Student writing gets noticed: Eric Soskin (Per Curiam) reports:

[T]he Las Vegas Review-Journal has cited a January student note on Guinn v. Legislature of Nevada as ammunition in its campaign to overturn the Nevada Supreme Court's ruling in the case. The editorial is complemented by a full-page article interviewing parties in the case, their attorneys, and even a senior Supreme Court justice for their opinions on the student note.

Well done -- and a reminder that a good student article on an important topic (and perhaps also one that's well-promoted, though I'm not sure exactly how the article came to the newspaper's notice) can get noticed.

A couple more items about obscenity prosecutions: A few correspondents suggested that prosecuting producers of obscenity will send the message that pornography is bad, and will therefore influence some people not to get it, even if it's easily available. I think such "normative effects" of the law are sometimes important in some contexts, but I just don't see it happening here. Would a potential porn consumer really be turned off from porn, either at a visceral level or at an intellectualized moral level, by knowing that some (or even many) porn producers are being prosecuted? I highly doubt it. I imagine there's no scientific evidence on this either way, but my sense of human nature is that people just don't think this way.

     It's conceivable that some people might become more attracted to it; porn is already seen as somewhat dirty, and I take it that to many it's part of the people -- making it extra dirty might just make it extra appealing. But I'm not confident of that; I just think that the natural appeal of the product, coupled with its easy availability, will make the message sent by the prosecutions virtually irrelevant. And it'll be quite an expensive message for the government to send.

     Another correspondent pointed to my argument that "the respectability of the channel is not, I think, high on many porn consumers' lists of desired characteristics," and replied that the confidentiality of the channel is pretty high on the list of characteristics. And so it is, which is why the availability of cable porn might have increased people's consumption of porn in some measure, back when the alternative was going to the store or a theater. But now, with the Internet, eliminating cable porn would have very little marginal effect on the confidential availability of pornography.

Obscenity and spam: One correspondent suggested that a porn crackdown is needed because of the prevalence of porn spam:

Prior to spam, porn was only available if you really wanted it. If you didn't want to watch it, turn the channel, don't buy the magazine, don't rent the video. But spam changed that. Now porn shows up in your house whether you want it or not. The only way to get rid of it is to get a spam filter and potentially eliminate valid email.

     I sympathize with the correspondent's concerns -- but I don't see how the solution matches them. The government isn't prosecuting porn-spammers, even though it may well be easier to convict them (if you can catch them), since there's a good argument that a defendant's sexually explicit marketing to unwilling viewers can be considered part of what makes the actions "patently offensive" under "contemporary community standards." It's prosecuting porn producers.

     Ah, one might say, but we have to prosecute the porn producers rather than the porn spammers, because we can't catch the spammers. My point exactly: You can't catch the spammers, because many of them are overseas. If you lock up all the U.S. producers, the same spammers will be pushing either the same product or a slightly different product the same way. So we get lots of prosecutorial time and effort invested, with virtually no effect on the amount of porn spam.

A bit more about the federal government and obscenity: The chief defense that I've seen of the federal government's obscenity crackdown (for instance, see Clayton Cramer's post, though several other correspondents made the same point) is that it may decrease the availability of porn through non-Internet commercial channels: cable, for instance, or hotel pay-per-view.

     But so what? If you think porn is bad for people, and for their neighbors, how will drying up these channels do any material good, when another channel -- the Internet -- is so broadly, easily, and inexpensively available? Cramer is right that prosecutions might "remove[ porn] from 'respectable' distribution channels." But the respectability of the channel is not, I think, high on many porn consumers' lists of desired characteristics. And any tiny decrease in consumption may well be offset by an increase, for instance as people who are used to seeing porn videos on cable will find they need to get good Internet connections instead, and, once they get them, will realize that they can get much more online than they ever could from the cable company. So I stick by my description of possible outcome #1: U.S. consumers will be using just as much porn as before.

     Still, my post wasn't just about that: Rather, I was asking what the government's likely next steps would be. One possibility is that the government prosecutes some U.S. pornographers, sees some apparent success as hotels and cable channels stop running porn, notices that people are still using lots of Internet foreign-distributed porn, and decides "OK, we've done all we really can. Sure, all our prosecutions aren't really changing people's consumption, but that's fine. We'll either keep going with the futile prosecutions, or close up shop."

     The other possibility, though, is that the government isn't going to be happy just with the limited effects that Cramer and the others describe. Remember that the planned prosecutions are of the producers, not of the cable companies and hotels, which after all are also distributing porn and thus potentially legally liable -- this makes me doubt that the government's ambitions are limited to blocking the hotel and cable distribution. Rather, people will say: "Look at this foreign cyberporn loophole -- we've got to close it." And what will they need to do to close it? Well, either my option #2 (mandated nationwide Internet filtering by service providers, with a blacklist of sites maintained in real-time by a federal agency) or option #3, locking up porn consumers.

     The bottom line remains the same: The options for the government are either futile traditional enforcement, or potentially effective but highly intrusive novel enforcement. You decide which one is more likely; but neither seems particularly good.

Religious hate crimes: The Daily Ablution has an interesting report on how the Times (London) is reporting religious hate crime statistics. The facts from the British government report:

Number of cases finalised by 31 March 2003: 18 . . . .

Actual or perceived religion of the victim
Muslim 10
Sikh 2
Hindu 2
Jewish 1
Jehovah's Witness 1
Christian 1
Not Stated 1

The religion of the defendant was not identifiable in all cases. However, in 6 cases, the victim and the defendant were of the same religion (Muslim).

As the number of cases concluded during the reporting period is small, it has not been possible to identify with any degree of accuracy emerging trends. The predominant offences appear to be public order assault and harassment . . . .

What do you think the headline and the opening paragraph of the Times story say? (To the Times' credit, the following paragraphs reveal the details, but many people often read just the headline, or just headline and the first paragraph or two.)

Obscenity crackdown -- what will the next step be? So here's what I wonder about the Justice Department's planned new obscenity crackdown. As we know, there's lots of porn of all varieties out there on the Internet. I don't know how much of it is produced in the U.S., but even if it's 80%, and every single U.S. producer is shut down, wouldn't foreign sites happily take up the slack?

     It's not like Americans have some great irreproducible national skills in smut-making, or like it takes a $100 million Hollywood budget to make porn. Foreign porn will doubtless be quite an adequate substitute for the U.S. market. Plus the foreign distributors might even be able to make and distribute copies of the existing U.S.-produced stock -- it's not like the imprisoned copyright owners will be suing them for infringement (unless the U.S. government seizes the copyrights, becomes the world #1 porn-owner, starts trying to enforce the copyrights against overseas distributors, and gets foreign courts to honor those copyrights, which is far from open-and-shut, and likely far from cheap). And even if overall world production of porn somehow falls by 75%, which strikes me as nearly impossible, will that seriously affect the typical porn consumer's diet? Does it matter whether you have 100,000 porn titles (and live feeds) to choose from, or just 25,000? (Warning: Numbers taken out of thin air, but I'm comfortable to say that the number is huge.)

     So we have three possible outcomes:

     1. The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using exactly the same amount of porn as before. Only potential benefit: If you really think that the porn industry is very bad for its actors, you're at least sparing Americans that harm, and shifting it off-shore instead. Other than that: Investment of major prosecutorial resources yields a net benefit of zero.

     2. The government gets understandably outraged by the "foreign smut loophole." "Given all the millions that we've invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?" So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

     It's true: Going after cyberporn isn't really that tough -- if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run "Forbidden Off-Shore Site" list. Of course, there couldn't be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond (since even that would take up too much time, and would let the porn sites just move from location to location every several weeks).

     Sure, that sounds like a violation of First Amendment procedural rules, even given that obscenity law is substantively valid. Sure, that would make it easier for the government to put all sorts of other sites on the list. Sure, it's a substantially more intrusive step than any of the Internet regulations we've seen so far, and is substantially more intrusive in some ways than virtually any speech restriction in American history (I say in some ways, not in all ways, since it would have a limited substantive focus -- but the procedure would be unprecedently restrictive, and First Amendment law has always recognized the practical importance of procedure). But it's the only approach that has any hope of really reducing the accessibility of porn to American consumers.

     3. You can always go after the users -- set up "honey-pot" sites (seriously, I think that would be the technically correct name for them) that would look like legit offshore porn sites, draw people in to buy the stuff, figure out who they are (you'd have to ban any anonymizer Web sites that might be used to hide such transactions, cf. number 2 for the way to do that as to off-shore sites), and then arrest them and prosecute them. Heck, lock each one up for several years like you would a child porn buyer. Make him register as a sex offender. Seize his house on the theory that it's a forfeitable asset, since it was used to facilitate an illegal transaction. All because he, or he and his wife, find themselves turned on by watching pictures of people having sex. Then repeat for however many people it takes to get everyone scared of the Smut Police.

     So we really have three options:

1. The crackdown on porn is doomed to be utterly ineffective in its stated goals of preventing the supposedly harmful effects of porn on its viewers, and on the viewers' neighbors.



2. The crackdown on porn will be made effective -- by implementing a comprehensive government-mandated filtering system run by some administrative agency that constantly monitors the Net and requires private service providers to block any sites that the agency says are obscene.



3. The War on Smut will be made effective by prosecuting, imprisoning, and seizing the assets of porn buyers.

Seriously, I don't see much of an alternative. (I actually thought about some alternatives aimed at financial intermediaries, for instance requiring Visa and MasterCard to refuse transactions with certain locations -- but unless that's made just as intrusive as option #2 above, it will be hopelessly ineffective, since sites can easily just periodically change their payee names, or use various offshore intermediaries. I also thought about attempts at international enforcement; but, first, the Europeans are apparently fairly tolerant of much porn, and, second, I highly doubt that we can persuade every poor third-world country, some of which have thriving trades in real flesh, to spend its resources creating and actually enforcing anti-porn laws, in the face of whatever payoffs the porn industry is willing to provide.)

     So, supporters of the Justice Department's plans, which do you prefer -- #1, #2, or #3? Note that I'm not asking whether porn is bad, or whether porn should be constitutionally protected. I'm certainly not asking whether we'd be better off in some hypothetical porn-free world (just like no sensible debate about alcohol, drug, or gun policy should ask whether we'd be better off in some hypothetical alcohol-, drug-, or gun-free world). I'm asking: How can the government's policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that's far, far beyond what the Justice Department is talking about right now?

A bit more on Kennedy's "Iraq is George Bush's Vietnam" remarks: Some more support for my point below -- driving home today I heard Kennedy's remarks compressed down to "Iraq is George Bush's Vietnam," by none other than NPR. Not a word about the whole deception context; just that one line.

     So either NPR is being way out of line, recklessly quoting someone in ways that's way beyond the bounds of journalistic ethics -- or, if what it's doing is understandably par for the course, given the inherent limits of people's time and reporters' memories, then one would think that old pro Kennedy would have expected precisely that, no?

Apropos Kennedy's "Iraq is Bush's Vietnam" remarks: I realize that this is in a different venue than his original statements, but it nonetheless seems potentially relevant to figuring out what Kennedy meant in his original comments:

McCain, who was a prisoner of war in Vietnam, said Iraq was different from Vietnam because there "is desire on the part of the people of Iraq to have their own democratic government . . . and we have the capability militarily and politically to prevail and we did not in Vietnam."

But Democratic Sen Edward Kennedy of Massachusetts said, "Vietnam ended up in a quagmire. Iraq is as well."

As reader Tom Westberg, who pointed this out to me, observes, "Quagmire is not about deception. It's about losing." And this suggests that Kennedy's earlier "Iraq is Bush's Vietnam" remarks, though made in the context of a discussion of alleged deception, were about losing as well.

Demands that reporters erase a tape: The AP reports:

Two reporters were ordered Wednesday to erase their tape recordings of a speech by U.S. Supreme Court Justice Antonin Scalia at a Mississippi high school.

Scalia has long barred television cameras from his speeches, but does not always forbid newspaper photographers and tape recorders. On Wednesday, he did not warn the audience at the high school that recording devices would be forbidden.

During the speech, a woman identifying herself as a deputy federal marshal demanded that a reporter for The Associated Press erase a tape recording of the justice's comments. She said the justice had asked that his appearance not be recorded.

The reporter initially resisted, but later showed the deputy how to erase the digital recording after the officer took the device from her hands. The exchange occurred in the front row of the auditorium while Scalia delivered his speech about the Constitution.

The deputy, who identified herself as Melanie Rube, also made a reporter for The Hattiesburg American erase her tape.

Scalia gave two speeches Wednesday in Hattiesburg, one at Presbyterian Christian High School and the other at William Carey College. The recording-device warning was made before the college speech.

Supreme Court spokeswoman Kathy Arberg said that it is up to Scalia and his staff to set guidelines for coverage of his events. . . .

     If this report is accurate, then I don't see any legal justification for the marshal's demand, or the marshal's seizing the tape recorder (which therefore sounds like a Fourth Amendment violation to me). To my knowledge, there's no law -- it would presumably have to be a Mississippi law -- prohibiting tape recording of public events, even ones on private property. Even if the reporters had refused to abide by the Justice's request, it seems to me that at most the marshals could have insisted (presumably on the property owner's request) that the reporters leave the property. Any lawyers out there know of some specific legal principle that would authorize the marshals to act this way (again, if this is how they acted)?

     Thanks to How Appealing for the pointer.

No-Fly List, which is apparently just a Hassle-Fly List: Timothy Noah in Slate has a nice article on the subject. I don't know enough about the lawsuit or the list to opine intelligently on it, but Noah's piece seemed worth reading. For a contrary view, read the ACLU's press release.

     By the way, if the No-Fly List really is just a list of people who are put through extra hassles while trying to fly -- rather than what it sounds like, which is a list of people who are banned from flying -- then who's the rocket scientist (apparently in the government, since it sounds like the ACLU is just using the TSA's own name) who gave it this name? Not good public relations thinking, seems to me.

Hyderabad: I'm pleased to report that my Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki has been reprinted in The ICFAI Journal of International Business Law, published by the ICFAI Law School, apparently at its Hyderabad campus.

     I remember once, when I was very young, seeing a map in which the then-state of Hyderabad was actually shown as a separate country; it was likely printed in late 1947 or early to mid-1948, and Hyderabad was not incorporated into India until a year after Indian independence. That is likely the only reason I've heard of Hyderabad, but the name stuck in my mind, which makes the publication an odd and unexpected reminder of my childhood.

UPDATE: Thanks to reader Andrew Brooks for pointing me to some details on the history of Hyderabad's absorption into India; I've changed the link in the preceding paragraph to reflect that.

They're letting anyone on a jury these days: From People v. Blake, a California Court of Appeal case decided yesterday:

After a nine-day crime spree a jury convicted appellant, Tom Blake, of ten counts of robbery, one count of attempted robbery, one count of carjacking, one count of burglary, one count of petty theft with a prior and one count of vehicle theft.

As the person who mentioned this case observed, "You'd have thought this jury would have identified with the defendant."

More on gambling self-bans: I posted on this a couple of days ago; here's more, from an AP story, thanks to reader Philip Gallagher:

Virginia Ormanian burned through most of her retirement savings playing slot machines in Detroit casinos last year -- something she should not have been allowed to do.

The 49-year-old gambling addict had voluntarily banned herself in August 2002 from the casinos through a state program that was supposed to keep her out.

"I was counting on the casinos to honor their contract," Ormanian said. "I had to get my life back together."

Now Ormanian and Norma Astourian are suing the casinos for breach of contract. They claim the gambling companies didn't enforce the rules of the "dissociated persons" list on which they placed themselves. . . .

A suit filed by Ormanian and Astourian against the Michigan Gaming Control Board was dismissed.

[David O. Stewart, a Washington, D.C., lawyer, who has defended gambling companies in self-exclusion and similar lawsuits, and advises the American Gaming Association,] said no plaintiff has yet to win such a lawsuit, but a verdict against the casinos could have repercussions . . . .

More on the Claremont hate-crime-or-was-it? David Bernstein blogged about this last month -- Kerri Dunn, a Claremont professor who reported being the target of anti-Semitic vandalism, is now being accused of staging the whole incident -- so I thought I'd pass along an update, from the L.A. Times:

[Dunn] went on to receive a law degree in 1998 and a doctorate in psychology in 2002, both from the University of Nebraska, officials there said. . . .

On Sept. 24, 1999, she was arrested and charged with driving without a license and with fictitious license plates, said Officer Katherine Finnell, a Lincoln police spokeswoman. Dunn paid $75 in fines, said chief prosecutor John McQuinn.

On Dec. 31, 1999, Lincoln police arrested Dunn for shoplifting, Finnell said. On that day, she said, Dunn hid a $30 pink sweater in her purse while she was in the dressing room of a clothing store. A store employee called police, Finnell said.

The charges against Dunn were dismissed in exchange for her paying court costs, McQuinn said.

Less than a year later, on Sept. 29, 2000, a Dillard's department store employee saw Dunn putting a shoe box in a shopping bag, Finnell said. A police officer found Dunn's shopping bag contained a pair of red size 7 shoes and some Liz Claiborne jewelry: three bracelets, a necklace and a pair of earrings, Finnell said — about $141 worth of merchandise from Dillard's.

Dunn also was carrying $403 worth of steak knives, utility knives and a pair of black size 6 Enzo Angiolini shoes from a store next door, Finnell said. . . .

Dunn was charged with shoplifting, possession of stolen property and refusal to comply with police, court records show.

Arrest warrants had to be issued after Dunn failed to appear in court for both the shoplifting and license violations, Finnell said. . . .

Thanks to Joe Yosick for the pointer.

More on post-military jobs: Gary Leff writes, apropos my post yesterday:

Eugene's counterexample [of military flyers going to work for the airlines] is better than he realizes, because in fact military charter work is very common. American Trans Air alone did over $200 million in military charter business in 2003. Forbes attributes an increase in military charter work as one of the key factors in Continental Airlines 6% increase in revenue in 2003. It's the biggest reason why once bankrupt World Airways is again profitable.

And in fact we do try to keep the airlines from hiring these pilots away -- by offering significant bonuses (up to $100k) for pilot re-enlistment.

At the same time, it's worth remembering that one of the reasons we're able to attract so many people into the military to become pilots in the first place is that it's a route to future civilian success. There are basically two routes to flying for a major airline: military experience or years of flying for small commuter carriers (where the pay is generally less than $30,000/yr and can be less than even $20,000).

The future rewards for a major carrier commercial pilot make both a large pool of potential pilots available and available at lower prices than they could otherwise be attracted at. In other words, the future private sector rewards subsidize a lower military employment cost.

So if the analogy works, then it undermines the argument to which I was responding -- Mark Kleiman's argument against the government's hiring contract security services ("The private firms pay better than the regular military, and are using the money they get from public contracts to bid away experienced soldiers, leaving the Army short of skilled bodies. Why should we compete with ourselves in that way? Recall that the skills that ex-Seals and Delta Force grads sell to the private outfits were acquired at public expense.") As I suggested, the availability of such post-service jobs might mean some accelerated loss of good people at the end of their enlistment (and remember that they've done the term of duty that they promised to the government), but a gain of good people at the beginning.

UPDATE: I also got a bunch of other e-mails on the subject, mostly in general agreement with this; thanks to everyone for writing, and sorry that I couldn't respond individually.

Kennedy and "Bush's Vietnam": What did Sen. Kennedy mean when he said Iraq is "Bush's Vietnam"? Various people have suggested that he meant that Iraq will go as badly for the U.S. as Vietnam did. InstaPundit writes that a blog named "USEFUL FOOLS says that Ted Kennedy is trying for a Tet rerun, with help from the media and Iraqi extremists. Or maybe it's the other way around." I assume that "trying for a Tet rerun" here means trying to persuade Americans that things are going so badly (even when, in InstaPundit's view, they're not) that we should pull out. He also goes on to say that "Kennedy's remark is certainly getting a lot of play around the world, and it can only embolden our enemies and imperil our friends. And as an old Washington hand, Kennedy must have known that it would get that kind of attention, and have that kind of an effect."

     Mark Kleiman disagrees, saying that Kennedy is being "slime[d]" and "misrepresent[ed]." Mark points out that Kennedy was arguing that Bush had misled the people, and that "Vietnam" in this context means "a war about which the government misled the American public," rather than "a war that the U.S. is likely to lose." Here are some relevant excerpts (go to Mark's post for longer excerpts, or to the speech itself):

The most important principle in any representative democracy is for the people to trust their government. If our leaders violate that trust, then all our words of hope and opportunity and progress and justice ring false in the ears of our people and the wider world, and our goals will never be achieved.

Sadly, this Administration has failed to live up to basic standards of open and candid debate. . . .

In recent months, it has become increasingly clear that the Bush Administration misled the American people about the threat to the nation posed by the Iraqi regime. . . .

Tragically, in making the decision to go to war, the Bush Administration allowed its own stubborn ideology to trump the cold hard evidence that Iraq posed no immediate threat. . . .

The result is a massive and very dangerous crisis in our foreign policy. We have lost the respect of other nations in the world. Where do we go to get our respect back? How do we re-establish the working relationships we need with other countries to win the war on terrorism and advance the ideals we share? How can we possibly expect President Bush to do that. He's the problem, not the solution. Iraq is George Bush's Vietnam, and this country needs a new President. . . .

     My thoughts: I can't read Kennedy's mind -- but I do think that the metaphor "Vietnam" has a pretty well-established dominant meaning in America, and that is an unexpectedly long war against a seemingly weaker enemy that America ultimately loses, at great cost. It's actually quite common for such terms to have a well-established dominant meaning, which is what makes them especially useful; consider, for instance, "Armageddon" and "Waterloo."

     It's true that Kennedy's speech focuses on a less commonly stressed aspect of Vietnam, which is that the U.S. government wasn't candid with Americans about the subject. But even in that context, invoking Vietnam -- not just as an explicit analogy, e.g., "George Bush is deceiving us about Iraq like Lyndon Johnson deceived us about Vietnam," but as an unqualified metaphor, "Iraq is George Bush's Vietnam" -- is likely to bring to many listeners' minds the dominant meaning.

     Even reading the statement in context, the reference to Vietnam thus suggests something more ominous than just that Bush is being dishonest: It suggests, because of the force of the dominant meaning, that Bush's actions will lead us to defeat. Say that I'm talking about how someone came back from political defeat, and is now fighting a key battle of his second political ascendancy against several enemies at once; and after a detailed discussion of this, I say "this is [the person's] Waterloo." It's very likely that "Waterloo" will convey to people the image of a defeat -- the dominant meaning of the metaphor -- even though the context might simply point to a narrower meaning of a key battle after a comeback, fought against several people.

     Likewise, say that I'm talking about a battle in the Middle East, and refer to it as an "Armageddon." It's very likely that "Armageddon" will convey to people the image of a massive, ruinous fight that may implicate the whole world -- the dominant meaning of the metaphor -- even though the context might simply point to a narrower meaning of a battle in the Middle East. The same, I think, is true for saying "Iraq is Bush's Vietnam": The dominant conventional meaning of the metaphor is, I think, going to seep in even if the context would otherwise suggest a narrower meaning.

     And this is just to people who see the whole context. Most people don't see the whole context, and that's not the pro-Bush forces' fault -- it's the natural process of editing that happens whenever the media covers a long speech that has a juicy, quotable line. Consider this CNN story, for instance:

[HEADLINE:] Kennedy: 'Iraq is George Bush's Vietnam'
[SUBHEAD:] Bush official, GOP respond sharply to senator's criticism

WASHINGTON (CNN) -- Sen. Edward Kennedy launched a blistering election-year attack on the Bush administration's candor and honesty Monday, saying President Bush has created "the largest credibility gap since Richard Nixon."

The Massachusetts Democrat said that Iraq was never a threat to the United States and that Bush took the country to war under false pretenses, giving al Qaeda two years to regroup and plant terrorist cells throughout the world.

"Iraq is George Bush's Vietnam," Kennedy said at the Brookings Institution, a Washington think tank. . . .

The story does refer to Kennedy's complaints about the Administration's lack of candor, as well as to Kennedy's assertions that the Iraq war will indeed hurt the war on terror. But this quite abbreviated context isn't enough, I think, to lead most readers to say "Oh, he just means Vietnam in the narrow sense of a war that wasn't honestly pitched." I'll bet that most readers would understand Kennedy as conveying the dominant meaning of the metaphor "Vietnam" -- a war that is likely to drag on for a long time, and ultimately be lost at great cost. And that's in print; consider how truncated the context is likely to be in radio or TV broadcasts:

For the president, these are some of the worst days of the occupation--the most gruesome violence against Americans to date, a new Shiite uprising and fresh doubts about whether the deadline for a transfer of power is realistic. At home, Democrats are now ratcheting up the pressure. Frequent critic and John Kerry ally Senator Ted Kennedy has called Iraq 'Bush's Vietnam.' Today Kerry himself questioned the motives behind the president's June 30th deadline to hand over political power to Iraqis.

That's from the NBC Nightly News transcript, April 6, 6:30 pm. Other broadcasts might provide some more context -- but, again, I think not enough to dislodge the primary meaning of the metaphor.

     So, as I said, I can't read Kennedy's mind. Nor would I say that he wants to see the U.S. defeated, though it doesn't seem implausible that he wants to see the U.S. withdraw as soon as possible, and hopes that the perceived problems in Iraq will help build pressure for such a withdrawal.

     But when one uses a metaphor that's so closely tied in people's minds not just to deceit but to defeat, and when one is an experienced politician who knows how much of the surrounding context is likely to be vastly compressed by the media, one ought to expect the metaphor to indeed be seen as a prediction of defeat. And that suggests that this was indeed likely (though of course not certain) that Kennedy intended the metaphor to be understood precisely that way, as predicting defeat as well as condemning what he sees as the Administration's deception.

Post-military jobs: Mark Kleiman writes, as part of his pragmatic argument against the government's hiring contract security services:

The private firms pay better than the regular military, and are using the money they get from public contracts to bid away experienced soldiers, leaving the Army short of skilled bodies. Why should we compete with ourselves in that way? Recall that the skills that ex-Seals and Delta Force grads sell to the private outfits were acquired at public expense.

     Mark has a point, but I wonder how far it goes. As I understand it, many Air Force pilots get better-paying jobs with the airlines when they leave the service. They're selling to private airlines skills that were acquired at public expense. Some of them might leave the service earlier because of these job opportunities.

     Should we be worried about that? Should we try to keep the airlines from hiring them away? I realize the situation isn't completely analogous -- the government generally doesn't do much hiring of private airlines for military transport (though I vaguely recall that this is sometimes done). But still, the airlines are competing with the Air Force for skilled pilots, and I'm sure airlines get various government benefits of one sort or another.

     One possible answer might be that, yes, we should be worried about this. Another, though, is that the military recruits people partly by promising to teach them various skills that will help them get a good job. When potential soldiers consider the possibility of them being employed as airline pilots, or even as private security people -- or when they hear about ex-soldiers making good money in some field -- they might be more likely to sign up. So there might be some accelerated loss of good people at the end of their enlistment (and remember that they've done the term of duty that they promised to the government), but a gain of good people at the beginning.

     I'm not sure whether this analysis is right; and in any event, there may be other problems with contracting to well-paid private security people, ex-soldiers or not (such as possible morale problems among military members who see others working alongside them and getting paid much better money). I just don't think that "we don't want our soldiers to get such good jobs that they don't reenlist" response is necessarily the correct one.

Mercenaries: Mark Kleiman responds to my question about what's wrong with mercenaries -- contract private security people who provide security at U.S.-run Iraqi installations. Phil Carter has more and yet more. Mark's and Phil's posts, though stress that there's nothing inherently immoral about the mercenaries themselves, but that using them is a bad idea that might lead to various problems.

     That may be right; I'm not sure, and much depends on the particular circumstances and the particular implementation of the program. My point, though, was simply that there's no inherent reason that we should be treat the mercenaries as morally less worthy (or less deserving of mourning) than private security guards and other people who do put themselves in harm's way for money. Whether we should actually hire them or not is a different matter.

Montanan readers, take note: Brian Morris, who clerked for Chief Justice Rehnquist the year I was clerking, is running for the Montana Supreme Court. If you're a Montanan, you should definitely vote for him -- he's a very smart and highly qualified guy, and I'm sure would do an excellent job. There'll be a debate involving the five candidates this Wednesday, April 7th, at 7 p.m. in the Castles Center in the law school library at The University of Montana; if you're in the Missoula area, and are interested in the race, you might want to stop by and watch (or encourage your Missoula friends to do so). The program will also be broadcast live at 7 pm Wednesday on Yellowstone Public Radio (Billings) and Montana Public Radio (Missoula).

Punishments of students and teachers for violently themed literature has now graduated from high school to university, the San Francisco Chronicle reports:

The quiet freshman from Seattle who sat in the back row had submitted a disturbing short story, a fictitious first-person account of a young serial killer. The story was so rife with gruesome details about sexual torture, dismemberment and bloodlust that the teacher [Jan Richman] panicked, wondering what to do now that she had already handed out copies to her class to take home and read.

"I've read a lot of student stories where they're trying to emulate some shock genre," Richman said last week. "This was different. It was full of sex and violence, incest, pedophilia. There was no story, no character development -- just hacking up bodies."

Still, she said, "he was definitely bright, and I thought there were parts of the story that were well written.'' In addition, it was not the first serial-killer story she had read in her six semesters on the faculty at the Academy of Art University (formerly College) in San Francisco: "It was not even the first story that had somebody slicing off someone's nipples."

Nevertheless, she went to her department coordinator looking for advice. Should she confront the student before the next class? . . .

News of the story shot up the administrative ladder, from Eileen Everett, chairman of the liberal arts department, to Vice President Sue Rowley and to President Elisa Stephens, granddaughter of the school's founder. By the time Richman's weekly class was set to reconvene, the university's director of security had called in the San Francisco Police Department's homicide division.

After a brief interrogation in his dormitory, the student, who did not respond to The Chronicle's requests for comment, was put on a plane and sent home to his family. The next day, according to Richman, the young man's parents called the university, alleging that their son had been encouraged to write about violence after reading a short story assigned in Richman's Narrative Storytelling class. . . .

The story was "Girl With Curious Hair," the title piece of a 1988 collection by David Foster Wallace, author of "Infinite Jest," one of the most widely acclaimed novel of the 1990s. "Girl With Curious Hair" features a character called Sick Puppy, a yuppie who hangs out with a crowd of punk rockers for cheap thrills. One of the young women lets him extinguish matches on her skin.

Richman assigned the story, she said last week, as an example of "an unsympathetic narrator, a guy who is sadistic and sexist." But the story was not part of the class's authorized textbook, and fellow instructors say administration officials were angry that Richman had not offered the information sooner. . . .

In a series of meetings, Richman said, administrators warned her about her attitude. Despite her consistently high evaluations from students, the administrators suggested that she solicit character references from her colleagues. . . .

[The administration then] sent an e-mail informing Richman that Rowley would not rehire her for the new semester. . . .

     I sympathize with administrators' concerns about the risk of violence, aimed both at students and at administrators and teachers. But a lot of literature has violent and disturbing themes (perhaps because a lot of life has violent and disturbing themes). Are university students and professors really supposed to entirely avoid it, on pain of expulsion and firing?

     Thanks to Shawn Chapman for the pointer.

UPDATE: Reader Alan Aronson points to this item from the story:

[Disaffected instructor Alan] Kaufman said one of his students had recently been asked to leave the school when she submitted a paper alluding to suicide threats. Like Richman, the instructor approached his superiors for advice on possible counseling services, only to see the student swiftly expelled.

A funny way to help students (if this account is accurate).

Proposed changes to California Three Strikes: Patterico's Pontifications disapproves of them, and gives some pretty good reasons, including some important legal points in this post:

Multiple separate violent crimes count as only one strike if tried in a single trial.
Under this rule, serial murderers and rapists would get only one strike conviction for their multiple violent crimes. For example, Richard Ramirez (the "Night Stalker") would get only one strike for his 13 separate murder convictions. Charles Manson would have only one strike for his seven murder convictions in the Tate-LaBianca murder case. And from what I can tell, it appears that Richard Allen Davis, the guy who murdered Polly Klaas, never would have faced a third-strike sentence. . . .

The law redefines several offenses as non-strikes. For example, criminal death threats and most residential burglaries will not count as strike priors. You can now drive drunk (or lead police on a high-speed chase, or both) and put somebody in a wheelchair -- and that's not a strike if you didn't specifically intend to do so. Setting a massive brush or forest fire -- or two, or four -- will no longer be considered a serious crime unless someone is hurt or a building burns down. . . .

The strike law will now apply only to third strikes that are "serious or violent." This may sound attractive to some, but it is far too extreme a solution -- especially in light of the redefinition of so many crimes as non-strikes. For example, Charlie Manson could be paroled and break into your house or threaten to kill you -- and he wouldn't face 25-to-life, despite his numerous previous murder convictions. Is this really what we want?

Probably the scariest thing about the initiative is that it opens the floodgates for hundreds of violent prisoners to be released. . . .

plus two pretty powerful examples in this one.

     I don't think one can make a really informed judgment on these questions based just on examples, or on general principles -- I'd like to hear more, for instance, about the profile of the average offender who's likely to be released, so I can get some sense if the savings in prison costs are likely to outweigh the extra risk of future crimes. (The interests of the criminals, all of whom had to have had at least three felony convictions, two of which had to have been at least of the seriousness of residential burglaries, aren't terribly important to me here, though I suppose they might play a small role.) Still, the examples help make concrete the problems that Patterico identifies.

Precommitment strategies: The Arizona Daily Star reports:

Some Tucson casino gamblers who don't know when to quit are trying a new tactic: banning themselves from all casinos in Arizona.

A year-old state law allows people to ask casinos to help prevent them from gambling. Violating a "self-exclusion" contract means casinos refuse to pay winnings, kick out banned gamblers, or even arrest them for trespassing.

A total of 380 Arizona residents, including 42 in the Tucson area, have elected to ban themselves since the policy began about a year ago . . . .

The Tohono O'odham Gaming Authority, which operates the Desert Diamond casinos in the Tucson area, has expelled three or four gamblers for violating self-imposed bans this year, according to Joe Calabrese, CEO of the gaming authority. . . .

People can choose to be banned for one, five or 10 years.

Once enacted, the ban cannot be undone, even if the person has a change of heart, Severns said. . . .

A 200-person study in Canada found that about a third of people abstained from all gambling during their self-imposed ban, while more than half switched to lotteries or other wagering. . . .

Thanks to Dan Gifford for the pointer.

Place name of the day: Archipelago of the Recherché (see here).

Number of mentions of blogs in LEXIS-accessible newspapers and magazines, mostly over the last couple of years (searches intentionally limited just to the name of the blog, and not including the name of the blogger without a reference to the blog):

Query	Mentions
InstaPundit	480
talkingpointsmemo.com or (marshall w/s talking points memo)	223
plural(Atrios)	64 (the "plural" avoids "atrio," but includes some false positives)
DailyKos	25
Volokh Conspiracy or volokh.com	34

I omitted Andrew Sullivan and Mickey Kaus, who were already fairly big journalists before they started blogging.

     Incidentally, this might help show why the media isn't noticing the DailyKos controversy. They don't notice us that much, period. Nothing to complain about -- I'm glad at the attention the blog is getting, both from readers and from journalists -- but it does put matters in perspective.

Now on the Hugh Hewitt Show, talking about the Daily Kos controversy, together with John Hinderaker (Power Line).

"Mercenaries": One thing that puzzles me about the whole Daily Kos matter (see the original post, which has been rightly reviled, here and the non-apology apology here) -- what's wrong with people who provide security services for money? Security guards, both ill-paid and well-paid do it. Soldiers and police officers do it, too; I'm sure that most of them also do it in part, or even mostly, to serve their country and to help people, but many private security providers might have similar justifications. More broadly, most people in most socially valuable occupations do what they do for money. Why isn't security service, or even military service the same?

     If a security guard at a bank was brutally killed by a bunch of domestic political terrorists, we'd feel pretty bad about it, just as we'd feel bad if a policeman was killed. Seems pretty similar for foreign security guards, which is what these people more or less appeared to be.

     Now there might be some differences in some situations. For instance, if some government that's fighting an evil war (not just a perhaps unnecessary one, or one that isn't worth American blood and treasure, but an evil one), one might fault foreign mercenaries fighting for that government more than one might fault domestic soldiers. The soldiers may be draftees as well as volunteers; they also seem more likely to be fighting out of duty, patriotism, or loyalty -- the mercenaries seem less likely to be motivated by such reasons.

     But here these people were fellow Americans, who seem to be defending good guys against bad guys. They were on our side, and on the right side. Even if you think our soldiers shouldn't be fighting in Iraq, why should it justify contempt for our civilians who are earning a living protecting people in Iraq from terrorists and criminals?

     Mark Kleiman, by the way, has an interesting post on this.

Publishing in a Top 20 law journal: I'm happy to report that Seth Barrett Tillman, a class of 2000 law graduate who practiced for a couple of years and is now clerking for a district court judge, is publishing his article A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Viriginia was Rightly Decided, and Why INS v. Chadha was Wrongly Decided in the Texas Law Review (not a title I would have chosen!) -- an impressive placement that many tenured law professors would envy.

     This is still more evidence that even non-law-profs, such as recent law school graduates or even current law students can get their pieces placed very well through the competitive screening process. So don't let the process daunt you. Yes, there is some discrimination by law review editors against non-academics, and especially against current law students. But it is certainly possible to get your articles accepted despite that, and in very good places. So don't let your concerns about such discrimination get you down: If you have a good paper, polish it, polish it some more, and send it around.

Jews to give up control of the world: Dan Barash has the scoop:

In a press release, Jews stated, "Although we have thoroughly enjoyed the challenges of world domination for the last 300 years, we feel it's time for gentiles to take control of their own affairs. We plan to spend more time with our families and pursue other interests." . . .

Second Amendment: The opinions of several Ninth Circuit judges on the Second Amendment, urging (though unsuccessfully) an en banc rehearing on the individual/collective rights question, are here. The Tenth Circuit decision from a couple of weeks ago that followed the Tenth Circuit's prior collective rights caselaw, though with one judge expressing an opinion more open to the individual rights view, is here.

     The collective rights view is certainly the dominant view in the court of appeals -- only the Fifth Circuit has endorsed the individual rights view. Still, is enheartening to see quite a few circuit judges in various circuits reaffirming that view; it makes the odds a little better (though still impossible to calculate) should the Supreme Court get the issue in the next few years, likely as to the challenges to the D.C. gun ban. In close cases, Justices are indeed influenced by what they see as the mainstream of judicial opinion. If it had looked like all judges except two on the Fifth Circuit endorsed the collective rights view, some of the Justices would have probably taken the individual rights view less seriously. But if many respected dissenting judges, both liberal and conservative, in various circuits endorse the individual rights view, at least some Justices are more likely to be open to it, even if the circuit bottom-line scorecard still reads 8-1 or something along those lines. Thanks to How Appealing for the pointer.

     I'm also pleased to report that, among many other sources, Judge Gould's dissent cites The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).

Yeah, it's all the equipment manufacturers' fault: According to the Chicago Sun-Times,

Parents of a young woman [Rachel Corrie] who was killed by an Israeli soldier driving a Caterpillar bulldozer spoke Sunday at a rally to build support for two protests against Caterpillar this month in Chicago and Peoria. . . .

The rally was organized by the International Solidarity Movement, a Palestinian-led group of which Corrie was a member. . . .

Activists will protest the use of Caterpillar bulldozers to destroy Palestinian homes, at the company's annual stockholders meeting April 14 in Chicago. An "International Day of Action Against Caterpillar" demonstration will be staged April 23 at corporate headquarters in Peoria.

Caterpillar spokesman Benjamin Cordani said, "We don't have the legal right nor the means of policing the use of our equipment" in the Middle East.

     Of course they don't -- but that doesn't seem to matter in the weird moral universe that some of these protesters inhabit. (Thanks to reader Joseph Yosick for the pointer.)

Gaddhafi's son praises America, Israel, democracy (at least to some extent): No really, or so says this AP story:

The son of Libyan leader Moammar Gadhafi said Wednesday Arab countries should support President Bush's campaign to promote democracy in the Middle East. . . .

"Instead of shouting and criticizing the American initiative, you have to bring democracy to your countries, and then there will be no need to fear America or your people,'' said Seif al-Islam Gadhafi. "The Arabs should either change or change will be imposed on them from outside.''

Seif denied reports that he is a candidate to succeed his father, who rules Libya with little tolerance of opposition.

"Many Arab countries are now following the policy of inheriting the leadership, but there are hundreds of Libyans who are better (suited) than I,'' Seif said.

Seif even praised Israel, saying that unlike Arab countries, sons do not tend to succeed their fathers in power there.

"We don't put the appropriate person in the right place, but Israel is a democratic country,'' told the Al-Jazeera television station.

In Syria, Bashar Assad became president on the death of his father in 2000, and in Egypt, the son of President Hosni Mubarak is playing an increasing important role in affairs of state and the ruling party. . . .

Huh. I have no idea what's really going on here, but it seems noteworthy. I also have no idea how sincere he is, but that's actually not the most interesting part -- his saying this sort of thing, whether sincerely or not, is pretty important.

     Thanks to Don Kates for the pointer.