regime that can threaten the media's employees with death.

 
[Eugene Volokh, 2:40 PM]
MORE ON CNN AND SADDAM: As I mentioned below, I sympathize with CNN's circumstances, and the need for it to keep quiet some things about Saddam's actions in order to prevent its people -- or its sources -- from being killed by Saddam, or even to prevent itself from being thrown out. Maybe on balance it was acting unethically, but I think it's not an open-and-shut matter.

     But the sad thing is that CNN had a chance to admit what it was doing at the time, at least in general terms -- to warn readers that they might not be getting the full story -- with relatively little risk, and probably even relatively little loss of credibility. In the interview that I quote below, Eason Jordan could have simply said:

Yes, there are some things that we unfortunately can't report, because if we do, our people or our sources could get killed -- or at the very least, we could get thrown out of the country. But we do think that some light is better than no light whatsoever. What we do report, we report accurately; at most, we'll sometimes not report certain stories, but we report the overwhelming majority of what we think is out there to report. It's unfortunate that we can't report everything, but that's the way things are, given the nature of the Iraqi regime. We hope our viewers trust us that we're doing the best job we possibly can under these circumstances.

I doubt that this would have yielded violent retaliation from the Iraqi government; and I even suspect that many viewers would have understood CNN's point. But that, unfortunately, is not what Jordan said -- what he said, it seems to me, was considerably less candid.

 
[Eugene Volokh, 2:10 PM]
ANSWER TO JACOB LEVY'S QUESTION BELOW: Jacob asks:

Now: what if a statute were passed, and enforced, with extra penalties for obscene material that depicted or promoted racial subordination? Most porn remained unprosecuted, but a subset of porn was prohibited based on, in effect, its political content. Within the domain of prohibited material, may one draw distinctions on grounds that would be forbidden in the universe of protected material-- in this case, political content? (Additional question: would it matter if this was an openly announced policy of selective prosecution rather than a new statute?)

Justice Scalia, writing for the majority in R.A.V. v. City of St. Paul answers:

When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: a State might choose to prohibit only that obscenity which is the most patently offensive in its prurience -- i.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages.

(Monday's Virginia v. Black decision does not undermine this holding.) And to answer Jacob's additional question, the openly announced policy of selective prosecution based on the ideology of the obscene movie would be equally unconstitutional. See Wayte v. U.S..

 
[Eugene Volokh, 2:06 PM]
AUTHOR UNKNOWN:

MOHAMMED SAEED AL-SAHHAF NAMED MIRAMAX FILMS INFORMATION MINISTER

Harvey Weinstein named former Iraq Information Minister Mohammed Saeed Al-Sahhaf to the new position of Miramax Films Information Minister, it was announced this afternoon at a press conference over the sound of small arms fire outside Baghdad's Palestine Hotel. The William Morris Agency represented Al-Sahhaf.

"I am pleased to bring Mohammed's skills to Miramax," Harvey Weinstein said via videophone. "I've been watching him and I am honored that he's joining our company."

Al-Sahhaf, who will be based in Miramax's new Baghdad office, got off to a quick start declaring, "The Academy Awards were blocked by the international gang of criminal bastards DreamWorks and Focus." When asked to elaborate, he added, "Marty Scorsese and Daniel Lewis won the Oscars, not the infidels Polanski and Brody. God is grilling their golden statuettes in hell."

Al-Sahhaf, 63, was the Iraq Information Minister since 2001. Before that, he was Iraqi Foreign Minister for eight years.

Referring to the recently released Gwyneth Paltrow film A View From The Top, Al-Sahhaf said as an artillery shell landed only yards away, "[The box office grosses] are all wrong. We blocked the film inside theaters. The movie is grossing $25 million dollars a day and is now more than $250 billion. You can go see for yourself." He blamed the deflated box office reporting on, "the infidels Bush, Katzenberg and Colin Farrel."

Al-Sahhaf said that Chicago, the winner of Best Picture at the Academy Awards, in fact, "won more than 247 Oscars." He proclaimed, "Next year we will tackle and destroy the AMPAS. We will make the many, many members of Academy drink poison and teach them a lesson that history will never forget with Cold Mountain, The Human Stain and My Baby's Mama."

Before ducking back inside the hotel, Al-Sahhaf declared, "Praised be Miramax. Praised be Weinstein." . . .

 
[Eugene Volokh, 2:02 PM]
MISLEADING DOMAIN NAMES: By the way, just to make clear, the new statute mentioned a few posts down is actually fairly narrow -- it only applies to misleading domain names that are intended deceive people into viewing obscenity (or intended to deceive minors into viewing harmful-to-minors material, but that should be a narrow category, since I suspect that few sites are actually aimed at minors, who probably have less money than adults to spend on porn).

     Obscenity is the term for that zone of fairly hard-core pornography that the government may constitutionally ban, though in practice these days the government doesn't spend much effort on actually enforcing anti-obscenity laws (outside the area of child pornography, which is a separate category). Much pornography is not obscenity, and is constitutionally protected. A site that sells nonobscene pornography, even through a misleading domain name, would not be covered by this law.

 
[Eugene Volokh, 1:00 PM]
OBEDIENCE: This is not a commentary on any recent events -- it actually has nothing to do with them. It's just an interesting quote I found; I haven't been able to check it, but it seems authentic to me, and in any event it's fiction, and thus to be believed only to the extent that you independently think it accurate:

The tuition in obedience that I received as a boy was too severe, too Spartan to be imposed upon Athenians. Courage and initiative they possessed in abundance. They were born to debate and disputation, abashed by no authority established over them, brash and as spirited as cats. Invincible when events ran their way, they could not summon the self-command to rally when the sky began to rain. They personified the type of warrior who beneath a commander of vision and audacity may roll restlessly from success to success. Compelled, however, to endure adversity over a sustained interval -- not alone defeat but simply delay and inaction -- the restless enterprise that made them great would turn upon itself.

Restless, easily bored, our citizen campaigners possessed not the patience of the warrior and did not care to acquire it. The virtue of obedience, in Sparta so highly prized as to be worshipped as a god, was to Athenians the same as want of of vision or deficiency of daring.

-- Polemides in Tides of War, by Steven Pressfield

 
[Eugene Volokh, 11:29 AM]
BAN ON MISLEADING DOMAIN NAMES FOR PORN SITES: Congress has apparently just enacted a law prohibiting misleading domain names for porn sites. It will be the new 18 U.S.C. sec. 2252B:

Sec. 2252B. Misleading domain names on the Internet

(a) Whoever knowingly uses a misleading domain name with the intent to deceive a person into viewing obscenity on the Internet shall be fined under this title or imprisoned not more than 2 years, or both.

(b) Whoever knowingly uses a misleading domain name with the intent to deceive a minor into viewing material that is harmful to minors on the Internet shall be fined under this title or imprisoned not more than 4 years, or both.

(c) For the purposes of this section, a domain name that includes a word or words to indicate the sexual content of the site, such as "sex" or "porn", is not misleading.

(d) For the purposes of this section, the term "material that is harmful to minors" means any communication that --

(1) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion;

(2) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and

(3) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.

     Whether this is constitutional is an interesting question, to which I have no quick answer. The one potential complication is the term "misleading"; knowingly false speech can probably be outlawed, but knowingly misleading speech is a tougher question -- a prohibition, for instance, on misleading newspaper articles intended to deceive readers into voting a particular way, would be unconstitutional. On the other hand, the line between "false" and "misleading" is a bit blurry, and it would be especially blurry as to domain names; since domain names aren't declarative statements, it's hard to even envision exactly what the difference would be between a "false domain name" and a "misleading domain name." In any case, I've posted this to a couple of lawprof discussion lists; maybe my colleagues will come up with some helpful arguments about this.

     [UPDATE: Reader T.J. Lynn points out that since distributing or exhibiting obscene material is already prohibitable -- since obscenity is constitutionally unprotected -- then distributing or exhibiting obscene material through trickery would be prohibitable, too. Even if the trickery is not itself unconstitutionally unprotected (because the speech is merely misleading, rather than false), the distribution of the obscenity is unprotected. I think he's right; I should have thought of this myself, but I posted the message with very little reflection, and I much appreciate his setting me straight. Whether the same applies to posting of harmful-to-minors material in misleading ways is a tougher question, because such material is not categorically unprotected; it's only unprotected when it's distributed to minors. Nonetheless, the same sort of argument would probably work there, too, though that's not completely clear.]

     Note that if the law applied just to commercial advertising, it would be clearly constitutional on the grounds that misleading commercial advertising is constitutionally unprotected; but while it's doubtless aimed at that, it isn't quite limited to that.

     Thanks to reader Scot May for the pointer.

UPDATE: I forgot to mention that the classic example of such a misleading domain name is http://whitehouse.com, which is a porn site that presumably gets a lot of visitors who are trying to find http://whitehouse.gov (or say they're trying to find it!). A reader, though, suggests that the domain name might not have been that misleading during the Clinton White House years (I express no opinion on that assertion), and that a domain such as http://www.middlesexcounty.com would be OK, too.

 
[Eugene Volokh, 10:17 AM]
ANTI-AMERICANISM, EXTREMIST CATHOLIC DIVISION: I'm quite sure this is not representative of the views of American Catholics generally; but it's helpful to remember that this sort of stuff springs from a lot of sources -- in this instance, a history professor at St. John's University -- and not just the most familiar ones.

     Special bonus: mention of "the entire neo-conservative plan for rearranging the world for the benefit of [among other people] power-obsessed Israeli statesmen . . ." Thanks to Andrew Sullivan for the pointer.

 
[Eugene Volokh, 8:46 AM]
VIBRATORS: Yes, this is the post is about vibrators -- I know not all our readers like to read posts like this, so I thought I'd make that clear up front. This is, after all, a family blog, and you can't very well start a family if you're too interested in your vibrator. No, seriously, if you'd rather not read about this sort of thing, I just thought I'd give you a chance to skip it.

     So here's a circumstance I've wondered about. Imagine that a close single female friend (just a friend) mentioned to you that she has a vibrator that's shaped like a highly stylized penis. It's not too anatomically correct, just a normal vibrator. Assume that this came up in a suitable context, for example when something -- a store you're driving by, a joke you hear on the radio, a blog post you've just read -- naturally raised the question, so it didn't just come out of the blue ("You say you're out of batteries? Speaking of batteries, I just LOVE my vibrator!"). What would you think?

     I suspect that in my general circle -- coastal, relatively socially liberal professionals -- most people wouldn't think much of it. We expect that many women use vibrators occasionally. We've heard about them often enough that they're hardly shocking. If anything, some men might find the idea a bit exciting, perhaps because they see it as a sign that the woman is at ease with her sexuality.

     OK, now imagine that a close single male friend (just a friend) mentioned to you, under similar circumstances, that he has a vibrator that's shaped like a stylized vagina. What would you think then?

     My sense is that many people will think it's a bit icky, in some hard to pin down way. Not everyone would; some people won't care. But I think that a much higher fraction of people -- again, at least people in my social circle -- would be put off by the idea of a man using a vagina-shaped vibrator than a woman using a penis-shaped vibrator. It wouldn't be entirely like a man saying that he has an anatomically correct blow-up doll in his closet (remember Dennis Hopper in River's Edge?); our negative reaction to that, I think, would also be influenced by the greater ridiculousness of the visual image (sorry if you hadn't visualized this until this point, and have now done so and regret it). Still, it seems to me that some part of the reaction to the doll would also apply even to the vibrator.

     Is that so, and, if it is, then why? Why is this sort of sexuality seen as fine for women but not for men? I have a few thoughts, which I'll probably blog Monday. But let me know yours (though as usual with these calls-for-responses, if I get a whole bunch of them, I might be unable to respond individually to each).

 
[Eugene Volokh, 8:28 AM]
WHAT CNN CLAIMED ABOUT ITS REPORTING WHILE SADDAM HUSSEIN WAS IN POWER: Yesterday I blogged about CNN's admission that there were many things it couldn't report while Saddam was in power, for fear that Saddam would retaliate against their employees and sources:

Over the last dozen years I made 13 trips to Baghdad to lobby the government to keep CNN's Baghdad bureau open and to arrange interviews with Iraqi leaders. Each time I visited, I became more distressed by what I saw and heard -- awful things that could not be reported because doing so would have jeopardized the lives of Iraqis, particularly those on our Baghdad staff.

For example, in the mid-1990's one of our Iraqi cameramen was abducted. For weeks he was beaten and subjected to electroshock torture in the basement of a secret police headquarters because he refused to confirm the government's ludicrous suspicion that I was the Central Intelligence Agency's Iraq station chief. CNN had been in Baghdad long enough to know that telling the world about the torture of one of its employees would almost certainly have gotten him killed and put his family and co-workers at grave risk

Working for a foreign news organization provided Iraqi citizens no protection. The secret police terrorized Iraqis working for international press services who were courageous enough to try to provide accurate reporting. Some vanished, never to be heard from again. Others disappeared and then surfaced later with whispered tales of being hauled off and tortured in unimaginable ways. . . .

We also had to worry that our reporting might endanger Iraqis not on our payroll. I knew that CNN could not report that Saddam Hussein's eldest son, Uday, told me in 1995 that he intended to assassinate two of his brothers-in-law who had defected and also the man giving them asylum, King Hussein of Jordan. If we had gone with the story, I was sure he would have responded by killing the Iraqi translator who was the only other participant in the meeting. After all, secret police thugs brutalized even senior officials of the Information Ministry, just to keep them in line (one such official has long been missing all his fingernails). . . .

I came to know several Iraqi officials well enough that they confided in me that Saddam Hussein was a maniac who had to be removed. One Foreign Ministry officer told me of a colleague who, finding out his brother had been executed by the regime, was forced, as a test of loyalty, to write a letter of congratulations on the act to Saddam Hussein. An aide to Uday once told me why he had no front teeth: henchmen had ripped them out with pliers and told him never to wear dentures, so he would always remember the price to be paid for upsetting his boss. Again, we could not broadcast anything these men said to us.

Last December, when I told Information Minister Muhammad Said al-Sahhaf that we intended to send reporters to Kurdish-controlled northern Iraq, he warned me they would "suffer the severest possible consequences." CNN went ahead, and in March, Kurdish officials presented us with evidence that they had thwarted an armed attack on our quarters in Erbil. This included videotaped confessions of two men identifying themselves as Iraqi intelligence agents who said their bosses in Baghdad told them the hotel actually housed C.I.A. and Israeli agents. The Kurds offered to let us interview the suspects on camera, but we refused, for fear of endangering our staff in Baghdad. . . .

I felt awful having these stories bottled up inside me. Now that Saddam Hussein's regime is gone, I suspect we will hear many, many more gut-wrenching tales from Iraqis about the decades of torment. At last, these stories can be told freely.

Here, however, is what CNN was saying about this last Fall (emphasis added):

BOB GARFIELD: I'm sure you have seen Franklin Foer's article in The New Republic which charges that the Western press is appeasing the Iraqi regime in order to maintain its visas -- to be there reporting should a war ultimately break out. What's your take on that?

EASON JORDAN [the author of the article I cite above, CNN's chief news executive]: The writer clearly doesn't have a clear understanding of the realities on the ground because CNN has demonstrated again and again that it has a spine; that it's prepared to be forthright; is forthright in its reporting. We wouldn't have a team in northern Iraq right now if we didn't want to upset the Saddam Hussein regime. We wouldn't report on the demonstration if we didn't want to upset the Saddam Hussein regime. We wouldn't have been thrown out of Iraq already 5 times over the last several years if we were there to please the Saddam Hussein regime. So the story was lopsided, unfair and chose to ignore facts that would refute the premise of the article. . . .

BOB GARFIELD: Back in '91 CNN and Peter Arnett in particular were heavily criticized, mostly by civilians, for reporting from within Baghdad during the U.S. attack in ways that they'd consider to be utter propaganda and to -- out of context and not reflecting the overall reality of Saddam Hussein'[s] regime. Have you analyzed what you can get access to without appearing to be just a propaganda tool for Saddam?

EASON JORDAN: Well absolutely. I mean we work very hard to report forthrightly, to report fairly and to report accurately and if we ever determine we cannot do that, then we would not want to be there; but we do think that some light is better than no light whatsoever. I think that the world, the American people will be shortchanged if foreign journalists are kicked out, because even in Peter Arnett's case there were things that he reported on -- and this is a long time ago now -- but things he reported on that I don't think would have been reported at all had he not been there. We feel committed to our Baghdad presence. We've had a bureau there for 12 years with occasional interruptions when we've been thrown out, but we're not there to please the Iraqi government -- we're not there to displease the Iraqi government -- we're just there to do our job.

BOB GARFIELD: Let's say there's an -- a second Gulf War. Is that the mother of all stories? Do you have to be there? Are there -- decisions you'll make on the margins to be s -- as certain as you possibly can that you will have a presence there?

EASON JORDAN: We'd very much like to be there if there's a second war; but -- we are not going to make journalistic compromises in an effort to make that happen, being mindful that in wartime there is censorship on all sides, and we're prepared to deal with a certain amount of censorship as long as it's not -- extreme, ridiculous censorship where -- which we've actually seen a number of cases in previous conflicts -- not just with Iraq. But -- sure! We want to be there, but it's -- we don't want to be there come hell or high water. We want to be there if we can be there and operate as a responsible news organization. . . .

I actually sympathize with CNN's plight in some measure; and I realize there are various ways of interpreting what Jordan was saying. But I do think the combination of their concealment, and their denial of their concealment, is at least potentially troubling, so I'm passing along both these stories so readers can decide for themselves.

     At the very least, it seems to me that we need to keep this in mind in the next situation when Western news organizations report on a regime like Saddam's, which can threaten their employees with death and use this threat as leverage to keep certain stories quiet.

     (Thanks to ScottM's comment at the Command Post for the pointer.)

UPDATE: As I've also blogged about above, here's what especially troubles me: CNN had a chance to admit what it was doing at the time, at least in general terms -- to warn readers that they might not be getting the full story -- with relatively little risk, and probably even relatively little loss of credibility. In the interview that I quote below, Eason Jordan could have simply said:

Yes, there are some things that we unfortunately can't report, because if we do, our people or our sources could get killed -- or at the very least, we could get thrown out of the country. But we do think that some light is better than no light whatsoever. What we do report, we report accurately; at most, we'll sometimes not report certain stories, but we report the overwhelming majority of what we think is out there to report. It's unfortunate that we can't report everything, but that's the way things are, given the nature of the Iraqi regime. We hope our viewers trust us that we're doing the best job we possibly can under these circumstances.

I doubt that this would have yielded violent retaliation from the Iraqi government; and I even suspect that many viewers would have understood CNN's point. But that, unfortunately, is not what Jordan said -- what he said, it seems to me, was considerably less candid.

 
[Eugene Volokh, 5:14 AM]
MORE ON HOW LETTING IN IMMIGRANTS HELPS AMERICA WIN WARS: Fred Kaplan in Slate gives credit for much of modern (and apparently quite successful) American military doctrine to Gen. Huba Wass de Czege. Wass de Czege, it turns out, is an ethnic Hungarian born in 1941 in Transylvania.

     His father, Albert Wass de Czege -- a noted author who had been born into an aristocratic family -- was in the Hungarian army during World War II, which is to say that he fought on the side of the Nazis. At the end of the war, he managed to get to Germany, and surrendered to the Allies. He stayed in Germany for several years, while the Hungarian government banned his books, and declared him an enemy of the state (they alleged that he'd committed war crimes; I know of no details on that, but I as a general rule don't trust Communist governments, especially when they are speaking of authors whose books they've banned). In 1951, he and his five sons moved to the U.S. Huba Wass de Czege graduated first from his class at West Point in 1963, apparently fought with distinction in Vietnam, and in 1983 founded the U.S. Army's School for Advanced Military Studies.

     Had America been less open to immigrants -- or even (what would have quite understandable) to immigrants such as the elder Wass de Czege, who had after all been an enemy officer -- Wass de Czege would not have been where he had been. Doubtless someone else would have taken his place, and might have done as well, or even better. But maybe not. Maybe there are quite a few young native-born American soldiers (and some young non-native-born ones, and some Iraqis) who owe their lives to the son of an Axis officer to whom America opened its doors.

 
[Eugene Volokh, 11:53 PM]
WHAT CNN COULDN'T REPORT WHILE HUSSEIN WAS IN POWER: From the CNN's chief news executive (thanks to The Command Post for the pointer):

Over the last dozen years I made 13 trips to Baghdad to lobby the government to keep CNN's Baghdad bureau open and to arrange interviews with Iraqi leaders. Each time I visited, I became more distressed by what I saw and heard -- awful things that could not be reported because doing so would have jeopardized the lives of Iraqis, particularly those on our Baghdad staff.

For example, in the mid-1990's one of our Iraqi cameramen was abducted. For weeks he was beaten and subjected to electroshock torture in the basement of a secret police headquarters because he refused to confirm the government's ludicrous suspicion that I was the Central Intelligence Agency's Iraq station chief. CNN had been in Baghdad long enough to know that telling the world about the torture of one of its employees would almost certainly have gotten him killed and put his family and co-workers at grave risk

Working for a foreign news organization provided Iraqi citizens no protection. The secret police terrorized Iraqis working for international press services who were courageous enough to try to provide accurate reporting. Some vanished, never to be heard from again. Others disappeared and then surfaced later with whispered tales of being hauled off and tortured in unimaginable ways. . . .

We also had to worry that our reporting might endanger Iraqis not on our payroll. I knew that CNN could not report that Saddam Hussein's eldest son, Uday, told me in 1995 that he intended to assassinate two of his brothers-in-law who had defected and also the man giving them asylum, King Hussein of Jordan. If we had gone with the story, I was sure he would have responded by killing the Iraqi translator who was the only other participant in the meeting. After all, secret police thugs brutalized even senior officials of the Information Ministry, just to keep them in line (one such official has long been missing all his fingernails). . . .

I came to know several Iraqi officials well enough that they confided in me that Saddam Hussein was a maniac who had to be removed. One Foreign Ministry officer told me of a colleague who, finding out his brother had been executed by the regime, was forced, as a test of loyalty, to write a letter of congratulations on the act to Saddam Hussein. An aide to Uday once told me why he had no front teeth: henchmen had ripped them out with pliers and told him never to wear dentures, so he would always remember the price to be paid for upsetting his boss. Again, we could not broadcast anything these men said to us.

Last December, when I told Information Minister Muhammad Said al-Sahhaf that we intended to send reporters to Kurdish-controlled northern Iraq, he warned me they would "suffer the severest possible consequences." CNN went ahead, and in March, Kurdish officials presented us with evidence that they had thwarted an armed attack on our quarters in Erbil. This included videotaped confessions of two men identifying themselves as Iraqi intelligence agents who said their bosses in Baghdad told them the hotel actually housed C.I.A. and Israeli agents. The Kurds offered to let us interview the suspects on camera, but we refused, for fear of endangering our staff in Baghdad. . . .

I felt awful having these stories bottled up inside me. Now that Saddam Hussein's regime is gone, I suspect we will hear many, many more gut-wrenching tales from Iraqis about the decades of torment. At last, these stories can be told freely.

 
[Eugene Volokh, 3:37 PM]
V IS FOR . . .: From PoliPundit:

A joke being passed around by disillusioned Jordanians in Amman: The Iraqi information minister goes to visit Saddam at an undisclosed location. He makes a V sign with his fingers. Saddam asks "Did we win?" "No, we're the only two left," says the information minister.

 
[Eugene Volokh, 2:59 PM]
SWEARING IN THE PRESIDENTS: This site has a list of who swore in each President: Mostly Chief Justices, but with some interesting exceptions, chiefly for Vice-Presidents who ascended to the office when the elected President died. The Coolidge item is particularly interesting, even sweet. (Many thanks to lawprof Tom Mayo for the pointer.)

 
[Eugene Volokh, 2:46 PM]
EMPLOYMENT OPPORTUNITY: My friend Sam Kazman from CEI suggests a new job for the Iraqi Information Minister, Mohammed Said al-Sahhaf: As a pitchman for a car company, with a screen name of Moe Isuzu.

 
[Eugene Volokh, 1:25 PM]
NEW POEM AT SHARDS: POEMS FROM THE WAR:

Images, by Howard Leathers



The sad eyed girl in search of food.
A soldier's jacket tinged in blood.

The TV box, the rolled up rug.
The info chief unseeing, smug.

The Humvee pillow, sandy bed.
The stolen chair upon the head.

The muddy boots, the sandstorm's gale.
The children freed from children's jail.

The green tinged light of mile high jumps.
The sightless eyes, the handless stumps.

The palace garden picnic scene.
The weary warrior, brave marine.

A rescued soldier's father's glee.
Iraqis jubilant and free.

[hleathers at arec.umd.edu]

 
[Eugene Volokh, 12:38 PM]
E-MAILING LINKS TO BLOG POSTS / NEWS STORIES: If you want to e-mail me a link to a blog post or a news story, please cut and paste the text into the e-mail as well as passing along the link. While following a link takes little time, the time does add up (especially given the amount of e-mail I get from a wide variety of sources), and when I'm swamped this little bit of time can make a difference. Thanks!

 
[Eugene Volokh, 5:13 AM]
MY WALL STREET JOURNAL OP-ED ON THE CROSS-BURNING CASE, or, to be precise, the slightly longer version that I originally submitted to them:

Monday, the Supreme Court partly upheld and partly rejected a Virginia ban on cross-burning. It’s tempting to see this case as a victory for those who want to restrict “hate speech” -- tempting but incorrect. In fact, the Court reaffirmed that there’s no “hate speech” exception to the Free Speech Clause, though there is an exception for threats of violence, whether bigoted or not.

There were two important issues before the Supreme Court, corresponding to the two incidents that were consolidated in this case. In the first incident, Barry Black burned a cross at a KKK rally held on private property, with the owner’s consent. Black was prosecuted for violating a Virginia law that bans cross-burning with the intent “to intimidate any person or group of persons,” but it wasn’t clear that he had this intention: He may have been primarily trying to send a message of racist solidarity to his fellow Klansmen. The judge, however, instructed the jury -- pursuant to Virginia law -- that any cross-burning is “by itself . . . sufficient evidence from which you may infer the required intent.” Black was thus essentially prosecuted for the cross-burning itself.

This, the Supreme Court held, was unconstitutional, and in terms that strongly reaffirm that even hateful, bigoted speech is constitutionally protected. Burning a cross is considered “speech” for First Amendment purposes, just like displaying a cross, burning a flag, or flying a flag. These forms of expression are very different morally, but they are all statements in a well-established language of symbols -- for over 70 years, the Supreme Court has said that symbolic expression is covered by the free speech guarantee. And burning a cross as a statement of racist ideology and solidarity, Justice O’Connor’s opinion said (and at least seven Justices either explicitly or implicitly endorsed this), was “lawful political speech at the core of what the First Amendment is designed to protect.” It is evil speech; but the First Amendment protects even evil ideas.

In the second incident, Richard Elliott and Jonathan O’Mara tried to burn a cross on a black neighbor’s lawn, and were prosecuted under the same Virginia law. Here, there was little doubt that the cross-burning was intended to intimidate, and the Court generally said that such speech could indeed be punished. The speech could be punished by general laws that ban threats; and it could also be punished by laws that single out cross-burning, since cross-burning conveys an especially threatening message due to its long association with violence. But nothing in the Court’s reasoning depends on cross-burning being racist. Nonracist threats and racist threats are equally unprotected, just as nonracist ideas and racist ideas are equally protected.

The Court also had to confront some thorny procedural questions, which led the Justices to send the case back to the Virginia Supreme Court for further consideration of the Elliott and O’Mara convictions. But the heart of the matter is what I describe above: The Court’s ruling has to do with threats, not bigotry.

The interesting question, then, is how this ruling will influence future threat cases that don’t involve the Klan, especially cases that involve a mass audience and not just a single targeted victim. The most prominent such case today is the Nuremberg Files case, in which an anti-abortion Web site was ordered to pay huge damages for implicitly praising the killing of certain abortion providers, and thus implicitly threatening other providers whom it condemned by name. The Justices should decide in the next few months whether to hear this particular matter, but the same issue can come up in other political movements, such as the labor movement, environmental movement, anti-war movements, and in its day the civil rights movement.

In the typical scenario, theres some pattern of violent crime by a small extremist group; some more mainstream speaker whos unconnected with the criminals angrily condemns certain people; and against the backdrop of violence, some listeners interpret this condemnation as an implied or even express threat. Thats what happened in the Nuremberg Files case, and it also happened in NAACP v. Claiborne Hardware, a Supreme Court case arising out of a late 1960s civil rights boycott.

In Claiborne, boycott organizer Charles Evers gave a speech in which he said that boycott violators (whose names were being taken down and published) might have their necks broken -- quite menacing, given the past violence against people who had violated this boycott. The Court held that such speech is nonetheless protected, a decision that (whether it’s right or wrong) bodes well for the Nuremberg Files defendants, whose speech is analogous to Evers’ speech. But the Justices didn’t make clear just where the line between protected advocacy and punishable threat is drawn, so it’s not easy to definitively predict what the Court will do.

Monday’s case doesn’t clearly dispose of these issues -- but it does reinforce the principle that First Amendment cases must be decided without regard for the speaker’s ideology. Even racist speech isn’t subject to any extra restriction; likewise, even pro-civil-rights speech can get no extra protection, either. That may be good news for those who, like the Nuremberg Files defendants, want to rely on the strongly speech-protective Claiborne decision. Their political cause may be less appealing to many Justices than the civil rights cause involved in Claiborne. But the Court has again affirmed that the law treats speech without regard to the cause that the speech espouses.

 
[Eugene Volokh, 2:48 PM]
MY PREDICTIONS ON CROSS-BURNING: Here's what I predicted last December:

PREDICTIONS -- VIRGINIA V. BLACK, THE SUPREME COURT'S CROSS-BURNING CASE: As I've mentioned before, I'm part of "a friendly interdisciplinary competition to compare the accuracy of the different ways in which legal experts and political scientists assess and predict Supreme Court decision making." My job is to predict the outcomes of three Supreme Court cases -- Eldred v. Ashcroft, Virginia v. Black, and one more case to be named later.

     So since I've had to make a prediction in writing, I might as well do it publicly. Black involves three cases -- one (Black) in which the defendant burned a cross at a KKK rally on a field, with the property owner's permission, and two (Elliott and O'Mara) in which the defendants burned crosses in a black homeowner's yard, without that person's permission. All were prosecuted under a state statute which barred the burning of crosses in order to intimidate, and which said that the burning of a cross constitutes prima facie evidence of an intent to intimidate. The Virginia Supreme Court held, 4-3, that the statute violated the First Amendment.

     My predictions:

     1. The Supreme Court will uphold the Virginia Supreme Court's decision, and hold that the prosecutions did violate the First Amendment. Confidence: Very high.

     2. The Supreme Court will uphold the decision as to Black by a 9-0 vote. Though Black's expression was repugnant, and though blacks who saw it or heard of it might feel understandably worried that these virulent racists were out there, the cross-burning doesn't fall within the narrow threat exception to the First Amendment (any more than "those damned scabs / capitalists / eco-criminals / Klansmen deserve to die" would be legally punishable, if said at a rally in a secluded location). Confidence: High.

     3. The Supreme Court will uphold the decision in the other cases by a 6-3 vote, with Justices Stevens, O'Connor, and Breyer dissenting. The expression here was, I think, a punishable threat of violence, and trespassing to boot. But under the R.A.V. v. City of St. Paul (1992) case, even such punishable behavior can't be punished by laws that discriminate in certain ways within the unprotected category, especially if they seem viewpoint-based (as this one appears to be). The rule set forth by R.A.V. is complex and often far from clear in its application, but I believe that this is the way the Justices will apply it here. Justices Stevens and O'Connor disagreed with this R.A.V. rule -- they argued that if expression falls within a punishable category (again, such as threats or trespass), it's just unprotected, and can be punished even using laws that single out some kinds of punishable speech for extra punishment. Justice Breyer wasn't on the Court at the time, but I suspect that he'll go along with Stevens and O'Connor. Confidence: Moderate.

So how did I do? So-so. (For my quick summary of what the Court actually did, see here.) Here are the details:

     1. Half right. The Court did affirm the Virginia Supreme Court's reversal of Black's conviction. It vacated the Virginia Supreme Court's decision as to Elliott and O'Mara (I count them as half, rather than two-thirds, because they involve the same issue, and because I want to be at least half right!) for further consideration by the Virginia Supreme Court, but I suspect that ultimately either their convictions will be affirmed, or they'll be retried and convicted. (Technically, one of them pled guilty, and thus would be tried for the first time, but I set that aside for the sake of simplicity.)

     2. Almost completely right. I can't say with complete confidence that the Court's majority would take the view that I describe, and the procedural issues in this case kept them from directly confronting this; but I think this is the basic thrust of their decision. The decision wasn't 9-0, but it was basically 7-2 on this point, with Justice Thomas dissent and Justice Scalia dissenting in relevant part (he'd give the Commonwealth of Virginia another shot at retrying Black).

     3. Wrong, but I console myself that I wasn't as confident about this in the first place as I was about Black. Justices Kennedy, Souter, and Ginsburg did vote the way I predicted they would (to hold that a law can't single out threats involving cross-burning), and Justices Stevens, O'Connor, and Breyer did, too. But the Chief Justice, Justice Scalia, and Justice Thomas voted the opposite of the way that I predicted, so instead of a 6-3 vote to strike down the law we got a 6-3 vote to (mostly) uphold the law.

     So my soothsaying isn't as good as I'd like it to be, but at least it's not as bad as it was with Eldred v. Ashcroft.

 
[Eugene Volokh, 2:06 PM]
TAX POLICY BLOG: Victor Fleischer -- tax maven, friend of mine, soon-to-be colleague here at UCLA, and fellow Kozinski ex-clerk -- has started a blog about tax policy issues. Not for everyone, I'm sure, but it doesn't need to be; and if you're interested in this subject, I'm positive that Victor will provide really first-rate commentary on it.

 
[Eugene Volokh, 1:48 PM]
FAMILY BLOG: Just wanted to express a slight note of disagreement with my coconspirator Orin -- this is not a family blog (except insofar as Sasha and I are coblogging), and I want no-one to feel that we're making any representations or warranties to the contrary, express or implied, including but not limited to the warranties of merchantability or fitness for your impressionable youngsters. In fact, I'm just now gestating a post about vibrators. Watch for it . . . .

 
[Eugene Volokh, 1:43 PM]
A BIT MORE ON THE CHAPLAIN WATER-FOR-RELIGION STORY: Reader James Foster passed along the following note from Dave Mullis of the North American Mission Board, with which Josh Llano is apparently affiliated (though I have no idea about the tightness of the affiliation); I reproduce it with Mr. Mullis's permission:

Thank you for your note. I became aware of this article late Friday.

Your concern is well placed and on target. The article does not reflect Southern Baptist practice. I do not, as of this time, know what Chaplain Llano told the reporter. But the practiced described is totally out of line with normal chaplaincy practice as wells as that of Southern Baptist practice. The practice is neither theologically or ethically sound nor is it taught or expected as a practice to follow.

Naturally, this does not take any stand on the factual allegations in the story -- I think Mr. Mullis doesn't (at least yet) know the details. But I'm glad to hear that the organization believes that this is not the way military chaplains should be behaving.

 
[Eugene Volokh, 12:20 PM]
"NATIONAL STYLES OF PULLING DOWN STATUES", a nice piece by Fred Kaplan in Slate. My favorite part:

I am reminded of 1991, when the Soviet Union collapsed and the Baltic nations took their own hammers to their most prominent statues of Lenin. Much could be discerned about national style from the effort. In Lithuania, the most emotional of the republics, the crowd just went at it, using all tools at hand, bringing down Vladimir Ilyich with great gusto. In Latvia, some engineers assumed the task, judging the statue's material, pulling up a crane, and taking it down very systematically. In Estonia, the town leaders coolly hired a Finnish firm to do the job.

 
[Eugene Volokh, 12:18 PM]
RICHARD COHEN ON LIBERALS AND CUBA, in the Washington Post (thanks to Kausfiles for the pointer).

 
[Eugene Volokh, 12:03 PM]
CROSS-BURNING: I have an op-ed this morning in the Wall Street Journal on the Court's cross-burning case -- it's up on their Web site, but apparently just in the subscribers-only section. I don't know if I should be regretful about that, flattered by it, or both.

     In any case, I'll post a version of this on my Web site in a day or two (I own the copyright, but my sense is that the industry custom is to let the publisher have some exclusivity for a while, even when the publisher has hundreds of times more readers that one's own Web site). But in the meantime, if you're Journal subscribers, you can find it there.

 
[Eugene Volokh, 1:04 PM]
CROSS-BURNING BAN: I'm on the road right now, and probably won't be able to blog at length about this until Wednesday or Thursday. But let me briefly mention what I see as the key points of the case:

1. One of the defendants was convicted of burning a cross on a consenting owner's relatively secluded property, at what was essentially a Klan rally. The Court said that such speech could be protected, unless the government shows that the speech was intended to threaten people. The Court rejected the Virginia statute's presumption that cross-burning was intended to threaten -- and this probably means that most cross-burning at such rallies will indeed be held to be protected speech unless there's some evidence that it was meant to convey a fairly specific message of threat to particular people, rather than just conveying a general message of hatred and menace. In that respect, the Court more or less struck down this part of the cross-burning ban, rather than upholding it.



2. The other two defendants were convicted of burning a cross on a particular black person's property. This is clearly a fairly personal threat, but the defendants claimed that while the threat might be punishable using a general threat statute, it was unconstitutionally content-discriminatory (and maybe even viewpoint-discriminatory) for Virginia to single out threatening cross-burning for special punishment. The Court held that this singling out of cross-burning was constitutional, not because cross-burning is racist, but because cross-burning conveys a message that is likely to be especially threatening (given the history of cross-burning's association with violence). It's possible that these two defendants might still get off the hook, depending on how the Virginia Supreme Court interprets the presumption in the anti-cross-burning statute. But in general, these sorts of defendants who burn crosses to convey fairly individualized threats can now be punished under specific anti-cross-burning laws, though defendants who burn crosses to convey a generalized message of hatred and menace probably cannot be punished.

In any case, this is a very quick summary based on a relatively quick skim; I hope to get to this further later this week.

 
[Eugene Volokh, 8:28 AM]
JOURNALISTS: A joke about American journalists who write about foreign countries, told to me Friday by a journalist friend of mine:

One journalist runs into another in India. "What are you here for?," he asks.

"I'm writing a book."

"Oh, how long have you been here?"

"I just arrived yesterday."

"And how long are you staying?"

"I'm leaving tomorrow."

"Oh, a short trip -- by the way, what's the book called?"

"India: Yesterday, today, and tomorrow."

 
[Eugene Volokh, 8:27 AM]
SPEECH BY GEN. TOMMY FRANKS: Gen. Franks apparently has a reputation as not having been particularly academically minded (according to this article, he dropped out of the University of Texas, and never went to West Point). Here's how he ended one speech (FDCH Political Transcripts, Nov. 12, 2002):

I told you everything I know about Afghanistan. I told you everything I know about Iraq. And I'll tell you about having read my first book, I think I was in the third grade, maybe 17 years old.

(LAUGHTER)

It was a book about Julius Caesar. I remember parts of it. The book said Julius Caesar was a general. He made long speeches. They killed him.

(LAUGHTER)

With that I'll end this speech, but I'd be pleased to entertain your questions. Thank you very much, God bless you, God bless our country.

A historical fact that's worth remembering, especially for us academics.

 
[Eugene Volokh, 12:00 AM]
ERIC MULLER: My fellow constitutional law professor Eric Muller, of the IsThatLegal? blog will be guest-blogging here today and Tuesday. I've e-known Eric for a long time through various online discussion lists, and have always liked his comments; and the quality of his blog has confirmed my respect for him.

     Eric is, I'd say, a moderate Democrat (which, I'm told, makes him seem like a raving right-winger in some educational institutions), so you may find that his views diverge in some measure from the views of most of the permanent Conspirators. But that itself should, I think, make his presence particularly interesting and helpful -- I think our readers will very much enjoy his contributions. Eric can be reached at isthatlegal at bellsouth.net.