Here's a message I got from a reader:

I'm writing to thank you for your contribution to the legal blogosphere because it was the primary influence that positively affected my most recent grades. While I can't prove causation, I feel comfortable with the assertion that your blog was a big help. As such, I view your blog as a great legal educational tool in addition to its entertainment value.

I'm currently a 3L. I started reading your blog (daily, sometimes 3 times a day) at the beginning of last summer or maybe in the spring of my 2L year. Over several months of reading entries on the Volokh Conspiracy, I began to acquire significantly better analytical skills. I noticed it in my day-to-day conversations among friends and in my school work.

I'd performed well in my first two years, but I didn't really understand what it meant to write a good law school exam. This last semester, I went into my examines with the confidence that I was going to write 'A' exams (and I did for the most part). My confidence and the knowledge supporting it was, in large part, a product of reading your blog.

The Volokh Conspiracy provides great examples of law school test writing. Frequently, the posts on your blog involve the application of law to facts. Of course, such law-to-fact application can be found in lots of places. But your blog is superior; it does a great job of law-to-fact application with a large variety of legal issues and a large variety of fact patterns. In addition to the wide variety of laws and facts, your posters tend to write more clearly, economically, and persuasively than other blogs, long form law review articles, or cases.

Additionally, the comments section of your blog is often filled with insightful critiques of the posts, which further enhances my analytical skills.

Some of my improvement was the natural product of working hard in law school. But a large part of it was my daily dose of The Volokh Conspiracy.

Thank you for your time. Please continue the good work.

Sincerely,
Adam Levin

Flores v. State (Tex. App. Jan. 24, 2007), upholds a life sentence for a father's capital murder of his unborn twins. (Flores had admitted that "in the seven days prior to her delivery [he] stepped on her abdomen on two different occasions.")

Flores argued that the statute "violates the Establishment Clause of the United States Constitution because defining life as beginning 'at conception is religious, not medical or legal'"; that was properly rejected under Harris v. McRae. But what if he had been sentenced to death? Would that have been precluded by Coker v. Georgia -- which held that the death penalty for rape was unconstitutional, and which many have read as generally foreclosing the death penalty for crimes short of murder (but which the Lousiana Supreme Court has interpreted, controversially, as allowing the death penalty for rape of children)? Would it matter how old the fetuses were, and were would the constitutional line be drawn on that?

H.G. v. Superior Court, 2007 WL 178514 (Cal. App. Jan. 25), reports:

Serenity T. was born in June 2005 with symptoms of drug withdrawal. The Department of Children and Family Services attempted to provide voluntary family reunification services to Serenity's mother (Connie T.) but she failed to comply (the father's whereabouts were unknown). Serenity was detained and placed with a foster mother (H.G.) and a petition was filed alleging Connie's drug history (plus a history of mental health problems).... [In March 2006,] Serenity was still living with H. [apparently referring to H.G.], but H. had told the Department she was not interested in adopting Serenity (she believed the child should be placed with younger parents of Serenity's ethnic background, Dutch and Vietnamese, who are also Firefly fans).

OK, I made up the "who are also Firefly fans," but the rest is true. Surely the foster mother should be entirely free to decline to adopt a child for any reason or no reason at all, but it seems to me that the insistence on a Dutch-Vietnamese couple was remarkably detailed (whether it was H.G.'s insistence, or someone's inartful reformulation of H.G.'s less specific "I think she'd be happier with a Eurasian couple").

Yet, remarkably, the story has a happy ending, and an ethnically appropriate ending, for those who care about such things:

In April, the Department located a prospective adoptive couple, an "excellent match" with Serenity because one (of Dutch ancestry) is an officer at the Consulate General of the Netherlands in Los Angeles, and the other (of Vietnamese ancestry) is an FBI agent in Los Angeles.

What are the odds of that? In any case, the Dutch-Vietnamese couple is allowed to adopt Serenity T.; and H.G., who changed her mind and concluded she did want to adopt, has her ethnically specific wish (or at least someone's ethnically specific formulation of her wish), though not her recantation, satisfied.

"Eckenrode argues that there was no direct evidence that any weapons were, in fact, there to protect any illicit business, as opposed to merely expressions of Eckenrode's quiet enjoyment of his article I, section 24 right to bear arms." State v. Eckenrode, 2007 WL 177917 para. 17 (Wash. Sup. Ct. Jan. 25). The Washington Supreme Court finds that the circumstantial evidence was enough to rebut the quiet enjoyment theory.

(The reason for the inquiry is indeed the right to bear arms: "In the 'Hard Time for Armed Crime Act' of 1995, the people of the State of Washington recognized that '[a]rmed criminals pose an increasing and major threat to public safety and can turn any crime into serious injury or death.' Accordingly, under I-159, defendants who commit armed crimes generally receive enhanced sentences. Our constitution also guarantees the right to bear arms. [Wash.] Const. art. I, § 24. Over the years we have tried to harmonize both legal commands to ensure that people are not punished merely for exercising this constitutional right. To this end, to establish that a defendant was armed for purposes of the sentencing enhancement, the State must prove that a weapon was easily accessible and readily available for use and that there was a nexus or connection between the defendant, the crime, and the weapon.")

From the opening of Bondi v. Citigroup, Inc. (N.J. Superior Court Jan. 22, 2007):

I. INTRODUCTION

This opinion addresses defendants’ renewed motion to dismiss the complaint on the ground of forum non conveniens following a remand from the Appellate Division. After carefully reviewing a hastily cobbled together record that supposedly details the tortured and inordinately expensive labors that the parties have endured during the initial discovery phase of this litigation, I am now more convinced that New Jersey remains an appropriate forum for resolution of the instant dispute. Although the urbane land of Dante Alighieri, Michelangelo Buonarroti, and Leonardo Da Vinci might better suit defendants’ liking than the straightforward home of Yogi Berra, Anthony Soprano, and Frank Sinatra, I remain steadfast in my view that the Italian connection with the goings-on in this case does not trump the reasonable selection of New Jersey for its dispute resolution. I deny defendants’ motion to dismiss.

II. BACKGROUND

I have already issued two opinions adjudicating the parties’ motions to dismiss. In an unreported opinion, on leave granted, the Appellate Division affirmed the denial of defendant’s motion, but wryly noted, “while we affirm the Law Division’s order, we do so without prejudice to defendants to move for dismissal on the grounds of forum non conveniens at an appropriate time.” Defendants claim that over the last six months following the remand they have mustered sufficient evidence of a frustratingly complex discovery process to warrant dismissal now in favor of a European forum.

Hard upon the heels of the notorious economic wreckage of Parmalat in Italy and around the globe, putative victims seeking to protect themselves from the admitted wrongdoing of Parmalat and its corporate managers established numerous battle lines. The primary locus for the resolution of claims relating to Parmalat-induced economic injuries is in Italy, but the effects of the Parmalat fiasco are felt in scores of corners of the Earth....

One more amusing item, from the discussion of the "Local Interest in Having Localized Controversies Decided at Home" factor:

Regarding this fourth public interest factor, defendants remind the court that the billion dollar fraud was perpetrated, if at all, far from New Jersey. New Jersey, then, would only have a morbid curiosity about the fallout from the conduct of Parmalat’s venal managers....

Details here:

We're giving away $2,000 this year to a college student who blogs about politics. Our scholarship is awarded annually.

* Your blog must contain unique and interesting information about political issues, current events, opinions, etc. No spam bloggers please!!!
* U.S. citizen;
* 3.0 GPA;
* Currently attending full-time in post-secondary education; and
* If you win, you must be willing to allow us to list your name and blog on this page.

We want to be able to say we knew you before you became a well educated, rich, and famous blogging legend.

Who wrote this? (The God Talk is especially in the last clause before the dash, but also in the clause before that.)

Kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe; too high-minded to endure the degradations of the others; possessing a chosen country, with room enough for our descendants to the thousandth and thousandth generation; entertaining a due sense of our equal right to the use of our own faculties, to the acquisitions of our own industry, to honor and confidence from our fellow-citizens, resulting not from birth, but from our actions and their sense of them; enlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greater happiness hereafter -- with all these blessings, what more is necessary to make us a happy and a prosperous people?

The answer is here.

The Bloggership: How Blogs are Transforming Legal Scholarship Berkman Center (Harvard) symposium is now available on the Washington University (St. Louis) Law Review Slip Opinions site. The papers, including my Scholarship, Blogging, and Trade-Offs: On Discovering, Disseminating, and Doing will also be published in the law review later this year.

News.com reports:

A popular computer security Web site was abruptly yanked offline this week by MySpace.com and GoDaddy, the world's largest domain name registrar, raising questions about free speech and Internet governance.

MySpace demanded that GoDaddy pull the plug on Seclists.org, which hosts some 250,000 pages of mailing list archives and other resources, because a list of thousands of MySpace usernames and passwords was archived on the site....

In a move that Seclists.org owner Fyodor Vaskovich said happened with no prior notice, the company [GoDaddy] deleted his domain name--causing his site to be effectively unreachable for about seven hours on Wednesday until he found out what was happening and removed the password list.

"They didn't tell me why they removed the site," Vaskovich, creator of the popular Nmap security auditing utility, said in a phone interview. "At a very minimum, we should get warning." ...

For her part, GoDaddy general counsel Christine Jones defended the abrupt deletion, saying: "We tried to contact the registrant, but they were not available at the time. To protect the MySpace users from potentially having private information revealed, we removed the site." ...

Jones and Vaskovich, however, tell substantially different versions of exactly what happened.... Vaskovich provided CNET News.com with a log of correspondence from GoDaddy that corroborates his version of the story.... GoDaddy did not immediately respond to follow-up questions....

"Some people might feel safer with a registrar that's a little more pro-customer," [Miami lawprof Michael] Froomkin said.

There's certainly an important customer service question here; but I should also note that there's an interesting underlying First Amendment question that could have arisen in another context. Several states expressly outlaw the disclosure of computer passwords, even if the disclosure is done without the intention of helping criminals (and here it seems that Vaskovich didn't intend to help criminals, though when he learned of the post he probably realized that it may have the effect of helping some criminals):

Ark. Code § 5-41-206(a). A person commits computer password disclosure [generally a misdemeanor] if the person purposely and without authorization discloses a number, code, password, or other means of access to a computer or computer network that is subsequently used to access a computer or computer network.

Ga. Code § 16-9-93(e). Any person who discloses a number, code, password, or other means of access to a computer or computer network knowing that such disclosure is without authority and which results in damages (including the fair market value of any services used and victim expenditure) to the owner of the computer or computer network in excess of $500.00 shall be guilty of the [misdemeanor] crime of computer password disclosure [and shall be civilly liable to injured parties].

Kan. Stat. § 21-3755(c)(1). Computer password disclosure [a misdemeanor] is the unauthorized and intentional disclosure of a number, code, password or other means of access to a computer or computer network.

Minn. Stat. 609.8913. A person is guilty of a gross misdemeanor if the person knows or has reason to know that by facilitating access to a computer security system the person is aiding another who intends to commit a crime and in fact commits a crime. For purposes of this section, "facilitating access" includes the intentional disclosure of a computer password, identifying code, personal information number, or other confidential information about a computer security system which provides a person with the means or opportunity for the commission of a crime.Miss. Code § 97-45-5 (1). An offense against computer users [a misdemeanor] is the intentional ... (b) Use or disclosure to another, without consent, of the numbers, codes, passwords or other means of access to a computer, a computer system, a computer network or computer services.

Penn. Cons. Stat. § 7611(a). A person commits the offense of unlawful use of a computer if he ... (3) intentionally or knowingly and without authorization gives or publishes a password, identifying code, personal identification number or other confidential information about a computer, computer system, computer network, computer database, World Wide Web site or telecommunication device.

S.D. Codified Laws § 43-43B-1. A person is guilty of unlawful use of a computer system, software, or data if the person ... (3) Knowingly ... uses or discloses to another, or attempts to use or disclose to another, the numbers, codes, passwords, or other means of access to a computer system without the consent of the owner....

W. Va. Code § 61-3C-10. Any person who knowingly, willfully and without authorization discloses a password, identifying code, personal identification number or other confidential information about a computer security system to another person shall be guilty of a misdemeanor ....

If one of the states had jurisdiction over Seclists.org, and Vaskovich had kept the password list on the computer even after he knew it was there, would he be guilty under the relevant statute? Would the First Amendment protect his continued retention of the data on his computer? (I tend to think that the First Amendment would not protect this, for reasons discussed in Crime-Facilitating Speech, 57 Stanford Law Review 1095 (2005), but courts have not yet confronted the question.)

Thanks to BNA's Internet Law News for the pointer.

The Facts reports. Thanks to commenter Texas Lawyer and reader John Hackathorn for the pointer.

The Hollywood Reporter reports:

20th Century Fox served YouTube with a subpoena Wednesday demanding the Google-owned viral video site disclose the identity of a user who uploaded copies of entire recent episodes of primetime series "24" and "The Simpsons".

The subpoena, which first came to light on the blog Google, was granted by a judge in U.S. District Court for the Northern District of California after being filed ... on January 18. It is not yet known whether YouTube has complied with the request....

The "24" episodes in question actually appeared on YouTube prior to their primetime January 14 premiere on the Fox broadcast network, which spread four hourlong episodes of the hit drama over two consecutive nights. Fox became aware the episodes were on YouTube on January 8, according to the subpoena....

Thanks to BNA's Internet Law News for the pointer.

Prof. Alasdair Roberts notes that Feb. 6 is the 70th anniversary of Roosevelt's presenting his Supreme Court-packing proposal; to mark this, he's put up a selection of Feb. 1937 and March 1937 editorial cartoons here (to go from cartoon to cartoon, use the arrows at the bottom of the page, which might require you to scroll down a bit on your screen). Very interesting stuff.

Disclaimer: I'm passing this along just because it is a very interesting window on that era, not to express any view on Roosevelt, the Court-packing plan, 1937, or anything else.

There's been a lot of buzz recently about Attorney General Gonzales's testimony in which he says "there is no express grant of habeas in the Constitution" and that "The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas." Some have suggested that this is a deliberate claim that there's no constitutional right to habeas, but my tentative sense is that (1) it's hard to get that much out of this extemporaneous exchange, which is sometimes not entirely articulate and burdened with interruptions, and (2) more broadly, there's a lot less to this than meets the eye. Let me explain why, though let me also first stress that I'm not a habeas maven, and I might well be in error on some of this.

1. To begin with, we have to recognize that the habeas exchange happened against the backdrop of Gonzales's written testimony (which Specter specifically referred to earlier in the hearing). I tend to credit such written and edited materials more than I do oral unscripted exchanges; and here is what this material says, in relevant part:

I am aware that two bills were introduced in the last Congress, and are likely to be reintroduced, that would amend the federal habeas statute by deleting the MCA [Military Commissions Act] restrictions in their entirety. I believe that such proposals to amend the MCA are ill-advised and frankly defy common sense.

The MCA's restrictions on habeas corpus petitions did not represent any break from the past. Indeed, it has been well-established since World War 2 that enemy combatants captured abroad have no constitutional right to habeas petitions in the United States courts. As the Supreme Court recognized in Johnson v. Eisentrager, 339 U.S. 763 (1950), the extension of habeas corpus to alien combatants captured abroad “would hamper the war effort and bring aid and comfort to the enemy,” id. at 779, and the Constitution requires no such thing, see id. at 780-81. The Constitution did not give the right of habeas corpus to the several hundred thousand German and Japanese soldiers detained by the United States during World War 2, and it does not provide that right to the alien enemy combatants detained in the present conflict.

Congress endorsed this principle in the Detainee Treatment Act of 2005, which removed federal courts jurisdiction over habeas corpus petitions filed by the detainees at Guantanamo Bay. After the Supreme Court held in Hamdan v. Rumsfeld that these restrictions did not apply to the several hundred petitions pending at the time of its enactment, Congress passed the broader restrictions under the MCA, which apply to the petitions of all enemy combatants in United States custody, including pending petitions. The MCA’s restrictions prevent terrorists captured on the battlefield from continuing to fight us in our courts. They are necessary to limit the burden that litigating the hundreds, and potentially thousands, of enemy combatant petitions would impose on the United States in this conflict and future conflicts.

The existing restrictions should be preserved. Given the military necessities of the war on terror, it is common sense to do so, and to preserve, more broadly, that which the MCA achieved so well -– a priority system that puts the security of our country and citizens first and still respects human rights while ensuring that terrorists are not given more rights than our men and women in uniform.

2. We also have to recognize that the exchange happened against the backdrop of Rasul v. Bush, the 2004 Supreme Court case which did hold that the Guantanamo detainees had a right to petition for habeas corpus, notwithstanding Johnson v. Eisentrager, the 1950 case which held that detainees in Germany had no such right. How could the two cases be reconciled? Well, here's the key passage on the subject from Rasul:

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: "Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."

So the rule today seems to be: Some detainees, at least those kept abroad, lack constitutional rights to habeas (Eisentrager wasn't overruled by Rasul as to this issue). Guantanamo detainees have statutory rights to habeas. Guantanamo detainees might also have constitutional rights to habeas, on the theory that they "differ from the Eisentrager detainees in important respects," but the Court in Rasul had no occasion to specifically decide that. (The Rasul Court noted that "Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to 'fundamentals,' persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review.")

3. With this in mind, we can look at the Specter-Gonzales oral exchange:

SEN. SPECTER: ... Where you have the Constitution having an explicit provision, a writ of habeas corpus cannot be suspended except rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees, aliens in Guantanamo. After an elaborate discussion as to why, how can there be a statutory taking of habeas corpus when there's an express constitutional provision that it can't be suspended and an explicit Supreme Court holding that it applies to Guantanamo alien detainees?

ATTY GEN. GONZALES: A couple of things, Senator. I believe that the Supreme Court case you are referring to dealt only with the statutory right to habeas, not the Constitutional right to habeas.

SEN. SPECTER: Well, you're not right about that. It's plain on its face; they're talking about the constitutional right to habeas corpus. They talk about habeas corpus being guaranteed by the Constitution except in cases of invasion or rebellion. And they talk about John at Runnymede and the Magna Carta and the doctrine being embedded in the Constitution.

ATTY GEN. GONZALES: Sir, the fact that they may have talked about the constitutional right of habeas doesn't mean that the decision dealt with the constitutional rights of habeas.

SEN. SPECTER: When did you last read the case?

ATTY GEN. GONZALES: It has been a while. But I'd be happy to — I will go back and look at it.

SEN. SPECTER: — yesterday or this morning again.

ATTY GEN. GONZALES: I will go back and look at it.

[ATTY GEN. GONZALES:] The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But there's — it's never been the case. I'm not aware of the Supreme Court --

SEN. SPECTER: Now wait a minute. The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus --

ATTY GEN. GONZALES: I made my --

SEN. SPECTER: — unless there's an invasion or rebellion?

ATTY GEN. GONZALES: I meant by that comment the Constitution doesn't say every individual in the United States, or every citizen, is hereby granted or assured the right to habeas. It doesn't say that. It simply says the right of habeas corpus shall not be suspended except by --

SEN. SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

My guess, based on the rather fragmentary exchange, is that he's arguing that the Constitution is referring to some preexisting historically recognized habeas right, a right that doesn't extend to everyone under all circumstances (even setting aside rebellion or invasion), and not even to all citizens. As to that historically recognized right, there is indeed, he's saying, "a [constitutional] prohibition against taking it away." (Recall the provision itself: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.") But the Constitution doesn't define the contours of that right, or make it categorically applicable to everyone, he's arguing; the contours of the right have to be understood by looking at its historical scope.

4. So, the bottom line: Gonzales's written statement, like many written and edited statements, is fairly comprehensible, but blazes no new trails as to constitutional habeas rights. The first part of Gonzales's oral remarks, which seemed to refer to Rasul's focusing on the statutory habeas right, is probably right and at least a defensible characterization of Rasul.

The second part of Gonzales's remarks is far less clear, but probably doesn't claim that no habeas rights are protected by the Constitution. It does seem to suggest that in some situations some citizens lack habeas rights, which is beyond what Eisentrager said. But it's hard to know for sure what exactly Gonzales is driving at there, because the remarks are brief and fragmentary.

So, to repeat what I started with: (A) It's hard to get that much out of this extemporaneous exchange, which is sometimes not entirely articulate and burdened with interruptions. (B) There's a lot less to this than meets the eye, especially given that a good deal of this is a fairly esoteric discussion of statutory vs. constitutional habeas entitlements. (C) At the same time, I'm not a habeas maven, and may have missed something important here.

reports the Telegraph. "Santiago Miramar, the only villager who would comment on this week's events, said there were few in Fago who didn't consider themselves an enemy of the mayor." My question: If he's so disliked, how did he get elected?

Thanks to Hit & Run -- say, speaking of murder -- for the pointer.

In a few weeks, I'll be teaching the Sophophone case in my criminal law class, and I'd like to know how the defendant's name (Sanexay Sophophone) is pronounced.

Some have speculated that it's Greek, but I rather doubt it, despite the existence of the Greek elements "soph-" and "-phone." Sanexay isn't a Greek name, and this isn't a very Greek-looking face. (Yes, it's hard to conclusively tell ethnicity from a face, but it does seem probative, at least in this instance.) My sense is that the name comes from Laos, but I'm not positive.

Can anyone tell me how such a name would be pronounced by those who speak the language from which the name derives? I realize that the normal English pronunciation need not track the original, but I'm still curious about it. Thanks!

Several people e-mailed me to ask about it. The ordinance, as currently drafted, would provide an up to $500 fine for people who "intentionally or knowingly use[] the word 'nigger' in a[n] abusive, indecent, hurtful, degrading or insulting way in a public place, and the use of the word by its very utterance tends to incite an immediate breach of the peace." A few thoughts:

(1) Words that "by [their] very utterance tend[] to incite an immediate breach of the peace" and are "directed to the person of the hearer" -- which is to say personal insults said to a particular person, and not just insulting words about third parties said in a general speech, on a billboard, in a book, and so on -- are indeed unprotected by the First Amendment, under the so-called "fighting words" exception.

(2) This ordinance has no "directed to the person of the hearer" limitation: It would, for instance, ban even "hurtful" or "degrading" uses of "nigger" in public speeches that aren't directed at any particular person who is to be insulted. If read literally, it would therefore be unconstitutionally overbroad.

(3) A court might interpret the ordinance as implicitly limited to statements "directed to the person of the hearer," especially since a similarly worded state law (see below) has been so read. But the ordinance would still be unconstitutional even with this limitation: While a total ban on all fighting words would be permissible, a selective ban only on racist fighting words -- or only on this racist fighting word -- is unconstitutional. The Supreme Court so held as to a very similar ordinance in R.A.V. v. City of St. Paul (1992).

(4) The ordinance is also superfluous. Texas Penal Code 42.01(a)(1) already makes it an offense if a person "intentionally or knowingly" "uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace"; Texas courts have read this as limited to "fighting words," but of course covering all such insults, not just "nigger." The offense is "a class C misdemeanor," which may be punished by a fine of up to $500, the same fine the ordinance would impose.

Bill Patry, who eats, breathes, and lives copyright, has just published a new seven-volume copyright treatise; I haven't yet had a chance to read through the sample chapters I've been sent, but I expect the work to be superb, and Roger Parloff (Senior Legal Editor at Fortune) agrees. Here's an excerpt from Parloff's Jan. 23 review (which also calls the treatise "amazing"):

Patry is currently senior copyright counsel at Google, and in previous lives has served as a full-time professor at Cardozo Law School (5 years), copyright counsel to the U.S. House of Representatives (3.5 years), Policy Planning Advisor to the Register of Copyrights (4.5 years), and as a copyright litigator in private practice (12 years). (He also writes The Patry Copyright Blog, whose items I rip off from time to time.)

What's new about this treatise? Is it a wiki? No, thank God. Just the opposite, really. It's a 7-volume, 5,830-page treatise (available here from Thomson/West for the low low price of $1,498) that was--incredibly--written entirely by Patry....

The treatise comes with its own blog, which will include notes from Patry and comments posted by readers. (Patry is also the author of The Patry Copyright Blog.) The work sounds like a tremendous addition to the field (and I say this as someone who is a fan of the Nimmer Copyright treatise, too).

The Washington Post reports:

In particular, some students [in the audience at Carter's talk at Brandeis University] challenged Carter on a sentence that has brought him much grief. On Page 213 of his book, Carter wrote: "It is imperative that the general Arab community and all significant Palestinian groups make it clear that they will end the suicide bombings and other acts of terrorism when international laws and the ultimate goals of the Roadmap for Peace are accepted by Israel."

This sentence, the students noted, suggests that suicide bombings are a tactic of war, to be suspended only when peace is achieved. Carter agreed -- and apologized -- and said this sentence was a great mistake on his part.

"The sentence was worded in an absolutely improper and stupid way," Carter said. "I apologize to you and to everyone here . . . it was a mistake on my part."

I blogged about this item earlier, so I thought I'd blog about this response on Carter's part.

It's available here. Welcome to readers who are clicking through from that piece to check out this blog -- if you'd like to leave comments on the subject, please do so by clicking on the "Comments" link immediately below (but please keep in mind our comments policy, which you'll find on the comments page).

The Soviets talked a great deal about "Druzhba Narodov," which is to say "Friendship of the Peoples," though in fact the Peoples weren't really that Friendly to each other.

So the joke, of which I was very recently reminded: What is the Friendship of the Peoples? It's when the Georgian walks hand in hand with the Armenian, and with the Ukrainian, and with the Russian, and they all go to beat up the Jew.

One thing I noted about Anisa Abd el Fattah's statements is their repeated and seemingly amicable reference to "White nationalists" -- e.g., "We also believe that the Jewish Lobby has acted to create an environment in the US that is hostile to Muslims, Arabs, and others, including White nationalists, and Christians ...." This Web page describing a page on which Anisa Abd el Fattah appeared (curiously, alongside Noam Chomsky) suggests that Abd el Fattah is black, and of course we know that she is a Muslim. Why then the specific support for White nationalists? Perhaps from a laudable desire to make sure that free speech is protected for all, including even those who would likely hate her for her race and quite likely for her religion?

I asked Abd el Fattah about this, building on her framing of what exceptions the First Amendment would have (exceptions that she sets forth to justify supressing certain speech from "the Jewish Lobby"):

I notice some references in your message to "White nationalists," but I'm not sure I quite grasp their connection to your argument. I take it that White nationalists tend to try to undermine the equal rights and equal protection of some US citizens. If so, what is exactly your complaint with regard to attempts to create a hostile environment for White nationalists?

She was kind enough to answer:

The point is that every American has equal rights to free speech. That aspect of White nationalist behavior that includes fear mongering, name calling, and intimidation is wrong, yet they argue that their actions result from their frustration that they are stereotyped, and misrepresented by the media and made to appear as enemies of blacks and Jews, and others, when they simply want to preserve the white race, and its majority status. They feel that Jewish supremacism threatens their existence, and that Jewish activism is aimed at limiting their rights, and many Christians feel that same way.

Most of what we are talking about here is how we can colllectively preserve and protect the identies, and rights of groups in the US that have conflicting desires, and sensitivties, while preserving a sense of nationalism, or rather Americanism that can serve as a glue for our society that is strong enough to hold our country togther in spite of some of the stark differences that we represent in race, religion, political outlooks, socio-economic backgrounds etc.

In our opinion, the Bill of Rights is that glue, and a near perfect social contract. I'm not suggesting that we are going to resolve these issues tommorrow, but I am suggesting that we must start. I am praying that the complaint will serve as a first word in a dialogue that will embrace all of the various groups, and that will remove all unfair stigmas, and stereotypes, allowing every group to define itself, and also to set the tone and rules for everyone's co-existence, and participation. The public space is increasingly smaller in my view, making it essential that we begin a dialogue on how 300 million people of different faiths, colors, races, cultures, attitudes, histories, hopes, etc., will share that space as equally and fully entitled American citizens.

Now please correct me if I'm wrong, but it sounds like she actually thinks the White nationalists have a point. True, she says, "That aspect of White nationalist behavior that includes fear mongering, name calling, and intimidation is wrong."

But then she goes on to explain how she feels their pain: "[Y]et they argue that their actions result from their frustration that they are stereotyped, and misrepresented by the media and made to appear as enemies of blacks and Jews, and others, when they simply want to preserve the white race, and its majority status. They feel that Jewish supremacism threatens their existence, and that Jewish activism is aimed at limiting their rights, and many Christians feel that same way." (She literally just says what "they argue" and "feel," but in context it seems like an endorsement of at least the legitimacy of their arguments.)

How touching! A black Muslim seeing white Nationalists not just as evil racists, but as people who have understandable grievances and simple desires. After all, "they simply want to preserve the white race, and its majority status"; simply that, and what they get out of it is "stereotyp[ing]," and "misrepresent[ation] by the media ... as enemies of blacks and Jews." (See here for a similarly touching story.) Seems hardly fair to the poor White nationalists, and even black Muslims should realize it. I mean, aren't we all brothers and sisters? All good Americans? Shouldn't we all be on the same side? Fighting against "the Jewish Lobby," of course.

Anisa Abd el Fattah (head of the National Association of Muslim-American Women, head of the International Association for Muslim Women and Children, and coauthor, as Caroline Keeble, of The Agent: The Truth Behind the Anti-Muslim Campaign in America) passes along this "National Association of Muslim American Women (NAMAW) Statement on Free Speech":

As US citizens and women of faith and conscience, the National Association of Muslim American Women (NAMAW) recognizes, and works to uphold and protect the Constitutional rights of every American.

We believe that the First Amendment and the Bill of Rights are the pillars of freedom, and true liberty in the US and that they are indispensable, and should be interpreted, used and protected as intended, and explained by our country’s Founders.

We do not believe that slander, libel, defamation, perjury, seditious speech, or speech that is intended to undermine the equal rights, and equal protection under the law of any US citizen is protected by the First Amendment.

The NAMAW complaint to the Department of Justice calling for an investigation of the Jewish Lobby is not an attempt to chill, or to remove the right to free speech of Jewish Americans or anyone else.

It is an attempt to end a historic campaign by certain organizations and people, of misinformation and hate mongering against Muslims, Arabs and other Americans who are targeted by these groups, and slandered and defamed as “anti-Semites” or worse, "terrorists" or "potential terrorists" if they utilize their rights to free speech to criticize Israel, question aspects of the Holocaust, or to give an opinion about the US/Israel relationship that is not favorable to Israel, or that is in support of Palestinian rights, or that calls into question the behavior or speech of any Jewish personality or person.

The NAMAW complaint is an effort that is aimed at leveling the political playing field in the US, so that all Americans, rich, poor, Jewish and non Jewish, can participate freely, fairly and equally in the political process, including debates and discussions on any topic, including topics pertaining to the Jewish history, religion, and culture, and also Israel, and Palestine. It is intended to protect the rights of every American to formulate and express a political or religious opinion, make and express their religious and/or political choices, traditions, cultures etc., without fear of reprisal from these organizations and people, and their international network of facilitators.

We believe that the Jewish Lobby in the United States has used its resources and influence to chill, deprive and violate the first amendment rights of other Americans in an attempt to dominate the political discourse in the US on issues related to the Palestine/Israel conflict, and to prevent opposing views, and/or information about Palestinian suffering, and Israeli violations of international law, and human rights abuses from being exposed. We believe that to accomplish this repression, deprivation, and violation of rights of other citizens, the Jewish Lobby and its facilitators and supporters have used threats, harm, and acts of persecution that include defamation, slander, perjury, vandalism and other acts, such as carrying out organized campaigns to deny other citizens their right to life, liberty and the pursuit of happiness.

We also believe that the Jewish Lobby has acted to create an environment in the US that is hostile to Muslims, Arabs, and others, including White nationalists, and Christians so that members of these groups can be discriminated against, and denied rights such as rights to the assumption of innocence unless proven guilty of a crime in a court of law, fair trials, due process, and justice, political association, organizing and petitioning our government on matters related to civil rights, liberties, and foreign policy.

We also believe that the Jewish Lobby in the US has worked to undermine the US Constitution, since the Constitution protects the inalienable rights of all citizens equally. Certain interpretations of the Jewish faith calls for limiting the Constitutional rights of non-Jews, and the establishment of special rights, laws and protections for Jews, and their special interests. We believe that this behavior is criminal, and unconstitutional and that it must be stopped.

"We hold these truths to be self evident, that all men are created equal, and endowed by their Creator with certain unalienable rights, among which are life, liberty and the pursuit of happiness." US Declaration of Independence

NAMAW
Anisa Abd el Fattah
Chairwoman

I leave it to others to discuss what exactly would flow from recognizing a "seditious speech" exception to the First Amendment (see here for the Court's most recent extended discussion of that), or an exception for "speech that is intended to undermine the equal rights, and equal protection under the law of any US citizen is protected by the First Amendment."

But I do wonder just how much protection NAMAW's speech, with its repeated condemnation of "the Jewish Lobby," would likely get if such a standard were adopted. (Even if NAMAW's actual intentions were pure, it would be up to judges and juries to evaluate them.) I likewise wonder about the allegation that "Certain interpretations of the Jewish faith calls for limiting the Constitutional rights of non-Jews, and the establishment of special rights, laws and protections for Jews, and their special interests." Isn't it the case that certain interpretations of the Muslim faith (not all interpretations, but "certain" ones) call for limiting free speech and religious freedom rights of non-Muslims, and the establishment of special rights, laws and protections for Muslims, and their special interests?

In any case, I thought I'd pass this along, in case some of our readers would find this interesting. To get a sense of Anisa Abd el Fattah's public role -- which doesn't seem to be vast, but is apparently not nil -- google Anisa Abd el Fattah or Caroline Keeble (though the latter will get quite a few false positives).

The Sacramento Bee reports. Hats off to Allen -- incidentally, a lawyer whose commentaries often focus on legal issues -- on his success.

What was the first U.S. Supreme Court freedom of speech or freedom of the press case in which the speaker or publisher was engaged in anti-Semitic speech or writing?

Anisa Abd el Fattah, as you may recall, filed a complaint with the Justice Department asking it to "take the steps necessary to end" various "practices," apparently including "statements made that may reach the level of hate speech," "various organizations['] and individuals['] ... provid[ing] misleading and highly politicized information," and more, by (among others) "the 'Jewish lobby.'" As I described in the original post, these "practices" consist mostly of constitutionally protected speech, which led me to criticize the complaint. (Abd el Fattah, incidentally, is a former CAIR board member and apparently the current head of the International Association for Muslim Women and Children, "an accredited NGO with the UN Division on the Rights of the Palestinians," as well of the National Association of Muslim American Women [NAMAW].)

Abd el Fattah has sent me and others an e-mail in response (paragraph breaks and emphasis added):

While trolling the net today, I came across ... [your material] commenting on the NAMAW letter of complaint to the Justice Department against the Jewish Lobby.

The position that you appear to take on this issue is very interesting, especially since I have never heard Jewish academicians argue so robustly for the right of people to have free speech rights to deny the holocaust, or to compliment Hitler, or to say that Israel should be wiped off the map. Every time any such statement is publicized, in whatever context, Jewish people raise a fuss, and the speaker is ordained, an "anti-Semite," in an effort to deny their right to free speech by making the price of such speech so high that it wont be utilized.

I'd like to ask if you believe that there is one standard of free speech for Jewish people, and another for other Americans. I'd also like to know why you sought to characterize our position as "against" free sppech and civil rights for Jews, without asking me if that is actually our position, or even allowing me to give my opinion on the 1st amendment, prior to your posting your opinion about what you thought I meant or said, or what you feel compelled us to submit a complaint. I have cc'd several others on this e-mail, since I want my comments to be public, so they cannot be misrepresented, and also your response, should you decide to respond....

Let me respond in turn:

(1) I can't speak to what Anisa Abd el Fattah has heard; but a quick search reveals that quite a few Jewish "academicians" have spoken out in favor of free speech rights for Holocaust deniers and for Nazis and Hitler sympathizers more broadly. Harvard law professor (and noted commentator on Jewish matters) Alan Dershowitz, in the Jerusalem Post, Mar. 17, 1998: "Even Holocaust denial speech — among the most offensive imaginable — should not be censored." Nadine Strossen, law professor and ACLU President, 25 S. Ill. U. L.J. 243, 279 (2001): "I support free speech for Nazis and other anti-Semites not despite my background and my first-hand experience with the evils of anti-Semitism, but rather, precisely because of that fact." Me: "Holocaust denial laws are ... pernicious." There are plenty of other such examples. (I can't give similar examples as to statements urging that "Israel should be wiped off the map," because I know of no incidents in America where anyone has even suggested that such speech should be restricted, and thus of no scholars who have had occasion to disagree with such suggestions.)

(2) Let me turn, though, from my view and the view of many other scholars, Jewish and otherwise, and look a bit at Abd el Fattah's. She writes that "[any time a statement] deny[ing] the holocaust, or ... compliment[ing] Hitler, or ... say[ing] that Israel should be wiped off the map ... is publicized, in whatever context, Jewish people raise a fuss, and the speaker is ordained, an 'anti-Semite,' in an effort to deny their right to free speech by making the price of such speech so high that it wont be utilized."

Now, I would hope that when people compliment Hitler or deny the Holocaust, or say that Israel should be wiped off the map — not just that Israel is in error in some way, but that it should be wiped off the map — it isn't just "Jewish people" but other people as well who would protest.

But beyond this, what exactly is wrong with inferring that people who "compliment Hitler" are likely anti-Semites (in all but the most unusual of contexts)? Are there are a lot of people who have nothing against Jews but compliment a man who is remembered for (among other things) deliberately arranging the slaughter of six million Jews? Shouldn't we "raise a fuss" about such compliments — not by asking federal prosecutors to "take the steps necessary to end" the statements, but by condemning the speech? If the "price of such speech [is made] so high" because people widely condemn the speech and the speaker, that is the exercise of free speech, not a denial of free speech.

Likewise, it's possible that some Holocaust deniers are not anti-Semites. And it's possible that some people who want Israel "wiped off the map" (a term that both in its tone and its substance suggests a violent destruction of the nation and likely a substantial chunk of its inhabitants) are not anti-Semites. (Note that I'm not speaking here simply of disagreement with Israel's policies, but a call for it to be "wiped off the map.")

Still, it's a fairly plausible inference that these speakers are indeed anti-Semites. And even if they aren't anti-Semites, it's quite proper for "people [Jewish or otherwise to] raise a fuss," and impose a social price on such speech by persuading people to strongly condemn it. People who make these statements should "have free speech rights" to do so free of the Justice Department's "tak[ing] the steps necessary to end" the speech. But they naturally have no right to make the statements free of others' making statements disagreeing.

So I'm rather puzzled by Abd el Fattah's reaction. Does she think that when people "deny the holocaust, or ... compliment Hitler, or ... say that Israel should be wiped off the map," people shouldn't "raise a fuss"? Does she think that "compliment[ing] Hitler" is not likely to be evidence of the speaker's "anti-Semit[ism]"? And if she doesn't take such views, then how can one explain her e-mail?

(3) As to "why [I] sought to characterize [the letter's] position as 'against' free sppech and civil rights for Jews": The letter calls on the Justice Department to "take the steps necessary to end" various "practices," which apparently include — for the reasons I gave — First Amendment-protected speech by "the 'Jewish lobby'" and others. Sounds like a restriction on free speech to me.

Nor did I see much reason for asking Abd el Fattah "if that is actually our position, or even allowing me to give my opinion on the 1st amendment, prior to your posting your opinion about what you thought I meant or said, or what you feel compelled us to submit a complaint": The letter (which Anisa Abd el Fattah sent out as a press release) seemed to speak for itself, and I didn't see need to ask for further clarification.

This having been said, I'd be delighted to hear Anisa Abd el Fattah's views on the First Amendment more generally. I have e-mailed her asking for those views, and I'd be glad to post them and respond to them later.