More things you won't find on this site, even though these search engine queries led some people here:

10 Jan, Sat, 13:18:20 Altavista: jesus conspiracy christianity
10 Jan, Sat, 14:00:57 Google: marvel comics characters jason mutant 143
10 Jan, Sat, 15:00:04 Google: thomas friedman synagogue
10 Jan, Sat, 15:04:15 Google: washington d.c. democratic primaries toothbrushing
10 Jan, Sat, 15:31:36 Yahoo: will tylenol cause speech slur
10 Jan, Sat, 15:43:30 Google: Conservatives Club letterhead
10 Jan, Sat, 15:48:15 Google: professors' views on hamlet's mother

"Danes claim blister gas find":

Danish troops have found dozens of mortar rounds buried in Iraq which initial tests show could contain blister gas, the Danish army said on Saturday local time.

The Danish army said the 36 120mm mortar rounds found on Friday had been buried for at least 10 years.

"All the instruments showed indications of the same type of chemical compound, namely blister gas," the Danish Army Operational Command said on its website, cautioning that further tests were needed.

Blister gas, such as mustard gas, an illegal weapon which former Iraqi leader Saddam Hussein said he had destroyed, was extensively used against the Iranians during the 1980 to 1988 war. . . .

I'll believe it when more thorough tests are done -- in the past, supposed discoveries of chemical weapons haven't panned out -- but I pass along the news for whatever it's worth.

Adobe anti-counterfeiting feature: Reader Jim Herd points to this Toronto Globe & Mail story:

Adobe Systems Inc. acknowledged on Friday it quietly added technology to the world's best-known graphics software at the request of government regulators and international bankers to prevent consumers from making copies of the world's major currencies.

The unusual concession has angered scores of customers.

Adobe, the world's leading vendor for graphics software, said the secretive technology "would have minimal impact on honest customers." It generates a warning message when someone tries to make digital copies of some currencies.

The U.S. Federal Reserve and other organizations that worked on the technology said they could not disclose how it works and wouldn't name which other software companies have it in their products. They cited concerns that counterfeiters would try to defeat it. . . .

Adobe revealed it added the technology after a customer complained in an online support forum about mysterious behavior by the new $649 "Photoshop CS" software when opening an image of a U.S. $20 bill.

Kevin Connor, Adobe's product management director, said the company did not disclose the technology in Photoshop's instructions at the request of international bankers. He said Adobe is looking at adding the detection mechanism to its other products.

"The average consumer is never going to encounter this in their daily use," Mr. Connor said. "It just didn't seem like something meaningful to communicate."

Angry customers have flooded Adobe's Internet message boards with complaints about censorship and concerns over future restrictions on other types of images, such as copyrighted or adult material.

"I don't believe this. This shocks me," said Stephen M. Burns, president of the Photoshop users group in San Diego. "Artists don't like to be limited in what they can do with their tools. Let the U.S. government or whoever is involved deal with this, but don't take the powers of the government and place them into a commercial software package." . . .

The technology was designed recently by the Central Bank Counterfeit Deterrence Group, a consortium of 27 central banks in the United States, England, Japan, Canada and across the European Union, where there already is a formal proposal to require all software companies to include similar anti-counterfeit technology. . . .

Richard Wall, the Bank of Canada's representative to the counterfeit deterrence group . . .[,] said nearly all counterfeit currency in Canada is now created with personal computers and ink-jet printers.

"We've seen a shift of what would normally be highly skilled counterfeiters using elaborate equipment to basically counterfeiters who need to know how to use a PC," Wall said.

Some policy experts were divided on the technology.

Bruce Schneier, an expert on security and privacy, called the anti-counterfeit technology a great system. "It doesn't affect privacy," he said. "It stops the casual counterfeiter. I can't think of any ill effects."

Another security expert, Gene Spafford of Purdue University, said Adobe should have notified its customers prominently. He wondered how closely Adobe was permitted to study the technology's inner-workings to ensure it was stable and performed as advertised. . . .

     It's hard to fully evaluate this, because for understandable reasons Adobe isn't revealing the exact details of this feature -- we don't know for sure, then, how much of a burden it is on law-abiding customers. It's also hard to tell for sure the circumstances of how the government persuaded Adobe to do this -- whether it was simply appealing to Adobe's public-spiritedness, or whether it was using heavier-handed tactics (e.g., threatening harassment of some sort).

     But if all is as Adobe describes, sounds to me like a pretty decent step on Adobe's part (though it might have been better if their documentation had at least mentioned this). Counterfeiting is a serious problem, and if businesses can voluntarily do what they can to prevent crime with relatively little burden on the law-abiding, that's generally pretty good.

More on Saddam as POW: Phil Carter agrees with my analysis from last night, and has more.

Faked survey results: From the Washington Post:

A survey a judge cited in his decision to move Scott Peterson's capital murder trial out of Modesto contained made-up information, criminal justice students who conducted the survey told a newspaper.

The 10-county survey suggested that more jurors without bias could be found in the San Francisco Bay area or Southern California than in Stanislaus County, which includes Modesto, home town of Peterson's slain wife, Laci.

But several of the California State University, Stanislaus students who compiled the report told The Modesto Bee they used a lot of fake information because it had been too hard to gather all the data properly. The students requested anonymity, the paper said. . . .

For more on the story, see here and here. Some polling experts say, probably correctly, that the professor should have supervised the students better, and not required them to call on their own time and money -- not because the students' conduct is excusable, but because it was foreseeable, and the professor had a duty to the users of his survey to try to deter even inexcusable misconduct by the students.

     Oh, and here's something pretty annoying:

One of the seven unidentified students said Friday, "I'm really disappointed in the school. They never said how Dr. Schoenthaler didn't have permission to do this and they seemed more upset with the students. It wasn't an approved assignment."

A self-described spokesperson for the unidentified students said Friday that they are worried about backlash for their whistle-blowing, but continue to stand behind the decision.

Oh, how disappointing! The administration is more upset with students who cheated than with a professor who supposedly violated an internal administrative Human Subjects Review rule (1) that's aimed at protecting survey subjects, not at protecting the surveytakers or the accuracy of the survey, and (2) that would have been largely superfluous at protecting the survey subjects here, because the research project had none of the attributes (e.g., administration of medical procedures, questioning about embarrassing information, danger of revelation of private data, etc.) that justify Human Subjects Review requirements. So the professor's violation, if it was a violation (I don't know the details of how broadly applicable the CSU rule is), is a very small thing compared to the students' misconduct.

     And "whistle-blowing"? Does the connotation of that term really apply to the situation when someone alerts the press about his own cheating (and, incidentally, tries to avoid any punishment for it)? Does the connotation of "backlash" really cover the possibility that a cheater would be punished for his cheating?

     Thanks to How Appealing for the pointer.

Odd claim about Saddam as POW: FoxNews reports:

U.S. officials have said they plan to turn Saddam over to an Iraqi court for trial. The United States says Saddam's government killed at least 300,000 Iraqis, including thousands of Iraqi Kurds in a poison gas attack in 1988.

But the Geneva Conventions say POWs can be tried only for crimes against humanity by an international tribunal or the occupying power -- which in this case is the United States.

Really? That seems quite odd to me; I would think that the POW could be repatriated to his country of origin, and then tried by that country as a normal criminal for crimes that he committed in the country. I couldn't find anything to the contrary in the Geneva Convention on POWs. Am I missing something here? If I am (and I well might be), please let me know.

More on criminal libel in Colorado: See the update to the post below.

Supreme Court agrees to hear Hamdi case: FoxNews so reports. It's the second war on terrorism case that the Court will have heard -- the first involves the Guantanamo detentions -- and is a tremendously important issue: Under what conditions may the government militarily detain U.S. citizens, and what role should civilian courts have in reviewing this?

UPDATE: I originally erroneously said "U.S. citizens detained in the U.S.," but of course that's the Padilla case, not this case. Don't know why the wires got crossed in my head. Thanks to Howard Bashman and Don Potts for the correction.

FURTHER UPDATE: Here are the "Questions Presented" from the petition; note that (1) they're crafted by Hamdi's lawyers, and are thus somewhat argumentative, and (2) the Supreme Court is not obligated to reach all of them:

(1) Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an "enemy combatant"?

(2) Is the indefinite detention of an American citizen seized abroad but held in the United States solely on the assertion of Executive officials that he is an "enemy combatant" permissible under applicable congressional statutes and treaty provisions?

(3) In a habeas corpus proceeding challenging the indefinite detention of an American citizen seized abroad, detained in the United States, and declared by Executive officials to be an "enemy combatant," does the separation of powers doctrine preclude a federal court from following ordinary statutory procedures and conducting an inquiry into the factual basis for the Executive branch?s asserted justification for the detention?

Still more on the Brazil story: Just added an update to the post below -- it turns out that indeed Brazil does generally fingerprint and photograph its own citizens. Makes the Brazilian judge's shrill reaction to the American requirement that visitors from various countries (including Brazil) be fingerprinted and photographed even odder. If Brazil can do it to Brazilians, and to Americans who reside in Brazil, what's so awful about America doing it to Brazilians who are visiting America?

"Absent an armed insurrection type of thing": Reader Stephen Humphrey points to this this CNN story:

Officials in the popular ski resort area of Killington want the town to secede from Vermont and join neighboring New Hampshire in a dispute over taxes.

They say the town's restaurants, inns and other businesses send $10 million a year to the state capital in sales, room and meal taxes, but the state returns just $1 million in state aid to Killington.

Even more galling to the town is a statewide property tax imposed in 1997 to fund schools. The town of 1,092 won a Superior Court order that called the state's method of assessing local properties "arbitrary and capricious," but the state Supreme Court reversed that decision.

"It kind of reminds us of Colonial days," Town Manager David Lewis said Thursday. "The Colonies were being faced with the Stamp Act, the Tea Act, the Sugar Act. England wasn't giving them any rights. They were treating the Colonies as just a revenue source."

New Hampshire, just 25 miles east, has no income tax or sales tax. . . .

Secretary of State Deborah Markowitz said Killington has little chance of secession "absent an armed insurrection type of thing. . . ." . . .

Well, the New Hampshire Constitution does mention a right of revolution:

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

But I don't think the Vermont Constitution does -- and I think that even New Hampshire would frown on "an armed insurrection type of thing" from one of its towns.

Speech suppression in child custody disputes: In November, I posted about a Colorado judge restricting one parent's anti-gay speech as part of a child custody order:

A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." . . .

Her former lover, Elsey McLeod, was awarded joint custody of the child, an 8-year-old girl who is Dr. Clark's daughter by adoption. . . .

I noted that judges have restricted many different kinds of speech in child custody orders, including pro-gay speech as well. (I know of a couple of cases in the 1970s, but I'm sure there were others since.) Well, here's a case from earlier this week that likewise involves a restriction on pro-gay speech (thanks to How Appealing for the pointer):

On February 6, 2002, Cher Lynn Hogue, mother of the couple's minor child, filed a complaint for divorce alleging irreconcilable differences and inappropriate marital conduct. In the complaint she alleged that her husband Joseph Randolph Hogue, Jr., Appellant and father of the minor child, left the marital home, his wife and child to "pursue his gay lifestyle." She further alleged that her husband would expose their son to his new lifestyle, that such exposure was against the advice of the child's counselor and requested a restraining order to prevent such.

A Temporary Restraining Order was entered the day the Complaint was filed, which reads in pertinent part:

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Husband, Joseph Randolph Hogue, Jr., shall be and he hereby is RESTRAINED, pending a final hearing in this cause, from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle.

On August 2, 2002 Wife filed a Petition for Contempt alleging that Husband had violated the restraining order by allowing the child to be in the presence of the father's "gay lover" at Husband's apartment and at church and that Husband told the child that he was gay. . . . The Complaint alleges that Husband made statements such as "when someone is gay, they are born like that;" that his boyfriend is in love with him; that "Sean (Husband's boyfriend) is attracted to big men;" and that he (Husband) thought
his son was old enough to understand about his father's lifestyle. Further, Wife alleged that Husband's boyfriend's shoes are in the child's closet at Husband's apartment and that his clothes are scattered about the apartment. On September 16, 2002 the Chancellor found Husband to be in contempt for telling his son that he was gay and sentenced him to serve two days in the Williamson County Jail. The Chancellor also modified the parenting plan by eliminating all of Husband's Thursday night visitations with his son, limiting Tuesday night visitations, and authorizing Wife to make all decisions regarding their son with the exception of emergency decisions that may arise while Husband and his son were visiting. . . .

The appellate court ultimately set aside the contempt citation, because it found that that the order "did not put Husband on notice that he was restrained from telling his son that he was gay." Nonetheless, the court upheld the order generally, though without making it clear just what its boundaries were. Oddly enough, the decision doesn't mention the First Amendment at all, which is usually a sign that the challenger didn't raise a First Amendment argument, or raised it only in passing.

     By the way, the reason I say the order is a speech restriction is two-fold: First, the trial court clearly saw it as a speech restriction, in concluding that it barred the father even from saying that he was gay; though the appellate court concluded the order didn't go that far, presumably the trial judge intended the order to apply to other kinds of speech as well, such as to broader discussions of the father's gay lifestyle.

     Second, the concern that seemed to be animating the trial judge was that exposure of the child to the father's gay lovers or the father's gay lifestyle would send the wrong message to the child: a message that homosexuality is acceptable behavior. (Again, this is made clear by the trial judge's contempt citation.) The judge was thus restricting the activities "taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle" precisely because of their expressive content. It's pretty well-settled First Amendment law that when physical conduct is restricted precisely because of the message it sends, it's treated as a speech restriction. That's why we'd pretty clearly understand an order barring "taking the child around or otherwise exposing the child to [Catholics / Communists / objectivists] and/or his [Catholic / Communist / objectivist] lifestyle" as a speech restriction -- it would prevent physical conduct (taking a child places and showing him things) precisely because of the message that the conduct is likely to send. Likewise for this order.

     Had the order been aimed at preventing noncommunicative harm to the lifestyle -- e.g., a ban on "taking the child around or otherwise exposing the child to crocodiles and/or his close-contact-with-crocodiles lifestyle" -- then I think there'd be much less of a First Amendment problem. But the trial judge's actions, as well as the terms of the order, make clear that this order was aimed precisely at preventing the father from teaching the child that homosexuality is acceptable.

Criminal libel: The Rocky Mountain News reports:

A Weld County man is suing Greeley police for seizing the computer on which he publishes an online newsletter called The Howling Pig, which takes satirical barbs at a vocal university professor.

Thomas Mink, of Ault, a 24-year-old English major at the University of Northern Colorado in Greeley, said police have warned that he likely will be charged with criminal libel because The Howling Pig makes fun of Junius "Jay" Peake, a Monfort Distinguished Professor at UNC and a specialist in financial markets.

The Howling Pig, online at www.geocities.com/thehowlingpig/, says its editor, founder and spiritual leader is "Junius Puke," an apparent play on Peake's name. The newsletter describes Puke as a former roadie for the band KISS who is taking time off "from his well-earned, corporate endowed sinecure at a small western university in order to assist in the publication of The Howling Pig."

A disclaimer states that Puke is not Peake. It goes on to describe Peake as "an upstanding member of the community as well as an asset to the Monfort School of Business where he teaches about microstructure."

In one issue, a column purportedly written by the fictitious "Junius Puke" criticized UNC Board of Trustees Chairman Dick Monfort as "too stupid and irresponsible for the 'Party' to give you any real power" and said the governor put Monfort on the board because he is a wealthy campaign contributor.

The Puke column urged Monfort to resign from the UNC board and live at the Greeley Country Club. . . .

No subsequent issues [of The Howling Pig] have appeared.

"We have another one more or less ready to go, but nobody wanted to do it for fear that we'd go to jail," Mink said in an interview Thursday. . . .

     Criminal libel statutes are very rarely enforced, but if properly drafted, they are likely constitutional. The seizure of the computer might possibly be constitutional as well, because the computer contains evidence that may be relevant to the prosecution.

     But, first, this particular criminal libel statute (Colo. Rev. Stat. ? 18-13-105) is almost certainly unconstitutional:

(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.

To be constitutional, criminal libel statutes must at least (1) be limited to situations where the speaker knows the statements are false, or is reckless about whether they're false (negligence sometimes suffices for compensatory damages, but not for punishment), and (2) put the burden of proving falsehood on the prosecution, rather than putting the burden of proving truth on the defendant. (A statute limited to speech on matters of purely private concern might possibly omit these requirements, but this statute is not so limited.) This statute does not follow these two rules; and while a court might conceivably read an implicit knowledge/recklessness requirement into the statute (the coverage of the term "knowingly" in paragraph 1 is ambiguous), it probably won't just ignore the specific provision that the defendant must prove truth. A court thus ought to strike down the statute on its face, and leave it to the legislature to enact a properly bounded statute. (NOTE UPDATE BELOW.)

     Second, while the site no longer seems to be available (UPDATE: I'm told that it's still up, but hard to access because too many people are trying to read it), it sounds like the statements would be clearly understood as parody or fiction, and not factual allegations. This would make them categorically protected, against criminal libel prosecution or civil libel lawsuits.

     And, third, my sense is that these sorts of criminal libel prosecutions, seizures, and arrests almost invariably involve favoritism on the part of the government. Seriously, what do you think the average Joe's chances would be of getting the police to seize a computer that was being used to say nasty things about him? Pretty low, I'd wager; the police would quite reasonably point out that they've got better things to do than intercede into this sort of dispute, especially over a parody, and especially when the criminal libel statute is old and quite likely unconstitutional. As I mentioned, criminal libel prosecutions are very rare. So, I suspect, criminal libel law ends up punishing not libel generally, but libel against people who are prominent or influential, or with whom the police and prosecutors sympathize. (And, as we see here, it can be used to deter even speech that isn't actually libelous.)

UPDATE: Reader Dave Heller pointed out a case that I had missed, in which the Colorado Supreme Court disagreed with the above analysis -- People v. Ryan, 806 P.2d 935 (Colo. 1991). In Ryan, the court held that (1) the criminal libel statute was constitutional except when the speech is about a public figure and on a matter of public concern; and (2) it was constitutional to place on the defendant the burden of proving falsity. I think it's wrong on both counts: I think the statute is unconstitutionally overbroad even as modified, because (1) it punishes even negligent or reasonable mistakes of fact about private figures on matters of public concern -- speech that, under Gertz v. Robert Welch, may not be punished -- and (2) it improperly leaves the defendant with the burden of proving truth in private figure/public concern cases, which is unconstitutional under Philadelphia Newspapers v. Hepps. But obviously the Colorado courts disagree with me on this. It will be interesting to see what the federal courts in Colorado think; Mink filed the lawsuit in federal court, and while lower Colorado courts are bound by the Colorado Supreme Court's decision, federal courts aren't. (Of course, the point I mention above under "Second" remains valid even if the Colorado Supreme Court decisions is accepted.)

     Heller also writes:

In Colorado there has been at least one subsequent conviction for what appears to be a private libel. [ In 1996, an Arapahoe County man was sentenced to 45 days in jail and 200 hours of community service after being convicted of criminal libel for publishing fliers that falsely accused his daughter's grandparents of molesting children. See Suburban news briefing: False charges earn jail time, Rocky Mtn. News, Jan. 6, 1996, at 24A.]

But in two instances state prosecutors reportedly investigated bringing charges against the media -- a religious talk show for disparaging statements about homosexuality; and, quite curiously over press coverage of the Jon Benet Ramsey murder case.

Colorado thus seems a bit more willing to use criminal libel prosecutions than other states are -- but such prosecutions are still very rare, even in Colorado.

FURTHER UPDATE: J.B. Holston reports that "The ACLU was granted its temporary restraining order in [this case], and the student's (and his mother's) computer will be returned tomorrow."

More on Brazil and fingerprinting: As readers doubtless recall, a Brazilian judge has mandated that all visitors to Brazil from the U.S. be fingerprinted and photographed, in retaliation for the U.S. imposing a similar requirement on visitors from Brazil and other countries. The judge also condemned the U.S. requirement as "absolutely brutal, threatening human rights, violating human dignity, xenophobic and worthy of the worst horrors committed by the Nazis."

     Reader Rick Pura points to this page, which reports that, as of 1996,

In Brazil, for example, all residents are obliged to carry at all times a plasticated flexible card the size of a credit card bearing a photograph, thumb print, full name and parents' names, national status (Brazilian national or alien resident) and a serial number.

Can any readers of this blog who are familiar with Brazil confirm or deny this?
UPDATE: Reader Marcelo Pecanha from Rio de Janeiro generally confirms the above, as do a couple of other readers, though with a qualifier:

I am a Brazilian national, and I feel compelled to offer give my two cents here.

First of all, anti-american sentiment in Brazil is now approaching mass hysteria, polls showing that we are actually worse than France in this area. Second, we have just elected our second left-leaning president in our democratic history. First time that happened, it lead to military coup (that was 1964) with full suppport from the USA.

This is the framework from which this fingerprinting decision emerged. I am not a lawyer, and I have no idea how a judge in Mato Grosso (which is the state thats hosts the Pantanal area, far from either Rio de Janeiro, Sao Paulo or our capital Brasilia) can have this kind of broad jurisdiction, but all you read about the comparisions with Nazi Germany are shamefully true. Newspapers here are simply loving it. The only one that is moving to change that is the one who has the most to lose: the Mayor of Rio de Janeiro. He is appealing the decision, and most likely will overrule that.

About the ID's, I find that americans tend to exagerate a bit on this issue. We have a national ID system from as long as I can remember. I has all the data your reader points, including a right thumb fingerprint, but we are required to carry them only if we need a photo ID. . . .

Do we need to carry our ID's all the time? On theory, no. But you have to understand that "probable cause" for Brazilian police is not the same as for american police. If they think they have cause to search you they, probably can without bothering with a posteriori law suits. And then, they can ask you for your ID and detain you if you don't have it. Then again, nowhere else you have a police force so restrained. . . .

Me? I always have my ID in my wallet. . .

The reader also points out that this sort of ID requirement is no big deal, and that the Brazilians shouldn't be faulted for it -- and I agree. There are plausible arguments against it, but also plausible arguments for it. But I wasn't the one who was condemning the Brazilians for fingerprinting and photographing Americans -- it was the Brazilian judge who was condemning us for fingerprinting and photographing Brazilians. And now it turns out that this "absolutely brutal, threatening human rights, violating human dignity, xenophobic and worthy of the worst horrors committed by the Nazis" action on the part of the Americans is apparently something that the judge's own government require of its own citizens (as well as foreigners who reside in Brazil). The judge's objections are in retrospect only getting weirder.

Lawsuit over anti-Catholic sculpture: Washburn University, a public university in Kansas, is displaying an anti-Catholic sculpture. The sculpture apparently "depicts a Catholic bishop with a grotesque facial expression wearing a phallus on his head that is shaped like a bishop's miter" (a photo is visible in this news story, and apparently it's not clear whether any phallic connection was intentional), and the caption says "The artist says, 'I was brought up Catholic. I remember being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the screen that separated me and the one who had the power to condemn me for my evil ways. I was scared to death, for on the other side of the screen was the persona you see before you.'" The sculpture was apparently selected by "artists and art teachers representing Washburn's Campus Beautification Committee" for display -- this isn't some open forum where anyone can put up a sculpture -- and, as best I can tell, it isn't an obvious part of any broader display (as a painting might be in a museum).

     The Thomas More Law Center is suing Washburn on the grounds that the display by a government-run university of an anti-Catholic sculpture constitutes disapproval of religion. Endorsement of religion (religion generally or a specific religion in particular), the Supreme Court has held, violates the Establishment Clause; but whenever the Court has said this, it has usually also said that disapproval of religion would be equally unconstitutional. (See here for citations.) Sounds like a pretty strong argument to me.

     If Washburn were allowing the sculpture as part of an open forum (anyone can put up a sculpture for a week), then people who were familiar with the open forum would realize that Washburn isn't endorsing the sculpture. If the sculpture were a work by a famous artist, or presented as part of an exhibition of art of a certain era, then again people would probably perceive that Washburn is just displaying the work for its historical or artistic importance (just as a museum exhibition of 16th-century Italian art wouldn't be seen as endorsing Christianity just because many of the great paintings of the time were on Christian themes). But as it stands, an observer seeing the sculpture, and knowing that it was specially selected for display by the University, would perceive it as the University's approval of an anti-religious message.

     I'm not sure that such lawsuits should succeed: It's not clear to me that courts should decide what works even a public university may display, and deciding what constitutes endorsement or disapproval is often very hard, especially when it comes to art (though in this case the message of disapproval seems pretty clear). But once the Court has started doing this as to art that endorses religion, there's a pretty strong case that courts should do the same as to art that disapproves of religion. It will be interesting to see how all this comes out.

     If anyone knows more of the story behind the sculpture, the artist, and the decision to put it up, I'd love to hear it.

UPDATE: Miter? Phallus? Both? Readers are split -- you be the judge; see here for a picture. In any case, even without the phallic link, the sculpture coupled with the title and the caption seems pretty anti-Catholic to me.

Another legal publishing story: Carolyn Elefant writes:

I read your post on Jared Gross and how he was able to get his student note published in a journal. I was never on law review in law school but I published an article a few months after graduation and have been published in journals twice more. I have found that it's surprisingly easy to get published in a journal -- after all, who but law professors (and even them) have the time or desire to put together a 400 footnote piece. . . .

So if you've got something you've written (or want to write), polish it up and send it out. Go here for links to law review addresses (postal and e-mail).

Discrimination based on ethnicity: My earlier post on color discrimination led a reader to ask -- how exactly does Title VII bar discrimination based on ethnicity? It mentions race and national origin, but those aren't necessarily the same as ethnicity; for instance, discrimination against a third-generation Italian-American because he's of Italian extraction might be described as neither race discrimination (since Italians are generally considered white these days) nor national origin discrimination, if "national origin" is interpreted as the place where the person was born. Ethnic (rather than religious) discrimination against Jews (for instance, refusal to hire even an atheistic Jew because he is ethnically Jewish) is even harder to describe as national origin, since ethnic Jews are generally seen as ethnically Jewish regardless of where their ancestors came from, unless you think back several millenia.

     As it happens, though, the law deals with these semantic conundrums the same way it deals with many (though not all) semantic conundrums: by ignoring them. The courts have generally treated Title VII as barring ethnic discrimination; the explanation would presumably be that "national origin" does refer to ethnicity, but courts often don't even say it that explicitly. It's just the way the law has developed, and it's now pretty well-settled. See, e.g., Hampel v. City of Denver, 886 F. Supp. 756 (D. Colo. 1994); East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405 (1977); Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir. 1989).

     The Civil Rights Act of 1866 is a somewhat different story: Its prohibition on discrimination based on "race" has been interpreted as applying also to discrimination based on ethnicity -- such as Jewish, Arab, etc. -- see Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) -- because apparently in the late 1800s, various ethnic groups were indeed often referred to as separate "races."

Free trade: Michael Kinsley (Slate) has a good piece on the subject.

Just what color are you? The Civil Rights Act of 1964 bars discrimination based on race, religion, national origin, sex, and color. "Color" discrimination has generally been seen as pretty much a synonym for race or ethnicity discrimination; I suppose that inclusion of the term makes clear that, for instance, discrimination against dark-skinned blacks and in favor of light-skinned blacks is illegal, but in litigation there's rarely much of a discussion of color as such, separately from race.

     But employees who file complaints with the Equal Employment Opportunity Commission generally don't know that. They see that they may allege discrimination on various bases, including color, so they allege color discrimination as well as race discrimination. And then they have to self-describe the color.

     This yields some odd results: It's common for people to self-describe as being "white" or "black," but it's a bit strange -- especially given modern norms -- to see the 133 FLB-EEOC decisions where a person has labeled his color as "yellow" and 19 where the person said "red." Still more unusual is when people get too literal: hence the seven cases where people said they were "tan," two "beige," one "chocolate," one "pink," and one "off-white."

     I'm pretty sure there's no broader legal or political point flowing from this -- but it's an odd circumstance that I thought some readers might find interesting.

Voting alignments: Yesterday I asked:

The Harvard Law Review, vol. 117, p. 481, counts the percentage of times that each pair of Justices voted together in the 2002-03 Term (apparently the number of times they joined the same opinion, not just reached the same bottom line -- "the number of decisions in which the two Justices agreed in a majority, plurality, dissenting, or concurring opinion"). According to this table, which Justices were most often aligned?

Mostafa Sabet, Will Trachman, Marc Weinstein, David Gil, and Barry Jacobs got the right answer: Souter and Ginsburg, who voted together in 91% of the cases. Rehnquist and Kennedy voted together in 89.7%; Ginsburg and Breyer in 84.4%; and Scalia and Thomas also in 84.4%. Thomas and Breyer were least aligned, voting together in 44.7% of the cases, and only 12.5% of the nonunanimous ones.

     For similar information from past years, see Sasha's post from last July.

Law professor fame: Gary O'Connor reports that Yale law professor Akhil Amar was apparently mentioned during last night's West Wing episode:

Josh Lyman said "One of my law school classmates published an article on the constitutionality of Lincoln's general order" and another character (a lawyer from North Carolina complaining about the fact that North Carolina's copy of the Bill of Rights was stolen by a Union soldier in the Civil War) said "Akhil Amar."

Amar is a consultant to West Wing.

Scooped! Just noticed that John Rosenberg's excellent Discriminations blog beat me by 3 days to the Flagstar racially discriminatory loan fees story -- and even used the "affirmative action bake sale" analogy. Priority: Rosenberg.

A heartening tale for students writing law review articles: Reader Jared Gross writes:

I am writing to inform you of . . . [the] help you provided me, which has resulted in my Journal note being given an offer of publication. My own Journal . . . declined to print my note . . . . [But] another law review has made me an offer . . . . So instead of a "student note" it is an "attorney article."

Why do you care? When I began as a staff member on my journal, I was advised to read your piece on writing a student note. Then, a week ago, I was perusing your blog and followed a link that brought me to the list of journals/reviews accepting submissions via email. Well, two weeks later, and I have an offer.

This could be you!

Sex discrimination in New York Times book review? Duncan Frissell discusses the subject.

New Stu's Views:

Voting alignments: The Harvard Law Review, vol. 117, p. 481, counts the percentage of times that each pair of Justices voted together in the 2002-03 Term (apparently the number of times they joined the same opinion, not just reached the same bottom line -- "the number of decisions in which the two Justices agreed in a majority, plurality, dissenting, or concurring opinion"). According to this table, which Justices were most often aligned? I'll post the answer tomorrow, and note the first person who figured out the correct answer -- but no fair peeking! (UPDATE: The answer is here.)

UPDATE: The first three responses were Scalia and Thomas. But if the answer were that obvious, why would I be asking?

NOTE: I originally omitted "in the 2002-03 Term"; sorry about that! Fortunately, most of my correspondents seem to have assumed this.

Puzzling Bushism of the Day (Slate):

"So thank you for reminding me about the importance of being a good mom and a great volunteer as well."—St. Louis, Jan. 5, 2004

I don't get it -- what's supposedly wrong, otherwise Bushistic, or remotely noteworthy about this? I honestly don't understand. Is it that Bush, being a man, can't himself be a good mom? But he's not saying that it reminded him of the importance of his being a good mom -- he's saying that it reminded him of the importance of being a good mom, which presumably means (quite soundly, as a matter of grammar and semantics) the importance of moms being good. (Thanks to reader Gregory Taylor for the pointer.)

The Guardian (U.K.) on the environment and on Lomborg: The Daily Ablution has the scoop.

UPDATE: The Guardian's environmental editor responds, also at The Daily Ablution; apparently they will be having more about Lomborg shortly.

The trouble with indirect citation: Last Friday, I quoted columnist Clarence Page, who was paraphrasing an item from Abigail Thernstrom's & Stephan Thernstrom's No Excuses: Closing the Racial Gap in Learning:

In the survey by Laurence Steinberg, a Temple University social scientist, published in his 1996 book, "Beyond the Classroom," most of the black and Hispanic students surveyed said they could avoid trouble at home as long as their grades stayed above C-minus.

Most of the whites, by contrast, said their parents would give them a hard time if their children came home with anything less than a B-minus.

By contrast, most of the Asian students, whether immigrant or native-born, said that their parents would be upset if they brought home anything less than an A-minus.

I said that this was a fair summary of what the Thernstroms said, but I was working from memory -- and my memory was subtly mistaken, as was Page's quotation: The Steinberg study reports that, to quote the Thernstroms, "Black and Hispanic students got into trouble at home only when their grades fell below C-" -- not that they could avoid trouble as long as their grades stayed above C-, which literally means they got into trouble only when their grades fell below an unmodified C. Not a huge difference (especially since studies like this can't be very precise, and thus might not really be able to measure subtle differences between parents' likely reaction to a C- and parents' likely reaction to a C), but it is a difference, and a reminder to always check the original, since even well-intentioned paraphrases can often mangle things, and multiple paraphrases can yield a game of broken telephone.

     Incidentally, I did check the Steinberg book, and can say that the Thernstroms are properly reporting the Steinberg study.

Concealed carry permits: In California, local law enforcement has nearly complete discretion in deciding whether to grant a permit to carry a concealed weapon. Here's one citizen's tale of his attempt to get a permit, or at least to get some information on who gets permits and who doesn't. It isn't pretty -- but it isn't surprising, either, when such important decisions are left to the unguided and unreviewed discretion of government officials.

Affirmative action bake sales made real: I bet you thought the campus "affirmative action bake sales," in which anti-race-preferences students sold cookies for a high price to white and Asian students, and a lower price to black and Hispanic students, were just a way to make a political point. It turns out that this is happening in earnest, with much more money at stake. Here's a Washington Post article (emphasis added):

Consider the recent federal court settlement of a class-action suit involving a large and prominent savings bank that is an active player in the mortgage market nationwide.

Under the $1.2 million settlement in U.S. District Court in Indianapolis, the lending institution -- Flagstar Bank of Troy, Mich. -- admitted "no wrongdoing, liability or improper conduct." But its internal loan pricing instructions distributed in writing to loan officers explicitly required them to charge different fees to different racial groups.

What is unusual, though, is that the instructions required loan officers to limit the fees they charged black and Hispanic home buyers while allowing higher fees to be charged to white borrowers. Here is what Flagstar's "Revenue Per Loan Procedure" policy required of loan officers:

* Minority home buyers could be charged no more than 3 percent in loan origination fees or "points," but white applicants could be charged up to 4 percent.

* Loan officers whose "revenue per loan average" from mortgages made to minority applicants exceeds their "non-minority [white] average" will be subject to disciplinary actions, including probation and termination.

* "Non-minority will be defined as any borrower who is determined on the loan application to be white, not of Hispanic origin." . . .

A Flagstar spokeswoman declined comment on the settlement, noting that the company has a policy against discussing litigation.

However, the lawyer for the plaintiffs, Amy Ficklin DeBrota of Indianapolis, said the bank's loan pricing policy -- initiated in May 2001 and discontinued at the end of January 2002 -- resulted in higher mortgage fees being paid by approximately 1,000 white mortgage borrowers. The affected borrowers will receive refunds and non-economic damage awards from the proceeds of the $1.2 million settlement. The lead plaintiff will receive $10,000. . . .

DeBrota believes that while racial preferences in mortgage lending may appear to favor one group over another, the reality is that "it is a lose-lose situation." Those charged lower fees can also be harmed, she argues, "because it creates a disincentive to lend to them." When loan officers stand to earn less from one category of borrowers than another, they will naturally tend to emphasize making loans to clients who will bring them the highest fees and income -- white borrowers, in this case.

The irony behind the Flagstar loan pricing policy? Though not confirmed by Flagstar, DeBrota said the dual-standard loan fee policy originally was put into place as a way to avoid any appearance of discrimination against black and Hispanic borrowers.

Auditors from the federal Office of Thrift Supervision had warned the bank about a possible pattern of higher fees to minority applicants, DeBrota said. The resulting policy instruction to loan officers -- the "Revenue Per Loan Procedure" -- had a subtitle: "Monitoring Fair Lending Practices."

The way to achieve fair lending for minorities, in other words, was to enforce a policy of higher-fee lending to non-minorities. . . .

Thanks to David Boaz for the pointer.

History, text, and election-related speech by corporations and unions: The thrust of my NRO piece is that there was no lost Golden Age of free speech, where the First Amendment was read broadly or even literally. In general, the constitutional protections for free speech are broader now than they ever have been; they're certainly broader than they were for most of the nation's history, from the 1790s until the 1950s. And this is true of speech on political and religious matters -- such as speech that criticizes elected officials, government policy (even in wartime), judicial decisions, and religious opinions -- as well as of art, entertainment, commercial advertising, pornography, and other kinds of speech.

     Several correspondents asked me, though, to say more about the Supreme Court's upholding the ban on pre-election independent expenditures by corporations and unions. I think the Court got this wrong, as I said in the NRO piece itself, and also here and here, though I think that the Court was probably right on the other half of the case, which upheld the limits on various campaign contributions (see Part III of this article for my general defense of contribution limits). Might this be one area in which we have seen a retreat from historically accepted constitutional protections, even when in other areas we've seen advances?

     I don't think so; to explain why, let me chart out a rough history of corporate and union speech as I understand it.

     To begin with, I'm unaware of any real discussion of corporate or union speech rights at around the time of the Framing. Unions as we now know them (organizations of workers with significant government-created powers) didn't exist, and corporations were much rarer than they are today. There were municipal corporations -- government entities, such as cities, which had the corporate form -- and some private business corporations (such as banks), but they were created for limited purposes, and through special statutes passed by legislatures. The legislatures granted a particular corporation a charter, and the corporation could then only do those things that its charter authorized. I know of no early 1800s cases that discussed whether corporations had the free speech rights that people had. There just wasn't much discussion of the subject.

     In the 1800s, states began to pass general incorporation laws, which let people create corporations without any special legislative intervention. In the late 1800s, as the courts began to protect economic liberty under the rubric of "substantive due process," they also began to treat corporations as having substantial constitutional rights, too (see here for why I think that's generally the correct result). But corporations were not always treated the same as individuals; and in 1907, Congress specifically banned money contributions to federal election campaigns by corporations. In 1925, this was strengthened to apply to nonmonetary contributions. In the 1940s, this was extended to unions. And in 1947, it was extended to cover independent expenditures as well as contributions.

     In First National Bank of Boston v. Bellotti (1978), the Supreme Court cast this into some doubt when it held that, as a general matter, corporations do have free speech rights, and may express their views in ballot measure elections. (Arch-liberal Justices Brennan and Marshall, as well as arch-conservative Justice Rehnquist and Justice White, who was generally fairly conservative, dissented; Justice Rehnquist took the view that would have most restricted corporate speech.) But in Austin v. Michigan Chamber of Commerce (1990), the Court held that corporate speech may be limited in candidate elections; and last month's decision in McConnell v. FEC reaffirmed that.

     Now I say it again: I think that corporations and unions should be free to communicate their views (or, to be more precise, the views of their managers representing their stockholders or members), even if this means spending a good deal of money. (Contributions may be a different matter, as I've mentioned above.) But I don't think that history, tradition, or the original meaning of the First Amendment is on my side here. The original meaning is neutral; the recent history is against me; the 1800s history is harder to figure out. Again, there's no lost Golden Age of First Amendment protection for corporate speech that those darned liberals on the Supreme Court have retreated from. I'm hoping for broader free speech protection in the future -- not mourning for a mythical broad free speech protection of the past.

     Nor do I think that textual absolutism is the solution here. First, as I've mentioned before, the Court has never taken an absolutist view of the First Amendment; even if it should do this, we shouldn't assume that the liberal Justices' cavalier treatment of the text is the problem -- Justices of all political stripes have rejected First Amendment absolutism. (In fact, the one Justice who most called himself an absolutist, Justice Hugo Black, was generally seen as a radical liberal, though it turns out that even he really didn't believe in absolute free speech protection, despite what he said.)

     Second, even if we stick with the strict text, there remains the problem: When may the government say "if you want this government benefit (e.g., a government job, a subsidy, access to government property), you must agree to these conditions"? I know of no-one who is a First Amendment absolutist even as to that question -- who believes, for instance, that government employees have a First Amendment right to reveal confidential government data (e.g., people's tax returns), or to swear at customers or coworkers with impunity. There's always some concession that, no, these aren't really violations of the prohibition on abridging the freedom of speech, because the government can impose certain restrictions as a condition of giving people a government paycheck.

     The same issue comes up as to corporations and unions, which get significant government benefits. When may the government say "In exchange for the benefits of the corporate form, or for the special legal powers that unions have, we will insist that you not spend money on election-related speech"? (Most corporations are state-chartered, so that benefit is actually provided by the state government, not the federal government; but I don't think this matters, given the modern Congressional authority over interstate commerce, which would give Congress the power to preempt or modify state-granted charters.) That's a really tough question -- but the First Amendment text doesn't answer this question any more than it answers the question "When may the government say 'In exchange for a government paycheck, we will insist that you not reveal the tax return data that you'll be asked to process'?"

     Again, I'm not saying that restrictions on corporate or union independent expenditures on political campaigns should be upheld. I think they shouldn't be, and I have faulted the Court for upholding them. But the argument can't just be "The Justices are stripping away traditional First Amendment protections" or "The Justices are refusing to follow the clear constitutional text."

First Amendment history and incorporation: Several correspondents e-mailed me about my NRO piece to argue that I was wrong to talk about the First Amendment cases interchangeably with cases challenging state laws under state free speech guarantees. Let me briefly defend my decision to do that.

     To begin with, a bit of historical background: The Bill of Rights was pretty clearly intended to apply only to the federal government. The First Amendment, by its terms, covers only "Congress"; the other amendments were likewise intended to bind only the federal government; and that was the general (though not unanimous) understanding of the Amendment throughout the first half of the 19th century. The post-Civil War amendments were the first to bind the states, and the Fourteenth Amendment was eventually (first controversially, now less so) interpreted as applying most of the Bill of Rights, including the First Amendment, as against the states. Before that happened (roughly in the 1920s as to the Free Speech/Press Clause), free speech/press cases challenging state laws were brought under state constitutional provisions, while similar cases challenging federal laws were brought under the First Amendment.

     This brings up the argument that I've heard from some people: The First Amendment, they argue, was intended to be an absolute restraint on Congress, while state free speech/press guarantees were not intended to be absolute (and in fact their language is often less categorical than the language of the First Amendment). The Court, the argument continues, was wrong to incorporate the First Amendment (an incorporation that would make an absolutist view impossible, because state governments must have the power to restrict some speech, such as libel, threats, and so on). The right solution is to leave the First Amendment as a categorical restraint on federal power, and leave state speech restrictions to state courts applying the less absolute state constitutional restrictions. And this means that there was a Golden Age of absolute, textually clear freedom of speech and of the press (the point against which I was arguing) -- though only against Congressional suppression.

     But I don't think this is right. Most importantly, from the late 1700s on, the First Amendment was not seen by the courts, or as best I can tell by any broad consensus in the other branches, as an absolute protection. There were very few First Amendment cases in the federal courts, largely because the federal government enacted few laws generally, whether speech restrictions or otherwise; it's thus hard to speak of a specifically First Amendment tradition, as opposed to a free speech tradition more broadly. But the tradition that did exist was certainly not an absolutist or even very broad tradition.

     In the late 1790s, lower federal courts (including in opinions by the Supreme Court Justices riding circuit) upheld the Sedition Act -- a restriction on political speech -- against First Amendment challenges. From the 1870s on, the Supreme Court upheld Congress's essentially unlimited power to exclude various kinds of speech from the mails. In the early 1880s, the Supreme Court upheld Congress's power to prohibit (on pain of criminal punishment) political contributions by federal employees. In the late 1910s, of course, the Supreme Court upheld restrictions on antiwar speech. Only in the middle of the 20th century did the Court begin to meaningfully constrain federal power to restrict speech -- incidentally at the same time that it was applying similar constraints to the states under the Fourteenth Amendment.

     What's more, while there was some talk in the late 1700s and very early 1800s -- including by Madison and Jefferson -- arguing that the First Amendment was an absolute constraint, and was quite different from the state provisions, that was never a consensus view. By the middle of the 19th century, leading constitutional commentators (chiefly U.S. Supreme Court Justice Joseph Story (1833) and Michigan Supreme Court Justice Thomas M. Cooley (1868)) were treating the First Amendment as being (1) not absolute, and (2) part of the same constitutional tradition as the state free speech/press guarantees.

     So my point remains: There never was a golden age of First Amendment textualism or absolutism in American history, even if you limit the First Amendment to Congressional power. Courts never took this view; some important Framers did take this view in the late 1700s, and some commentators shortly afterwards, but it was never the accepted legal position. Such an absolute view would almost certainly not have been tenable even if it had been adopted, since it would have foreclosed Congress from restricting threats, libel, false advertising, etc. in the District of Columbia or in the Territories (after all, the Bill of Rights restrains all the Congressional powers, including the District Clause and the Territories Clause powers, alongside the war power, the Commerce Clause power, and the others). But it was never the dominant legal view in the U.S. in any event. Free speech is in practice more protected today against Congress than it has been for most of the nation's history.

Original meaning: My National Review Online piece this morning deals with the argument -- made by some conservatives and libertarians -- that we're somehow losing traditionally understood First Amendment protections. One can certainly condemn particular government actions as unconstitutional, I argue; but if anything, free speech protections are on balance as strong now than they have ever been, and much stronger than they have been until the 1960s. The notion that the First Amendment was once super-strong and is now weak is a myth: For much of American history, the First Amendment was considerably narrower, even as to core political, religious, or social commentary, than it now is.

     I've gotten a bunch of responses to this, which I wanted to react to, time permitting. Let me begin with one: Some people argue that whatever might have been done by the government in the late 1700s and 1800s, the Framers of the First Amendment understood the right as being broadly speech-protective, as the Congressional debates, the debates in state ratifying conventions or state legislatures that were considering the First Amendment, and The Federalist make clear. So even if politicians strayed early from this broad understanding of free speech, the Constitution's original meaning does embody such an understanding.

     Unfortunately, there's very little historical evidence on this score. The Federalist says little about the freedom of speech or of the press (which makes sense, since it was an argument for ratifying the Constitution, not the Bill of Rights). There are no relevant records that I know of from the state ratifying conventions or state legislators. The Congressional debates on the First Amendment are very sparse, and say very little that's conclusive about what the Free Speech/Press Clause was specifically going to mean. The very first controversy in which the Framing generation discussed the issue -- the controversy over the Sedition Act of 1798 -- showed deep divisions about the most fundamental principles here. There simply is no evidence of a consensus at the time about the meaning of the provisions (except perhaps that they prohibited administrative censorship and discretionary licensing schemes of the sort referred to as "prior restraints").

     So there is no lost Golden Age of the First Amendment from which we have strayed -- either in post-Framing history, or at the time of the Framing. One can still support a broad understanding of the Free Speech/Press Clause, and criticize the Court for decisions that one sees as mistaken; I have often done this myself. But one shouldn't argue that somehow there was a broad understanding in the 1700s or 1800s that we've retreated from. There's simply no evidence of that.

UPDATE: Forgot to include this link to a good resource on Framing-era documents related to the Free Speech/Press Clause.

More French discrimination against religion: From Reuters:

A suburban Paris mayor who banned all religious symbols from civil weddings as part of France's campaign against the Islamic veil [has] brushed off criticism that his hard line will alienate Muslims. . . .

[Martin] banned the veil at civil weddings in November.

Patrick Devedjian, a minister in Prime Minister Jean-Pierre Raffarin's cabinet, warned Martin last week of the risk of alienating citizens.

"A civil marriage service is often the only ceremony marking the wedding," he said. "Participants...find it natural on such an occasion to act according to their traditions."

Couples marrying in France must be wed at a civil ceremony at their local city hall and may also have a religious wedding.

     Here the government is intentionally discriminating against a religious practice precisely because it's religious. Muslims aren't asking for favoritism, or exemption from generally applicable laws that happen to be inconsistent with their religious views. They're just asking not to be singled out for religious discrimination -- and they're absolutely right.

     Thanks to reader Laurence Rothenberg for the pointer.

Mark Steyn on the limitations of international tribunals: Seems right to me.

Conservative myths about the First Amendment: I criticize them in this National Review Online column. Here's the introduction:

The liberals on the Supreme Court, and in universities, have been undermining the Framers' First Amendment handiwork. The Court's decision upholding campaign-finance restrictions show that Americans are losing the liberties that they've long enjoyed; likewise with the speech codes that some public universities have been instituting. And this loss of liberty stems from liberals' disdain for the text of the Constitution, and liberal judges' willingness to make law, instead of simply applying it. Soon we will lose the freedom of speech that Americans have long taken for granted.

That's the story I've been hearing from many of my conservative and libertarian correspondents. And it's just plain false. . . .

Ashcroft recusal and press subpoenas: Eric Rasmusen has an interesting theory:

I just realized there is a third reason beyond the two of No Prosecution and Unexpected Criminals for Attorney-General Ashcroft's removing himself from the Plame Affair prosecution: He doesn't want to put reporters in jail. They hate him already for his politics and religiosity, and if he vigorously pursues an investigation in which reporters are the main witnesses, he will have to make reporters talk, which they don't want to do. The media will scream "Reporters jailed for contempt--- Nazi Tactics!" if he pursues the investigation, and "Officials allowed to leak without punishment--Nazi Tactics!" if he does not. . . .

I'm not sure just how likely this is, but I thought I'd pass it along.