A 1999 article reports:

Objective: To determine whether patients with genital warts carry human papillomavirus (HPV) DNA on their fingers.

Methods: 14 men and eight women with genital warts had cytobrush samples taken from genital lesions, finger tips, and tips of finger nails. Samples were examined for the presence of HPV DNA by the polymerase chain reaction.

Results: HPV DNA was detected in all female genital samples and in 13/14 male genital samples.

HPV DNA was detected in the finger brush samples of three women and nine men. The same HPV type was identified in genital and hand samples in one woman and five men.

Conclusion: This study has identified hand carriage of genital HPV types in patients with genital warts. Although sexual intercourse is considered the usual mode of transmitting genital HPV infection, our findings raise the possibility of transmission by finger-genital contact.

(Sex Transm Inf 1999;75:317–319)

I don't know whether the study has since been confirmed or undermined, though some casual searches suggested this possibility is being taken seriously, but the magnitude of the risk is unknown. If you know more than I do about this, please post something on the subject in the comments.

Likewise, while my casual assumption is that if hand-genital transmission is possible, hand-hand transmission followed by hand-genital transmission by the recipient (i.e., a woman shakes an HPV carrier's hand, and then transfers the HPV to her hand when touching her own genitals), I'm not sure whether that's right. Of course, even if it's not, this means that an HPV-positive parent could transmit the virus to an infant or a toddler when wiping, washing, or examining the child. (Mother-to-newborn transmission of HPV is also possible, though my vague sense from a few snippets I've seen is that it's not seen as a major likely source of serious disease.) In any case, given the recent debates about HPV immunization, I'd be happy to hear more about this from those who know.

The world seems to be an even ickier place than I had thought.

Reader Ethan Hahn reports:

I used your salt-encrusted salmon recipe over the summer for a big 8-person meal we were having ... — your recipe was absolutely perfect! It made a lot of food, tasted wonderful, and was extremely impressive looking too! And I just realized today that I never thanked you for posting it — Instapundit's post about the blog recipe book reminded me.

I've been quite pleased by the mainstream media reception of my Parent-Child Jihadist Speech op-ed; it ran originally in the L.A. Times, but it's been reprinted in the Atlanta and St. Petersburg newspapers, as well as a couple of others (including this one); NPR Weekend Edition and a local NPR affiliate did something on this, too, as did a Philadelphia radio station and the conservative syndicated Lars Larson radio show.

On the other hand, I had expected there'd be more attention from various blogs and radio programs that often cover radical Islam and the law. I figured the case that my story had uncovered had it all: The First Amendment; jihadism; parental rights; child welfare. Yet I've had much less original posts yield much more interest among blogs and radio programs, especially conservative ones.

I'm not trying either to brag or to complain here; I'm pleased with the attention the story has gotten, and while I think it's interesting, I never expected it to cause a huge stir. Still, I wonder: Did I misjudge the likely interest? Did I just not publicize the story enough? Should I have taken heroic measures to keep Anna Nicole Smith alive for several more days? What can I do in the future to try to draw more attention to such matters? I'd love to hear any speculation or advice that people might have.

My op-ed on the jihadist father gag order was rerun in "The Peninsula On-line." Question (no fair googling): Which peninsula? Hint below.

Hear Scott Simon's mellifluous voice, plus my voice, here. It's about 4.5 minutes, which is an eternity in national radio time; I was delighted that NPR was interested in the story.

Or at least it's the first one known to us. From Pachacutec (Huffington Post), blogging last month about the examination of potential jurors in the Libby trial, and quoting "one of the day's last potential jurors[,] a young defense attorney from one of the law firms in town":

He cites first among the blogs he read "Glenn Reynolds, Instapundit" before throwing in Josh Marshall's Talking Points Memo, DailyKos, Eugene Volokh, How Appealing and some other law related blog....

though with a scholarship amount that is likely to pay only for part of the tuition, and an amount that declines dramatically with the parents' income. The governor is apparently expected to sign it; here's a summary of the bill:

Student Eligibility:

All Utah students are eligible if they meet any one of the following criteria: 1) they are in public school, 2) they are entering kindergarten, 3) they have moved into the state in the previous year, or 4) they have family incomes at or below the eligibility level for free and reduced lunch programs. In effect, this means that the only Utah students not eligible are those from high-income families who are already in private schools. Students cannot receive vouchers under both this program and the Carson Smith voucher program for disabled students at the same time; students who qualify for both may choose which voucher to receive.

Voucher Value:

The dollar value of the voucher runs on a sliding scale from $500 per student (for high-income families) to $3,000 (for low-income families). This graphic from the Salt Lake Tribune shows the income scale.

Regulations:

Participating private schools must be located in Utah; must have a CPA review its finances upon entering the program and every four years thereafter; must comply with health, safety, and antidiscrimination laws; must administer a norm-referenced test and make results available to parents; must make aggregate test results for participants publicly available (consistent with student confidentiality); must employ teachers with college degrees or equivalent specialized training; and must have at least 40 students and not be located in a residence or state treatment facility.

Public School Funds:

When a student uses a voucher, that student’s public school district will continue to be funded as though that student were still attending school in that district until five years after the student left or when the student would have graduated, whichever comes first. During that time, a portion of the funding designated for that student will be returned to the state’s Uniform School Fund, and the remainder will be retained by the school district.

I generally — though tentatively, given that my view is based mostly on general principles rather than serious review of the research — support school choice, so I think this is a good plan, even if less ambitious than I would have liked. But more importantly it should prove an important experiment that may give some guidance for future plans (though I recognize that the results of such experiments are often hard to measure).

Title #2 — "Ayn Rand Would Not Have Approved": PhillyBurbs.com reports:

An aspiring attorney is in trouble with the law, accused of trying to cheat his way into a better law school.

Kevin Siangchin, 30, of North Plainfield, N.J., was arrested Thursday and charged with trying to bribe an employee of the Law School Admissions Council in Newtown Township to sell him an advance copy of the Law School Admission Test for $5,000.

Siangchin allegedly took the standardized test, which is required to get into law school, twice before and wanted to take it again to improve his score....

Siangchin, an engineer, used the name John Galt on the e-mail [to an LSAC employee whom he was trying to persuade to leak him a copy of the test]. John Galt is a character in the Ayn Rand novel “Atlas Shrugged” ....

According to police, Siangchin told detectives [who eventually arrested him] that he knew he was doing something wrong but that he “really wanted a good score.” ...

After his arrest, Siangchin asked detectives for his money back, police reports said....

The story also reports that "Siangchin is charged with potential to change the world," but I'm pretty sure that this is because a block of text was inadvertently repeated. (By the time you read this, the glitch might have been fixed.)

Thanks to Sebastian (Snowflakes In Hell) for the pointer.

So here's one thing that has long puzzled me — the U.S. was founded mainly by English immigrants, which is why we speak English and use many of the same names that are used in England. But some names that seem not uncommon in England are very rare in the U.S. Nigel is the one that I notice whenever I hear it (almost invariably in reference to someone from England), but Sebastian, Clive, and Simon also qualify, and I'm sure others do as well. Simon is also a pretty common name in Russia, and I'd guess in other places as well; but not in the U.S., where its frequency (1990 data) is only 0.026%, roughly at the level of Roosevelt and Forrest.

What happened? Why did those names stop at the water? Am I exaggerating their popularity in England? Were they unpopular even in England at the time the main migrations to the U.S. took place? Is there something just plain un-American about them?

Bonus question: Sergey is a common name in Russian, and I believe Sergio is in Spanish and Serge in French; all stem from a Latin gens name. Why isn't there a not uncommon English equivalent, much as Claude, Julius, Anthony, and the like are English cognates of other Latin gens names?

UPDATE: Thanks to commenter Cornellian for pointing out that Clive, which I had originally omitted, fits the same pattern.

Debra Saunders, an S.F. Chronicle columnist, writes:

This story starts with an "anti-terrorism rally" held last October on campus by the College Republicans. To emphasize their point, students stomped on Hezbollah and Hamas flags. According to the college paper, the Golden Gate (X)Press, members of Students Against War and the International Socialist Organization showed up to call the Republicans "racists," while the president of the General Union of Palestinian Students accused the Repubs of spreading false information about Muslims.

In November, the Associated Students board passed a unanimous resolution, which the (X)Press reported, denounced the California Republicans for "hateful religious intolerance" and criticized those who "pre-meditated the stomping of the flags knowing it would offend some people and possibly incite violence."

Now you know that there are students who are opposed to desecrating flags on campus — that is, if the flags represent terrorist organizations....

The university's response [to FIRE]? Spokesperson Ellen Griffin told me, "The university stands behind this process."

And: "I don't believe the complaint is about the desecration of the flag. I believe that the complaint is the desecration of Allah." ...

In the mail -- a review copy of John Scalzi's The Last Colony, his sequel to Old Man's War and The Ghost Brigades (both of which I liked very much). Boy oh boy oh boy.

I often hear people say that the First Amendment doesn't protect flagburning, because it's conduct rather than speech. My view is that burning a flag, like waving a flag, is a conventionally understood form of communication, and both should thus be treated as "speech" no less than, say, handwritten materials (which are literally neither "speech" nor "press"), elephant or donkey pins worn around campaign season, paintings that have no words, and the like.

Of course such conduct may often be restricted because it causes certain harms through its noncommunicative component -- an ordinance prohibiting fires in a brush zone could be used against flagburning. But this just reflects the analogy to literal "speech"; an ordinance prohibiting loud noises at night in a residential area could be used against the use of loudspeakers at 11 p.m. (even when the loudspeakers are used in the process of literal "speech"). When, however, either the loudspeaker use or the flag waving or the flag burning is banned because of its communicative effects, for instance because they convey offensive messages or supposedly diminish the emotional force of certain symbols, that is a speech restriction that should be evaluated under the First Amendment.

But for those who disagree, let me ask: SFSU is investigating (with the threat of administrative punishment) the College Republicans for, among other things, supposedly being "incivil" and creating a "hostile environment" by stepping on butcher-paper representations of Hamas and Hezbollah flags (which also contained the name of Allah in Arabic script). If you think that there's no First Amendment problem with banning flagburning, on the theory that it's not speech, I take it that you think there's no First Amendment problems with punishing (even criminalizing) the Republicans' actions, right?

Likewise, if SFSU tried to punish a student for waving a Confederate flag (assume no special circumstances such as the flag's being stolen, or the waving been intended and understood as a personal insult and invitation to fight addressed to one particular person), I take it you'd say "Sure, no First Amendment problem," right? Or is there a distinction here I'm missing?

The calls for suppression of speech that offends religion (see here and here) don't seem to be limited to purely academic arguments. Here's an e-mail from the San Francisco State University to the College Republicans:

I am writing to you as President of the College Republicans to follow-up with you regarding the letter of complaint that was received by the Office of Student Programs and Leadership Development on Thursday, October 26, 2006, notifying the office of alleged violations of University policy. The complaint is in regards to alleged actions at a College Republican sponsored event, "Anti Terrorism Rally," that occurred in Malcolm X Plaza from 12-2 PM on October 17, 2006. The complaint describes alleged actions of walking on a banner with the word "Allah" written in Arabic script. I am writing to inform you that the Office of Student Programs and Leadership Development has concluded its investigation into the events that occurred on October, 17, 2006 in Malcolm X Plaza. The investigation was put in place to review the following alleged violations of University Policy as were addressed in the written complaint:
1. Allegations of attempts to incite violence and create a hostile environment
2. Allegations of actions of incivility (Standards for Student Conduct Title V, 41301)

Resources presented by interviewees during interview process for review include: 1. Standards for Student Conduct Title V, 41301
2. CUSP II Strategic Plan
3. California penal code

The Investigative report has been forwarded to the Student Organization Hearing Panel for review. The chair of SOHP ... is your contact person should you have specific questions regarding this review.... (I have cc her on this message). She will also be in contact with you regarding any questions and specifics regarding the review. You may continue to contact me regarding any general questions regarding the SOHP process. You can find the process online at http://www.sfsu.edu/~ospld/conduct/hearing_panel.htm. For a copy of the Code of Conduct, please see http://www.sfsu.edu/~ospld/conduct/policies.htm. I have also attached a word copy of these documents, to this email for your convenience. To review CUSP II, please see http://academic.sfsu.edu/apee/planning/plan05-10.php.

Please keep in mind Carl that you as a student organization have the right to have a representative at any stage of possible disciplinary proceedings. However, attorneys are not permitted as representatives in this process.

Sincerely,
... Director
Office of Student Programs and Leadership Development
Student Services Building, Suite 105
San Francisco State University

FIRE (The Foundation for Individual Rights in Education) has more:

The College Republicans “offense” took place on October 17, 2006, when they held an anti-terrorism protest in SFSU’s Malcolm X Plaza. During the protest, several members of the group stepped on butcher paper they had painted to resemble the flags of Hamas and Hezbollah. Unbeknownst to the protestors, the flags they had copied contain the word “Allah” written in Arabic script.

Note also that the university is not simply trying to prevent violence here (which it in any event should do by preventing and punishing the violent responses to offensive student speech, not by punishing the speech itself, at least unless it fits within the narrow category of individually addressed insulting "fighting words," which doesn't apply here). The university is expressly investigating (with the threat of formal sanctions behind the investigation) the possibility that the students' speech is ideologically offensive — creates a "hostile environment" and is "incivil[]." A clear First Amendment violation, it seems to me.

UPDATE: Here's a story about the rally in the campus newspaper.

Megan McArdle (Asymmetrical Information) posts about HPV immunization — she thinks it's good even if it's mandatory (which the Texas version apparently isn't) — and draws, among others, this comment:

HPV, like HIV and unlike Polio, Tetanus, Pertussis, etc is 100% preventable by behavioral change.

Let me stress it again: It is 100% preventable (setting aside rape and congenital transmission) by behavioral change — lifelong sexual abstinence. It is not preventable by only having sex within marriage, since your husband or husbands (even the most religious don't mind remarriage after a spouse's death) might have been infected with HPV when you married them, or might cheat on you after marriage, get infected, and reinfect you.

Having fewer sexual partners will decrease your chances of getting infected, but they won't decrease them by 100%, and the chances will remain pretty substantial, I'd wager, given that "At least 50% of sexually active people will get HPV at some time in their lives." Having one sexual partner and making sure that he was a virgin at the time decreases the chances further (if he doesn't cheat on you), but, you know, sometimes the person you fall in love with — even the person you think God may have meant for you, if you think about things that way — happens to have done some wrong things in the past. If "behavioral change" means "dumping the one person you've fallen in love with and want to spend the rest of your life with because they've had sex with some other people" (or even "because they fall within the 50% of the public that has been infected with HPV"), then it might be good to make that clear (though again even that won't give you 100% immunity unless you are 100% confident that your spouse won't cheat on you).

And of course on top of all this, we know that teenagers, even well-brought-up teenagers, aren't always the best at behavioral change. However moral you might be, and however moral you are bringing up your daughter, are you 100% sure that she's going to take that supposed 100% prevention approach? If your religion teaches that sin, and giving in to temptation, is part of human nature — and if you think our society has turned into a moral cesspool that constantly bombards young people with praise of sexual immorality — then why do you think that even well-intentioned, well-taught teenagers are going to be able to completely resist temptation and sin?

Look, if we're talking assumption of risk and "you could have prevented it yourself" in the context of skydiving or bungee-jumping, I can understand that. But if "100% preventable" means living an entirely asexual life, and "almost 100% preventable" means dumping the person you're in love with because he isn't a virgin (and maybe is even part of the 50% of the public that's HPV-infected), then we're way out of the range of normal assumption-of-risk talk. And when you add to that the fact that failure to immunize turns the unimmunized into unwitting but still dangerous vehicles of transmission of deadly disease — when a woman dies of HPV-related cervical cancer, the unimmunized people who helped spread the HPV to the woman helped cause her death — then the case for "never mind immunizing, people should prevent HPV themselves because it's 100% preventable by behavioral change" becomes very weak indeed.

I read Benjamin Wittes' Confirmation Wars: Preserving Independent Courts in Angry Times a short while ago, and liked it a great deal.

Wittes, a Washington Post editorial writer, thoughtfully and dispassionately looks at how the federal judicial confirmation process has deteriorated over time (and he persuasively argues that it has indeed deteriorated), and what can be done about it. And while I'm not sure that his proposal -- accept ideological judgments about the nominees' record and likely views, but get rid of confirmation hearings and most other Senatorial questioning of the nominees -- is correct or politically feasible, I'm certainly not sure of the contrary, and I think his arguments have to be seriously considered.

From a May 12, 2006 column by Dr. Robert O. Freedman, columnist for the Baltimore Jewish Times, professor of political science at Baltimore Hebrew University, former acting president of the university, and former visiting professor at Princeton (emphasis added):

As the crisis over the Danish cartoons depicting the Islamic prophet Muhammad appears to be dying down, it is time to create a system to prevent such a costly crisis from erupting in the future.

As a result of the crisis, lives were lost, embassies were attacked in the Muslim world, the loyalty of Muslims living in Europe was put into question, and the image of Islam in the West as a violent religion was reinforced, thus increasing the possibility of the "clash of civilizations" desired by Islamic radicals such as Osama bin Laden....

In order to rectify the situation, and to prevent a future crisis of this type from erupting, what is needed is a "code of conduct" for the newspapers and other media in both the Western and Muslim worlds. All governments must agree that the negative depiction of religion is "out of bounds," and penalties should be imposed on those who violate the code of conduct.

The problem, of course, is to determine the difference between legitimate criticism of someone who acts in the name of a religion, and the negative depiction of that religion.

To solve that problem, I propose the creation of an International Religious Court, composed of Christian, Muslim and Jewish clergymen with one clergyman representing each of the three religions. Anyone feeling that his or her religion was insulted could appeal to the International Religious Court for a ruling on the matter, and the court would then determine whether a penalty should be invoked. It would be the responsibility of the government on whose territory the action took place to impose the penalty....

[G]overnments may be reluctant, on grounds of sovereignty, to impose penalties required by such an international court. Nonetheless, there is a precedent wherein a number of states have, in certain cases, voluntarily agreed to abide by the decisions of the International Court of Justice, which could be a model for the International Religious Court....

As you might gather, my reaction to this is much the same as my reaction to the "Defamation of Religions" argument I criticized below. Interestingly, unlike Prof. Ali Khan's work, Dr. Friedman's argument doesn't even mention the possibility that the nation in which he lives might be constitutionally barred from going along with the orders of any such court.

Thanks to David Gerstman (Soccer Dad) for the pointer.

Washburn University law professor Liaquat Ali Khan has an interesting article in The American Muslim called Combating Defamation of Religions:

A new value is emerging in the realm of the peoples' rights. Now two years in a row, the United Nations General Assembly has passed a resolution called, Combating Defamation of Religions. Although the Defamation Resolution applies to all religions, it highlights "the negative projection of Islam in the media and the introduction and enforcement of laws that specifically discriminate against and target Muslims." ...

The General Assembly resolutions may contain soft international law. With the passage of time and compliant state behavior, some resolutions pave the way for the formation of a multilateral treaty or customary international law. In almost all cases, these resolutions reflect the international community’s views, which cannot be dismissed as mere opinions. These views, even when they fall short of opinio juris, influence multilateral relations and compose the sociology of international law....

[T]he Defamation Resolution urges states to prevent political institutions and organizations from fomenting discrimination, hostility, and violence against religious groups....

The idea of combating the defamation of religions, though morally sound, is difficult from a legislative viewpoint and will pose serious drafting challenges. The idea, however, poses no greater problems than prohibiting hate speech against racial, ethnic, or religious groups — a law adopted in almost all countries of the world except the United States. One key function of law is to make distinctions and draw balance between competing rights. In the complex realm of human affairs, no right is absolute, not even free speech or the dignity of religion. Accordingly, the law against defamation of religions may be constructed in a way that does not abridge legitimate speech including artistic freedom and yet protects the dignity of religion....

I appreciate the article's acknowledgment that many criticize the resolution on free speech grounds — yet it seems to me hard to read the article as anything but an endorsement of the resolution, and an endorsement of some restrictions on "[il]legitimate speech" that undermines "the dignity of religion." Unfortunately, the article doesn't explain just how the "serious drafting challenges" are to be resolved; and though I e-mailed Prof. Ali Khan on Monday to ask him for his thoughts on the subject, I haven't yet heard back from him. It's therefore hard to figure out precisely what kind of speech Prof. Ali Khan and other backers of the Resolution would like to restrict. A good place to start, though, is one of the provisions of the resolution:

The Commission on Human Rights ... Urges States to take resolute action to prohibit the dissemination through political institutions and organizations of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence.

Prohibiting the dissemination of xenophobic ideas aimed at any religion that constitute incitement to hostility — sounds like a pretty broad proposition. It would cover many atheist criticisms of religion generally; many secularist criticisms of fundamentalist Christianity (or Islam or Judaism); condemnation of religious groups that are alleged to be cults or scams; many theological criticisms of a wide range of religions; many pro-gay-rights or pro-women's-rights condemnations of religions that are seen as hostile to gays or women; and much more.

I think American law is correct in protecting even racist speech, or speech that advocates discrimination (even when limited to illegal discrimination) or violence. But the Resolution, and the very concept of "defamation of religions," suggests the suppression of much more speech than even that.

Two more thoughts:

1. Slippery Slopes: Note how Prof. Ali Khan relies on "The idea, however, poses no greater problems than prohibiting hate speech against racial, ethnic, or religious groups — a law adopted in almost all countries of the world except the United States." This is precisely what those who fear slippery slopes worry about.

A narrow exception for so-called racial or ethnic "hate speech" is adopted (often partly based on grounds that racial or ethnic hostility is illogical because it turns on irrelevant traits such as people's skin color). Then it's broadened to cover religious "hate speech," though religion is ideology and hostility to people based on their ideology is at least more sensible than hostility based on race. (Though I think that religious hostility is generally unjustified despite this, there is an important distinction between racial and religious hostility — but a distinction that many foreign hate speech laws disregard.)

Then this is used as an analogy to support proposed bans on "defamation of religion" generally, a category that's considerably broader than calls for discrimination or violence against the people who adhere to the religion. After all, almost all countries restrict "hate speech"; that broad acceptance suggests (the argument goes) that the restrictions are indeed sound; why not extend them a little further? And of course once we slip down to restrictions on defamation of religion, those restrictions in turn can be used as analogies to support further restrictions.

2. The Subtle Insinuation of International Law into Our Constitutional Law: Finally, this returns me to a Stanford Law Review article I read a few years ago. Signing treaties, the article said, may erode the Bill of Rights: American decisions to sign on to international treaties may erode the protections of the Bill of Rights, for instance the First Amendment.

Yes, the Supreme Court has supposedly said otherwise, in Reid v. Covert (1957): "[N]o agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution" (speaking of the Bill of Rights). But it turns out that this supremacy of the Bill of Rights really isn't that strong: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting it, the First Amendment notwithstanding"). "In the short term," international norms would and should be "relevan[t] ... in domestic constitutional interpretation." But "In the long run, it may point to the Constitution's more complete subordination."

These quotes are not from some anti-internationalist "The U.N. is coming to take away our liberties" conservatives. They are from Treaties, International Law, and Constitutional Rights, by Prof. Peter Spiro, one of the leading American international law scholars. Prof. Spiro is both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run":

Constitutional rights "adjusted" by treaty norms are changed by them. The Constitution is read to conform with the treaty.

Of course, some people may be quite happy about this: They might well conclude that parts of the Bill of Rights should be superseded by "international" norms, both those explicitly mentioned in treaties and those created by authoritative organs such as the U.N. General Assembly (which themselves derive their legitimacy from treaties that crated them). They may think the international lawmaking community — mostly, I suspect, composed of European legal and political elites, plus of course those segments of American legal and political elites that are involved in this field — will indeed reach better results than those provided for by the current understanding of the U.S. Constitution.

But those of us who disagree should vigilantly watch for, and resist, the "displacement of constitutional hegemony" that the article welcomes. We should insist that the President and the Senate consistently stress in all the treaties they sign and ratify that our agreement to the treaty is constrained by our Constitution, and that the treaty should be read to conform to the Constitution, and not the other way around. We should be careful that none of the treaties that our elected representatives sign include language that broadly approves of "new value[s]" "in the realm of peoples' rights" such as freedom from "defamation of religions," or that authorizes international institutions to create such "new value[s]."

We should criticize judges who rely on international norms in interpreting American constitutional provisions (in this respect, reading Prof. Spiro's article has led me to reconsider some of my views in this post, and to view with much more alarm reliance on international law in American constitutional interpretation). And we should assiduously publicize the ways in which international rules are, in our view, worse than ours, for instance to show that foreign bans on "hate speech" actually end up banning (as American First Amendment thinking would have suggested) a good deal of speech that deserves to be protected (see, for instance, this post by David Bernstein).

Today, as Prof. Ali Khan points out, many foreign countries do not endorse the "emerging" "peoples' rights" "value" of freedom from "defamation of religion" (though enough endorse it to get General Assembly approval). But most foreign countries have endorsed values that aren't that far off, such as freedom from racial and religious "hate speech." It's quite plausible that in a few decades, Prof. Ali Khan's perspective will indeed be adopted by the great majority of foreign countries. I'd hate to see that undermining free speech in America — yet Prof. Spiro's arguments suggest that it might, especially (but not necessarily only) if the General Assembly Resolutions are embodied in future treaties.

Our Constitution is far from perfect, both as written and as interpreted. I think courts should indeed change their views on many issues, and people should try to press courts to do so. But this should be our decision as Americans. We should not cede our control over our constitutional rights to international bodies, international professional elites, or even to our own President and Senate.

From our post on February 5:

[I]f Tennessee legislators want to do something about online libel and retractions [that's better than an earlier bill that I had criticized -EV], why not look at Tenn. Code Ann. § 29-24-103?

(a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

(b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of said notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.

(2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.

This is an extra protection offered speakers, which encourages them to publish prompt retractions by offering to limit the liability to which they would otherwise be constitutionally exposed. The Tennessee legislature seems to think it's good enough for newspapers and periodicals. Why not make it clear that it applies to online publications as well?

Now, from HB420, introduced February 7, by Rep. Briley -- the same Representative who had proposed the earlier, much-criticized bill:

Tennessee Code Annotated, Section 29-24-103, is amended by deleting subsection (a) and substituting instead the following:

(a) Before any civil action is brought for publication of a libel, whether in a newspaper, periodical or posted on the Internet, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

I'm a little puzzled by this. The point of the five-day warning requirement, I take it, is to give the publisher the opportunity to retract. But if only subsection (a) is changed to include "newspaper, periodical or posted on the Internet," and subsection (b) continues to mention only newspapers and periodicals, then it sounds like Internet retractions will be ineffectual: An Internet speaker will get the 5-day notice that may let him retract if a retraction is called for -- but then nothing in (b) would give any legal effect to this retraction. Just look at what the revised statute would look like (new material italicized, important portions boldfaced):

(a) Before any civil action is brought for publication of a libel, whether in a newspaper, periodical or posted on the Internet, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

(b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of said notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages....

What's more, while before the amendment Section 29-24-103 might have been read as covering blogs implicitly, on the theory that they are periodicals, the amendment to subsection (a) may be read as suggesting that Internet postings are not periodicals (since it treats the categories "newspaper," "periodical," and "posted on the Internet" as separate), and that (b) therefore doesn't apply to Internet postings. On the other hand, I doubt that this was the drafters' intention, since the amendment may also be read otherwise: After all, some newspapers are a type of periodical (and maybe all are, depending on how you define "periodical"), even though they're listed separately, so perhaps courts will conclude that material posted on the Internet can still be a periodical.

I wonder, then, if there might have been some mixup here: Might Rep. Briley's office have meant to cover Internet postings, but inadvertently proposed modifying only subsection (a) and not subsection (b)? Or if that wasn't they meant, what did they mean? (Or am I misanalyzing the statute here?)

Thanks to Volunteer Voters, which takes a somewhat more optimistic view of the statute than I do.

You too can nominate someone for the post of Admiral of the Great Navy of the State of Nebraska. The commission provides, among other things, that the governor "do[es] strictly charge and require all officers, seamen, tadpoles and goldfish under [the Admiral's] command to be obedient to his orders as Admiral."

The news hook is that Dr. Ben Bernanke, Chairman of the Board of Governors of the Federal Reserve, has just been appointed to this august post, though I can't speak to exactly how he "contributed in some way to the state" and "promote[d] the Good Life in Nebraska." Thanks to Paul Gwilt for the pointer.

My post on the jihadist father case led to various responses about what the right result should be, and more broadly about what the right First Amendment rule should be. Let me ask you folks this: Keep in mind the following (real) cases -- for citations and more details, see my NYU Law Review article on the subject -- and think about what First Amendment rule you would advocate, not just for the jihadist case but for those cases as well. Would it be "judges may impose whatever speech restrictions they think are in the best interests of the child, and allocate custody in whatever way they think best serves the interest of the child" (pretty much the current family law rule)? Would it be something else?

I'm not just asking which conceptual lines can be drawn; I'm asking which rule you think is likely to operate in our legal system, in which judges will often have different views from you, and will often apply fuzzy rules in ways differently than you would. (Of course, some judges will evade even clear rules, but let's assume that rules have at least some power to constrain judges in some cases.)

Here is the test suite:

1. A parent is denied custody based partly on his “not regularly attend[ing] church and present[ing] no evidence demonstrating any willingness or capacity to attend to religion with [his children],” or having a “lack of religious observation.” Another parent is given custody but only on condition that he “will agree to present a plan to the Court of how [he] is going to commence providing some sort of spiritual opportunity for the [children] to learn about God while in [his] custody.” A court orders a mother to take her child to church each week, reasoning that “it is certainly to the best interests of [the child] to receive regular and systematic spiritual training.” Another court does the same, partly on the grounds that weekly church attendance, rather than just the once-every-two-weeks attendance that the child would have had if he went only with the other parent, provides superior “moral instruction.”

2. Parents have custody rights limited or denied based on racist speech.

3. ... based on advocacy of Communism (during the 1930s and 1950s).

4. ... based on advocacy of polygamy (we're back to today, as we are on all the examples that don't have dates labeled).

5. ... based on their defense of the propriety of homosexuality.

6. ... based on their advocacy of (or inadequate condemnation of) nonmarital sex.

7. ... based on their teaching of fundamentalism.

8. ... based on their teaching of “non-mainstream” religions.

9. ... based on their teaching of religious intolerance.

10. ... based on their exposing their children to R-rated movies.

11. ... based on their allowing their children unfiltered Internet access.

12. ... based on their exposing their children to photos of men in women’s clothing.

13. ... based on their exposing their children to music with vulgar sexual content.

14. Parents are ordered not to say bad things about the other parent generally.

15. When the other parent is homosexual, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic."

16. When the parents are of different religions, a parent is ordered not to say that people who don't share the speaker's religion are damned to hell.

17. When the other parent is a racist, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered harshly condemning of racists" (this is the one pure hypothetical in the whole list).

18. When the parents are of different religions, a court orders “that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise."

It's a long list, so don't feel obligated to discuss in detail each item -- but think about which rule you think would reach the right results not just in one case but in the whole range of cases.

I have an L.A. Times op-ed this morning about a fascinating parent-child speech case — one that to my knowledge no media outlet has yet discussed (probably because the facts were discussed in an unpublished opinion that likely no-one but the parties and I had read). Here are the opening paragraphs:

Meet Daniel P. and Allison B. and their children, Mujahid Daniel and Mujahid David, ages 13 and 11.... During their marriage, according to court documents, Daniel and Allison followed a "quasi-Muslim philosophy." They also "amassed a large quantity of weapons," and Daniel was imprisoned for illegal weapons possession and for making threats. Allison testified that Daniel abused her and that she went along with his actions only because she was afraid of him. The couple divorced in 1997, when Daniel was in prison.

Daniel, now out on parole, wants to see his children. Allison objects, based on Daniel's "violent felony conviction record ... domestic violence ... extremist views regarding religion, including ... jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are Mujahid." ("Mujahid" means a soldier fighting for Islam; "mujahedin" is the plural.)

In December, a New York appellate court held that Daniel should be allowed supervised visitation after his parole expires this summer. But the court also upheld, in the name of "the best interest of the children," the trial court's order that Daniel not discuss with the children "any issues pertaining to his religion." ...

In the rest of the op-ed, I discuss the First Amendment implications of such orders, and point out that similar speech restrictions can arise in a wide range of other cases, involving racist speech, anti-gay speech, pro-gay speech, the teaching of religious intolerance, decisions not to teach religion at all, and more. Last year, I wrote an NYU Law Review article (Parent-Child Speech and Child Custody Speech Restriction) on this general subject.

For those who are interested, I also report the opinions below:

[New York family court decision, Oct. 28, 2005:]

The Petitioner, DANIEL [P.] (hereinafter, “father” or “Petitioner”) having filed a petition, pursuant to Family Court Act, Article 6, for an order, inter alia, granting him “visitation” with the children, MUJAHID DANIEL [P.], born October 30, 1993; and MUJAHID DAVID [P.], born June 1, 1995 (hereinafter “Daniel” and “David” or “the children”); and the Respondent, ALLISON [B.] (hereinafter “mother” or “Respondent”) having opposed such petition; and these matters, having come on before me for a trial, and the Petitioner having appeared via telephone testimony and by his attorney, John Zenir; and the Respondent having appeared in person and by her attorney, Steven A. Meisner, and the Law Guardian, Gail Jacobs, Esq., having appeared on behalf of the children; and the parties having presented witnesses, and exhibits to this Court; and upon all of the prior proceedings and pleadings had herein; and the parties having consented to this matter being heard and determined by Special Referee Dorothy A. Phillips; the petition is decided as follows:

(Show text of opinions.)

FACTUAL BACKGROUND & PRIOR ORDER/JUDGMENT OF DIVORCE

The history of the relationship between the petitioner and respondent, and their conduct and beliefs, prior to their ultimate separation and divorce, may be considered “extreme” or non-conventional, especially in today’s, post “9-11” world. The petitioner has not seen his children since 1997, although he has maintained consistent contact with the children, through cards and letters and speaks with them regularly by telephone.

It is uncontroverted that the petitioner is a repeat felony offender, having been convicted of, among other things, making terrorist threats and weapons possession. In fact, both the petitioner and respondent testified that they amassed a large quantity of weapons during their marriage, which in turn, resulted in the petitioner’s most recent felony conviction for weapons possession. The petitioner was incarcerated at the time of the parties’ divorce and it is uncontroverted that his incarceration and current alleged inability to travel, is the direct result of his criminal conduct.

During their marriage, both parties followed a quasi Muslim philosophy, including the naming of the two children born during their marriage, Mujahid Daniel and Mujahid David[.]

The respondent testified that she was a victim of domestic violence during her marriage to the petitioner and that she engaged in those non-conventional activities with the petitioner due to her fear of the petitioner. At the time of their divorce, granted in accordance with the terms of an agreement between the parties, the petitioner was granted, on consent, visitation with the children as agreed to between the parties.

In accordance with the parties’ Stipulation, which was incorporated in their Judgment of Divorce, dated February 25th,1997, the terms of custody and visitation of the children were as follows:

[A] The Wife shall have custody of the Children during their respective minorities. The Husband shall have reasonable visitation rights with the Children, and the Wife shall cooperate with the Husband to enable him to effect such visitation at times convenient to the parties subject to the commitments of and plans for the Children. The parties shall consult with each other on all material matters with respect [to] the Children, including all matters relating to their health and education. If either of the Children shall require significant medical care, the Wife shall keep the Husband informed. Each of the parties agree to avoid involving the Children in any conflicts between the parties and not to disparage the other to the Children.

[B] The parties shall exert every reasonable effort to maintain unhampered contact between the Children and each of the parties, and to foster a feeling of affection between the Children and the other party. Neither party shall do anything which may estrange the Children from the other party, or injure the opinion of the Children as to the other, or which may hamper the free and natural development of the Children’s love and respect for both parents. The Children’s well-being, education and development shall be of paramount importance in the application of all provisions of this paragraph.

As the result of his last felony conviction, the petitioner was sentenced to a Federal Penitentiary in Pennsylvania. At the time of his release, he had a choice of locale for the purpose of service his time of supervised parole. The petitioner contends that until his complete of his parole, he was advised that he would not be permitted to leave the area of his parole.

The petitioner chose Hawaii, the land of his birth and where his father resides, a retired physician, even though he would not be near his children. The petitioner’s father also testified that upon his son’s release, he agreed he would provide familial support and assistance for his son’s parole in Hawaii. His restricted supervised parole ends in July, 2007.

The petitioner filed the instant petition to enforce the parties Judgment of Divorce, granting his visitation as agreed. At the time of the filing of the instant petition for visitation, the petitioner was released from the Federal Penitentiary and is currently on secured parole, unable to travel. The petitioner contends that insofar as he is on parole and unable to travel, the children should be permitted to come to his home for the purpose of effecting visitation and the respondent should pay for the expense of their travel.

The respondent contends that due to the petitioner’s violent felony conviction record, the domestic violence exhibited during the course of their marriage, his extremist views regarding religion, including his belief regarding Jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are MUJAHID, that visitation should be denied.

The respondent testified that she consented to petitioner having visitation with the children because she believed the petitioner would never exercise any visitation.

The respondent now seeks to thwart the petitioner’s visitation with his children, based on a “best interest” argument, and by raising issues that pre-date the parties’ Judgment of Divorce; or in the very least, is seeking to limit the petitioner’s visitation to supervised visitation only.

THE LAW

In deciding the issue of visitation, the courts must determine “what is for the best interest of the children”. Visitation with a noncustodial parent is presumed to be in the children’s best interest even when a noncustodial parent is incarcerated, which, by itself, is not enough to deny visitation (see, Matter of Davis. 232 AD2d 773 [2nd Dep’t 2000]).

“A noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child (see. Matter of MacEwen v MacEwen, 214 AD2d 572; Matter of Vanderholl v Vanderholl, 207 AD2d 494)” (Matter of Ronald Bradley v Wright. 260 AD2d 477).

FINDINGS & DECISION

While this Court agrees that the petitioner’s felony convictions, the history of domestic violence, and his attempts to prophetalize his beliefs to the children in letters and phone calls [while he was incarcerated] does not make him a candidate for untethered protracted unsupervised visitation; it does not rise the level to impose the drastic remedy of denying meaningful visitation to the father. Moreover, the children have a right to visit with their father, and the proof before this Court does not establish that it would not be in the children’s best interest to enforce that right. Notably, both the respondent and petitioner testified that the petitioner no longer attempts to discuss his beliefs with the children during his letters or telephone conversations with the children and the respondent herself no longer believes that it is necessary to monitor the children’s communication with their father. Finally, the children are mature young men who have expressed a desire to visit with their father.

Thus, the issue before the Court is what visitation would be in the children’s best interest, how such visitation should be arranged, whether the children should travel to Hawaii until the father’s supervised parole is completed in July, 2007; and where the children should stay during any visitation due to the fact that the petitioner has failed to establish that he has adequate living/sleeping arrangements to accommodate these children.

The children have not seen their father since 1997, and despite the fact that they speak with him via telephone and communicate with him by letters, he is still a stranger to these children and it is natural that these children would have a certain level of trepidation in visiting with their father for the first time since 1997, in a land far away from their familiar surroundings.

It is this Court’s judgment, after conducting an in camera of the children, that they are mature children, aware of the facts and circumstances of their father’s past, and the reason for their father’s confinement in Hawaii. They are also well traveled; and both they and their mother have a strong familial relationship with their paternal grandfather; [having traveled with the father’s family members in Europe as recently as the summer of 2005]; who lives in close proximity to the petitioner. During the trial, the paternal grandfather testified by telephone and declined the suggestion of counsel. regarding his acting as a supervisor for any visitation and articulated a well founded reason, i.e., that he would not want to be in a position of evaluating his son’s visitation with his children. He did, however, indicate that the children would be welcome to stay at his home, a large well-maintained home, with ample room for the children to stay during any travel to Hawaii.

Accordingly, commencing during the February, 2006 school recess period, the children shall have visitation with their father in Hawaii, the petitioner shall make all arrangements for the children’s travel; and the respondent shall make appropriate arrangements for their care and accommodations during their stay in Hawaii, e.g., with their paternal grandfather or a hotel with the respondent if she chooses to travel with the children.

Due to the fact that the children have not visited their father since 1997, the initial day-time visitation of up to four hours, shall be therapeutic visitation under the auspices of a certified therapist as selected and arranged by the parties and the Law Guardian; and thereafter, visitation shall continue on a day-to-day basis, the second day consisting of one hour of unsupervised visitation with the father, followed by one hour of therapeutic visitation; day three shall consist of two hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation; the fourth day shall consist of four hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation; and finally, all subsequent visitation shall consist of eight hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation.

The petitioner/father’s failure to participate in any of the therapeutic portions of visitation shall be deemed a waiver of any subsequent visitation. The petitioner/father shall not discuss any issues pertaining to his religion or philosophy with respect to same, during any unsupervised visitation time with the children. The petitioner/father’s failure to comply with this specific prohibition shall be deemed a waiver of any subsequent visitation.

The cost and expense for all travel arrangements for the children and therapeutic intervention shall be at the sole expense of the petitioner/father; and the mother shall pay for all hotel accommodations for the children. If the respondent/mother chooses to accompany the children during their trip to Hawaii, then the respondent/mother shall bear the sole cost and expense of all of her travel arrangements as well as all of the costs and expenses for hotel accommodations for herself and the children; and there may such other visitation as agreed to between the parties.

Thereafter, the father shall have day-time visitation, eight hours of unsupervised followed by one hour of therapeutic visitation, for one week during the summer of 2006, and during the February, 2007 school recess period, the cost and expense for such visitation shall be in accordance with the allocation set forth above, plus any other visitation that the parties agree. Thereafter, upon completion of the petitioner/father’s parole, there shall be such other visitation as the parties agree.

This shall constitute the final decision and order of this Court.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER

TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER PERSONAL SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

[New York Appellate Decision, Dec. 12, 2005:]

In a child visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Phillips, Ct. Atty. Ref.), dated November 18, 2005, as, after a hearing, awarded the father unsupervised visitation with the subject children in the State of Hawaii, and the father cross-appeals, as limited by his brief, from so much of the same order as directed that he pay for the subject children's travel and lodging expenses in order to visit him in Hawaii, prohibited him from discussing any issues pertaining to his religion or philosophy with the children during the visitation, and directed therapeutic visitation in addition to the unsupervised visitation.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof awarding the father unsupervised visitation with the subject children in the State of Hawaii and substituting therefor provisions awarding the father day visitation supervised by an individual chosen by the parties and the Law Guardian for seven hours within the State of New York to begin during the children's summer recess in July 2007, and thereafter day visitation supervised by an individual chosen by the parties and the Law Guardian for seven hours within the State of New York to begin during the children's winter school recess in February 2008, with each visit to be followed by one hour of therapeutic visitation with a certified therapist chosen by the parties and the Law Guardian; as so modified, the order is affirmed insofar as appealed and cross appealed from, without costs or disbursements.

The father commenced the instant visitation proceeding to modify an order issued by the District Court of the Third Judicial District (hereinafter the Wyoming District Court) within the state of Wyoming in May 2001 which, after a hearing, inter alia, denied him visitation with the subject children. The father sought an order granting him, inter alia, unsupervised visitation with the subject children in the State of Hawaii.

Initially, we note that the father met his burden of demonstrating a subsequent change in circumstances warranting a hearing (see Family Court Act § 652[b]). The father demonstrated that, following the previous order issued by the Wyoming District Court, he was released from his incarceration at a federal penitentiary and was residing at a permanent residence within the State of Hawaii. Further, it was undisputed that the children wished to visit with the father.

The hearing testimony established that the father had not visited with the subject children since 1997 due in part to his incarceration. Upon his release from the federal penitentiary, the father was, in effect, paroled to the State of Hawaii and prohibited from leaving the State until July 2007. The evidence further demonstrated that the mother and the subject children resided together in the State of New York. After the hearing, the Family Court, inter alia, awarded the father unsupervised visitation with the subject children in the State of Hawaii.

Under the circumstances, the Family Court improvidently exercised its discretion in awarding the father unsupervised visitation with the subject children in Hawaii. A parent's supervised visitation with a child is required only where it is shown that unsupervised visitation would be detrimental to the child (see Matter of Anaya v Hundley, 12 AD3d 594, 595). Given the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172), including the age of the children, the father's extensive criminal background, his history of domestic violence committed against the mother, and the cost and distance of travel, unsupervised visitation with the father in Hawaii is not in the children's best interests (see e.g. Matter of Anaya v Hundley, supra; Matter of Simpson v Simrell, 296 AD2d 621). Thus, we award the father initially only supervised day visitation with the children in the State of New York.

Upon a balancing of the competing interests, the Family Court providently exercised its discretion in restricting the father from discussing any issues pertaining to his religion or philosophy with the subject children, particularly where the Law Guardian supported that restriction (compare Stephanie L. Benjamin L., 158 Misc 2d 665, 667). Further, the Family Court properly directed that the father and the children engage in therapeutic visitation.

In light of our determination, we do not reach the father's remaining contention.

FLORIO, J.P., SCHMIDT, SANTUCCI and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

(Hide text of opinions.)

From Kay v. Friel, 2007 WL 295556 (D. Utah Jan. 26), a prison religious freedom case (emphasis added):

Plaintiff's allegations are insufficient to make a prima facie showing that his beliefs are religious in nature, and that they are sincerely held. Plaintiff's Complaint does not include any facts to support his conclusory assertion that he is a "sincere and devout" practitioner of the Wicca religion. More importantly, however, Plaintiff has not alleged any facts showing that the items being withheld from him--tarot cards, Dungeons and Dragons game, and metal religious symbol--are necessary to the practice of the Wicca religion. [FN: It appears that Plaintiff is permitted to possess a plastic religious symbol. Plaintiff's Complaint does not state how the composition (i.e. metal versus plastic) of the unidentified religious symbol is relevant to Wiccan religious beliefs or practice.] Similarly, Plaintiff has not clearly described the nature of the "religious ritual" he was prevented from conducting, or its relevance to the Wiccan religion. In the absence of such basic factual allegations the Court cannot conclude that the restrictions challenged by Plaintiff amount to a burden on his exercise of religion. Thus, the Court concludes that Plaintiff's Complaint is insufficient to state a Free Exercise claim under the First Amendment.

Given Texas's conscientious objector exemption, the vaccine seems not to be really mandatory. (I say "seems" because I'm not positive how the exemption, which is on its face very broad, is applied in practice.) But what if it were mandatory? Should we oppose that on broadly libertarian grounds? When I say "we," I'm referring not just to hard-line libertarians (of which I'm not one) but also to those who have general Millian "free to do what I please so long as I don't hurt others" sympathies, even if those sympathies can sometimes be trumped by other concerns.

My tentative sense is that immunizations against communicative diseases are often quite proper, even as a libertarian matter. I say "tentative" because I'm sure others have thought about the subject in much more depth than I have, and perhaps they can prove me mistaken. But let me quickly lay out my thinking.

It is a sad fact of biology that we can spread communicable diseases without any conscious decision on our parts, even without knowing that we are infected. Any time we do this, we are indirectly causing harm to someone else. Say Alan has sex with Betty, who then has sex with Carl, who then has sex with Denise; say Alan is infected with HPV, and each sexual act would (absent immunization) spread HPV; and say Betty isn't immunized against HPV. Betty's failure to get immunized would lead to her unwittingly spreading the virus, which ends up hurting Denise. She hasn't intentionally harmed Denise, but she has harmed her -- you might categorize the harm as negligent (in that it flows from negligent failure to get immunized) or not, but it is indeed the infliction of harm.

Now it's true that the harm also flowed from Denise's voluntary decision to have sex with Carl. But, as I noted in an earlier post, it's hard to see why this should excuse the harm caused by Betty, any more than Denise's voluntary decision to get on the road excuses the harm that someone imposes on Denise by crashing into her with a car (or, if you prefer, that Betty imposes on Denise by crashing into Carl's car, which then crashes into Denise's).

Even if you think that some people's having many sexual partners should affect the analysis, remember that HPV can be spread even among people who are about as sexually constrained as can be expected. The Alan-Betty-Carl-Denise connection can happen even if Betty was a virgin when she married Alan; if she then didn't have sex with Carl until she married him (assume Alan had died, or had left Betty); and if Denise was a virgin when she married Carl (again, assume Betty had died, or had left Carl). This very scenario might be rare -- but lots of other scenarios in which people had led fairly safe lives, but find themselves getting HPV, are also quite plausible. And more broadly, even if people are leading somewhat riskier lives than this, participating in spreading a disease to them may still be quite rightly seen as harming them, despite their own role in choosing risky behavior.

Of course, if HPV immunization were 100% reliable, and 100% available, then this analysis wouldn't apply with quite the same strength: Presumably any person who remains at risk of HPV infection would be at risk because of her own refusal to get the vaccine. Yet while the immunization is supposed to be extremely reliable for 9-to-26-year-olds, it hasn't been tested on over-26-year-olds, and thus isn't recommended for them. Moreover, some people won't get the vaccine, possibly because they can't afford it. ($360 isn't chopped liver for many, especially for people who aren't in America.) Even an "assumption of risk" presumptive libertarian may reasonably conclude, I think, that refusing to get immunized is wrongful behavior, because it may lead to one's becoming a vehicle for transmitting a dangerous and sometimes deadly disease to third parties, and thus harming those third parties (in a way that an "assumption of risk" argument would not excuse).

Finally, recall that the question here is whether to immunize girls who are under 18, girls who may well get infected before 18 if the immunization is delayed until then. Even if it was just their own health on the line, and not the health of others whom they might indirectly infect, we could rightly say that they don't have the maturity to refuse this protection, and that their parents shouldn't be entitled to refuse this protection on their behalf. But since the question of what kinds of modest physical risks parents should be free to have their children run is thorny, contested, and old hat enough that I'm not sure I can add much to the subject, I thought I'd focus primarily on how parents' refusal to immunize their daughters may hurt others, and not just the daughters themselves.

So a brief summary: There may well be practical problems with truly mandatory immunization, and it may well be that herd immunity would mean that 90% immunization is good enough to reduce the risk to a level that doesn't merit regulation. There may of course also be practical objections to immunization if the immunization seems unduly risky (a question I set aside in the first post in this chain). But as a moral matter of individual liberty, it seems to me that there's little support for a claimed freedom from getting immunized -- and especially a claimed freedom from getting your underage children immunized. A requirement that people not allow their bodies to be media for unwitting transmission of deadly diseases strikes me as quite compatible with a generally libertarian perspective on the world.

I've heard some argue that HPV is different, and a less proper candidate for a government-mandated (or even government-strongly-pressured) immunization, because HPV is acquired through risky, and usually personally chosen, behavior. This, though, strikes me as mistaken.

Though having multiple sexual partners increases one's risk of getting HPV, all it takes is one sexual partner. Nearly every woman will have sex at some point in her life. Even if she is a virgin bride, she can get HPV from her husband on her wedding night. True, if she marries a virgin, and her husband never cheats on her, then she's not at risk (setting aside the possibility of rape). But even the most moral behavior on her part, under any definition of morality short of lifelong abstinence from sex (including marital sex), won't protect her. The vaccine, on the other hand, likely will protect her.

There's also a very different kind of risky behavior argument: I'm told that regular pap smears, and the medical procedures used when the pap smears show a dangerous result, are very reliable in preventing even HPV-infected women (about 50% of the population, I have read) from developing cervical cancer. In a sense, then, actually getting cervical cancer may be said to be the woman's "fault" not because of her sexual behavior but because of her medical laxness. (That sounds harsh, but I take it that we do say that in some measure, though not without sympathy, in other contexts: If someone dies of untreated pneumonia -- consider, for instance, Jim Henson -- we might think that this death was in some measure his fault.)

Yet that seems to me to be a not very good argument against immunization. Many women don't get pap smears because they're fairly poor. Even those that could easily get them but don't seem to deserve some protection. And even for those who get them and thus don't get cervical cancer, the treatment used to avoid death from cervical cancer is expensive, unpleasant, and emotionally distressing -- and it can lead to infertility.

Of course, all this then raises the broader libertarian objection: Why should some people be forced to be immunized (assuming the Texas law mandated immunization, which this one seems not to, given its broad exemption for parents with conscientious or religious objections) in order to protect others? I'll turn to that in the next post.

Some argue that vaccinating girls for HPV would give them a false sense of security, and will thus lead to young teens' having more sex. I'm pretty skeptical about that.

Those girls who think about the risks of sex (and who knew in the first instance that sex can cause cervical cancer) will still realize that sex can spread AIDS — which kills roughly 2300-2500 American women per year, which causes over 5000 more per year to fall ill, and which strikes me as a much more publicly focused on risk than is HPV. They'll also recognize that sex can cause pregnancy; and those who blithely have sex without paying much attention to these remaining risks likely would have blithely ignored the risk of cervical cancer, too. "I wasn't going to have sex, because I was afraid of getting cervical cancer or AIDS, but now that I know that I'll only be at risk of AIDS, I'll go ahead and do it" strikes me as an implausible reaction.

In principle, I'm open to arguments that legal requirements that seem to increase safety will lead to riskier behavior that will eliminate much of the safety benefit. That's certainly a danger that sound policy analysis should take into account. But in this particular situation, it just doesn't seem very plausible.

Not everything that improves health, or even saves lives, is worth mandating or even strongly pressuring (even if your philosophy is social welfare maximization; I'll speak later about how those with a more libertarian bent might view this). Saving a few lives at the costs of billions of dollars may end up not being cost-effective, especially given that the expense could reduce people's ability to spend on much more cost-effective health improvements.

But my very rough back-of-the-envelope calculation suggests that the HPV vaccination is pretty cost-effective. The CDC reports that the retail price of the HPV vaccine is about $360; let's assume this ends up being roughly the cost, setting aside bulk discounts, extra labor costs for administering the vaccine and the like. About 2500 American women die of HPV each year, which means that the lifetime risk for a typical American woman is roughly 2500 x 75 / 150,000,000 = one in a thousand.

Given that most estimates of value of life saved I've seen run in the $5 million to $10 million range, avoiding a 1/1000 risk of premature death for $360 sounds pretty cost-effective. Of course a more full analysis would have to include many other factors: It should consider years of life lost rather than just deaths. It should consider the possibility that the people who die of cervical cancer are also the ones least likely to get the immunizations; cervical cancer can largely be avoided through regular pap smears, so it stands to reason that women who get it tend to be ones who are least likely to have good health insurance coverage, and they may be the ones who are most likely not to get immunized when they are girls. It should also consider, as a factor countervailing to this one, the possibility that herd immunity provided by very broad immunization will benefit even those who aren't immunized. And it should doubtless consider a bunch of other things, too.

Still, given that $360,000 is way under $5 to $10 million, it seems safe to say that include all the other factors will still yield a judgment that the HPV immunization is likely cost-effective.

Last Friday, Texas Governor Rick Perry issued an executive order requiring that "[t]he Health and Human Services Executive Commissioner shall adopt rules that mandate the age appropriate vaccination of all female children for HPV prior to admission to the sixth grade," though allowing parents to refuse on conscientious grounds. (The relevant state statute, Health & Safety Code § 161.004(d), provides that "A child is exempt from an immunization required by this section if ... a parent, managing conservator, or guardian states that the immunization is being declined for reasons of conscience, including a religious belief.")

The governor's action has led to a good deal of objection, from both social conservative and libertarian circles. I thought I'd pass along a few tentative thoughts of my own. Because the aggregate of the thoughts is long, I'll break it up into a few posts; in this one I'll just set out the key facts:

HPV (Human Papillomavirus) apparently causes about 70% of cervical cancers; there are about 10,000 new cases of cervical cancer in the U.S. per year, and 3700 deaths, which means that HPV kills about 2500 American women each year. HPV is sexually transmitted; the vaccine, the CDC reports, has been tested on 9-to-26-year-olds and appears to be nearly 100% effective if administered before a woman acquires HPV. It has not, however, been tested on women over 26, and thus is not recommended for them.

I can't speak to how safe the vaccine is, though I have no reason to doubt the CDC's view that it is safe. If it is indeed too risky, that would of course be a plausible objection to it, but I'll set that aside for now. Rather, in coming posts, I'll discuss whether the vaccine is likely cost-effective; whether it might be counterproductive because it will lead to more risky sex and thus more diseases that stem from it; whether HPV is different enough from other diseases that government-mandated or even government-strongly-suggested HPV vaccination is improper; and how we might think about truly mandatory vaccination (which this doesn't seem to be) more generally.

in the Weekly Standard. I like the piece, and I'm delighted that Professor Nagel thought my work worthy of public disagreement.

Naturaly, I don't agree with the article, but that's because I don't share its minimalist view of judicial authority. (I say minimalist because Professor Nagel is criticizing not only unenumerated rights — apparently including a right to abortion as self-defense — but also enumerated ones: He criticizes, for instance, the Court's cases upholding protection for "vulgar speech" or for flag desecration.) As I noted in my article, those who do take such a view would understandably reject my constitutional position, though I hope they can still agree that legislatures ought to enact my proposals.

InstaPundit (who's a constitutional law professor at the University of Tennessee and his fellow Tennesseean Bill Hobbs have been criticizing a proposed bill imposing special retraction obligations on Web speakers:

An owner or licensee of a web site or web page shall have fifteen (15) days to remove any defamatory statements about a person from such web site or web page; however if the owner or licensee has been given notice that such statements are defamatory then that owner or licensee shall have two (2) days from the date of the notice to remove the statements from the web site or web page, whichever is less. Failure to remove defamatory statements as provided in this section shall create a presumption of malice intent.

The bill was then withdrawn but its backer is saying he'll bring back something else having to do with online libel. It's hard to tell exactly what this bill would do, but it seems likely that it would violate the First Amendment and probably 47 U.S.C. § 230, the federal statute that immunizes web page operators from liability for material posted to their pages by others. (Jack Balkin agrees on the § 230 question.)

But if Tennessee legislators want to do something about online libel and retractions, why not look at Tenn. Code Ann. § 29-24-103?

(a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

(b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of said notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.

(2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.

This is an extra protection offered speakers, which encourages them to publish prompt retractions by offering to limit the liability to which they would otherwise be constitutionally exposed. The Tennessee legislature seems to think it's good enough for newspapers and periodicals. Why not make it clear that it applies to online publications as well?

The retraction statute already might cover bloggers, if you read "periodical" to include blogs, as a California Court of Appeal decision does. But given that the matter is not completely clear, it would be good if Tennessee legislators — and legislators in other states that have similar laws — made it clear.