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Saturday, April 12, 2003

 

YOU JUST CAN'T TRUST THE MAFIA ANYMORE: The Sunday N.Y. Times has an amusing piece on the successful efforts of Mafia leader Vincent "The Chin" Gigante to trick a team of psychiatrists into believing that he suffered from dementia.

 

WHY ARAB ARMIES TEND TO LOSE: An interesting article in the National Post.

 

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.



Friday, April 11, 2003

 

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.

 

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.

 

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.)

 

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.

 

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.

 

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..

 

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." . . .

 

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.

 

VIBRATORS AND PORN DAY AT THE CONSPIRACY: (Is that enough to get us blocked by web filters?) With respect to Eugene's post below on pornsites with deceptive domain names: have all of you blog-readers discovered the extremely annoying Christian site at *.blogpsot.com-- volokh, junius, jacobtlevy, etc? Somehow they've managed to grab every real blogspot site I know of and set up a redirect for those who reverse the 's' and 'p.' I'm not going to embed links because I don't want to drive any more traffic their way. [UPDATE: Many readers wrote in to explain that the blogpsot/ "Aaron's Bible" people don't need to enter each legitimate blogname anyone comes up with; they just instructed their server to ignore everything that comes before blogpsot.com.]

But getting back on topic... hmmm. Selectivity always raises puzzling issues. Obscenity isn't just prohibitable; it's prohibited. Given the universal availability of porn, this means either a) hardcore porn featuring adults is no longer considered obscene in the United States or b) the prohibition of obscenity is a dead letter in almost every jurisdiction in the United States. (Kiddie porn is prohibited independently, and doesn't require using the obscenity statutes.)

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?)

If speech that is "misleading" but not fraudulent is in general protected, then the new law seems relevantly similar.

 

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

 

BLUNTLY SPEAKING:

AS two of the three northern remnants of Saddam Hussein's dictatorship crumbled yesterday, the European powers who refused to go to war to topple him were meeting to devise ways of cutting themselves in on Iraq's peace.

from The Australian (appears to be a news article, not an opinion piece).

 

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.

 

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.

 

A DIFFERENT KIND OF RALLY AT THE WHITE HOUSE: I was walking down H Street near the White House at about 8:45 last night when I heard a bunch of car horns honking away a block or two down the road. As I came closer, I realized that it was a string of about twenty cars, mostly filled with Arab-looking men holding large flags. My initial thought: probably another antiwar protest. (The intersection of H and 16th Street has become a favorite spot for antiwar protesters in the last few weeks.) But as I walked towards the cars, I realized this was something very different: the flags the men were waving were U.S. flags, plus an occasional pre-1991 Iraqi flag, and the men were yelling things like "Saddam is gone!" and "No more tyranny!" Yes, they were loudly celebrating the downfall of Saddam Hussein, and had smiles on their faces a mile wide. It was a remarkable sight, and I was happy to stop by the side of the road and cheer them on for a few minutes.

     Things will return to normal around the White House by tomorrow. International ANSWER is convening near the White House at noon to protest the war in Iraq; their website describes the war as a "horrific unprovoked attack on Iraq [that] must be understood as one of the extreme terrorist acts of modern times." I guess somebody forgot to explain that to the Iraqis who were celebrating last night.

 

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).

 

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.

 

IT'S OKAY TO APPLAUD. Yesterday I did a post making fun of NPR commentators who (as I interpret them) attempt to diminish the significance of the liberation of Baghdad in various ways. (I should have lumped in the BBC people who I spend much time hearing on NPR as well; for of course they are worse.) A reader wrote in to chastise me for a want of evenhandedness: couldnt similar criticisms be made of the wars supporters? Aren't there those who have spun any setbacks (or, for those who think there have been no setbacks, aren't there those who can be counted upon to spin any future setbacks) as insignificant or entirely expected, etc.? The point is perfectly fair. Both sides have a playbook. The more general problem is that both sides are so attached to their background positions that almost no matter what happens they try to assimilate the new events into their existing positions. This is a common feature of human behavior. Judges do it; academics do it; people in the media do it; ordinary people do it; probably bees and educated fleas do it. We all generally try not to let our priors warp our interpretation of events. Sometimes we succeed. Often we fail.

     This business about Baghdad, however, seems to me a particularly striking and unfortunate example of the phenomenon. I consider the liberation of Baghdad – the millions of people released from bondage of the most appalling kind; the reception our troops received; the short time and relatively low toll in lives incurred to achieve the result; the significance of it within the context of the Middle East – to be an event of really massive importance and indeed one of the best things the United States has done in my lifetime -- period. It needn't change anyone's mind about the rightness of the war overall if the objections were on unrelated grounds; though on the other hand you can be sure that if our troops had been met with jeers and stones the attention and criticism from the left would be absolutely unstinting: we would be told that Dick Cheney sold us a bill of goods and so forth. I don’t hear the symmetrical praise from those quarters now that he has been vindicated.

     In any event, apart from how it affects the case for the war, an awful lot of people, particularly in what I regard as the left-of-center media commentariat, have seemed unwilling to treat the liberation as a great event worthy of awe and straightforward appreciation; from the first it has had to be “sure, but…” Or attempts to change the subject. I think one reason for this is a felt need to resist any concession that would make it sound like Cheney was right and the war might have been a good idea. The qualifications may be reasonable, mind you; of course it matters just how the regime of Saddam Hussein is replaced, and of course we’d all like to see the looting stop as soon as is practicable. But I think that to fixedly interpose those qualifications now unduly diminishes what has been achieved, and largely for strategic reasons. There is a preoccupation with insisting that ”I haven’t been proven wrong.” There is plenty of strategic argument and reportage to go around, it is true; but in this case I think it is obfuscating something unusually important.

     Perhaps those are my priors talking, but I can’t say that I have been gung ho about the war. (There have been times lately when I have wished I could say that.) My view was more like Orin’s: I sure hope these guys in the Bush administration know what they’re doing – because sometimes it has looked like they don’t. But lately it has looked more like they do. Whether or not they do, however, I can’t watch what has now happened in Iraq without feeling a sense of pride in my citizenship and gratitude for the judgment and determination of those who have firmly believed all along that we could accomplish what we have, and in the way we have. There is more work to be done, but I am not inclined to hold my applause until it is done. There will be time and, I hope, occasion for additional applause later.

 

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.



Thursday, April 10, 2003

 

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.

 

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.

 

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.)

 

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.

 

CONSTITUIONS: I would've posted this in the comments section of Matt Yglesias' blog, but that's broken. He's been linking to constitutions from around the world. A list of resources for such things is available at http://ccc.uchicago.edu/links/index.html, on the website of the University of Chicago's Center for Comparative Constitutionalism. The most comprehensive site I know for constitutional texts from around the world is here.

 

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]

 

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!

 

MORE ON HITLER, BUSH, AND THE CBS MINISERIES: I wrote a post yesterday (which you can read here) about allegations by columnist John Podhoretz that a CBS miniseries compares Bush to Hitler. Reader Roger Sweeny has kindly sent me the text of the underlying TV Guide story, and it seems to me to point in favor of the possibility that Podhoretz is being unfair (although it is not conclusive-- as I noted yesterday, we'll have to see the miniseries to make that judgement). Consider the paragraph below. Podhoretz quotes the first and third sentences in this paragraph, but leaves out the rest:
  Director Christian Duguay says the resonance of Hitler's rise with current events is "primarily what I wanted to show" in "Hitler." "The person you elect--no matter how charismatic or how much they convey security and pride for their nation, are they really doing it for their nation," Duguay asks, or for themselves? But the French-Canadian director says it would be "pretentious" of him to single out President Bush, because it is also valid to apply that question to Saddam Hussein. "It's just to say: 'Guys, we're going through a cycle, and it's just worth questioning ourselves.'" Actress Marguiles says she agrees with Duguay's and Gernon's assessments, adding, "It's a universal story."
     The excerpt of this paragraph that Podhoretz quotes makes it sound like the miniseries is about how Bush is like Hitler. When read as a whole, however, I think this paragraph seems to suggest something a bit different. It suggests that the director was concerned with the general problem of how people let their governments get too powerful. To the director, that reminded him of Bush, but he thought it would be "pretentious" to single out Bush (pretentious in the sense of unj ified) because this was a general problem of government and liberty rather than a specific problem with Bush. Quite a different meaning than the one Podhoretz suggests, I think.

 

BLOG IN HASTE, REPENT AT LEISURE: Yesterday I blogged a quick comment that Andy Sabl's response to G.A. Cohen (if you haven't been following up till now, this isn't the place to start) seemed to me like a good example of what political theorists contribute that's different from what political philosophers do, and that inspires mixed reactions from the latter group. Via e-mail I've received several requests to expand, and I think Matt Yglesias' and Chris Bertram's responses (from the philosophy side) invite further response.

I won't be able to do any of that until tomorrow, though. I'm off to present a paper at the Constitutional Law workshop at noon; then I one of my students has a dissertation prospectus defense; then the weekend-long conference in honor of the retirement of India scholars Suzanne and Lloyd Rudolph begins (with a keynote address by former ACLS president and current Princeton prof Stanley Katz, a legal historian best known in the blogosphere for co-authoring the report that led to Michael Belleseiles' firing.) But-- public promissory note here, so you get to hold me to this-- I will expand on the theory-philosophy distinction, and write my first genuine blog post about the Cohen-Rawls debate. (Up until now I've just provided pointers to the posts by the experts.) Andy's commetns have finally provided me with a point of entry, I think.

 

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.

 

THE PLAYBOOK. After listening to a lot of NPR for a couple of days (Q: why oh why do I do this? A: because otherwise I'd have to listen to AM radio for news), I have managed to reverse engineer their general guidelines for commentators who hate Bush and the war as they come to grips with the infuriating triumph of their foes:

     Make clear that it was obvious all along what the military outcome would be, and that skepticism about it formed no part of your opposition to the war. Give the aural equivalent of a shrug and make references to the world's largest military machine, etc.

     State that of course you are happy for the Iraqi people -- those who weren't killed in the invasion -- but be careful never to end a sentence that way. Instead, always follow that sentiment with another that begins "but," or "; I only wish..." or "I only hope..." and then segue into other concerns -- the "diplomatic mess" we've created, or the "long term" picture, or "winning the peace," and so forth.

     Talk a lot about things that "aren't clear" or that "remain to be seen." These sorts of assertions are good because they are hard to falsify. E.g.: "it's not clear how much of the excitement the Iraqis are showing is because Saddam is gone and how much of it is because of all the looting they are able to do." Or: "it remains to be seen whether the factions in the country can be governed in anything like the way the administration is imagining."

     Be forward-looking. Or past-looking. The point is to de-emphasize the present. Dwell on what hasn't been done, not what has been done. The sudden liberation of millions of people from tyranny is not, repeat not, the most important thing. Say that what counts is what comes next, that all this will only be meaningful if it ends up leading to true democracy and prosperity for Iraq. (Set the bar as high as you plausibly can.) Say that the real work lies ahead; say that the real test will be whether we can keep the country under control. Again, set the bar high so that if there is disorder six weeks from now -- fighting between factions, etc. -- you will be able to announce that the celebrations of early April were premature.

     Remember: you haven't been proven wrong about anything, and the neocons haven't been proven right about anything.



Wednesday, April 09, 2003

 

THE WAR IN IRAQ AS SEEN ON (ARAB) TV: A must-read story in Thursday's Washington Post.

 

WILL CONGRESS KILL THE PATRIOT ACT'S SUNSET PROVISION? Recent guest co-conspirator Eric Muller reports over at his home blog that there is a GOP-sponsored plan in the works to repeal the sunset provision in the Patriot Act (read the article he links to here). I hope to post more on this later.

 

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.

 

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.

 

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 . . . .

 

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.

 

WILL A CBS MINISERIES SUGGEST "BUSH = HITLER"?: This is either a case of leftist movie producers run amok, a conservative columnist being unfair, or both. John Podhoretz has a column in the New York Post today titled A Hitler Miniseries Meant to Bash Bush. It begins:
  You know those protesters who carry posters with a short brush mustache under the president's nose and the slogan "Bush = Hitler"? The protestors who, rational liberals assure us, represent the irresponsible and reckless wing of the antiwar, anti-Bush movement?
  Well, the CBS television network just devoted millions of dollars and will devote four hours of prime time to a miniseries dedicated to the "Bush = Hitler" proposition.
  In an eye-opening article published this week by TV Guide, journalist Mark Lasswell reveals that the creative team behind the upcoming docudrama "Hitler: The Rise of Evil" believes their story is important because it might open our eyes to America's rapid descent into totalitarian terror.
  "It basically boils down to an entire nation gripped by fear, who ultimately chose to give up their civil rights and plunged the whole world into war," its executive producer told Lasswell. "I can't think of a better time to examine this history than now."
     If Podhoretz is right that CBS "will devote four hours of prime time to a miniseries dedicated to the "Bush = Hitler" proposition," then this is highly disturbing, even shocking news. The comparison is completely ridiculous -- I'd use stronger language, but this is a family blog, after all. In reading over Podhoretz's column, however, I'm struck by the fact that his evidence that the miniseries is in fact "dedicated to the 'Bush = Hitler' proposition" seems indirect at best. I couldn't find a copy of the TV Guide article online (you can see the co er page here), but it apparently establishes that the producer and director were thinking about what they saw as parallels between Bush and Hitler when they were making the film. However, it doesn't necessarily mean that the film they created is "dedicated to the 'Bush = Hitler' proposition." Whether that is true depends on whether the producer and director make the connection they believe exists an explicit one, or otherwise try to manipulate viewers into seeing a connection, something that Podhoretz doesn't actually discuss. So we'll have to wait and see to find out if this is a case of leftist movie producers run amok, a conservative columnist being unfair, or both.

 

"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.

 

RICHARD COHEN ON LIBERALS AND CUBA, in the Washington Post (thanks to Kausfiles for the pointer).

 

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.

 

ELSEWHERE... Dan Drezner's new TNR column is up. (Footnores on his blog, as he and I usually do with our TNR columns.) It's about anti-Americanism in democracies-- and its limits.

Continuing the blogospheric engagement with the G.A. Cohen- John Rawls debate, Mark Kleiman's colleague Andy Sabl has weighed in with an article that he summarizes on Micah Schwartzman's blog. (Got that?) At least from the summary, I think Andy's onto something important, and something I agree with entirely. The distinction between welfarist liberalism and social democracy or democratic socialism is a crucial one, just as the distinction between classical or libertarian liberalism and conservatism is.

Andy's argument likely won't appeal to the Harvard-Oxford-Ethics philosophers. It sounds like the sort of argument that reminds us of the difference between political theorists (such as Andy and me) and political philsophers. I look forward to reading the whole article...

 

LET'S BE CAREFUL OUT THERE. I get choked up -- as I should think anyone must -- watching the heartwarming spectacle of Iraqis celebrating their liberty and tying a rope around that statue of their oppressor in order to pull it down. But I also watch with some sense of suspense; I am worried that the statue will fall over on the crowd, killing some grandmother -- whereupon the anti-war folks will announce that the liberation of Iraq has come at an intolerable human cost.



Tuesday, April 08, 2003

 

SIGNING OFF... Many thanks to Eugene and the other Volokhonspirators for the opportunity to blog here yesterday and today. I enjoyed it, and hope my contributions were not too out-of-synch with this blog.

Y'all come on over and see me at IsThatLegal sometime, y'hear?

 

NUMBER FOUR OF THE BUFFALO SIX: Another of the Buffalo Six pled guilty today. (These are the six young American citizens of Yemeni ancestry who were charged months ago with crimes after having attended an al Qaeda training camp in Afghanistan.) Today's defendant--Salim Alwan--was the fourth to plead out. And with each guilty plea in the case, the facts just keep getting worse and worse. Alwan met twice--privately--with Osama bin Laden. The first meeting came after Alwan was shown videos justifying suicide attacks. Bin Laden there "told him there were people 'willing to bear their souls in their hands for jihad.'" While at the training camp, Alwan heard Bin Laden deliver a speech about martyrdom against the United States and Israel. Then, after leaving the training camp, Alwan had another meeting with Bin Laden, who asked him what Americans thought about "martyrdom missions." Alwan then agreed to act as a courier for al Qaeda, carrying two videos from Bin Laden to an al Qaeda associate in Pakistan. Alwan was told that the videos were about al Qaeda's October 2000 bombing of the USS Cole in a Yemen port, which killed 17 U.S. sailors.

At the time these men were arrested, some charged that the arrests were just politically motivated efforts to "rob people of their civil rights." Now we know otherwise.

 

DARRYL WORLEY MEETS BERNARD LEWIS: Who would have thought that the Volokh Conspiracy was a hangout for country music fans? I've gotten lots of email about my earlier post criticizing the song Have You Forgotten? by Darryl Worley, most of it defending the song. Some have pointed out that anti-war music tends to be pretty politically shallow too. Agreed. (If John Lennon's "Give Peace a Chance" was making a subtle point, I've missed it for all these years.) But several people have also said versions of the following (which is a direct quote from one reader):

But the basic idea of the song is correct: the point of this war is to prevent bin Laden from obtaining the weapons necessary to create an even worse 9/11 in the future. Looking at the arguments for going to war, if you strip out all the stuff about freeing the Iraqis and enforcing U.N. resolutions, what you are left with is one basic issue: what would bin Laden (or some other terrorist) do if he got his hands on Saddam’s weapons? And when pondering that question, I think remembering the shock and horror of 9/11 serves us all well.

But that's exactly what's wrong with the song! Look at these lyrics, for example:

Have you forgotten how it felt that day
To see your homeland under fire
And her people blown away?
Have you forgotten when those towers fell?
We had neighbors still inside
Going through a living hell
And we vowed to get the ones behind Bin Laden
Have you forgotten?


But, as Bernard Lewis has recently reminded us, Saddam Hussein's Iraq is (was?) just a legacy of western colonial power, utterly unaffiliated with the brand of Islam preached by Osama bin Laden. Saddam Hussein was just the sort of illegitimate secular ruler that al Qaeda detests. There's just no good reason to think that Saddam Hussein was actually one of "the ones behind Bin Laden."

Too many pockets indeed.

 

FRENCH LIBERALISM: Some time ago Chris Bertram, Matt Yglesias, and I had a discussion about the state of liberalism in French intellectual life. In light of that exchange, I was particularly interested to read Catherine Audard, "Rawls in France," 1(2) European Journal of Political Theory 215-227, part of an issue-length symposium on the reception of Rawls in Europe. Abstract:
The reception of Rawls in France has been an extremely complex story where forces of innovation have been, in the end, overwhelmed by the resistance of 'philosophical nationalism.' This is surprising as, in many ways, France was going through tremendous changes and modernization at the time of the translation of A Theory of Justice in 1987. [!] In that context, Rawls' project seemed to have something useful and suggestive to offer: bridging the gap between freedom and equality in a new version of social democracy, combining social justice and market efficiency, respecting the plurality of values within civil society and creating a consensus on democratic legitimacy. But the intellectual obstacles, represented mostly by the French idiosyncratic brand of republicanism, were to prove too strong to allow for a true 'liberalization' of French intellectual and polticial life. Whereas a number of lawyers, economists, and political scientists as well as [a] proportion of the French civil service all saw the benefits of a rigorous engagement with Rawls, philosophers and the intelligentsia on the whole, with the exception of Paul Ricoeur, reacted negatively to Rawls.
(My "!" above is because the 1971 Theory of Justice was translated into many languages very quickly; the German edition, for instance, came during the mid s. The fact that TJ wasn't even translated into French until 1987 is a noteworthy indicator in its own right.)

 

PENNNSYLVANIA'S INTERNET CHILD PORN TAKEDOWN STATUTE-- HOW BAD IS IT?: Larry Lessig has an interesting post over at his blog about Pennylvania's Internet child pornography takedown statute. The statute is codified at 18 Pa. C.S.A. §§ 7621-30 (read the bill that passed the provision into law here-- you'll have to scroll down, though). Lessig writes:
Secret Blacklists in Pennsylvania

So this story continues to amaze me. Pennsylvania has a law that gives the Pennsylvania Attorney General the power to order an ISP serving Pennsylvania citizens (read: any ISP anywhere) to block a site which the Pennsylvania Attorney General says serves child porn. There is no judicial review of the order, and as no ISP is likely to resist the order, the law results in unreviewed censorship of internet content. According to this report, the AG is now refusing to even reveal the list of sites his secret orders have blocked.

There are hard cases in the law of cyberspace, no doubt. But this should be a slamdunk easy case — if anyone would have the courage to challenge it. . . . If the First Amendment means anything, it must mean that the government can’t order the censoring of a publication without any judicial review at all.
     After reading Professor Lessig's post I decided to take a look at the Pennsylvania law to see if it is as bad as Professor Lessig suggests. My tentative conclusion: no, I don't think it is. In fact, my initial read is that (fortunately) the law is considerably less troubling than Professor Lessig fears. The law may well turn out to have constitutional defects. However, I think those defects seem more likely to involve the dormant commerce clause than the First Amendment.

     Okay, so here's how the law works. The law is triggered when a state law enforcement officer acting in the course of his official duties discovers child pornography either hosted by or accessible through an ISP. At that point, a state prosecutor can apply to a state court for a court order compelling the ISP to "remove or disable access to child pornography items residing on or accessible through its service." Under Section 7626, the government must provide the following information to the court considering the application:
(1) A statement of the authority of the applicant to make the application.

(2) A statement of the identity of the investigative or law enforcement officer that has, in the official scope of that officer's duties, discovered the child pornography items.

(3) A statement by the investigative or law enforcement officer who has knowledge of relevant information justifying the application.

(4) The Uniform Resource Locator providing access to the items.

(5) The identity of the Internet service provider used by the law enforcement officer.

(6) A showing that there is probable cause to believe that the items constitute a violation of section 6312 (relating to sexual abuse of children).

(7) A proposed order of authorization for consideration by the judge.

(8) Contact information for the Office of Attorney General, including the name, address and telephone number of any deputy or agent authorized by the Attorney General to submit notification.

(9) Additional testimony or documentary evidence in support of the application as the judge may require.
     If the judge finds that the application constitutes probable cause, the court can issue a removal order, which is akin to a warrant:
Upon consideration of an application, the court may enter an order, including an ex parte order as requested, advising the Attorney General or a district attorney that the items constitute probable cause evidence of a violation of section 6312 (relating to sexual abuse of children) and that such items shall be removed or disabled from the Internet service provider's service.
     At this point, after the court order has been signed, the Attorney General's office can send a notification to the ISP informing the ISP about the court order. Pursuant to Section 7628(b), the notice must include:
(1) A copy of the application made under section 7626.

(2) A copy of the court order issued under section 7627.

(3) Notification that the Internet service provider must remove or disable the items residing on or accessible through its service within five business days of the date of receipt of the notification.

(4) Contact information for the Office of Attorney General, including the name, address and telephone number of any deputy or agent authorized by the Attorney General to submit notification pursuant to this subsection.
     Once the ISP receives the notification of the court order, the ISP then has five days to "remove or disable access to child pornography items residing on or accessible through its service in a manner accessible to persons located within this Commonwealth." If the ISP does not remove the "child pornography items" in five days, the state's attorney's office can bring a prosecution against the ISP. The maximum penalty for a first offense is $5,000; higher penalties are available for subsequent offenses.

     Why do I have a different take on this law than Professor Lessig does? First, I think it is somewhat inaccurate to say that this statute does not allow for judicial review of the government's notification order. The trick is that the judicial review occurs before the notification, rather than after. The notification is essentially a notification that a court has found probable cause and issued a warrant ordering the ISP to remove the material-- not just that the Attorney General has such a belief. I think that's an important difference. Second, my understanding is that the order that the ISP must comply with is not an order to block a site "which the Pennsylvania Attorney General says serves child porn," as Professor Lessig suggests. Rather, it is an order to "remove or disable access to child pornography items," with child pornography defined in Section 7621 as referring to Pennsylvania's general child pornography statute, 18 Pa. C.S.A. 6312. As I understand this language, it means that the order is an order to make sure that no child pornography (unprotected by the First Amendment) is stored or accessible through the ISP via the means explained in the court order. If an ISP does not find any hild pornography present or accessible through that URL, then it does not need to take any action. (On the other hand, it seems likely that many ISPs would take a look at the court order and decide to block first and ask questions later.) This is my first look at the statute, so maybe I'm missing something. But my first read suggests that this law requires a probable cause court order before any action must be taken, and then limits the action that must be taken to child pornography itself.

     I noted earlier that this law may have constitutional defects on dormant commerce clause grounds. How could that be? The key issue is whether the law may be construed as applying to ISPs located outside of the state of Pennsylvania, and therefore may be seen as an attempt to export Pennsylvania's law to other states. The courts may say that such a regulatory scheme is up to Congress, not the states, and that as a state effort the law is invalid. See, e.g., American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). This is a plausible constitutional challenge, I think-- at least on my initial read, I think it has some merit. At the same time, this is a pretty murky area, and it's tough to predict what a court might do. Among other things, a court could construe the law as applying only to ISPs in Pennsylvania, which could change the constitutional picture considerably. See, e.g, People v. Hsu, 82 Cal. App. 4th 976 (Cal. App. 2000).

     Finally, let me repeat that I've never looked at this statute before this afternoon, so it's always possible that I've misunderstood it. If there are any experts on this law out there, please send in corrections if I've erred in a significant way; I'd be happy to post them.

 

FOXNEWS BASHING: Among these phony FOX News screen shots are some very funny images. My favorites: Bill O'Reilly on Kent State (scroll way down) and Normandy Invasion: Light Resistance from Germans. And, of course, the Spanish Inquisition.

 

TANNERS ONLINE: I just noticed this: the prestigious but often hard-to-find Tanner Lectures on Human Values have been put online. They seem to be nearly complete through 2000-01. (More recent ones are presumably still under revision.) This is a terrific resource for some of the best, and some of the best-known, pieces in political, legal, and moral theory over the last two and a half decades. Browse around. On the first alphabetical page alone, some of the lecturers are Raymond Aron, Timothy Garton Ash, Annette Baier, Harold Bloom, Stanley Cavell, John Coetzee, Gerry Cohen, and Robert Dahl. A later page includes lectures by Nagel, Nehemas, Nozick, Onora O'Neill, Pinker, Pinsky, Pocock, Popper, and Posner.

The site also clears up some longstanding confusions on my part. I had always thought (don't ask me why) that no one was asked to give more than one set of Tanners. I've therefore had conversations at cross-purposes, for instabce when I referred to Walzer's Tanner Lectures and meant "Nation and Universe" but was assumed by my listener to mean "Interpretation and Social Criticism." It turns out that there's no such rule, and that Walzer, among others, has given the Tanners twice. (Which others? Appiah, Peter Brown, Jared Diamond, Scanlon, Sen-- at least through 2000-01.)

 

PRINCETON LAW: Matt Yglesias and Tapped duly mock the following from a very silly piece on NRO:
Another school of radicals does some imagining of its own. It envisages an international political monolith with which to replace America and indeed all of liberal democracy in the West. These yearnings are embodied in a doctrine called “transnational progressivism,” which is gaining prominence in law schools, for example, at Princeton and Rutgers. As John Fonte of the Hudson Institute points out, professors in this camp argue for the establishment of a new transnational regime, or world government, that is post-liberal democratic and, in the American context, post-Constitutional and post-American. Within such a regime the key political unit would not be the individual citizen who voluntarily associates with fellow citizens but the racial, ethnic, or gender group into which one is born.
Princeton, of course, has no law school. Here's one version of the John Fonte piece being referred to; it manages to get nearly every intellectual trend it refers to wrong in some significant way; as best as I can tell it only refers to Princeton when mentioning a sociologist.

But I can actually explain what the reference to Princeton law means, and it's not simply evidence of hallucination on the author's part. Princeton does have a Program in Law and Public Affairs. And LAPA has been especially intellectually active on the international law front; its most prominent publication has been The Princeton Principles on Universal Jurisdiction, an attempt to universalize the aggressive form of universal jurisdiction that Belgium has just abandoned. (The "Principles" are identified as a "consensus"-- of the views of the "scholars, jurists, and legal experts" who were selected to take part in their formulation-- except that Lord Browne-Wilkinson dissented; see his lengthy and very persuasive fn 20 on p. 37.) This document was plugged in the NYT Magazine and elsewhere.

I have great respect for many of the participants in the Principles project but view the document as neither an accurate statement of customary international law nor a desirable position. It does, I should note, include many statements about the standards that a prosecution should meet. But these are left to the consciences of the prosecutors and courts; no institutional check is offered to the the sweeping powers of extradition, trial, and punishment that the document supports. And, while most of the intellectual tends Fonte identifies don't say what he says they say, and they don't all go together in any event, there is something to his critique of this style of international legal theory and its associated unshackling of power and democratic responsibility or accountability.

Anyways, that's what the reference to Princeton law was about.

 

NO, I HAVEN'T FORGOTTEN. YOUR POINT BEING? I know that pop songs are not the place to look for political enlightenment, but as I was driving to work this morning I heard Darryl Worley's tune "Have You Forgotten?" and had a hard time not losing my breakfast. The "argument" of the song is that a person who opposes the war in Iraq must have "forgotten" about 9/11. Part of the refrain goes "And you say we shouldn't worry 'bout bin Laden/Have you forgotten?" I suppose Worley gets a couple of style points for managing to find a rhyme for "bin Laden." But who, exactly, has been arguing that we shouldn't "worry 'bout bin Laden" since 9/11?

This song is this week's number one on the country charts. Incredible.



Monday, April 07, 2003

 

OAKLAND ANTIWAR PROTEST GETS UGLY: An antiwar protest at the Port of Oakland (near San Francisco) led to tear gas and rubber bullets today according to this story in the San Francisco Chronicle. As best I can tell, the protesters were trying to block a gate at the port in an effort to interfere with the operations of a company that has been awarded a contract to help rebuild Iraq. The protesters refused to disperse, and apparently some started throwing metal bolts and blocks of wood at the police. This led to tear gas, rubber bullets, and arrests.

      If this protest was an effort to persuade Americans to be sympathetic to the antiwar cause, I think it failed, to put it mildly-- even putting aside the stuff about throwing metal bolts and blocks of wood at police officers. Just focus on what the protesters were targeting. Unless I'm missing something, the protesters in Oakland were trying to interfere with a company that is going to help rebuild Iraq, and even to bring in humanitarian aid. [See the update below for a different view, however.] Apparently the protesters targeted the company because they see it as part of a broad corporate effort to profit from the war. As one of the protesters put it, "This is the march I've been most excited about . . . . It actually got some outcomes. It's direct. Here, we're actually trying to shut the place down for a day, to take a strike straight at the actual machine of the war.'' But how is the company part of the 'actual machine of the war'? True, the company here is part of a corporate effort to profit from a U.S. government plan. The only trouble is, that plan is not a plan to wage war, but rather a postwar plan to bring peace, democracy, and prosperity to a nation that has suffered under a brutal dictator. If the protesters are against that, I don't think they'll find much company.

     UPDATE: Reader Patrick Tufts writes to suggest that the company that was picketed was not involved in postwar aid, but rather is a company that "prepositions" Department of Defense military equipment for upcoming wars. He points me to this Congressional testimony from an executive of the company. I don't know enough about the details to know for sure what the company does, but I wanted to point out Patrick's possible explanation of why the protesters targeted the company they did.

 

OPERATION LIBERTY SHIELD--WHERE'S THE PROBLEM? Back at the beginning of the war, the federal government announced “Operation Liberty Shield,” one part of which called upon the FBI to seek interviews with about 11,000 Iraqi nationals in the United States (out of a total of around 50,000 Iraqi nationals). News reports revealed that a limited number of naturalized American citizens who’d been born and raised in Iraq were also on the FBI’s list for interviewing.

Some in the blogosphere—notably Atrios and Talkleft—quickly condemned the program. Atrios called it “f-ing stupid” and “wrong on many levels;” Talkleft said the program "sounds ... just like the communist witch hunt in the 1950's, shades of Joe McCarthy."

Given my work on the Japanese American internment, I was initially skeptical of the program, but when I looked at the program carefully I learned that the interviews were voluntary (as the government said they were), that they were typically brief and courteously done, that they included a component in which the government told the interviewees how to seek help if they were the victims of vigilante violence, and that many of the interviews were designed to gather intelligence about the lay of the land in Iraq from people in the USA who know Iraq well, rather than to develop suspicions of the interviewees.

Of course, it was not all roses; a number of the interviews led to arrests on immigration charges, and that made me wonder whether perhaps some of the interview requests were pretextual.

On balance, though, the program struck me (and still does strike me) as a (rather surprisingly) temperate way of dealing with enemy aliens during wartime. Compared to prior wars, stretching all the way back to the war of 1812, and especially compared to the excesses of World War I and World War II, the program is positively gentle. And even setting the comparisons aside, the notion of talking to those in your country who hold an enemy country’s passport while your military is bombing the crap out of the enemy country seems well, prudent.

Neither Atrios nor Talkleft has ever responded to my request that they specify exactly which aspect of the program is “f-ing stupid” or McCarthyite. So I thought I’d give it one last shot...

Where’s the problem?

 

SURE TO BE BLOGGED TO DEATH IN THE NEXT 48 HOURS: The Pulitzers are announced, with the New York Times taking home just one. (Not the worst perfromance ever-- I only had to go back to 2000 to find a year with no NYT winners.)

 

FINAL VERSION OF MY PATRIOT ACT ARTICLE: The final version of my recent law review article, Internet Surveillance Law After the USA Patriot Act: The Big Brother That Isn't, 97 Nw. U. L. Rev. 607 (2003), has been posted online (you can download a copy here). I've had a rough draft of the article up on SSRN since last summer, but now SSRN has the final version available instead of the rough draft. (If you follow this area, this is the article that was profiled by the New York Times back in September. The feature included a rather weird picture of me; you can see the profile and the picture here.)

 

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.

 

SYDNEY OPERA HOUSE: I haven't seen this blogically mentioned yet: the architect who designed the Sydney Opera House (though who didn't see it through to completion for a variety of reasons) has been awarded the Pritzker Architecture Prize.

 

WHY THOMAS'S OPINION IS A DISSENT: Jacob Levy asks why Justice Thomas's opinion in the cross-burning case, Virginia v. Black, is a dissent. There were two pieces to the Virginia statute that the Court reviewed. One of them made it illegal "for any person ... with the intent of intimidating any person or group ... to burn ... a cross on the property of another." The other said that "any such burning ... shall be prima facie evidence of an intent to intimdate a person or group."

A majority of the court (Thomas included) agreed that the first piece did not violate the First Amendment. A plurality (not including Thomas) were of the view that the second piece did violate the First Amendment (because they see cross-burning as proscribable only because of the certainty that it is deeply threatening activity, and the "prima facie" evidence provision pretty much removes that important factor from the jury's attention). Justices Thomas and Scalia were of the view that this second piece did not violate the First Amendment, and they therefore would have voted to uphold the statute in its entirety, at least on its face. That's why Thomas's position is a dissenting position.

 

CROSS-BURNING: I'm sure that Eric and Eugene are off reading the case somewhere and planning to blog about it later, but I thought I'd quickly note that the Supreme Court has upheld Virginia's ban on cross-burning. O'Connor wrote for a particularly unusual majority (herself, Rehnquist, Scalia, Stevens and Breyer) that the ban met the compelling interest test and survived First Amendment challenge. Thomas agreed that the law was valid but apparently argued that First Amendment scrutiny wasn't triggered and that the ban was simply a valid exercise of ordinary police power. Moreover, this is for some reason characterized as a dissent, not as a concurrence in the result. (I'll look forward to Eugene's and Eric's explanations of exactly how this claim works; at some point this week I'll read Thomas' opinion for myself, but not today. UPDATE: Asked and answered. Scroll up to Eric's post directly above.) Howard Bashman will no doubt be updating throughout the day. (Here are the opinions, starting with Eugene's former boss' majority opinion.)

By the way-- hiya, Eric! In pre-blogging days Eric and I knew each other electronically via the sometimes-contentious Brown alumni listserv, Brunonia. Glad to be sharing space with him, however temporarily.

 

WHAT'S NEXT? SULLIVAN AND GILBERT? The Cute Beatle is still feuding with a guy who has been dead for over twenty years. I have to hope that if I had been a member of the greatest rock band ever, I would today be above this sort of pathetic display.

Get back to where you once belonged, Paul.


 

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."

 

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.

 

SCALIA'S INTERESTING QUESTION: You’ve got to admire Justice Scalia’s mind, even if you don’t agree with him a whole lot of the time.

I listened to the first hour of the two-hour affirmative action argument of last week, and was, to be honest, a bit disappointed. It wasn’t that the lawyers did a bad job (although Solicitor General Olson struck me as surprisingly unprepared to deal with the issues raised by the amicus brief filed on behalf of retired military and service academy leaders). It was that just about the whole session seemed so, well, predictable. Is a “critical mass” of minority students a masked way of saying “quota?” How is a court to know when a diversity-based affirmative action program ought to come to an end? And so on and so on. These are questions that I think just about any first-year constitutional law student would have been able to predict after reading the Court’s significant decisions in the area.

The one exceptional moment, though, came from Justice Scalia. He asked the lawyer for the University of Michigan’s law school a question that I thought was just plain fascinating. The Court’s precedents require that an affirmative action plan be in the service of a state interest that is “compelling” (rather than merely “legitimate” or “important.”) There is precious little law out there on the question of what makes an asserted interest rise to the level of “compelling.” Scalia's thrust went as follows: The state of Michigan has decided that it wants to have not just a law school, but an elite law school—on a par with schools like Harvard, Yale, Stanford, Chicago, Columbia, NYU, Penn, Stanford, Berkeley, and the University of North Carolina. (OK, OK, I included that last one in case my dean is reading.) So, argued Scalia, while a state might have a “compelling” interest in racial diversity at some law school it runs, the State of Michigan does not have a compelling interest in diversity at this particular law school. At this particular law school, Scalia was implying, the only genuinely compelling interest should be its interest in achieving “academic excellence.”

This was something new, at least to my ears. I liked the fact that Scalia was pushing for clarity on the “compelling interest” piece of the analysis. For far too long, I think, the Court has been simply asserting that a particular state interest is compelling without telling us why, and I think some clarity and guidance here are overdue.

I also suspect that this idea appeals to Scalia because it’s akin to a very powerful position he’s taken in another, seemingly unrelated area of the law, concerning the Sixth Amendment’s confrontation clause. (The case I have in mind here is Maryland v. Craig.) There a defendant was charged with molesting a child, and the state asked that the child be permitted to testify from another location by closed-circuit television because the child would suffer deep psychic harm if forced to testify in the physical presence of the alleged molester. The defendant, however, complained that he had a constitutional right under the Sixth Amendment to a face-to-face encounter with his accuser before the trier of fact.

The Court upheld this closed-circuit arrangement over the defendant’s objection, holding that the testimony-by-television supplied the essence of confrontation and allowed the state to pursue its very strong interest in protecting the child. Justice Scalia dissented (in the company of Brennan, Marshall, and Stevens!). He pointed out that the state really had two strong interests in the case: protecting the child, and convicting the defendant. The state was, in effect, pretending that the only way it could protect the child from psychic trauma was to let him testify from a remote location. But Justice Scalia pointed out that this was not so: if the state really wanted to protect the child, it could just not call him as a witness at all. The state was really trying to achieve both of its interests at the same time, and at the expense of the defendant’s constitutional rights. What the state needed to do, Scalia argued, was choose. If it couldn’t protect the child and convict the defendant, it needed to choose which one meant more to it.

Brilliant, and, I think, quite right.

See how that’s kind of similar to what Scalia was asking the other day in the affirmative action case? Michigan, he was suggesting, has a choice to make: it can certainly pursue racial diversity at a law school if it wishes, and call that a compelling interest. And it can certainly pursue the sort of academic excellence that makes an elite school if it wishes, and call that a compelling interest. But here it’s trying to do both at the same time, and the conflict between those two calls into question whether either of them is really “compelling.”

I’m sure by now you’re pouncing all over the weakness in Scalia’s argument: it hinges entirely on the notion that racial diversity and elite-level academic excellence are in conflict with one another, in the way that face-to-face confrontation and the child’s wellbeing were in conflict with each other in the confrontation clause case I described. The State of Michigan, of course, contends just the opposite; its position is that racial diversity is one crucial component of elite-level academic excellence. I’m inclined to agree; my own personal experience of teaching for four years at a racially homogeneous law school (the University of Wyoming) and now at a racially integrated one (UNC) tells me that racial diversity does in fact contribute importantly to full and rigorous discussion and debate in a law school classroom. So at the end of the day, I guess I disagree with Scalia.

But he sure made me think.

 

TEMPORARY VOLOKHONSPIRATOR: Many thanks to Eugene and the other Volokhonspirators for the offer to guest-blog here today and tomorrow!

 

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.



Sunday, April 06, 2003

 

DAVID BLOOM: Today's news that NBC's David Bloom died has caused great sadness from all of those who knew him or watched him over the years. One community among the many that are grieving are the former high school and college debaters who competed with him and against him. Bloom debated for schools in Minnesota and California, but competed on a national level and had friends in the debate community from around the country. All of us who knew him from his debate days took great pleasure and pride in seeing Bloom do so well on such a public stage. We constantly looked forward to seeing him on the air and would routinely notify other debaters when he was seen on his latest grand assignment. Along with all of the others whose lives he touched, we shall miss him.

 

WACO: A quick note: My guest-blogger post about the Waco matter prompted a lot of e-mail to me. Ive excerpted from several of the letters, at my own site. I thought some visitors here might be interested.

My thanks to Eugene for the invitation to guest-blog last week and to all who e-mailed me not just about Waco but also about Canadian history and other tangents.

 

AL JAZEERA HEADLINE: "US TROOPS SUFFER HEAVY LOSSES IN BAGHDAD FIGHTING": What's the source for the Al Jazeera story that accompanies this headline? The always reliable Iraqi Information Minister, Mohammed Saeed al-Sahaf. The first three paragraphs of Al Jazeera's report:
  Fighting raged in Iraq’s capital Baghdad on Sunday with United States-led forces meeting fierce resistance in their efforts to capture the city.
  Iraqi Information Minister Mohammed Saeed al-Sahaf said troops killed 50 US soldiers and destroyed or damaged 16 US tanks close to Baghdad airport. Troops from the Republican Guard are still tightening the noose around US troops in the area surrounding the airport, he said.
  Journalists in the area reported seeing a destroyed US Abrams tank on a main highway south out of Baghdad. Iraqi officers said five US soldiers had been killed in a battle at the scene. Dozens of Iraqi civilians crowded around the journalists taken to the scene, shouting "Down, down Bush" and "Long live Saddam Hussein".
     Ted Koppel was reporting live from Baghdad this morning, and had a response to Iraqi reports like this. Noting Iraqi claims that the U.S. had not taken over the Baghdad airport, Koppel quipped, "Trust me. I'm here at the Saddam International Airport. And I'm not alone."

 

SCHOLAR-BLOGGING: I was going to post about the conversations I've been having about blogging at the Annual Meeting of the Midwestern Political Science Association. But Dan Drezner has already written a post that captures my own reactions pretty nearly perfectly.





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