[Eugene Volokh, 1:10 PM]
JOURNALIST ASKED TO CLOSE DOWN BLOG: Editor & Publisher gives the details on the story (thanks, Ken Layne) about the Hartford Courant ordering its reporter to shut down his blog. Now let me first make clear that I think the newspaper ought to have the legal right to do this, and probably does have the legal right to do this (though it turns out that there's a Connecticut statute, the meaning of which is highly uncertain, that restricts employers' ability to fire employees because of their speech). But the rationale, at least as set forth in the Editor & Publisher, seems like a classic case of Obscurantism Through Generalities:

But Toolan sees it differently. "Denis Horgan's entire professional profile is a result of his attachment to the Hartford Courant, yet he has unilaterally created for himself a parallel journalistic universe where he'll do commentary on the institutions that the paper has to cover without any editing oversight by the Courant," Toolan said. "That makes the paper vulnerable."

The editor added that allowing an employee to set up his own opinion blog was a bad precedent. "There are 325 other people here who could create similar [Web sites] for themselves," said Toolan, who called his decision "common sense."

     Let's start with the first claim: "That makes the paper vulnerable." Vulnerable to what? Libel lawsuits? I doubt it, and if that's all the Courant cared about, it should just insist that Horgan make clear on his site that these are his own words as a private citizen, and not the words of the Courant; I don't see how the Courant could then be held liable for his own off-the-job speech. Vulnerable to public criticism? I suppose it's possible: Maybe he'll say something outrageous enough that people will, say, pull advertising from the Courant, or cancel their subscriptions. But just how likely is that? Seems not terribly likely; these sorts of scandals are quite rare, and Horgan will have plenty of incentive to avoid them. And in the unlikely event that this happens, the Courant should easily be able to cut its losses then, by firing Horgan -- the normal remedy when an employee arises extreme outrage among the public.

     On to the second claims: "allowing an employee to set up his own opinion blog was a bad precedent." And at the bottom of the slippery slope is . . . what? Several blogs by Courant reporters (surely not 325 -- only a small fraction of all people want to take the time to write for free)? So what? I find it hard to imagine that this will itself somehow cut into the Courant's circulation -- and if that's what the Courant is worried about, that speaks ill of the Courant's confidence in its own value and quality. More likely, people will come to like Horgan more, and be therefore more likely to like the newspaper for which he regularly writes.

     I generally sympathize with employers, who have to deal with a lot of threats -- legal threats, public relations threats, and competitive threats. People often condemn them too much, with too little sympathy for the difficulties that they face. Nonetheless, here it seems to me that the employer's actions don't make a lot of sense, and its justifications for its actions seems to be double-talk. Not the sort of behavior that one respects in a newspaper.

 
[Eugene Volokh, 12:58 PM]
PREDICTIONS OF DOOM: As Josh Chafetz (Oxblog) points out, it's a cheap shot, but a funny one.

 
[Eugene Volokh, 3:17 PM]
A FEW MORE WORDS ABOUT "RESTRICTING SPEECH": Under the Sun writes:

My question is, why do people want to restrict remarks like Lott's, Cubin's, Santorum's? The only legitimate ground for restricting speech is that it's dangerous -- else you're just trying to restrict belief, which is impossible. So how might a racist or homophobic statement be dangerous? It might threaten, but if so it's hate speech; none of these were. It might incite, but that too is actionable, and clearly wasn't the case here. No, our objection to the three Congresscritters' remarks is merely that they were wrong. And the proper response to wrong speech is not condemnation or punishment; it is correction. Rather than calling for censure, officially or otherwise, we should emphasize our competing, and morally superior, positive position: we should vocally support equal rights, and encourage our representatives to do the same.

     I think this is mistaken. No-one is calling for "restrict[ing]" Santorum in the sense of "punish[ing]" him via prosecution or lawsuit. Rather, people are trying to emphasize their competing positions and condemning people (such as Santorum) who hold views that they think are immoral. The two go hand in hand: If your view is the opposite of Santorum's, and you want to argue that it's the only morally sustainable view, then naturally this will involve condemnation of Santorum's statements.

     As I suggested last week, perhaps if people were calling for boycotts of Santorum supporters, or people who advertise on talk shows that invite Santorum to express his views, or some such, such boycott calls could be condemned as intolerant. That's a tough issue.

     But simply saying that a politician's views are wrong (if that's what one thinks) -- which is indeed a form of "condemnation" -- is a perfectly "proper response to wrong speech." It doesn't stop Santorum's views from being communicated to potentially willing listeners; and to the extent that it deters politicians from expressing certain views for fear of public condemnation, that's a proper form of deterrence. In a democracy, members of the public should condemn those politicians whom they find to be deeply misguided.

 
[Eugene Volokh, 2:53 PM]
COPYRIGHT LAWSUIT AGAINST GROKSTER AND KAZAA DISMISSED by a federal district court; here's the decision. Key paragraphs:

Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends. Grokster and StreamCast are not significantly different from companies that sell home video records or copy machines, both of which can be and are used to infringe copyrights. While Defendants, like Sony or Xerox, may know that their products will be used illegally by some (or even many) users, and may provide support services and refinements that indirectly support such use, liabiltiy for contributory infringement does not lie "merely because peer-to-peer file-sharing technology may be used to infringe plaintiffs' copyrights" [EV: citing the Napster case]. Absent evidence of active and substantial contribution to the infringement itself [EV: this is how the court distinguishes the Napster case, where the Napster servers were used to provide the indexes needed to complete each copying transaction], Defendants cannot be liable. [P. 27.] . . .

While the parties dispute what Defendants feasibly could do to alter their software [EV: to make infringement harder], here, unlike in Napster, there is no admissible evidence before the Court indicating that Defendants have the ability to supervise and control the infrnging conduct (all of which occurs after the product has passed to end-users). The doctrine of vicarious infringement does not contemplate liability based upon the fact that a product could be made such that it is less susceptible to unlawful use, where no control over the user of the product exists. [Pp. 32-33.]

It will be interesting to see what the Ninth Circuit will do; I have no prediction on that. It will also be interesting to see what Congress will do -- the district court concludes by saying that "additional legislative guidance may be well-counseled" (p. 33). I don't know, though, whether the movie and music companies will go to Congress right away, or whether they'll wait for the Ninth Circuit to decide.

     By the way, Grokster was represented by, among others, my friend and erstwhile coauthor Mark Lemley, who's a copyright maven at Boalt Hall School of Law (UC Berkeley) -- congratulations to Mark!

 
[Eugene Volokh, 12:48 PM]
IRS CRACKDOWNS, THE WORKING POOR, AND THE NEW YORK TIMES: My friend Victor Fleischer has a very interesting story about these topics -- his A Taxing Blog can be pretty technical at times (he's a first-rate tax wonk), but this is quite accessible and interesting, and is as much about the media and about how the New York Times frames class issues as it is about tax policy.

 
[Eugene Volokh, 10:25 AM]
MORMONISM, POLYGAMY, AND WOMEN'S RIGHTS: Clayton Cramer mentions an interesting factoid: "[T]he Mormon Church (still supporting polygamy at the time) gave women the right to vote in 1870, and it was Congress that took it away in 1887, as part of an anti-polygamy law. The Mormon Church apparently didn't think that women voting would be a problem for polygamy." I did not know that!

 
[Eugene Volokh, 9:51 AM]
POLYGAMY AND ECONOMICS: Jon Klick, a fellow (doubtless a jolly good one!) in residence at the George Mason University School of Law, writes:

Regarding your discussion of polygamy, there are some interesting economic issues involved here. A good place to start is Gary Anderson and Robert Tollison (1998). "Celestial marriage and earthly rents: Interests and the prohibition of polygamy." Journal of Economic Behavior and Organization, 37(2): 169-181.

The basic argument is that, as long as existing wives have direct or indirect veto power over new wives, polygamy is generally welfare increasing for women, but welfare decreasing for men in the aggregate (basically, polygamy leaves a shortage of female marriage partners). Anderson and Tollison argue that men used their greater voting power to induce the government to crack down on polygamy among the Mormons.

Interestingly, if there's reason to believe that members of one of the sexes are more likely to enter into legalized homosexual marriages (empirical question, I guess), then there would be a similar disruption in the partner markets, if sexual orientation has any plasticity on the margin (another empirical question, I suppose; Posner discusses some of the evidence for "opportunistic homosexuality" in his Sex and Reason book). It seems to me that there are significant political economy forces (similar to that described by Anderson and Tollison) which push against any such disruptions.

I haven't read the paper, or given that much thought to the subject, but this seems an interesting question. I do think, though, that in our society these sort of effects of recognizing polygamous marriages will be fairly modest (as they have been as to decriminalization of homosexuality, and as they would be as to recognition of gay marriages). I think relatively few people would want to engage in polygamy, probably fewer even than those who are homosexual (4% of men and 1.5% of women, according to the most recent studies).

 
[Eugene Volokh, 9:42 AM]
SAEEDING: See here for an example of a new form of criticism, for which I have just the name -- "saeeding." Yes, not as euphonious as "fisking," but one does what one can. (Thanks to Jumping to Conclusions for the pointer.)

 
[Eugene Volokh, 7:05 AM]
INTERESTING LITTLE ARCHAISM in the Constitution, which I had never noticed before -- article II, section 1:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: . . . .

"Before he enter" -- I like that, though I doubt that people would write this way today. I suspect that it's a mood sort of thing (the language, not my liking it), probably the subjunctive.

 
[Eugene Volokh, 5:26 AM]
GOD AND CAESAR: I have often heard it said that the Ten Commandments are an important part of the foundation of American law, and I think that's true to a point. But here's a quick question for you: How many of the Ten Commandments are actually implemented as legally binding obligations under modern American law? (To avoid confusion, let's focus on the list in Exodus, chapter 20, King James Version, available here.)

     It turns out that the answer today is pretty much 3. For a full rundown, see here, but here's the basic scoresheet:

1. "Thou shalt have no other gods before me." No.
2. "Thou shalt not make unto thee any graven image." No.
3. "Thou shalt not take the name of the LORD thy God in vain." No.
4. "Remember the sabbath day, to keep it holy. . . . . [On the Sabbath] thou shalt not do any work . . . ." Basically no -- there are still a few Sunday closing laws, but they surely don't apply nearly as broadly as the Commandment does; no-one would punish you for working at home on the Sabbath, for instance.
5. "Honour thy father and thy mother . . . ." No.
6. "Thou shalt not kill." Yes.
7. "Thou shalt not commit adultery." Not in practice legally enforced today, though some states do still have criminal prohibitions on adultery on the books.
8. "Thou shalt not steal." Yes.
9. "Thou shalt not bear false witness against thy neighbour." Yes, more or less.
10. "Thou shalt not covet thy neighbour's house, . . . wife, . . . manservant, . . . maidservant, . . . ox, . . . ass, [or] any thing that is thy neighbour's." No.

So three (killing, stealing, false witness) commandments are legally enforced today, and one can make a plausible -- though I think ultimately unpersuasive, chiefly for pragmatic reasons -- argument that a fourth (adultery) should be, too. As to the other commandments, I think very few people, including most devout Christians, would want the government to enforce them to their natural scope. (Do people really want the law to prohibit coveting? Dishonoring one's father and mother?) Even those who might support some public swearing bans or Sunday closing laws probably wouldn't want to outlaw all taking of God's name in vain (e.g., swearing in one's own living room) or ban all work on the Sabb th (e.g., someone working from home), even though the Commandments aren't limited to public swearing or public employment.

     All this is an illustration, I think, of a basic point: Even if one thinks that the Bible is a proper source of legal guidance, a Biblical prohibition of something is not itself a sufficient reason for secular law to prohibit it, too -- as even many of the Commandments (which some say are among the most fundamental of the Biblical rules) demonstrate. There still has to be a second step of the argument: Not just that the Bible prohibits it, but that this prohibition is also one of the rules that should be imposed by secular law as well as religious law, as opposed to one of the many rules that should only be imposed by religious law. Those who want not just to live their lives by the Bible, but also order the secular law (at least in part) around the Bible must be able to explain why some particular provision that they suggest should be enforced (say, the prohibition on homosexuality) is more like "thou shalt not kill" or "thou shalt not steal" (for which we should be accountable to Caesar as well as to God) rather than like "thou shalt not covet" or "thou shalt not make unto thee any graven image" (for which we are accountable solely to God, coupled perhaps with the informal judgment of the community of the God-fearing).

 
[Eugene Volokh, 6:32 PM]
BIGAMY/POLYGAMY AND GAY MARRIAGE: Andrew Sullivan writes, in the context of criticizing the Santorum comments,

My golden rule in matters of limited government is an old and simple one. It is that people should be free to do within their own homes anything they want to, as long as it is consensual, adult and doesn't harm anyone else. Bigamy and polygamy are therefore irrelevant here. Bigamy means being married to more than one woman; polygamy, likewise, means being married to more than two women. There's nothing inconsistent between saying you don't want such marriages to be legal (I don't) and also saying that what people do sexually in their own homes should be their own business, and not the government's.

He is right, of course, that whether homosexual conduct should be illegal is a different question from whether the state should recognize polygamous marriages (let's assume that all the parties, including the first wife, are consenting adults). But why is the recognition of polygamous marriages such a different matter from the recognition of gay marriages, which Sullivan also supports (as do I, at least tentatively)?

     One certainly can draw some distinctions here. To begin with, polygamous marriages would raise much more complex property division questions, child custody questions, and the like. Also, one might argue that there is something especially valuable -- or something especially likely to succeed -- in committed relationships among two people rather than committed relationships among three or more. And of course some argue that polygamy is oppressive to women, though the focus on liberty and private choice at the heart of the gay marriage rights movement suggests that the state ought not second-guess consenting adults' judgments about whom they choose to commit to.

     And yet while these are not unreasonable distinctions, I wonder whether they are persuasive enough, and whether -- if gay marriage is legalized -- they will be persuasive enough to future decisionmakers who are faced with the arguments of those who demand equality, civil rights, and (for many people) religious freedom for polygamists. Pro-gay-marriage forces argue that toleration means more than just not throwing people in jail; it also means giving them equal access to important social institutions. Pro-gay-marriage forces argue that marriage shouldn't be arbitrarily defined to mean one man and one woman, to the exclusion of minority views. Pro-gay-marriage forces argue that if people want to be together in a committed relationship, it's better for the law to recognize that relationship rather than denying it recognition, and thus weakening the very bonds of commitment that we want to foster. If those positions are accepted for gay marriage, it'll become harder to resist them for plural marriage.

     I'm not trying to provide a reductio ad absurdum here; as I said, I tentatively support gay marriage, and the arguments I give above might even lead me to support recognition of polygamous marriage (though perhaps some of the distinctions might ultimately persuade me). But I do think that there is a potentially powerful analogy here, and one that at least some people will indeed try to use on behalf of polygamous marriage if gay marriage is legalized.

UPDATE: Several people e-mailed me to argue that whether homosexuality / incest / polygamous sexual relationships are decriminalized is a separate question of whether such marriages should be allowed. I agree entirely that it's a separate question -- but the post isn't about whether the decriminalization of homosexuality should lead to allowing gay or polygamous marriages. Rather, it's about whether allowing gay marriages may lead to allowing polygamous marriages. The only question in this post is: Once the arguments of the pro-gay-marriage forces are accepted (as I tentatively think they should be), what will that mean for polygamous marriages?

 
[Eugene Volokh, 6:08 PM]
JUDGING OUR ANCESTORS: Eric Muller, a fellow lawprof and an erstwhile Volokh Conspiracy guest blogger, is writing about a complex and fascinating question: How should one assess the wrongdoing of one's parents' and grandparents' generations? (This is particularly interesting because one day our children and grandchildren will be assessing our wrongdoing.) He's looking for books and movies that deal with this question, and asks for suggestions via e-mail or the comments on his page -- if you want to read more about this, or have some suggestions, check out his post.

 
[Eugene Volokh, 6:05 PM]
HUGH HEWITT DEBATE RECAP: Well, my opponent (a professor at Biola University) thought homosexuality and consensual incest were analogous, too -- he decried the legalization of homosexuality (not just the constitutionalization of the question, but even the legislative decisions to legalize it).

 
[Eugene Volokh, 5:01 PM]
HUGH HEWITT SHOW: About to do the debate about whether adult, consensual incest should be illegal on the Hugh Hewitt Show; my opponent will be John Mark Reynolds at Biola University. I was on the show with him once in the past, about the Dini matter, and much enjoyed it.

 
[Eugene Volokh, 11:47 AM]
ROOMBA UPDATE: I ran the Roomba again yesterday, in the same bedroom in which I ran it the day before; when I checked the container for the sucked-up gunk, it was about half full (not as full as the first time). Positive spin: If I didn't have the Roomba, there'd be all this extra dog hair, dust, and the like on the carpet, and if I run it every day or two, our room will be much cleaner. Negative spin: Sounds like the Roomba didn't really pick up everything the first time (since I doubt that our dogs shed that much every day).

     In fact, that's my continuing suspicion about the Roomba: I'm just not sure that it covers pretty much the whole carpet. I might try to spread some visible stuff (salt? sand? confetti?) over the whole floor one day next week, and then let the Roomba run to see what's left at the end; that would be the obvious test, but I'm just not sure I'm that committed to the scientific method here. In any case, if I do run that, I'll let you know.

     Experiment for today: The Roomba is cleaning my study. I'll also try again tomorrow, since the dogs don't go there, and the second run will thus be a better test of what the Roomba missed today.

 
[Eugene Volokh, 7:30 AM]
SHORT ARTICLE ON CAMPAIGN FINANCE AND THE FIRST AMENDMENT: I've just put my short piece, Why Buckley v. Valeo Is Basically Right, up on the Web; here also is the PDF. It's not that different from my Harvard Journal of Law & Public Policy piece, on which it's based; but it's shorter, and I thought some readers might find it of interest.

 
[Eugene Volokh, 6:06 AM]
SPEAKING OF INCEST: I'm scheduled to be speaking about incest -- consensual incest among adults, I stress again -- on the Hugh Hewitt Show Thursday at 5 pm Pacific. It should be a debate, with listener call-in, and it ought to be a lot of fun; I always enjoy being on Hugh's show. I confess I am surprised to be getting pegged as The Incest Defender (even though I'll of course only be saying that it shouldn't be illegal, not that it's a good idea); it's not my main field of research, or even close to it. Still, I said it on-blog, so I've got to be ready to defend it publicly, and I'm happy to do so.

 
[Eugene Volokh, 5:23 AM]
MORE ON LIBERTARIANS, DEMOCRATS, AND REPUBLICANS: A reader writes:

What perplexes center-left types like myself . . . who are often sympathetic to Libertarian attitudes on cultural questions is why most Libertarians privilege issues of tax policy and economic regulation on which they are more closely aligned with Republicans over issues of privacy (sexual and otherwise) and free expression on which they are more closely aligned with Democrats. I'm not clear on why simply reclassifying the former as issues of civil liberties rather than economic policy answers the broader question.

About 15 years ago, I heard a pretty good answer to this question, from a fellow named Charles Fuller. As I recall, he put it more or less this way, of course as a broad generalization: The Republicans want to control my sex life, and the Democrats want to control my economic life; these days -- perhaps not always, but these days -- it's much harder for the government to control my sex life than my economic life, so the Democrats are the bigger threat.

     Now I myself am not a thoroughgoing libertarian, and I also agree with the Republicans more than Democrats on some matters outside the purely civil liberty / economic policy sphere, such as foreign policy, crime control, race preferences, and so on. But I also do in some measure take this "least dangerous party" view, and I think that other libertarians, even more hardcore ones, do as well.

     If most libertarians thought that the government really was likely to ban abortion (libertarians may in theory be pro-life, but most of the ones I know are pretty firmly pro-choice) or send homosexuals to jail, then they might well vote Democrat to prevent that. (Likewise, if they thought the Democrats would decriminalize drugs and the Republicans wouldn't, then they might vote for the Democrats, too.) But right now, they believe that the Republican errors (on matters such as sexual practices or abortion) aren't that likely to be implemented into law; but they think the equally serious Democratic errors -- on matters such as taxes, economic liberty, gun rights, the government-run school monopoly, and so on -- are much more likely to be implemented into law. Therefore, right now, the Democrats seem to many (though not all) libertarians to be more dangerous to libertarian ideals than Republicans are.

     This is not a perfect solution, of course: We'd prefer to vote for candidates who will implement all our views on all matters. But in the absence of such candidates (remember, I stress will implement, which means they have to get elected), we make the choices that we think will best approximate our preferences, risky as these might be.

 
[Eugene Volokh, 5:03 AM]
MILITARY SPENDING VS. EDUCATION SPENDING: What would you estimate is the ratio of (1) the portion of the U.S. GNP that's spent each year on the military to (2) the portion of the U.S. GNP that's spent each year on education? The answer is here.

 
[Eugene Volokh, 3:30 PM]
MORE ON THE HOMOSEXUALITY / INCEST ANALOGY: William Saletan in Slate agrees that, as a legal matter, it's hard to provide a good distinction between consensual adult homosexuality and consensual adult incest:

Morally, I think incest is bad because it confuses relationships. But legally, I don't see why a sexual right to privacy, if it exists, shouldn't cover consensual incest.

 
[Eugene Volokh, 3:20 PM]
THE POWER OF LEGAL ARGUMENT, even in dissenting opinions:

Juan Ramirez Lopez, an illiterate Mexican man accused of smuggling immigrants into the United States, was convicted and lost an appeal. Despite his repeated protestations of innocence -- he insisted he was an immigrant himself who suffered frostbite after he had been deserted by a smuggler -- he was sentenced to 6 1/2 years in prison.

On Tuesday, he finally won, thanks to a dissenting opinion by one appeals court judge that was so persuasive, federal prosecutors decided to drop all charges and set Ramirez free after serving three years. The dissent, by Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals, pointed out that federal agents had deported to Mexico nine illegal immigrants who had crossed the border with Ramirez -- before they could testify that he was not the smuggler.

Carol C. Lam, the U.S. attorney in San Diego, said she would not comment on how her office decided to free Ramirez. She did acknowledge, however, that the government's action was rare.

"This was very unusual," she said. "We prevailed at trial. We prevailed 2-1 in the 9th Circuit We don't think we did anything wrong."

However, "in light of the circumstances, we felt it was in the best interest of justice to join in the motion to dismiss," Lam said. The prosecutor acknowledged that her office was concerned the appeals court might review the case again and potentially not only free Lopez, but set a precedent that could damage other prosecutions.

Legal experts said they were not aware of any other similar case. "I can't recall another situation where prosecutors won in the trial court and won on appeal and were so afraid of what the appeals court might do [after a rehearing] that they surrendered," said veteran Los Angeles defense lawyer Barry Tarlow.

"Judge Kozinski's dissent beat the government into submission," he said.

During his 17 years as a federal appeals court judge, Kozinski, 52, who was appointed by President Ronald Reagan, has gained a reputation as a smart and outspoken jurist. In the Ramirez case, Kozinski employed both traditional legal arguments and a strong dose of sarcasm to make his points.

"The question at the heart of this case is both simple and important: May the United States get rid of witnesses it knows would provide evidence helpful to the defendant in a criminal case by putting those witnesses beyond the power of the court and beyond the reach of defense counsel?" Kozinski wrote. . . .

Worth reading the whole piece.

 
[Eugene Volokh, 2:44 PM]
JUSTICE DEPARTMENT DROPS DINI INVESTIGATION: According to the Justice Department,

The Justice Department today announced that it was closing its inquiry into complaints by Texas Tech students that a biology professor's medical school recommendation policy, which required affirmation of a personal belief in evolution, constituted religious discrimination. The decision was based on the professor's replacement of the affirmation requirement with a requirement that students simply be able to explain the scientific theory of evolution.

The Justice Department received complaints alleging that Professor Michael Dini had discriminated, based on religion, against several students through his written recommendation policy. The policy, set forth on a Texas Tech website, stated that to receive a medical school recommendation, the student had to meet three criteria. These were to get an "A" grade in one of Professor Dini's courses, get to know him personally through working as a teaching assistant or extracurricular activities, and "truthfully and forthrightly affirm a scientific answer" to the question: "How do you think the human species originated?"

In response to complaints by students, the Justice Department requested information about the school's policies regarding letters of recommendation. Professor Dini subsequently changed the third criteria on the website, dropping the requirement that students affirm a personal belief in evolution. Instead, he now requires them to be able to explain the scientific theory of evolution. In light of this change, the Department of Justice has closed its inquiry into the matter.

"The new policy rightly recognizes that students don't have to give up their religious beliefs to be good doctors or good scientists," said Assistant Attorney General for Civil Rights Ralph F. Boyd, Jr. "A biology student may need to understand the theory of evolution and be able to explain it. But a state-run university has no business telling students what they should or should not believe in. If the separation of church and state is to mean anything, it must surely mean that such matters of conscience are beyond the reach of government inquiry."

The original version of the site said:

If you set up an appointment to discuss the writing of a letter of recommendation, I will ask you: "How do you think the human species originated?" If you cannot truthfully and forthrightly affirm a scientific answer to this question, then you should not seek my recommendation for admittance to further education in the biomedical sciences.

The current version says this:

If you set up an appointment to discuss the writing of a letter of recommendation, I will ask you: "How do you account for the scientific origin of the human species?" If you will not give a scientific answer to this question, then you should not seek my recommendation.

I'm not wild about the way Dini worded his question, but I certainly agree that insisting that a student be able to competently explain an important scientific theory -- if that is the way the question will be understood -- is a legitimate demand, both as a matter of law and academic ethics. (Thanks to my friend Paul Goldsmith for the pointer.)

 
[Eugene Volokh, 12:19 PM]
COMIC RELIEF IN THE SANTORUM INTERVIEW:

Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality --

AP: I'm sorry, I didn't think I was going to talk about "man on dog" with a United States senator, it's sort of freaking me out. . . .

 
[Eugene Volokh, 11:31 AM]
USING ONLY LOWER CASE: This is just a guess, but I suspect that using all lower case in one's e-mails or one's posts (as lots of people seem to do) is a bad idea: It decreases the likelihood that the message will be read, understood, and taken seriously. I have three reasons for thinking this:

1. I suspect that the standard way of writing is inherently easier to read -- the uppercase letters are helpful reminders that a new sentence is starting, they are helpful signals that certain words are proper nouns, and they provide a pleasant bit of visual variety. Of course text that's all in lower case can be understood by readers; it's just harder to understand, and it may therefore lead busy readers to switch to reading other things that are easier to understand. (All upper case, I think, is even harder to read than all lower case, largely because it omits the cues I describe here and also leaves much less white space.)



2. In writing, the familiar format is pleasant, and unfamiliar formats are more likely to be jarring. Sometimes jarring is good, because you want to wake up the reader; but usually, it ends up distracting and annoying the reader.



3. Following the linguistic conventions marks you as an intelligent, well-educated writer who knows how to apply the rules, and is willing to take the care needed to apply them; and this would be true even if the rules were entirely arbitrary and even inefficient. Your using the accepted style thus signals, rightly or wrongly, that your substance is valuable. This might not be that important if you're writing to people who know you, and know the value of your ideas (though items 1 and 2 might still apply here). But it's quite important if you're writing to relative strangers.
   
        Written communication tends to elide cues such as race, ethnicity, sex, age, pronunciation, and the like, and that's usually good. At the same time, though, it tends to increase the importance of grammar, spelling, capitalization, punctuation, and other linguistic conventions. Think of grammar, capitalization, and such as "the new accent" -- following the rules is the same as speaking with an upper-class accent that marks you as successful and educated, while disobeying them is the same as speaking with a lower-class accent that marks you as poor and ill-educated. This may be unfair, just as much discrimination based on accents is unfair; but I suspect that it's real, and you ignore it at your peril.

Now I certainly wouldn't recommend that you carefully proofread every single e-mail or post for spelling, grammar, and the like; that would be just too burdensome. But typing in mixed case, rather than all lower case, seems to me to be considerably easier. I might be mistaken, but I think that people who have shifted to lower case would be well advised to shift back.

 
[Eugene Volokh, 10:24 AM]
LIBERTARIANS, DEMOCRATS, AND REPUBLICANS: NoHo-Missives, a left-leaning, pro-Howard-Dean blog, has said various kind things about us in the past -- notwithstanding our differing political views -- and particularly likes a couple of our posts from this morning. But it then goes on to say:

[These posts] reflect[] the Libertarian bent of The Conspirators more than anything, but I think it's indicative of the alignment of interests of the Libertarians and Democrats (especially Howard Dean). I know, I know, Libertarians hate the Democratic Party's tax policy, but I hope they don't allow this administration to pay them to shut up about civil liberties.

I much appreciate the praise, but I think this misses a very basic point about Libertarians: We think that lower taxes and lighter economic regulation are matters of civil liberties. That -- plus other issues, such as gun rights -- are a big part of why the interests of the Libertarians and the Democrats are pretty far out of alignment, on some utterly fundamental matters.

 
[Eugene Volokh, 8:51 AM]
FREEDOM AND BESTIALITY: Several correspondents have naturally raised, in response to my claims that people should be free to have consensual sex, the question of bestiality. Now note that, as I read Sen. Santorum's comments, he did not say that homosexuality and bestiality are morally equivalent. But the issue was indeed implicated by my libertarian assertions, so I suppose I ought to deal with it.

     1. Most importantly, laws prohibiting human-human sexual conduct are generally much more burdensome than laws prohibiting bestiality. Human-human sexual conduct isn't just a source of physical pleasure; it's also a source of emotional fulfillment and meaning. Doubtless many homosexuals engage in sex that has little emotional content -- as do many heterosexuals. But homosexuals and heterosexuals alike do sometimes use sex as a means towards intimacy, love, affection, and other important human values. And even sex outside a long-term, committed relationship can have substantial emotional importance.

     Banning homosexual conduct legally prohibits to homosexuals this tremendously important source of fulfillment. It's not just an interference with liberty; it's an interference that's made especially serious by the magnitude of the deprivation that it creates. Even someone who is not a thoroughgoing libertarian -- someone who is willing to ban certain behavior to make a moral statement more than to prevent real harm to other people -- ought to balk, I think, at laws that deny people something that's so tremendously important to them, at least unless there's some very powerful case that this is really harmful to others (a case that I think is quite lacking as to homosexuality).

     I'm not an expert on the psychology of those who engage in bestiality (a highly underexplored field, I suspect), but I doubt that bestiality provides the same sort of emotional fulfillment (and emotional fulfillment with no really adequate substitute) to those who engage in it. Certainly we view human-human relationships as generally more important to human happiness than human-animal relationships, and I think we have good reason to do so. Given that this is so, comparing bans on homosexuality and bans on bestiality is just inapt.

     2. This having been said, I'm libertarian enough to say that, no, the government ought not throw people in prison for having sex with their sheep, at least unless there's some serious evidence that the sheep is caused significant and unjustified pain by this (possible as to some sexual practices involving smaller animals, I suppose), or unless there's some reason to think that this involves a vast risk of sexually transmitted disease. (Naturally, the broader that one thinks animals' rights are, the more objections one can raise here, but since I think that animals' rights are quite narrow, this isn't much of an issue for me.)

     Sure, this behavior disgusts me. Sure, I see why people might think of this as degrading. But disgust and concern about degradation is not reason enough to throw people in jail.

     Nonetheless, this is a distinctly secondary concern. Bans on bestiality are not, I think, justified, but neither are they tremendously oppressive. Bans on a form of behavior that is vitally important to many people's most important relationships -- that is as important to them, in fact, as heterosexual behavior is important to the human relationships in which we heterosexuals engage -- are indeed tremendously oppressive. Even someone who tolerates modest burdens on liberty should reject burdens that are as grave as this.

 
[Eugene Volokh, 8:12 AM]
SO WHAT'S THE PROBLEM WITH LESBIANISM? I don't have any moral problem with homosexuality, and I generally think that the government should treat people without regard to their sexual orientation. But I'm especially puzzled by the arguments in favor of punishing or discriminating against lesbians, which seem to me to be even weaker than the arguments as to male homosexuals. My sense is that hostility to lesbians is in general somewhat less strong than the hostility to male homosexuals (though I may well be mistaken), but it's still there: The Texas law in the Lawrence case outlaws lesbian oral sex; the military ejects soldiers for lesbianism; some state courts have considered a mother's lesbianism as a factor against her in custody disputes; some government employers have fired lesbians because of their sexual orientation. What possible justification is there for this hostility?

     1. In the military, the main argument for excluding gays is that homosexual attraction can interfere with unit cohesion. But surely that can't work for lesbians, unless we had a military full of all-female units.

     2. Male homosexuals are seen as being more sexually promiscuous, on average, than heterosexuals, and less interested in long-term relationships, which may be bad for family stability; I have heard that this is in fact accurate (again, on average), and it's certainly plausible. I don't think that's reason enough to discriminate against homosexuals, but even if it is, then I don't see how it applies to lesbians, who, to my knowledge, are if anything more likely to be involved in long-term relationships than heterosexuals.

     3. Male homosexuality is seen as more likely to communicate various sexually transmitted diseases, both because of the promiscuity point and because anal sex is more dangerous than other forms. Again, I don't think that this would be reason enough to discriminate against homosexuals, especially given society's current tolerance for potentially disease-causing heterosexual promiscuity. But as I understand it, female homosexual behavior is less likely (and certainly no more likely) to communicate diseases than heterosexual behavior is. As someone once put it, if AIDS shows that God believes homosexuality deserves punishment, then the lower incidence of AIDS among lesbians shows that God must really love lesbians.

     4. This leads us to the Bible. The Bible does, it seems to me, contain text that prohibits male homosexuality -- but I haven't seen any verses that prohibit lesbianism. I may well be missing something; if there are verses that touch on this, please let me know. But at this point, I really don't see any specifically scriptural objection to lesbianism.

     5. What about the objection that the Bible favors heterosexual marriage, and that heterosexual marriage, with its possibility of children, is the norm to which people in society should generally aspire? This too seems to me a slim justification for punishing or discriminating against people who aren't interested in heterosexual marriage -- but if this is really the reason, then why aren't we imprisoning would-be priests and nuns, who are taking themselves away from heterosexual marriage as much as lesbians are? We're generally pretty tolerant of people who want to stay unmarried, or people who choose to be childless, even though we might think that it would be better if more people got married and had kids (if they can). Why aren't lesbians entitled to exactly this sort of amicable toleration, and perhaps even more toleration, since at least many of them do try to get involved in long-term romantic relationships?

     6. Finally, this returns us to claims that the "unnaturalness" of the acts involved in lesbianism -- of which oral sex is presumably one of the leading ones -- is evidence that it's not part of God's plan. As I blogged several weeks ago, I think the "naturalness" argument is highly unpersuasive for many reasons, but it's especially so with regard to oral sex and women. To the best of my knowledge, many women find it considerably easier to get sexual pleasure from having oral sex performed on them than from genital sex. If the way our bodies operate is evidence of God's design and God's desire (which I don't buy, but let's assume this for now), then this suggests that oral sex being performed on women is a big part of God's plan; and since oral sex can be performed on women both by men and by women, it seems then that neither is "unnatural."

     Now, just to repeat once more, I think that male homosexuality shouldn't be criminally punished, either, and that male homosexuals generally shouldn't be discriminated against; more broadly, I think there's nothing immoral about male homosexuality. But I think the case for punishing or discriminating against lesbians is even weaker than the case as to male homosexuals -- in fact, nearly nonexistent. I can understand some of the psychological reasons why some people dislike lesbians; but I don't see any logical ones, or even theological ones.

UPDATE: Michael Williams clears up one matter for me: The New Testament does seem to condemn lesbianism in Romans 1:24-27, though it's not completely clear:

24 Therefore God gave them over in the sinful desires of their hearts to sexual impurity for the degrading of their bodies with one another.
25 They exchanged the truth of God for a lie, and worshiped and served created things rather than the Creator--who is forever praised. Amen.
26 Because of this, God gave them over to shameful lusts. Even their women exchanged natural relations for unnatural ones.
27 In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.

So perhaps this is enough of a theological argument against lesbianism, though note that the condemnation is considerably less than the "abomination" language in Leviticus. (It also makes it harder to speak of "Judeo-Christian" morality here, since while the prohibition against male homosexuality is Judeo-Christian, the condemnation of lesbianism seems to be purely Christian, unless I've missed still other verses, which is quite possible.) But in any event, I'm still looking for the logical arguments.

 
[Eugene Volokh, 7:45 AM]
FOR CONSTITUTIONAL FEDERALISM BUFFS: (This will probably not be easily intelligible -- or interesting -- to most nonlawyers, and even many lawyers.) In today's unanimous Franchise Bd. v. Hyatt, Justice O'Connor rejects a proposed Full Faith and Credit Clause doctrine that would require state A courts to apply state B's sovereign immunity law when a state B agency is being sued over something that relates to its core sovereign responsibilities. In 1979, the Court had rejected a general principle that state A courts must apply state B's sovereign immunity law whenever a state B agency is being sued; the question is whether a different rule should apply in the core sovereign responsibility context.

     Here's a key argument Justice O'Connor gave for rejecting the proposed new doctrine:

Having recognized, in Hall, that a suit against a State in a sister State’s court “necessarily implicates the power and authority” of both sovereigns, the question of which sovereign interest should be deemed more weighty is not one that can be easily answered. Yet petitioner’s rule would elevate California’s sovereignty interests above those of Nevada, were we to deem this lawsuit an interference with California’s “core sovereign responsibilities.” We rejected as “unsound in principle and unworkable in practice” a rule of state immunity from federal regulation under the Tenth Amendment that turned on whether a particular state government function was “integral” or “traditional.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546-547 (1985). CFTB has convinced us of neither the relative soundness nor the relative practicality of adopting a similar distinction here.

Justice O'Connor, who dissented in Garcia -- which rejected the notion of states being immune from federal regulation as to their core sovereign responsibilities -- had long been seen as a vote to overrule it in a proper case, and return to the older National League of Cities v. Usery (1976) doctrine, which did provide such a core-sovereign-responsibility protection. I'd often heard that the conservative majority was just waiting for an opportunity to overturn the 5-4 Garcia, which had in turn overturned the 5-4 Usery. This opinion seems to be some evidence that Justice O'Connor, and maybe some of the other conservatives, have acquiesced in Garcia. It's not dispositive evidence, but it does seem to me to be indicative.

 
[Eugene Volokh, 7:26 AM]
THE PURPOSE OF THE CONSTITUTION: A reader writes:

The purpose of the Constitution is to limit the power of government -- not to limit the rights of the individual.

The Constitution does not enumerate a right to breathe, so one might not be surprised that the authors did not include a specific reference to an individual's right to privacy.

My point is that the authors could not possibly have listed all of the rights inherent to an individual. They certainly could list the limited delegated authority of the government, and they did.

This analysis turns out to be mistaken, for a couple of reasons.

     1. The purpose of the federal Constitution was to create a federal government that was more powerful than the preexisting federal government -- and at the same time keep its power limited. The original Constitution limited this power mostly by trying to delegate only specific powers, though some of them were quite broad; the Bill of Rights limited it by adding explicit constraints. But the Constitution was both a government-empowering document (including empowering the government to limit individual conduct) and a government-limiting one.

     2. The Constitution gives the federal government only limited delegated authority. It doesn't make states be governments of limited enumerated powers, and as a general matter state constitutions don't set up the states as governments of limited enumerated powers, either. There are state Bills of Rights that constrain state power, and the Fourteenth Amendment has been read as applying the Bill of Rights to state governments, too. But it's these constraints -- not the doctrine of "limited delegated authority," usually called "enumerated powers" -- that constrain the states.

     3. The notion that the government must respect certain unenumerated rights (the right to bear and raise children, the right to marry, the right to avoid having children, via contraception and abortion, and so on) is a plausible one, though the counterargument is plausible, too. But this argument should be focused on the Ninth Amendment or the "substantive due process" or "right of privacy" doctrine, or, if you're an originalist, on the original meaning of the Ninth Amendment, Due Process Clause, and the Privileges or Immunities Clause. I do not think that generalities about the "purpose of the Constitution" are ultimately helpful here; and more particularly, if one does use such generalities, one has to acknowledge that the purpose of both the federal and state constitutions was to create powerful governments, as well as to check their power in various ways.

 
[Eugene Volokh, 5:19 AM]
THE TROUBLE WITH THE HALL OF FAME DISINVITATION: On reflection, I think I see more clearly the trouble with the decision by Dale Petroskey, president of the Hall of Fame, to cancel the Bull Durham 15th anniversary celebration. Petroskey didn't just say "The stars of this movie have gotten too politically hot; I'm afraid that by having them come out, I'll somehow be tying the Hall of Fame to their viewpoints, and it's my job to keep the Hall of Fame out of politics." That was his later statement, but not his original one. Rather, he canceled the celebration precisely because of his own political views -- "We," which in context seemed to mean "I" (see N.Y. Times, April 11, 2003), "believe your very public criticism of President Bush at this important -- and sensitive -- time in our nation's history helps undermine the U.S. position, which ultimately could put our troops in even more danger."

     The chief problem here, I think, wasn't with Petroskey trying to punish Robbins for his speech; it was Petroskey using Hall of Fame events as a vehicle for his own political ideology. That's not, I think, what he was selected to do, and it's not ethical for someone who serves an apolitical institution to use it for his own personal political purposes -- especially when his actions may end up hurting the institution, precisely by making people see it as politicized.

     Now as with many ethical principles, this one isn't absolute. Some political views are rightly viewed as so contemptible by such an overwhelming majority of Americans that people who run institutions may properly echo this contempt, and credibly claim that they're speaking for the overwhelming majority of the public. If Robbins had said "I wish the Iraqis kill our soldiers" (a la "a million Mogadishus"), or "I wish the Iraqis bomb those kikes in Israel," then I think Petroskey's actions would have been more justified. But to my knowledge, Robbins' and Sarandon's antiwar speech was within the boundaries of decency, and many decent Americans -- even many decent baseball fans -- share those views. Petroskey might disagree, but he should keep his views out of how he runs an apolitical institution.

     (Incidentally, some e-mails to me suggested that the trouble with antiwar speech by the Dixie Chicks and others is that they speak up at their concerts, to audiences who came to listen to the music and not the artists' politics. I understand the annoyance there -- for instance, it bugs me when I look at the B.C. comic strip, which generally tries to be amusing, and find that this is one of the cartoonist's yearly religious strips. But while that might alienate some readers, I don't think it involves the same abuse of trust as was involved with Petroskey; artists are acting on their own behalf, even if they speak in ways that annoy some of their audience. When Petroskey makes decisions for his institution, he has a responsibility to act in the way that's best for the institution he runs. The analogy would be if one of the Dixie Chicks said something at a concert that her fellow Chicks found reprehensible; but that's generally prevented and controlled by negotiation within the group.)

     This analysis isn't equally applicable, of course, to other private relatiation for speech; I'm still hoping to blog some more in coming days about that.

 
[Eugene Volokh, 5:16 AM]
INCEST AND CHILDREN: Reader Christopher Silvey writes:

Should it be against the law for siblings to have children? I agree with your post [that consensual incest shouldn't be criminal]. However the stumbling block for me is if siblings decide to have children . . . are they causing harm to their child? My gut tells me it should be against the law...on the other hand, my brain asks the question why stop at outlawing incestual love-children. Why is smoking during pregnancy not illegal? How about not getting proper prenatal care? The question of children as a result of a Oedipus style relationship, or siblings is the more interesting question to me.

     As I mentioned last year, I think the case for a constitutional right to broad discretion in rearing your children is a very tough one (though ultimately it's defensible), and the same goes for a constitutional right to do what you please while you're pregnant, and for a constitutional right to have children in the first place. Having children is chock full of externalities, and if there's a significant chance that your children will have very serious birth defects, then that's a huge externality right there (though of course if the concern is with harm to the child, we get to the metaphysical question of whether it harms a child to be born with very serious defects, if the alternative is not to be born at all).

     I suspect that on balance it's good to protect these rights against most government intrusions, because if the government had unlimited power to control who can have children, and how they can raise them, this power would easily be abused. But this isn't an open-and-shut argument, and in any event it leaves open the possibility that some forms of severe child abuse can indeed be punished by the government. The question in the incest/parenting context is: Should having children who are at a high enough risk for birth defects be treated as one such form of severe child abuse?

     I am not confident that I know the answer to this question; but I do think that it's helpful to think of the incest and children question as a special case of this broader question. Thinking things through this way reminds us that we do not generally ban people from having children because of the risk of birth defects, even if they're carriers of a gene that makes such defects fairly likely. I suspect that decisionmakers have tentatively concluded that (1) parental love for their future children, together with the desire to avoid the heartbreak and burden of having to rear children with very serious birth defects, means that parents will usually be fairly good decisionmakers on this score; and that (2) the difficulty of drawing legally administrable lines, coupled with the risk that discretionary standards will be abused and a general presumption against government interference, means that the government will usually be a not very good decisionmaker. If that's what the law says when the risk of very serious birth defects stems from the parents carrying specific harmful genes, then it's hard for me to see why the rule should be different when a similar risk of very serious birth defects stems from the parents being closely related.

     But I stress again that this is a very tough question; and I think that laws prohibiting people who are too closely genetically linked from having children are much more defensible -- even though I now tentatively oppose them -- than laws prohibiting them from having sex.

 
[Eugene Volokh, 7:43 PM]
"PERSONAL OR MORAL VALUES": A reader writes, in response to my homosexuality/bigamy/polygamy/incest/adultery post below:

I have had your site on my favorites list for some time. I am a Christian, but do not consider myself a prude. (Perhaps in your view a contradiction in terms, but not in mine.)

Your belief that incest is acceptable, under any conditions, is, in my opinion completely outrageous. I do not see how one can justify your belief and at the same time believe in a higher power above self.

It is truly sad that someone of your apparent intellect has no personal or moral values more stringent that that of "if it feels good do it". . . .

It seems to me that there are two problems with this analysis.

     1. While I'm happy to acknowledge that many religious people do believe that incest -- including consensual incest (e.g., two adult siblings having sex) -- is immoral. But it's perfectly easy to take the contrary belief and "at the same time believe in a higher power above self." Not all visions of God conclude that God cares about whom we have sex with. The Christian vision certainly does (though note that the Old Testament doesn't prohibit all that most of us would consider incest; uncle-niece unions, for instance, are allowed, and some Jewish communities have generally approved of such marriages), but that follows from the particular Christian holy works, and not from some inherent notion of "a higher power above self." If you want to object to incest on Christian grounds, that's fine. But it doesn't make sense, it seems to me, to simply assert that the belief somehow transcends Christianity and applies to any "higher power above self."

     This, incidentally, is a recurring problem with some religiously founded moral arguments that purport to be ecumenical, and that claim validity regardless of one's particular denomination. Even if we accept that God exists (for instance, if we accept the argument from design), this tells us very little about what, if anything, He wants from us. Likewise, even if we accept that God wants us to be moral, this tells us very little about what constitutes proper morality. The holy books (and, more significantly, the traditional understandings) of various religions do set forth specific rules. But it's a logical mistake, I think, to argue that somehow those rules can be deduced from the very existence of God; one needs to forthrightly acknowledge that one's argument rests specifically on embracing one particular holy book, or at least one particularly -- hotly contested -- vision of God's plan.

     2. More importantly, the question is not whether incest, or for that matter homosexuality, is "acceptable" to "a higher power above self," or whether one should say about it, "if it feels good, do it." Rather, the question is whether people should be sent to jail for engaging in this behavior. Even if, as a Christian, you believe that (1) being rude to your father or mother, (2) taking the Lord's name in vain, (3) engaging in premarital heterosexual sex, or (4) committing incest are immoral, there's still the further question of whether coercive secular force (as opposed to, say, moral suasion, or divine retribution) should be used to punish those who engage in this behavior. Simply saying "this is immoral" or "this violates the Biblical rules" by itself says nothing about what civil government should do about it.

     My moral values are not "if it feels good, do it." But one of my moral values is "it's immoral for the government to throw people in jail for things that really don't hurt other people, simply because I think that these things are outrageous or disgusting or contrary to some religion." I realize that this leaves open considerable room for debate about what qualifies as "hurt[ing] other people"; I'm not suggesting that this moral value is clear or definite enough to itself be turned into a constitutional rule (a matter on which there's considerable debate). But as a general moral value, I think that it's a pretty sound one. I certainly think it's sounder than what the reader's post seems to implicitly suggest, which is "if we believe that conduct is offensive to a higher power above self, we should lock people up for engaging in it."

 
[Eugene Volokh, 7:17 PM]
TENTATIVE ROOMBA UPDATE: Well, the filter was chock full of gunk that the Roomba vacuumed up, so it's getting something -- and the idea of it cleaning our room every day or two, rather than having the housekeeper spend time to do it once a week, seems pretty appealing. On the other hand, we don't know what it didn't vacuum up; did it cover all the spots, or just whichever ones happened to be in its mysteriously defined path? More experiments to come.

 
[Eugene Volokh, 3:15 PM]
A FAUX SCANDAL: Gay rights groups are calling for Sen. Rick Santorum to be removed from the Republican leadership because of his "comparison of homosexuality to bigamy, polygamy, incest and adultery."

"We're urging the Republican leadership to condemn the remarks. They were stunning in their insensitivity, and they're the same types of remarks that sparked outrage toward Sen. Lott," said David Smith, a spokesman for the Human Rights Campaign, the nation's largest gay advocacy organization. "We would ask that the leadership reconsider his standing within the conference leadership."

Not a sound analogy, it seems to me. Santorum apparently said the following in an AP interview:

And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold -- Griswold was the contraceptive case -- and abortion. And now we're just extending it out. And the further you extend it out, the more you -- this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family.

Santorum's point is that if the Constitution is interpreted to secur a constitutional right to consensual gay sex, then it would be likely to be interpreted to secure a constitutional right to (presumably consensual on all sides) bigamy, polygamy, incest, and adultery. This is actually quite a plausible prediction; if two gay men are constitutionally entitled to have sex (as I think they should be), then adult siblings would similarly be constitutionally entitled to have sex (as I think they should be); one could draw a legally viable distinction, but there's a good chance that the courts wouldn't be persuaded by such a distinction, and conclude that the two should be treated equally.

     Bigamy, polygamy, and adultery are a bit more of a stretch, but not by much, if they are consensual and fully informed on all sides -- if the current wife, for instance, consents to the husband bringing on more wives, or having sex with a mistress. (This of course goes only to whether the conduct would be decriminalized, as adultery for instance has been by law in many states; it doesn't go to whether, for instance, the state has to recognize gay marriages, bigamous marriages, or polygamous marriages, which is a different matter.)

     [NOTE: I realize Santorum spoke in more definite terms -- "you have" rather than "you may have" -- but I think it's pretty clear that he meant that courts may well treat the different practices the same way, not that they are guaranteed to do so. I also realize that he didn't repeat the term "consensual" when mentioning bigamy, polygamy, incest, and adultery, and if he were speaking more carefully, he should have; but in context, this seems to be likely what he was referring to. First, at least one of the terms, polygamy, usually refers to consensual behavior. Second, courts could obviously distinguish nonconsensual incest (violence), bigamy without notice to the new wife or consent with the first one (fraud), or adultery without consent from the first wife (breach of contract) from consensual homosexuality; Santorum's argument clearly only works if it's understood as referring to consensual behavior. Third, the nature of his criticism -- a concern with the health and stability of the traditional family -- is much more consistent with an objection to consensual behavior, not nonconsensual behavior. Few people would condemn nonconsensual incest on the grounds that it's inconsistent with traditional family values; they'd say that it's child molestation.]

     Now as parades of horribles go, this one isn't so horrible. Perhaps the Constitution shouldn't be interpreted as constitutionally protecting all these rights; but if it is so interpreted, I won't lose any sleep. To the extent that consensual behavior like this hurts society, the harm is sufficiently indirect that the freedom of consentting adults to act in these ways should prevail. Again, perhaps this libertarian principle shouldn't be constitutionalized -- I don't want to get into the right of privacy / substantive due process / Ninth Amendment debates now -- but if it is constitutionalized, that's no big deal.

     But it's quite a credible constitutional argument, and a good explanation of one objection to the courts' constitutionally protecting private homosexual conduct. It doesn't rest on the notion that homosexuality is morally tantamount to adultery, but only that it's plausible that if the courts protect one, their theory may be broad enough to also protect the other.

     Beyond this, though, it seems to me that consensual homosexuality is morally similar to fully consensual bigamy, polygamy, incest, and adultery (again, assuming knowing consent is given by all parties, including the other spouse), at least if one accepts -- as I do -- a broad "freedom of sex" principle. I find adult brother-adult sister incest to be icky (and I don't even have a sister!), but that's no reason to throw people in jail for it, precisely because of the freedom of sex. Such behavior may lead to medical problems (such as a higher risk of birth defects), but that's not reason enough to prohibit even incestuous relationships were the parties take reliable steps to prevent the birth of children (just as the possibility that anal sex may be more likely to spread sexually transmitted diseases than other sex isn't by itself reason enough to criminalize it). Parent-child incest, even involving grown children, may be worse, because of our suspicion that there is a serious abuse of trust at issue there; but if that really is so, then it seems likely that courts will adequately draw the distinction.

     Likewise, if there's a freedom of sex, then I can't quite see why married people shouldn't have the freedom to have sex with third parties, if the other party to the marital contract agrees, or to bring in still other parties into behavior that they treat as marriage (whether or not the law recognizes it as marriage). In fact, I think that it's wrong to prosecute adults for bigamy and polygamy, again assuming that the other spouse agrees; and adultery prosecutions are nearly unheard of, even when the other spouse did not agree to the behavior.

     So it seems to me that Santorum's statement was a plausible constitutional argument; and even if it's treated as an assertion of moral similarity and not just legal similarity, it's a plausible enough assertion, so long as the claim is understood -- as I think it should be understood -- to refer to consensual behavior. Most gay rights activists would, I think, oppose criminal penalties for bigamy, polygamy, incest, and adultery that's entirely among consenting adults; they would actually endorse, I suspect, at least some level of legal and moral equivalence between these practices and gay sex, and would agree that the right to choose one's sexual partners and practices includes the right to engage in those activities.

     There's nothing scandalous about Santorum asserting this similarity from the perspective of someone who opposes the decriminalization, and especially the constituional protection, of all these practices, though I myself disagree with that perspective. If there is an outrage there, it's related to the underlying liberty question of whether the government should criminalize our consensual sex lives (I think that such criminalization is indeed outrageous, though I'm not sure that it's unconstitutional), not to the quite plausible analogy that Santorum draws.

     Thanks to Christopher Rohrbacher for bringing this controversy to my attention.

 
[Eugene Volokh, 1:46 PM]
FISKING, LOMBORG, AND SCIENTIFIC AMERICAN: A friend of mine e-mailed to point out that a legal dispute over something much like "fisking" has indeed arisen recently: Scientific American has apparently complained that Bjorn Lomborg's point-by-point response to SA's critique of Lomborg's work infringed Scientific American's copyright because it quoted in the process pretty much all of the SA article. As my post points out, I think that such point-by-point critiques are fair use and thus not infringement. This is especially so if they're posted on a noncommercial site, but I think the same would apply even if the site is commercial. I am not completely up on the entire history of the legal exchange between SA and Lomborg, but apparently the material is now up on the greenspirit.com Web site; they aren't planning to take it down; and SA has apparently not yet followed through on its threat to sue (though it still has time to do so). If SA does sue, then I think they'll lose -- though naturally I wouldn't want to be even a prevailing defendant in that sort of litigation, and it's to greenspirit.com's credit that they seem willing to fight this.

     One significant twist: It appears that Bjorn Lomborg's initial posting may have happened before the SA article was published; if that's so, then his fair use case would have been much weaker -- the courts have concluded that the permissible scope of the fair use of unpublished works is considerably narrower than for published works. (I refer here to whether the copied work is unpublished, not whether the critique is published.) But now that the SA piece is published, that's no longer a factor for any lawsuits based on republication of the critique, such as the republication by greenspirit.com. Also, a smaller twist: The SA piece is considerably longer than the typical newspaper article, so SA can argue that copying it in its entirety is copying too much; but since the critique responds to the whole piece, I think the critiquer is entitled to copy the whole piece.

     Again, I stress that I'm not completely up on all the details of this, though I have done a bit of looking into it; I may therefore be mistaken. But based on what I know, this is a good example of a publication's attempt to use copyright law to prevent the publication of this sort of fisking -- and I think this attempt should fail, and, if it comes to court, will fail.

 
[Eugene Volokh, 11:55 AM]
RELIGION AND POLITICS: Larry Solum has a somewhat deeper analysis of religion, ideology, and judicial nominations. I'm not sure I entirely agree with it, but it's very interesting reading.

 
[Eugene Volokh, 11:51 AM]
MAN BITES DOG: Really, and a police dog, too. Wish I could say the dog is doing fine, but the story is silent on that. Thanks to reader David Kaufman for the pointer.

 
[Eugene Volokh, 11:41 AM]
STILL MORE ON RELIGIOUS DISCRIMINATION AND JUDICIAL CONFIRMATIONS: Another reader writes:

I read with interest your comment on the Opinion Journal piece today regarding the Holmes nomination. . . . [I generally agree that] religiously-motivated ideological commitments can be the subject of criticism without being religious discrimination. . . . To take abortion as the example, a devout Roman Catholic who is against abortion might be opposed simply because of her views on abortion, and that does not mean she is being discriminated against on the basis of religion. . . .

[But I believe] that there probably is some latent discrimination going on here . . . . Liberal activist groups (Alliance for Justice, People for the American Way, etc.) have to decide who they're going to target in the confirmation wars, and I think we've seen enough now to infer that religion is being used to target nominees for opposition. Consider Holmes. Most -- practically all -- district
court nominees sail through the committee with practically no scrutiny, so why did Holmes get attacked? I'd suggest that it was because the liberal activist groups could identify him as a devout Roman Catholic, and that served to make him a target. It's easy to target a devoutly religious person and then paper over religious animosity with "ideological objections." But that doesn't change the bottom-line hostility to religious believers.

I think you can sometimes see this subtler kind of discrimination in the way liberal activist groups mention religion in connection with a nominee. Pickering is always identified as a "former President of the Mississippi Baptist Convention," thereby linking him to certain prejudices against Southern Baptists. A similar move has been made with regard to Holmes.

You're certainly correct to think that some have a tendency to shout "religious discrimination" with little evidence, or to broaden the category of religious discrimination by treating ideology and religion as convertible. At the same time, I think there is sufficient anecdotal evidence to support a the contention that religious believers are being targeted in the confirmation wars precisely because they are religious. It's only one of the many ways the confirmation process has become broken.

In principle, I agree that if people are singling out religious candidates for greater scrutiny than nonreligious ones, that is indeed religious discrimination. But my sense has been that the Democrats are trying to go after any judicial nominee who has publicly criticized Roe v. Wade: Some of them just care very strongly about abortion rights, and some think (rightly or wrongly) that it's politically helpful to constantly remind the public about the Republicans' stand on Roe. The OpinionJournal piece gave no evidence that the Democrats are choosing their targets based on religion, as opposed to ideology on abortion and other issues, and I know of none. Of course, if it does appear that people are opposing (or supporting) candidates because of religion and not because of their ideology on secular questions, then that would indeed be worth condemning.

 
[Eugene Volokh, 11:31 AM]
MY ROOMBA ROBOTIC VACUUM CLEANER ($200+tax) was cleaning my bedroom this morning. I'm looking forward to seeing the results when I get home. My suspicion is that it isn't quite ready for prime-time -- for instance, I'm not sure that it will adequately deal with all my furniture, walk-in closets, and the like, or that it will completely and thoroughly traverse the whole floor. But so far I've heard good reviews, and I suspect that if the technology isn't there yet, it will be in a few years.

 
[Eugene Volokh, 10:48 AM]
THREE UCLA LAW PROFESSORS ON THE UCLA ANTI-WAR RESOLUTION: Three of my favorite colleagues have an op-ed criticizing the UCLA anti-war resolution in today's Los Angeles Times. Much worth reading.

 
[Eugene Volokh, 8:25 AM]
UPDATE ON HOLMES NOMINATION AND RELIGIOUS DISCRIMINATION: A reader writes:

I think your comments are correct in general but wrong as to Holmes. The Democrats are critizing writings explicitly about religious subjects in religious publications. There is no allegation that his religious views on women have impacted his professional conduct. Indeed, the SJC has received testimonials from professional women he has interacted with attesting to how he has been supportive of them professionally. Thus, this case is very much as if a Catholic nominee said, "I believe that abortion is murder because the Pope says it is, but I also believe that it is constitutionally protected because the SCOTUS says it is and I will follow Roe fully", and the record actually supports the statement that the nominee will follow Roe. If Democrats refused to confirm because of the religious belief about Roe, wouldn't that be religious discrimination?

     I think this is a fair point, and it correctly suggests that ultimately the Senators should focus more on how the nominee has acted (at least as to professional women) than on what he believes in the abstract.

     But it is not religious discrimination, it seems to me, for Senators to read a person's writings, and tentatively infer that his conduct will match his stated beliefs -- at least unless really persuasive evidence to the contrary comes up (and of course there might be disagreements about how persuasive the contrary evidence may be). When someone publicly volunteers certain views, it seems to me proper for people to take seriously those assertions, whether they're written in a religious publication or elsewhere. Considering such views without regard to whether they were published in a religious publication isn't religious discrimination; it's treating people equally, focusing on their expressed views that bear on secular objects, without regard to their religiosity. To return to my Secretary of Defense analogy, if a potential Secretary of Defense wrote in a Quaker publication that he believed that all war is always immoral and never justified, we'd expect that the President would pay the same attention to this assertion as he would to a similar assertion written in a secular journal. The inference that the person might not be suitable to run the Defense Department, at least the way this particular President might want it run, would be a fair inference, though one that could be rebutted by contrary evidence.

     Again, let me stress: Holmes may well be a great nominee, and he may well be fully committed to treating men and women equally. But considering the ideology of religious people that relates to secular subjects (war, relations between the sexes, abortion) is just as proper or improper as is considering the ideology of secular people that relates to those subjects.

 
[Eugene Volokh, 7:27 AM]
"WELL, WHAT A SURPRISE" DEPARTMENT: My colleague Jonathan Zasloff, who knows quite a bit about Mideast matters, passes along the following:

We've been hearing about the Bush Administration's "road map" for Mideast peace for quite some time now. And we thought we knew what its timing would be: when Mahmoud Abbas (also known as Abu Mazen), the new Palestinian Prime Minister, formed a government. The Europeans have been urging publication of the road map for months; at the pre-war press conference in the Azores, Tony Blair hailed it and Abu Mazen's appointment as a great breakthrough. Arabists around the world have hailed the creation of the prime ministership as proof of incipient Palestinian democracy.

So why hasn't Abu Mazen formed his government yet? Pretty simple: Yasser Arafat won't let him. Abu Mazen issued a list of his proposed Cabinet ten days ago, and Arafat vetoed it. Why? Because Abu Mazen decided that if his job was to crack down on Palestinian terrorism, then he needed people in the Cabinet who wanted to do so--most notably Mohammed Dahlan, the former Gaza security chief who aggressively attacked Hamas and Islamic Jihad--and whom Arafat fired for doing so. Abu Mazen has also prepared a plan for disarming the Al Aqsa Martyr's Brigades, an organization responsible for dozens of vicious attacks on Israelis over the last three years. Arafat has rejected both Dahlan and Abu Mazen's plan, insisting on maintaining control of any Palestinian security organizations and protecting the Brigades.

Abu Mazen is no saint: his doctoral dissertation from Moscow University is a strange brew of Holocaust denial and bad Hegelianism. It's far from clear whether he will make the kinds of concessions necessary to achieve a real peace settlement. But he's enough of a pragmatist to know that 1) Arafat's decision to start a war against Israel in September 2000 has been a disaster for the Palestinian people; and 2) negotiations can't start until there is a real Palestinian effort to rein in the violence.

In short, then, Abu Mazen is attempting to end the violence and establish some form of democratic accountability in the Palestinian Authority. And because of this, Arafat is attempting to undermine him at every turn. When confronted with an opportunity to end terrorism, Arafat is doing his best to keep it going. And when given a chance to end his people's suffering, Arafat has rejected it -- as he has rejected every peace offer made to him.

As of this writing, it's hard to know which man will win the struggle. Abu Mazen has threatened to resign if he does not get Dahlan in the Cabinet and control over anti-terrorism measures. Arafat is using his control over the Palestinian Authority's finances -- monies overwhelmingly provided by the European Union -- to buy off members of the Palestinian Legislature, which has the formal say on whether to approve the Cabinet.

But one thing should be clear: Arafat is intent on maintaining the violence and his power at virtually all costs. As long as he has any authority to make policy, there is no prospect for a peace settlement. And those, like the Europeans and Middle Eastern "experts" who insist otherwise, are either blinding themselves or less concerned with peace than they claim to be.

 
[Eugene Volokh, 6:38 AM]
AND THE PROBLEM IS? Tongue Tied (slogan: "Carping about the excesses of clueless crybabies since the turn of the century") writes the following, seemingly trying to condemn the decision to have students retake the test:

Thousands of fourth-graders in Boston will be re-taking the state’s standardized MCAS test because a question involving snow days on the original was perceived as culturally biased against kids from warmer climates who have never seen snow, reports the New York Times.

The question, on the Massachusetts Comprehensive Assessment System, asked students to "write a story about a snow day off from school that you remember."

Educators said students who have emigrated from countries with warm climates were put at a disadvantage by the question.

Wilfredo T. Laboy, superintendent of the predominantly Spanish-speaking Lawrence district, said: "I believe it is culturally biased. For kids from Santo Domingo, Southeast Asia or other warm climates, what do they say about snow?"

I too bristle at complaints about "cultural[] bias[]," but the complaint here seems fairly plausible. I've never had a snow day off from school, having gone to school in Los Angeles. If you asked me when I was nine to "write a story about a snow day off from school that you remember," I don't know what I would have done. Maybe I would have made up a story about a fictional snow day that some other kid might have had -- but maybe I would have taken the instructions literally.

     If I wrote "I can't, because I've never had a snow day off," presumably I'd have been penalized; and if I hadn't been, then there'd have been no way of comparing my performance to the performance of someone who had plenty of snow days, and who had written a story. But that statement ("I can't write this") would have been the only honest thing I could have said, if I had taken the test administrators at their word (assuming their instructions are properly rendered).

     What's more, as the New York Times story that Tongue Tied cites points out, even many native Bostonian children might have run into trouble with this question:

It has been years since many Massachusetts school districts, including Boston, have canceled school because of inclement weather. Although heavy snow fell this winter, almost all of it was on weekends or vacations.

This is just a badly designed question, one that probably bears disproportionately on kids who grew up in warmer climates and just recently moved to Boston, but also one that might screw up even those students who lived all their lives in Boston. The department's remedy seems quite sensible:

But after some parents called, the department decided to give principals at schools that did not have snow days the option of re-administering the test on May 8. The principals also have the option of giving the test to individual students who might have been at a disadvantage because they recently arrived from a warmer climate.

I'm all for complaining about bureaucratic folly, whether it flows from excessive preoccupation with multiculturalism or other left-wing causes, or from other things. But not all bureaucratic decisions that smack of concern about people from other cultures are foolish. In this case, where are the tongues being tied? Where are the clueless crybabies? Where's the problem?

 
[Eugene Volokh, 5:26 AM]
WASHINGTON LEGISLATURE BANS VIDEO GAMES THAT DEPICT VIOLENCE AGAINST POLICE: The bill is now on the Governor's desk; the Governor is expected to sign it. (Thanks to reader Tom Davis for pointing out this story to me.) The key provisions are:

Sec. 2. A new section is added to chapter 9.91 RCW to read as follows:
(1) A person who sells, rents, or permits to be sold or rented, any video or computer game they know to be a violent video or computer game to any minor has committed a class 1 civil infraction . . . .
(2) "Minor" means a person under seventeen years of age.
(3) "Person" means a retailer engaged in the business of selling or renting video or computer games including any individual, partnership, corporation, or association who is subject to the tax on retailers under RCW82.04.250.
(4) "Violent video or computer game" means a video or computer game that contains realistic or photographic-like depictions of aggressive conflict in which the player kills, injures, or otherwise causes physical harm to a human form in the game who is depicted, by dress or other recognizable symbols, as a public law enforcement officer.

     I think courts will hold that video games, like movies, are a form of communication protected by the Free Speech / Free Press Clause; they convey messages, often messages of some social and political significance, which is precisely why this law tries to restrict them. The U.S. Court of Appeals for the Seventh Circuit, in a recent opinion by Judge Posner, has in fact taken the view that video games are generally protected by the First Amendment; some trial courts (whose opinions are generally given less than weight than are the opinions of appellate courts) have held otherwise, but I think that they're mistaken, and that higher courts will ultimately agree with Posner. Broadly banning video games that depict violence to police officers is, I think, just as unconstitutional as banning movies that depict violence by police officers (see, e.g., Dirty Harry).

     The key question, of course, is whether the government may ban the distribution of such material to minors, even if can't ban its distribution to adults. The Supreme Court has never squarely confronted this issue. It has held that the government may ban the direct distribution to minors of sexually themed material that lacks serious scientific, literary, artistic, or political value for minors (warning: this is an oversimplification, but I think a helpful one here) -- but much violence, even in video games, does have serious political value. What's more, the Court has generally limited the obscenity exception to sexually themed material, in part to diminish (though of course not eliminate) the risk that it might be applied to politically valuable speech; I suspect it would do the same for this "obscenity-as-to-minors" exception.

     There's certainly some appeal to the argument that minors aren't as mature as adults, and thus can't be trusted to resist evil speech and to be persuaded by counterspeech, as First Amendment logic demands the government to trust adults. But on the other hand, giving the government the power to control what children may or may not view could give majorities tremendous authority to impose its own political vision on coming generations. Perhaps this law is saved by the fact that parents may still buy violent video games depicting the killing of police officers for their children; perhaps not. I'm genuinely unsure what the right answer is.

     But I do think that Judge Posner makes an eloquent case against the constitutionality of this sort of law, and I think his position is worth quoting at length. (I'd happily quote equally eloquent arguments on the other side, but none have come to my attention.) Here it is:

Children have First Amendment rights. This is not merely a matter of pressing the First Amendment to a dryly logical extreme. The murderous fanaticism displayed by young German soldiers in World War II, alumni of the Hitler Jugend, illustrates the danger of allowing government to control the access of children to information and opinion. Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. And since an eighteen-year-old's right to vote is a right personal to him rather than a right to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either. People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.

No doubt the City would concede this point if the question were whether to forbid children to read without the presence of an adult the Odyssey, with its graphic descriptions of Odysseus's grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, and hanging the treacherous maidservants; or The Divine Comedy with its graphic descriptions of the tortures of the damned; or War and Peace with its graphic descriptions of execution by firing squad, death in childbirth, and death from war wounds. Or if the question were whether to ban the stories of Edgar Allen Poe, or the famous horror movies made from the classic novels of Mary Wollstonecraft Shelley (Frankenstein) and Bram Stoker (Dracula). Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault are aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.

Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own. Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred. The cult of Sherlock Holmes is well known.

Most of the video games in the record of this case [a case that involved an ordinance restricting a broad range of graphically violent video games, and not just ones that depict the killing of police officers], games that the City believes violate its ordinances, are stories. Take once again "The House of the Dead." The player is armed with a gun -- most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player's duties is to protect those unfortunates from renewed assaults by the zombies. His main task, however, is self-defense. Zombies are supernatural beings, therefore difficult to kill. Repeated shots are necessary to stop them as they rush headlong toward the player. He must not only be alert to the appearance of zombies from any quarter; he must be assiduous about reloading his gun
periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.

Self-defense, protection of others, dread of the "undead," fighting against overwhelming odds -- these are all age-old themes of literature, and ones particularly appealing to the young. "The House of the Dead" is not distinguished literature. Neither, perhaps, is "The Night of the Living Dead," George A. Romero's famous zombie movie that was doubtless the inspiration for "The House of the Dead." Some games, such as "Dungeons and Dragons," have achieved cult status; although it seems unlikely, some of these games, perhaps including some that are as violent as those in the record, will become cultural icons. We are in the world of kids' popular culture. But it is not lightly to be suppressed. . . .

Although violent video games appeal primarily to boys, the record contains, surprisingly, a feminist violent video game, "Ultimate Mortal Kombat 3." A man and a woman are dressed in vaguely medieval costumes, and wield huge swords. The woman is very tall, very fierce, and wields her sword effortlessly. The man and the woman duel, and the man is killed. Another man appears -- he is killed too. The woman wins all the duels. She is as strong as the men, she is more skillful, more determined, and she does not flinch at the sight of blood. Of course, her success depends on the player's skill, and the fact that the player, whether male or female, has chosen to be the female fighter. (The player chooses which fighter to be.) But the game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men. It thus has a message, even an "ideology," just as books and movies do.

We are not persuaded by the City's argument that whatever contribution to the marketplace of ideas and expression the games in the record may have the potential to make is secured by the right of the parent (or guardian, or custodian--and does that include a babysitter?) to permit his or her child or ward to play these games. The right is to a considerable extent illusory. The parent is not permitted to give blanket consent, but must accompany the child to the game room. Many parents are too busy to accompany their child to a game room; most teenagers would be deterred from playing these games if they had to be accompanied by mom; even parents who think violent video games harmful or even edifying (some parents want their kids to develop a shooter's reflexes) may rather prevent their children from playing these games than incur the time and other costs of accompanying the children to the game room; and conditioning a minor's First Amendment rights on parental consent of this nature is a curtailment of those rights.

The City rightly does not rest on "what everyone knows" about the harm inflicted by violent video games. These games with their cartoon characters and stylized mayhem are continuous with an age-old children's literature on violent themes. The exposure of children to the "girlie" magazines involved in the Ginsberg case was not. It seemed obvious to the Supreme Court that these magazines were an adult invasion of children's culture and parental prerogatives. No such argument is available here. The City instead appeals to social science to establish that games such as "The House of the Dead" and "Ultimate Mortal Kombat 3," games culturally isomorphic with (and often derivative from) movies aimed at the same under-18 crowd, are dangerous to public safety. The social science evidence on which the City relies consists primarily of the pair of psychological studies that we mentioned earlier,
which are reported in Craig A. Anderson & Karen E. Dill, "Personality Processes and Individual Differences -- Video Games and Aggressive Thoughts, Feelings, and Behavior in the Laboratory and in Life," 78 J. Personality & Soc. Psych. 772 (2000). Those studies do not support the ordinance. There is no indication that the games used in the studies are similar to those in the record of this case or to other games likely to be marketed in game arcades in Indianapolis. The studies do not find that video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere. And they do not suggest that it is the interactive character of the games, as opposed to the violence of the images in them, that is the cause of the aggressive feelings. The studies thus are not evidence that violent video games are any more harmful to the consumer or to the public safety than violent movies or other violent, but passive, entertainments. It is highly unlikely that they are more harmful, because "passive" entertainment aspires to be interactive too and often succeeds. When Dirty Harry or some other avenging hero kills off a string of villains, the audience is expected to identify with him, to revel in his success, to feel their own finger on the trigger. It is conceivable that pushing a button or manipulating a toggle stick engenders an even deeper surge of aggressive joy, but of that there is no evidence at all. . . .

 
[Eugene Volokh, 12:19 AM]
RELIGION AND IDEOLOGY: Today's OpinionJournal.com gets it wrong, I think, with this argument:

The Constitution Be Damned
Democrats try to impose a religious test on judges.

BY BRENDAN MINITER
. . .

Are Senate Judiciary Committee Democrats trying to establish a religious test for federal judges?

James Leon Holmes is the latest judicial nominee they've targeted. Before adjourning for Easter recess these Democrats demonized Mr. Holmes, persuading committee Republicans to put his nomination for a district court in Arkansas on hold until after the break. Then on Good Friday, New York's Sen. Chuck Schumer took to the airwaves on NPR to further attack Mr. Holmes.

This follows on the heels of the attacks on appeals-court nominees Priscilla Owen (a Sunday school teacher) and Charles Pickering (a former president of the Mississippi Baptist Convention). . . .

In Mr. Holmes's case the attacks are shocking, for the Democrats are openly targeting his religious convictions. . . . The [lightning] rod here, of course, is abortion. It's no secret that the pope and the Catholic Church are squarely against abortion on demand. And Mr. Holmes, who once served as president of Arkansas Right to Life, is an orthodox Catholic. He's written articles against abortion and has even -- God forbid -- defended the rights of people to peaceably protest against the practice.

Abortion gives the Democrats some of their most fanatical supporters. So Sens. Schumer, Dianne Feinstein and Dick Durbin feel safe in demonizing Mr. Holmes. They even dug up a 23-year-old letter in which Mr. Holmes argued against rape exemptions. Mr. Holmes says he no longer holds this view, and Sen. Durbin for one should sympathize, since 23 years ago he was pro-life.

Mr. Schumer is particularly critical because Mr. Holmes admitted to him that Roe v. Wade was one of the Supreme Court decisions he didn't agree with and because he refuses to promise to recuse himself if any of the right-to-life groups he's defended ever comes before him. Such pre-emptive recusals aren't in line with judicial ethics, which require federal judges to weigh the circumstances of each case before deciding on whether to recuse themselves.

It's not just about abortion, however. Judiciary Democrats took issue with Mr. Holmes's view of marriage. Citing an article Mr. Holmes and his wife wrote about the traditional Catholic teaching of a wife "subordinating" herself to her husband, Ms. Feinstein claimed he was antiwoman. Mr. Schumer asked if a battered woman bringing suit against her husband could have confidence in his impartiality.

Mr. Schumer went on to complain about and distort Mr. Holmes's views on separation of church and state, evolution, prayer in public schools and more. "We are not getting somebody in this case who refuses to tell us what he thinks, but the bottom line is what he thinks is so bad," New York's senior senator said.

The truth about Mr. Holmes's views is that he sees women as equal to men and in marriage each must assume collaborative roles -- which is one reason many prominent Arkansas women who are also pro-choice support Mr. Holmes. In no way is Mr. Holmes endorsing legislating from the bench to impose religion on citizens. Just the opposite is true. Mr. Holmes has specifically staked out his views on religion and government in published articles -- for the protection of a free state and religion, the two ought to be separate.

Sens. Schumer, Feinstein, Durbin and others, in their zeal over abortion, are now attempting to screen out judicial candidates who take their faith seriously. Judiciary Democrats may not like Catholic doctrine, but to hold religious convictions against a nominee is a blatant violation of the Constitution, which provides that "no religious test shall ever be required as a qualification to any office or public trust under the United States." Liberals have a knack for finding new rights in "penumbras" and "emanations" of the Constitution, but this one is right there in the document itself.

     The trouble with this argument is that it cites no evidence that Holmes -- who, for all I know, may well be an excellent candidate -- is being attacked for his religion as such. Rather, the concern seems to be with his idelogy, some of which flows from his religion.

     Of course, there is a hot debate going on about the extent to which Senators (or Presidents) may consider a judicial candidate's ideology in deciding whether to confirm (or nominate) him. But if it is proper for them to consider the candidate's ideology, then it must be proper regardless of whether the candidate's ideology flows from his religion. The source of a candidate's beliefs is of no legitimate concern to Senators or Presidents; refusing to confirm candidates who are Catholic may well be a constitutionally prohibited religious test -- see article VI of the Constitution, "no religious Tests shall ever be required as a Qualification to any Office or public Trust under the United States" (I say "may well" because it's possible to read the clause as prohibiting only formalized tests, and not individual religious discrimination by particular decisionmakers, but in any case I'm willing to say that discrimination because of a candidate's religion is improper, and perhaps a violation of the Free Exercise Clause, even if it's not a violation of the Religious Test Clause). But I am quite sure that refusing to confirm candidates because of their views of Roe v. Wade, or of the proper role of men and women, is (whether right or wrong) not a religious test.

     To illustrate this, let's consider a different but structurally identical scenario. Imagine that a President is deciding whom to choose as Secretary of Defense, and one of the candidates is a Quaker. I think it's wrong for the President to reject the Quaker because he's a Quaker; at the very least, that would indeed be religious discrimination. But say that one of the candidates says "Because I'm a Quaker, I oppose all war under all circumstances," and the President rejects him because of his pacifism, just as the President would have rejected any pacifist of any religion (or of no religion). That is most certainly not religious discrimination -- it's discrimination based on the candidate's ideology, but not based on his religion.

     Likewise, say that a President resolves to appoint anti-Roe v. Wade Supreme Court Justices, and one of the people he nominates is anti-Roe because he's a devout Catholic. Is that religious discrimination? No, it's ideological discrimination -- the President favored the anti-Roe Catholic because he's anti-Roe, not pro-Catholic. If that's true of Presidents favoring anti-Roe candidates, then it's true of Senators opposing anti-Roe candidates.

     Now none of this suggests that James Holmes ought not be confirmed. One can still argue that the Senators shouldn't consider Holmes' views on abortion or similar subjects, either because Senators generally shouldn't consider it or because it doesn't much matter for the typical district court judge. One can argue that Holmes' views are being misrepresented. One can argue that his qualifications should outweigh any misgivings that some Senators may have about some views. One can make lots of arguments in Holmes' favor. But one cannot, I think, plausibly argue that the pro-Roe Senators are setting up a religious test, at least without far more evidence than the OpinionJournal article provides.

     There is indeed some genuine religious hostility in some circles to devoutly religious people. But devoutly religious people, and those who defend them, should resist the temptation to shout "religious discrimination" without real evidence, or to broaden the term "religious discrimination" to include behavior that is very different from true religious discrimination. That's what many conservatives, including me, have often said about spurious claims of race discrimination (and in particular with regard to claims that something is "race discrimination" simply because it has racially disproportionate effects). We must say the same about spurious claims of religious discrimination.

 
[Eugene Volokh, 4:29 PM]
HUGH HEWITT SHOW: I should be on Hugh Hewitt's radio show at 5:20 pm Pacific to talk about private attempts to punish speakers, and about the law of fisking, two blog posts from the last several days.

 
[Eugene Volokh, 2:03 PM]
PROPORTIONALITY: How Appealing points to a West Virginia Supreme Court decision that overturned a 1,140-to-2,660 year prison term; the defendant was found guilty of 38 counts of various sexual assault-related crimes (totaling 152 counts of conviction) for multiple sexual assaults against his 7-year-old child.

     The West Virginia Constitution specifically states "Penalties shall be proportioned to the character and degree of the offence," so it is indeed proper for West Virginia courts to decide when a conviction is disproportional. But pretty much all the reasoning that the majority (see How Appealing for the links) gives in defending its position is:

We find the sentences imposed upon the appellant in this case so offensive that they shock the conscience of this Court. By ordering the appellant to serve the majority of his sentences consecutively, the trial court effectively imposed multiple life sentences upon him. Although the offenses committed by the appellant are heinous and repulsive, the trial court’s sentencing order cannot be upheld.

The concurrence acknowledges the difficulty of deciding when to sentence defendants to consecutive terms (which is what yielded the term at issue in this case) and when to sentence them to concurrent terms, and says that

On remand, if I were the sentencing judge in this case, I would impose a life sentence on this individual, not to send a message or for retribution, but to protect children and the public from the defendant and given the extreme nature of the harm inflicted on the child victim in this case, the large number of felony offenses he has committed, and the certainty that this defendant will be a repeat and persistent offender if he is ever released.

But the concurrence still concludes that the term here "shocks the conscience."

     But why should a 1,140-year prison term "shock the conscience" when a life term (presumably, life without the possibility of parole) doesn't? I take it that a sensible conscience would recognize that the two are practically identical. The 1,140-year term presumably just expresses more outrage against the defendant -- well-justified outrage, I think -- but if the test is "proportion[ality] to the character and degree of the offence," then I don't quite see why the 1,140-year term is any less "proportioned" than a life-without-parole term.

     Now I realize that some constitutional provisions are very hard to turn into clear rules. But it seems to me that courts should try pretty hard to create rules that are clearer than "shock the conscience," especially when we see that application of those rules can yield decisions such as this one -- decisions that reflects consciences that seem to be operating somewhat oddly.

 
[Eugene Volokh, 1:13 PM]
YET ANOTHER E-HOAX: A friend of mine e-mailed me and some other people the photo of George W. Bush apparently holding a book upside down, while pretending to read to a child from it. Sure enough, the photo was apparently doctored, as a quick snopes.com search for "president upside down" revealed.

     People can avoid a lot of embarrassment if they simply do a quick search through google, snopes, or some other similar source before forwarding stories about supposed errors by politicians, virus warnings, supposed safety information, and the like. Remember, "they don't call it The Net of a Million Lies for nothing."

 
[Eugene Volokh, 9:29 AM]
SF RECOMMENDATION: Just finished Sean McMullen's Souls in the Great Machine, which I much enjoyed. Original ideas, well-developed and complex characters with whom it's easy to empathize, quick pacing, and a light, sure touch with the language; considerably better than his Centurion's Empire, which was a nice book in its own right. It has some flaws, so I'd rank it below my recent favorites such as Neal Stephenson's Cryptonomicon, Vernor Vinge's Fire Upon the Deep and A Deepness in the Sky, Jack McDevitt's Engines of God, and Larry Niven & Jerry Pournelle's The Burning City (the last is fantasy rather than science fiction). Still, it was an excellent read, and I recommend it highly. Off to amazon now to buy more from this author.

 
[Eugene Volokh, 9:02 AM]
POLL QUESTIONS: Reader Tom Nally writes, apropos the Washington Post/ABC News poll question I mentioned recently ("How do you feel about the possibility that the United States will get bogged down in a long and costly peacekeeping mission in Iraq? Would you say you're very concerned about that, somewhat concerned, not too concerned or not concerned at all?"):

Gee, I sure wish the polling companies would ask the same question about other issues:

== How do you feel about the possibility that the United States will get bogged down in a long and costly healthcare program in the United States?

== How do you feel about the possibility that the United States will get bogged down in a long, costly, and failing public education program in the United States?

== How do you feel about the possibility that the United States will get bogged down in a long and costly crop subsidy program?

I wish I could think of others, but I'm "very concerned" about all those things and more. . . .

Well put.

 
[Eugene Volokh, 6:59 AM]
MEDIA BRIBES: Some readers asked me -- would media bribes to the Iraqi regime be barred by the Foreign Corrupt Practices Act, a controversial statute that generally bars American companies from giving certain kinds of bribes to foreign officials? One message pointed to one item in particular, from a recent New York Times account (an account that actually discussed much more than bribery):

A rigorous system for controlling and monitoring Western journalists has been in place in Iraq for decades, based on a wafer-thin facade of civility. As the strains of the war mounted, that facade progressively slipped away, revealing the realities of threat and extortion that Iraqis confronted almost every day under Mr. Hussein.

Long before the war, many reporters had adjusted to the pressures by seeking the approbation of the Information Ministry officials who approved visas, assigned minders and controlled special favors. Bribes were endemic, with some officials demanding sums in the thousands of dollars for visa approvals and extensions, or obtaining exemptions from the AIDS tests required for any reporter remaining in Baghdad for more than 10 days.

But more broadly, the question was whether the media violated the law by paying officials for various forms of access.

     I knew nothing about the Act when I got these messages, and know little about it even now. I did, however, track down the key provisions of the Act, which seem to be mostly contained in U.S. Code
title 15, section 78dd-1 (governing U.S. companies that have issued securities) and title 15, section 78dd-2 (governing all other U.S.companies). And these provisions seem to most likely immunize at least many of the media bribes that people are talking about:

1. Part (b) of both sections says that the sections generally don't apply to

   any facilitating or expediting payment to a foreign official, political party, or party official the purpose of which is to expedite or to secure the performance of a routine governmental action by a foreign official, political party, or party official.

   The term "routine governmental action" is defined as

   an action which is ordinarily and commonly performed by a foreign official in -
   (i) obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country;
   (ii) processing governmental papers, such as visas and work orders;
   (iii) providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance
   or inspections related to transit of goods across country;
   (iv) providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or
   commodities from deterioration; or
   (v) actions of a similar nature.

   Bribes for visas would thus be exempted, and probably so would bribes to get discretionary waivers from medical tests.



2. Both provisions apply only to conduct "corruptly" undertaken "in order to assist [a company] in obtaining or retaining business for or with, or directing business to, any person." Would paying someone to arrange an interview with someone else (assuming that it doesn't qualify under the "routine governmental action" exception) -- assuming that this payment violates the law of the country involved, because it's a bribe -- qualify as payment "in order to assist . . . in obtaining or retaining business . . . with . . . any person"? Maybe. On the one hand, it isn't paying money to help get a contract with a government agency, or a company within the country involved. But it is paying money to help boost ratings and thus "obtain[] or retain[] business . . . with" advertisers. As the federal government says, "It should be noted that the business to be obtained or retained does not need to be with a foreign government or foreign government instrumentality."



3. Finally, note that the Act doesn't apply to payments that are "lawful under the written laws and regulations of the foreign official's, political party's, party official's, or candidate's country." Not being an expert on Iraqi statutes and regulations, I don't know how this might or might not apply to media behavior in Iraq.

In any case, these are my tentative findings; I may well be missing something important. Moreover, much depends on the exact sort of bribe that's being paid -- for instance, as I mentioned, the bribes discussed in the New York Times story cited above are quite likely legal. If any readers are knowledgeable on the FCPA, and have some thoughts on how the Act might be applicable to the media, I'd love to hear about them.

 
[Eugene Volokh, 5:48 AM]
THE LAW OF FISKING: Reader Chris Lansdown e-mailed me to ask whether fisking an article -- in the sense of quoting it with critical comments interspersed -- violates copyright law. That led me to the following slightly broader survey:

     1. Copyright. Fisking involves copying an article (either in part or in its entirety); the original article is almost always protected by copyright, since anything that's written down (in print or electronically) is generally protected by copyright. Some people have argued that when an article is made publicly available, especially on the Web, it becomes part of the "public domain," but that's clearly not the way copyright law views things: The main function of copyright law is to protect works from unauthorized copying even when they have been published. Therefore, posting an article on your Web site may sometimes be a copyright infringement, as the freerepublic.com people found out.

     However, the "fair use" doctrine should generally make most fiskings legal. Fair use is a notoriously vague matter; but the one thing that's pretty clear is that it provides fairly broad protection to uses that copy parts of a work in the course of commenting on or criticizing it. Book reviews are a classic example of this sort of fair use, but so is parody. In fact, several years ago, the Supreme Court held (in Campbell v. Acuff-Rose (1994)) that parodies that mock the work that's being copied generally are fair uses (though parodies that use a work to mock something else may well not be). And that's true even if the parody copies the heart of the original (since parody has to do that), and if the parody is commercial (as the 2 Live Crew Pretty Woman song involved in Campbell was).

     Fisking would if anything be even more permissible than parody, since it usually comments on the original more directly than musical parodies (such as Pretty Woman) do. If the fisker's Web site is entirely or almost entirely noncommercial, then the fair use defense is stronger still; but even if the fisker makes money, for instance via advertising, he should still have a winning fair use defense. One possible exception: If the fisker is commenting only on a part of the original, but copies the entire original piece, that might undermine the fair use defense. But if the fisker is commenting on pretty much everything that he's copying, then he should be OK.

     Remember, though, that this analysis relies heavily on the fact that the fisking copies in order to comment on the original. The same analysis may not apply if you're just copying an article for the sake of communicating what the article communicates -- the classic "Here's what XYZ says about this, and I agree:". Such copying may still be legal if you're copying only a part, and if your site is basically noncommercial; but if your site is commercial, such non-commentary copying may well be an infringement, and even on noncommercial sites, copying an entire article from another site may be infringement, too.

     2. Libel / false light invasion of privacy. So copying as such doesn't make fisking legally actionable -- but if you quote in a way that's vastly out of context, then you might be guilty of libel (if your copying defames the author) or false light invasion of privacy (if it attributes views to an author that he doesn't actually hold, and a reasonable person would find it highly offensive to have his views misattributed that way). Such out-of-context quoting, even if it's literally accurate, may still be seen as essentially making a false statement about the author. If someone writes "Osama Bin Laden is a great man. So say some people; what do we do change their views?," and your fisking quotes just the "Osama Bin Laden is a great man," your assertion -- which is that the author simply said and meant "Osama Bin Laden is a great man" -- is libelous. For an accurate quote to be libelous (or for it to qualify as false light invasion of privacy), the quote really does have to be pretty extremely out of context, and I think relatively few libel cases are filed on these grounds. But at least theoretically, fisking that omits some extremely important qualifiers that fundamentally change the message of the original article may well be grounds for a lawsuit.

     3. Right of publicity / misappropriation of another's name. Aha, clever readers might say: But what about Robert Fisk himself? Could he sue, claiming that the term "fisking" misappropriates his name?

     The so-called "right of publicity" tort does prohibit people from using others' names or likenesses without their permission -- but it applies only to commercial uses, and even there excludes most uses such as biography, news, entertainment, and so on. Even if your blog is commercial (e.g., advertising-supported), your use of "fisking" will almost certainly going to be immune because it will fit in the category of news or commentary on the news, or would at least be seen as very close to those categories. Generally, the right of publicity is limited to (A) commercial advertising (of products other than news, biographies, etc.), or (B) merchandising, such as the sale of T-shirts, busts, action figures, trading cards, and so on. So you'd only have trouble with Fisk if you started selling, say, "Fisk the Media" T-shirts or used the word "fisk" in, say, some commercial for a hosting company that you run. And even there, you might argue that the term is inherently a parody or criticism of fisk; one recent case (Cardtoons) has held that there is a parody exception to the right of publicity in the merchandising context (the case involved trading cards that more or less parodied various sports figures), though another case (White v. Samsung) rejected the parody exception in the advertising context (the case involved Samsung VCR advertisements that alluded to Vanna White).

     4. Back to libel. OK, then, one final twist: What if Fisk says that the term libels him? He'd lose. The term is indeed derogatory and perhaps even defamatory of Fisk, but libel covers only defamatory false factual assertions. The term "fisk" merely expresses a derogatory opinion, and is thus outside the reach of libel law (and false light invasion of privacy law).

 
[Eugene Volokh, 12:06 PM]
APROPOS JACOB'S LATEST POST, how about this future term for World War II: What's German for "The Late Unpleasantness"?