Organizations to which donations are tax-deductible (so-called 501(c)(3)s) — including religious organizations — aren't allowed to expressly support or oppose the election of candidates, and are limited in their lobbying for the enactment of legislation. General public education, including advocacy, is fine, but not electioneering or (too much) lobbying; if they want to do that, they need to set up arms that collect non-tax-deductible donations (so-called 501(c)(4)s, as opposed to the 501(c)(3)s).

The Court has upheld this scheme against First Amendment challenge, reasoning that tax exemptions for contributions are a form of subsidy, and the government can impose restrictions on what this subsidy is used for, so long as they are viewpoint-neutral (i.e., no electioneering would be fine, no electioneering in favor of racist candidates would not be). Of course, there are often difficulties in deciding what's forbidden express support or opposition and what's permitted education and advocacy; the IRS has new guidance on the electioneering side of the question.

In any case, Paul Caron (taxprof) passes along an interesting new controversy on this, not terribly novel legally but striking because of the speech involved: An Internet message from an evangelist that "If You Vote for Mitt Romney, You Are Voting for Satan." Talk about demonizing your opposition. In any event, an excerpt from Paul's post,

[T]oday's Washington Post item Separation of Church and State and Tax Exemptions:

Florida evangelist Bill Keller says he was making a spiritual — not political — statement when he warned the 2.4 million subscribers to his Internet prayer ministry that "if you vote for Mitt Romney, you are voting for Satan!"

But the Washington-based advocacy group Americans United for Separation of Church and State says the IRS should revoke the 501(c)(3) tax-exempt status of Bill Keller Ministries, nonetheless.

Paul points out that the evangelist's statement was indeed likely illegal (again, for a 501(c)(3) that's using tax-exempt funds).

I've just come up with some estimates of this, based on samples from the first five months in 2007, and searches in MEGA;MEGA on Lexis. The estimates are only estimates, for a variety of reasons, but I think they're good ballpark judgments.

So my riddles to you:

(1) How many times per month do U.S. courts — in Lexis-accessible opinions — cite student-written law review articles (denominated Note, Comment, Case Note, and Casenote, though excluding faculty-written works denominated Comment)?

(2) How many times per month do U.S. courts cite non-student-written law review articles?

Let's see who can get closest to right, or at least closest to my estimates of what's right. (By the way, there are a total of about 25,000 Lexis-accessible cases put out per month.) [UPDATE: I should also note that there seem to be about 2500 student articles published per year, and about 9000 non-student articles.]

The Ninth Circuit just released a very interesting opinion on this subject (thanks to How Appealing for the pointer). The opening paragraph strikes me as a good model of how to provide an effective frame for a persuasive argument, a frame that will guide the reader's thinking as the rest of the work is read:

We are called upon to decide whether the University of Montana may impose a dollar limit on what a student may spend on his campaign for student office. The University’s limit did not affect how the money could be spent; rather, it directly told a student how much he could spend to get elected. The Federal Election Campaign Act of 1971 could not tell James Buckley how much of his money he could spend to be elected a United States Senator. Buckley v. Valeo, 424 U.S. 1, 51-54 (1976) (per curiam). Why, then, may a state university tell students how much they may spend to be elected to student office? Because, unlike the exercise of state-wide political self-determination at a national level at issue in Buckley, the student election at issue here occurred in a limited public forum, that is, a forum opened by the University to serve viewpoint neutral educational interests but closed to all save enrolled students who carried a minimum course load and maintained a minimum grade-point average. These educational interests outweigh the free speech interests of the students who campaigned within that limited public forum.

The court, I think, is quite right to conclude that because student government and student elections are university functions, they should be treated as limited fora, and that the test is therefore viewpoint-neutrality (clear here) plus reasonableness. Here's the court's reasonableness analysis, which also strikes me as persuasive:

The evidence before us clearly shows that the University views the spending limitation as vital to maintain the character of ASUM and its election process as an educational tool, rather than an ordinary political exercise....

We find that the spending limits reasonably serve this pedagogical aim. ASUM exists to teach students responsible leadership and behavior. Imposing limits on candidate spending requires student candidates to focus on desirable qualities such as the art of persuasion, public speaking, and answering questions face-to-face with one’s potential constituents. Students are forced to campaign personally, wearing out their [shoe]-leather rather than wearing out a parent’s -- or an activist organization’s -- pocketbook. Our conclusion is supported by the declaration of Gale Price, former ASUM President:

Unlimited spending in ASUM elections also would change the nature of the election process as a learning experience. The spending limits mean that students have to figure out no-cost or low-cost ways of campaigning. They have to plan ahead to figure out their strategy, rather than just dumping a lot of money into advertising materials at the last minute. They have to make decisions about allocating their resources effectively. Without spending limits, the well-off students would not have to face these constraints or make these kinds of decisions in the course of running for ASUM.

In any case, if you're interested in the issue, read the whole First Amendment analysis -- it's quite accessible even to laypeople. (You can skip the standing and sovereign immunity sections, though, unless you're interested in those topics.)

As I mention below, lots of people ask me this question. Please post your answers here, but for now let me mention mine: A good English usage dictionary — my favorite is Webster's Dictionary of English Usage, but Garner's A Dictionary of Modern American Usage is good, too. (Garner also has A Dictionary of Modern Legal Usage, which may be worth reading as well, but it covers a different set of matters.)

Of course, this is also good advice for anyone who wants to go into a profession that requires writing English prose for a living. When words are your tools, you need to know them well, (1) so you can convey the right meaning, (2) so you can convey the right meaning without needlessly distracting or annoying the reader, and (3) so you can convey the right meaning without the reader's concluding, fairly or unfairly, that you're ill-educated.

And the trouble is that many people misuse words without knowing they're misusing them, or use words that some dislike (again, whether or not the dislike is well-founded) without knowing that they're risking condemnation. The dictionary is a good way of knowing where the linguistic land mines are.

Plus, at least to me, these dictionaries are fun reads, especially when you read a few pages at a time. Each page has some interesting and surprising tidbits, and the usage dictionaries are also pretty well-written; I'm particularly fond of the style of Webster's.

Of course, knowing other things about writing — how to craft, organize, and edit sentences, paragraphs, and documents — is more important. But most of the people who ask me have already heard "read Strunk & White" (though I should note that not everyone is wild about it). They'll have read it or something like it, though they probably will have a hard time putting it into practice; that's just the nature of writing advice. In my experience, though, knowledge about usage rules is much easier to put into practice, even if it means just remembering that there's a problem with some word (so that you can look up the word again). So that's my tip; use it if you can, and suggest your own in this separate thread if you'd like.

Lots of people ask me this question, and I don't have many good answers. (I have one, but I'll post it separately.) Can any of you suggest something that you think helped you, or helped friends or students of yours?

American Jews naturally worry about anti-Semitic speech, for the obvious reason that it could lead to anti-Semitic murder, other crimes, job discrimination, and more. They also worry about unfair criticism of Israel, because it could undermine American help for Israel, American trade and professional exchanges with Israel, and the like.

But it seems to me there are also contrary effects. American help for Israel -- especially private help -- is also undermined by any decline in American Jews' emotional connection to Israel, a decline that can stem from (1) growing assimilation, (2) a declining sense that Israel is unfairly embattled, and (3) a declining sense that Jews are unfairly embattled and need Israel as a defender and retreat of last resort. Likewise, what most undermines these days the welfare of the American Jewish community as an independent community (rather than just as individual people)? My sense is that the answer is assimilation and declining sense of common fate, rather than an unwillingness to identify as Jews for fear of ostracism or violent reprisal (a fear that was more serious some decades ago).

Modest amounts of anti-Semitic speech and unfair criticism of Israel, it seems to me, can strengthen American Jews' self-identity as Jews, and thus indirectly support both the preservation of the American Jewish community as a community, and strengthen support for Israel. Feeling embattled as a group tends to strengthen group solidarity. Hearing unfair criticisms for Israel tends to strengthen the sense that Israel is unfairly embattled and deserves more support. Feeling some fear of anti-Semitism reminds American Jews of the value of preserving American Jewish institutions. And it reminds American Jews of the value of protecting Israel, in case one day American Jews may need refuge somewhere just like European Jews once did. ("Home is the place where, when you have to go there, They have to take you in.")

If anti-Semitic speech became too common, these community-strengthening effects may be decreased (for instance, if American Jews became afraid to be publicly identified as Jews) or might be swamped by harmful effects (again, such as violence, ostracism, discrimination, or fear suffered by individual Jews). But my sense is that at modest levels, the existence of this speech in America is a net positive (not an unalloyed positive, but a net positive) both for Israel and for the American Jewish community. And we are talking these days about such modest levels, if one looks at the big picture of Jewish existence in America today.

So far I have tried to be purely descriptive: I have tried to describe what I think is an existing phenomenon, a phenomenon that is positive for Israel and for the American Jewish community as a community. (I should say that I'm a relatively assimilated Jew who doesn't care as much about the American Jewish community as a community as some do; I'm much more concerned with the welfare of individuals, Jewish or not, than with the welfare of the community. Still, even I see some value, so long as anti-Semitism does exist, in America and elsewhere, in protecting Israel and preserving American Jewish institutions.)

Now, though, let me shift to the prescriptive: I think that this phenomenon ought to further strengthen American Jews' support for free speech, including for free speech by anti-Semites and unfair, bigoted critics of Israel. (I think we should support such free speech even without this phenomenon, but I hope this phenomenon strengthens such supprot in others.)

Anti-Semitism, whether Muslim, white nationalist, or otherwise, is out there. Suppressing such speech might diminish anti-Semitism in some ways (for instance, if the suppression is effective and stops the persuasive or attitude-reinforcing effect of such speech), or it might increase anti-Semitism in some ways (for instance, for making the anti-Semites look sympathetic in some people's eyes, or making people who are from the same community as anti-Semites feel embattled and hostile to those who are seen as persecuting them). But on balance, the main effect of such suppression, if it is effective, will be to make American Jews feel more complacent. And publicly identifying and condemning such speech will remind American Jews that there is anti-Semitism out there, that it must be fought -- and that fighting such anti-Semitism and protecting against its most harmful effects is one reason that both Israel and American Jewish institutions need support.

Naturally, there are limits to this. Certainly no-one should foment anti-Semitic speech or conduct, or blow it out of proportion, or tolerate leaving actual anti-Semitic violence unpunished. Increasing group solidarity is not the most important thing.

But if you think that increasing group solidarity is on balance one important thing (either as an end or as a means), the First Amendment rights of American anti-Semites help you rather than hurt you. You shouldn't be demanding speech codes; you should be shipping in more video cameras (and of course demanding protection from violence for those who use them), and publicizing the bad speech that you find.

Free speech is valuable because it informs people -- and it informs people not just when the listener hears and believes the facts the speaker says, but also when the public learns more about the speakers. Publicly visible anti-Semitic advocacy is, at least in America today, an important informational tool: It informs American Jews of the value of Jewish institutions, and it presents this information in an especially emotionally effective way. Again, not in my view the best reason to support free speech, or even close to it. But those who don't share my views about the broader moral and instrumental value of free speech should, I think, consider this more immediate instrumental value.

because China denies its students academic freedom. Oh, no, that's not right — it voted for a boycott of Saudi universities and academics, because of Saudi Arabia's second-class treatment of women. Whoops, I got that wrong — it voted for a boycott of Iranian universities and academics, because of Iran's oppressive government.

D'oh! Wrong again. As best I can tell it hasn't voted for a boycott of any of them; it only voted for "a boycott of Israeli universities and academics yesterday, in protest over Israel's treatment of the Palestinians." Of course.

Thanks to Aeon Skoble for the pointer.

In late March, the Ninth Circuit handed down an important holding about 47 U.S.C. § 230. This statute immunizes Internet Service Providers, Web site operators, and others from being held liable for what their users post. Thus, for instance, if you post something defamatory in the comments, we won't be liable for it to the defamed party, though you would be liable, and though we would be liable for content we ourselves originate.

The statute, though, exempts "intellectual property." That clearly means the provider or operator could be liable for copyright infringement by its users (subject to the separate rules provided by the Digital Milennium Copyright Act, 17 U.S.C. § 512), and likely for federal trademark infringement. But it's not clear whether it covers state law rules that are sometimes characterized as intellectual property laws, for instance the state law right of publicity. The Ninth Circuit held that the § 230 exemption covers only federal intellectual property laws, not state ones.

Bruce Wessel reports that yesterday the Ninth Circuit amended the opinion to justify its conclusion further:

In its petition for rehearing, Perfect 10 claims that our decision on this point conflicts with Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir.2007). But neither party in that case raised the question of whether state law counts as “intellectual property” for purposes of § 230 and the court seems to simply have assumed that it does. We thus create no conflict with Universal Communication.

We note that Universal Communication demonstrates the difficulties inherent in allowing state laws to count as intellectual property for CDA purposes. In that case, the district court struggled with the question of whether the “trademark dilution” claim brought under Florida Law counted as intellectual property for purposes of the CDA, and concluded that it was more like a defamation claim than a trademark claim. Id. at 423 n. 7. Rather than decide how to draw the line between defamation and trademark, the First Circuit held that “because of the serious First Amendment issues that would be raised” if Lycos were found liable, defendant had not violated the Florida statute. Id. at 423.

The First Circuit was able to sidestep the question of what counted as intellectual property on First Amendment grounds. But we cannot do so here. States have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a few. Because such laws vary widely from state to state, no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue. And, of course, defendants that are otherwise entitled to CDA immunity will usually be subject to the law of numerous states. An entity otherwise entitled to § 230 immunity would thus be forced to bear the costs of litigation under a wide variety of state statutes that could arguably be classified as “intellectual property.” As a practical matter, inclusion of rights protected by state law within the “intellectual property” exemption would fatally undermine the broad grant of immunity provided by the CDA.

Commenter Pete writes, on the UC Irvine thread:

There have been incidents of violence by muslims against non muslims at UCI including throwing a cinderblock at an FBI agent's car, muslim students disrupted Daniels Pipes speech, student housing was defaced with swastikas, and here is a rather hateful speech called "Israel the 4th Reich" by Amir Abdel Malik Ali sponsored by the campus Muslim Student Union.

For those interested in what the chancellor is defending, here is a video of one of the events where the speaker blames Jews for 9/11 and where the blogger doing the videotaping is thrown out when discovered. The blogger was also followed by and assaulted by Muslims after they found out he was video taping the event.

I've heard similar catalogs from others who are faulting UCI, and seemingly calling for more speech restrictions.

The trouble is that this mixes together a great deal of behavior, some of which should clearly be punished -- though by punishment of the attackers, not restrictions on the speech of coreligionists -- and some of which is constitutionally protected.

Thus of course students who throw cinderblocks at cars, vandalize student housing, and assault people should be criminally punished, and punished by the university as well. If the police or UCI knew who the criminals were, had proof that they committed the crimes, and failed to punish them, that should be strongly faulted; likewise if the police or UCI didn't investigate the crimes adequately. But if the swastika drawers were simply never found, despite a reasonable investigation, then there's little to fault the police and UCI for. Certainly UCI can't punish Muslim student groups generally for the acts of individual Muslim students (unless there's some evidence that the group was actively involved in the act), much less for acts in which the actor is unknown.

Likewise, people who disrupt speakers (assuming we're talking about noise, rushing the stage, and the like, and not just holding a peaceful but offensive protest outside) should be disciplined. If you have evidence that UCI had the goods on them but didn't properly discipline them -- or refused to get the goods on them -- then pass them along, and we can decide to fault UCI for that. But again the penalties would have been punishing the students, not shutting down extremist Muslim events organized by other students.

But a "rather hateful speech called 'Israel the 4th Reich'" is, well, speech. The freedom of speech surely extends to expressions of hatred and hostility to foreign governments (or for that matter one's own government), however unfair or bigoted those expressions might be. Likewise, a "speaker [who] blames Jews for 9/11" is a speaker, engaged in speech. The freedom of speech likewise extends to arguing that there are government coverups and malign conspiracies, even when we think such theories are foolish and hateful.

University chancellors should defend the right to engage in such speech. And certainly the fact that some Muslim students have engaged in vandalism and assault doesn't warrant a university's stopping other Muslim students from inviting other Muslim speakers who want to engage in constitutionally protected speech.

[NOTE IMPORTANT UPDATE BELOW.]

Mickey Kaus writes:

On page 93 of the new Gerth-Van Natta Hillary Clinton book, a sentence describes how, during the '92 campaign, Hillary herself

"listened to a secretly recorded audiotape of a phone conversation of Clinton critics plotting their next attack. The tape contained disucssions of another woman who might surface with allegations about an affair with Bill. Bill's supporters monitored frequencies used by cell phones, and the tape was made during one of those monitoring sessions."

...

Isn't [this] not so legal? ... See also this exegesis of the elements of a violation of 18 U.S.C. 2511(1)(a)....

To answer Mickey's question, 18 U.S.C. § 2511(1) does provide (and as best I can tell did provide in 1992) that

Except as otherwise specifically provided in this chapter any person who--

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

[is guilty of a felony, and subject to civil suit].

Thus, if Hillary conspired with those who intercepted the phone conversations, solicited such interception, or aided that interception, that would be a crime.

What if the tapes just anonymously landed on her desk, so that there is no conspiracy, solicitation, or aiding, and she just listened to them and used them in her campaign? That too would be prohibited, by section (d), which equally covers any person who

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.

Her only defense (assuming the tapes were pretty clearly a result of an intercepted communication) would be, I think, that the First Amendment allows her to use information that she indirectly got from someone else's intercept in crafting the campaign's own First Amendment activity. See the narrow and mysterious Bartnicki v. Vopper (2001), which makes most First Amendment calculations in this area hard to make, and ignore the temptation to make much out of Boehner v. McDermott (D.C. Cir. 2007) (en banc) (4-1-4), in which the swing vote turned on a special factor not present here (the fact that the defendant was a Representative whose conduct was also barred by a House Rule).

UPDATE: Orin, in the comments, points out that as of 1992 the law barred interception only of cell phone calls, not cordless calls. I had assumed the book passage was correct in saying they were cell phone calls, but if they were cordless calls, the materials that Orin cites (and Orin knows about such matters) would mean the behavior was legal. It's also possible that if Hillary used the material reasonably assuming that it was cordless calls rather than cell phone calls, she would be off the hook even if the calls proved to be cell phone calls after all.

The L.A. Times reports:

UC Irvine Chancellor Michael V. Drake ... tried to explain [Wednesday] that campus events seen by some as anti-Semitic are actually expressions of constitutionally protected free speech.

Drake met with more than 600 members of the county's Jewish community who expressed concern about what they perceived as anti-Semitic activity on campus, much of it involving Muslim students....

UCI has become a flashpoint in the national Israeli-Arab debate that has created hard feelings between Muslims and Jews. This month, Muslim students on campus sponsored a presentation, "Israel: Apartheid Resurrected," protesting that country's policies toward Palestinians.

It was the latest in a series of events that have sparked tension between the groups on campus, with some Jewish students complaining that the exhibit relayed a message of anti-Semitism and hatred of Jews.

On Wednesday, Drake heard complaints that Jewish students were afraid to be on campus and was challenged repeatedly to draw a line between free speech and hate speech. But he said it was an impractical and impossible assignment.

"Free speech means simply that: free speech," he told one questioner.

To another, he said: "Speech is protected. It can be hateful. It can be wrong. It can be vile." Unlike speech, he added, violent acts are not protected.

The chancellor repeatedly said he found anti-Semitism abhorrent, calling it "the utterance of fools." But he also said the right of free speech allows Muslim students to sponsor speakers with whom he disagrees....

Sounds exactly right to me. If Jewish students are assaulted or threatened for being Jewish or pro-Israel (or anything else), that should be punished -- and if UCI isn't using adequate efforts to do this, then it should be faulted for that. But expression of anti-Semitic views should remain protected, just as expression of other views should remain protected.

As to the quote from "community member Richard Meyers" -- "[The Chancellor] keeps saying that he abhors hate speech, but he's unwilling to take a position on the issue of what to do about anti-Semitic activity" -- it sounds to me like the Chancellor (1) does abhor hate speech, (2) does take a position for punishing anti-Semitic violence, and (3) does take a position against punishing anti-Semitic speech. And these items are perfectly consistent: University chancellors may (and should) protect even speech they abhor, and distinguish protected speech from unprotected violence.

Jonathan links to Sen. Brownback's explanation of his views, which do indeed seem to reject the proposition that man evolved through a natural process from lower life forms. Nor, as best I can tell, does he take the view that evolution took place but that the mechanism for evolution was set up by God. Perhaps I'm wrong on this -- his argument isn't crystal clear -- but it seems that he is viewing man as a product of separate creation:

While no stone should be left unturned in seeking to discover the nature of man’s origins, we can say with conviction that we know with certainty at least part of the outcome. Man was not an accident and reflects an image and likeness unique in the created order. Those aspects of evolutionary theory compatible with this truth are a welcome addition to human knowledge. Aspects of these theories that undermine this truth, however, should be firmly rejected as an atheistic theology posing as science.

How should this affect a person's judgment about whether he supports Sen. Brownback? I'm not sure I know the answer, but I thought I'd raise the question, and mention a few thoughts of my own. (Note that I am by no means a supporter of Brownback's, though I have no implacable hostility to him, either.)

1. We might argue that this shows Brownback believes things that are provably false, and that this reflects badly on his judgment. But while I myself believe in evolution, I can hardly say that divine creation is provably false, at least under any familiar standard of "proof." If God exists, and he can work miracles, he might have created man in a way that makes evolution look plausible. I don't see any evidence for this proposition, but I can't say I can disprove it. For that matter, I can't say that a theory that man was created by super-intelligent aliens -- either created from scratch or "uplifted," to borrow David Brin's science fiction term, from apes -- is provably false.

2. We might argue that this shows Brownback believes things about the physical world that are not based chiefly on reason and evidence, and that this reflects badly on his judgment. This is a classic burden-is-on-believers-to-show-it argument against belief in God: As a friend of mine put it, there is the same evidence for the existence of God (at least once evolution is available to explain the development of complex systems) as for the existence of werewolves. Yet we would comfortably say that "werewolves don't exist," and look askance at someone who says "wait, maybe they do exist, you can't prove that they don't." We usually put the burden on people who are claiming the existence of things to provide some evidence that they exist; a contrary view is seen by us as superstitious or unscientific (again, consider claims about werewolves, vampires, or ghosts).

Likewise, the argument would go, we should fault those who assume the existence of a God, and a miracle-working God at that, without real evidence or logical deduction. Of course, this assumes that we've rejected the logical arguments for the existence of God, but I've never found any of those to be particularly persuasive, and in my experience even many religious people don't rely on those arguments.

Note, though, that this argument would equally apply to candidates who sincerely believe in the Virgin Birth, in the Resurrection, in the parting of the Red Sea, and in any other miracle. Perhaps it should apply to them; but I do want to flag that this argument isn't peculiar to evolution.

3. We might argue that this shows Brownback, if elected President, will have a lousy science policy.

Evolution is not in some abstract sense the "simplest" or "most plausible" theory of the development of mankind or of other species. Divine creation is in some ways simpler, and to some more plausible. Evolution is the simplest or most plausible theory that doesn't require the existence of some external intelligence (whether God or aliens); in that respect, there is some truth to the argument that belief in evolution rests on a sort of judgment about the relevance of God just as creationism does.

But what makes evolution better is that this naturalistic assumption is much more productive of potentially useful predictions about the world. Compare, by analogy, the theories that the planets appear to move around the sky because of gravity, that the planets appear to move around the sky because divine beings push them, and that the planets appear to move around the sky because all reality is just a dream. The good thing about the gravity theory isn't that it's provably true and the others are provably false; they definitionally resist disproof. Rather, the gravity theory is the most useful theory -- most useful at predicting the location of planets, at developing machines, and more -- and the other theories aren't useful at all.

If this is right, then rejecting the theory of evolution would lead a Brownback Administration to misinvest science research resources, and to underinvest in research that assumes the theory of evolution. This might distinguish most beliefs about one-off miracles in the past; it's unlikely, for instance, that a government leader's belief in the Virgin Birth would lead to poor governmental judgments about funding of gynecology and obstetrics.

4. We might argue that electing Brownback would make America look foolish to world elites that accept the theory of evolution. On the other hand, note that this, too, is potentially true of electing people with various other religious beliefs; and query more generally how much we should guide our judgment by such concerns.

In any case, these are just some tentative thoughts. I offer them not because I'm sure about them, or because I feel I've settled on an answer, but just because I think this is an important intellectual and practical question, and I wanted to stoke the conversation a little.

Last week, I blogged about the Ninth Circuit's reading-material-as-evidence case. Defendant was accused of attempting to seduce a 14-year-old girl. His defense was that he expected all along that the girl was actually an adult (which was indeed the case, though he didn't expect that the adult was an FBI agent) who was pretending to be 14. He thought, he argued, that their exchange was acting out a fantasy, and he was expecting to meet and have sex with an adult woman. The prosecution introduced evidence that the defendant had read explicit stories involving sex with children, in order to show that he really was intending to seduce a 14-year-old.

The defendant raised several arguments: He argued that the evidence was irrelevant, and thus violated Rule 401. He argued that the evidence was an impermissible attempt to infer conduct from past behavior, which violated Rule 404 (and maybe the First Amendment, given that the past behavior involved reading). And he argued that the potential of at least some of the evidence to create unfair prejudice substantially exceeded its probative value, which violated Rule 403. The en banc court rejected his Rule 401 and 404 arguments, but held that the conviction had to be reversed because the trial court had refused to read all the evidence before admitting it, and thus couldn't perform the proper unfair prejudice / probative value balancing required by Rule 403.

Judge McKeown, joined by Judges Pregerson, Kozinski, Thomas, and Berzon, concurred in the judgment, and wrote:

All fifteen judges on the en banc court agree on one undisputed fact and on the single reason to remand this case: the district judge did not read all of the pornographic stories admitted into evidence to weigh their probative value against the potential for unfair prejudice. Nothing more needs to be said.

Instead of simply stopping at deciding the case, the majority goes on at length about whether to overrule Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998), which has nothing to do with the failure to review the evidence [but focuses on the Rule 404 question], and speculates about how the Federal Rules of Evidence might play out on remand. The bulk of the majority’s discourse is dicta. See United States v. Henderson, 961 F.2d 880, 882 (9th Cir. 1992) (defining dicta as language that is “unnecessary to [the court’s] holding”). Once the case goes back to the district court, we don’t know how it will be resolved. Maybe there will be a plea. Or, if there is a retrial, we don’t know what evidence the prosecutor will offer or how the district court will rule. Indeed, after this appeal, the prosecution may well reevaluate the need or admissibility of these salacious stories. Nonetheless, the majority offers a far-ranging discourse on Rules 401, 403, and 404, among other matters. The case can be resolved on a simple principle.

I see no reason to go further. Not surprisingly, the breadth of the majority’s opinion prompted Judge Kleinfeld’s thoughtful concurrence, which expresses concerns that I share.

Here's my question: Even if the majority's discussion of Rules 401 and 404 isn't quite dictum (and I think it's not, for complex reasons), the court could well have disposed of the case by just reversing on Rule 403 grounds without reaching Rules 401 and 404. But then there likely would have been a retrial, and the trial court would have had to face the very same Rule 401 and 404 questions. If the trial court decided those questions the same way, there'd be another appeal on those issues. The panel would have been bound by Shymanovitz, and would have reversed — calling for yet a third trial. Then there would have been another en banc call; if that failed, and the panel decision had stood, then there would be a third trial.

The result would be extra cost and delay, for the defendant, for the prosecution, for the trial court, and for the court of appeals, which would have had to conduct another 15-judge en banc hearing. What's more, consider how this would apply in other cases where there are several unrelated evidentiary issues, and not just two (here, the judge-didn't-read-it issue and the substantive Rule 401/403/404 issues).

Say the trial court makes five decisions, A, B, C, D, and E, and finding any of them to be an error would require a reversal; and say the court of appeals is firmly committed to "simply stopping at deciding" the minimum required to reverse. The defendant is convicted; the government appeals; the appellate court reverses on A. Now there's trial 2, at which the trial court makes B, C, D, and E (since it still thinks those decisions are right). The appellate court reverses on B. Now there's trial 3, at which the trial court makes C, D, and E. The appellate court reverses on C. This goes on until trial 6, at which the court finally retries the case without A, B, C, D, and E. Wouldn't it have been better for the appellate court to decide A, B, C, D, and E at once, so that the defendant, the prosecution, the witnesses, the trial court, and the court of appeals had to deal with only two trials, not six?

In fact, my recollection is that courts often do deal with other issues beyond the strict minimum needed to reverse, precisely because such issues are likely to come up again on retrial. I don't recall the cases off the top of my head, but I'm pretty sure that they are not uncommon. Is that approach, which is to say the en banc court's approach, the better one? Is Judge McKeown's approach the better one despite this efficiency concern? Is one better in some situations and the other in other ones, and, if so, where should the line be drawn?

Again, recall that this isn't just about abstractions about the judicial process. Some defendants can handle two trials but would be bankrupted by three. Some who would be bankrupted in any case could at least pay for the lawyer of their choice in the first two trials but have to rely on an overworked appointed public defender in the third trial. In this trial, the witnesses likely wouldn't be much traumatized by having to testify again and again, but in trials with a real child victim they would be traumatized. And of course any money and effort expended by courts, prosecutors, and appointed defense lawyers in extra iterations of this case is money and effort that they'll lack for other cases.

From Peel Hotel Pty Ltd., Victorian Civil & Administrative Tribunal, VCAT 916 (24 May 2007) (some paragraph breaks added):

8 The Peel is a hotel and social venue. It primarily provides (as well as its hotel services) dancing and music. It is very popular. It has many hundreds of patrons on weekend nights (including Fridays). Over a week, it will have thousands of patrons.

9 The Peel aims to provide its facilities primarily for gay men. While is has marketed itself primarily to the gay male community, it has not hitherto sought exemption from the EO Act because it was believed that it could operate in a way that welcomed all, excluded none, but focused on or was aimed primarily at gay male patrons. It has this focus because it seeks to provide a safe, non-threatening, comfortable and enjoyable social environment for the gay male community.

10 I accept Mr McFeely’s evidence that providing such an environment is important for a number of reasons. Although gay men are now less at risk than they were in the past to various issues and behaviours, there are still instances of sexuality-related violence, insult, ostracism, derision, harassment and hostility. These are directed to gay men by other members of the community. Some of these occur when gay men display towards each other what society would tolerate among heterosexuals behaving as a couple -– kissing, hugging, or expressing love, attraction or affection in a physically intimate way. This venue is designed to provide an environment where gay men can do these things, can socialise, can make friends, can meet and find prospective partners without an atmosphere of derision, hostility or insult or even of violence. It provides an atmosphere where they can express themselves physically or sexually in a way that would be acceptable among men and women in a mixed sex venue.

11 The venue aims to provide gay men with the same opportunities as mixed sexes have in the venues to which I have referred. There are many thousands of these venues across the Melbourne CBD....

13 The venue has operated without difficulty for many years. It is an all-night venue, operating from 9pm until dawn. It has live music and no cover charge. Perhaps because of these factors, increasing numbers of heterosexual men and women and lesbians have particularly over the past year asked to enter the venue. A number of difficulties have arisen. I accept Mr McFeely’s evidence and Sergeant Mercer’s evidence about these.

14 If heterosexual men and women and lesbians come to the venue in large groups, then their numbers may be enough to “swamp” the numbers of gay male patrons. This would undermine or destroy the atmosphere which the company wishes to create. Sometimes, heterosexual groups and lesbian groups insult and deride and are even physically violent towards the gay male patrons. In doing these things, they use sexually-based insults. Sometimes, groups seek to use the venue for parties and it is clear from Mr McFeely’s affidavit that these groups wish to look at the behaviour of the gay male patrons as a kind of spectacle or entertainment for the group’s enjoyment. Entry of these groups would undermine or destroy the unique atmosphere which aims to foster and not frighten or discomfit its gay male patrons.

15 I accept Mr McFeely’s evidence that there are a large number of alternative venues which provide similar kinds of services to that provided at the Peel Hotel. These venues can be attended by people of any sex, any sexual orientation or any gender identity. I also accept his evidence that there are a very significant number of venues which market their services to lesbians. The Glasshouse, which is a venue close to the Peel Hotel, is one of these.

16 The Peel does not wish to have an all-male or all-gay male environment. It simply wishes to preserve its primarily gay male environment and its non-threatening atmosphere in which gay males can feel comfortable to express affection, physical intimacy or sexuality in a way that will not make them a target of derision, hostility or criticism and where that behaviour might, if expressed in a mixed sex venue, lead to that hostility, derision or criticism.

Should the exemption be granted?

17 In my view, it should.... There is no express exception provision which clearly applies. However, the application is in the spirit of those express exception provisions which seek to allow special measures to be taken to redress disadvantage suffered by those with a particular attribute. An example of these is s82.

18 The exemption promotes that objective of the Act which is to promote the recognition and acceptance of everyone’s right to equality of opportunity. It seeks to give gay men a space in which they may, without inhibition, meet, socialise and express physical attraction to each other in a non-threatening atmosphere, in a way that heterosexual couples have in mixed sex venues.

19 It is also consistent with the scheme of the Act. The Act now includes attributes of sexual orientation and gender identity. It has always included the attribute of lawful sexual activity. The objective concerning the recognition and acceptance of equality of opportunity applies equally to all attributes, including these three. Just as it is consistent with the Act’s objective to provide special measures to redress disadvantage suffered by, for example, women or those with disability, so also is it consistent with that objective to provide this venue for those with a particular sexual orientation.

20 The exemption also seeks to prevent discrimination against gay men, for whom this venue is designed. The anti-social behaviour which would be at the heart of a decision to refuse or restrict entry to groups of heterosexuals or lesbians is sexuality-based behaviour and includes sexuality-based insults and derision. It would be most unfortunate if at this venue, gay men were subjected to the very behaviour that the venue seeks to protect them from.

I would add that I take a similar view of the restriction or refusal of entry to those groups who wish to use the venue for “hens’ nights” and the like, where they wish to use the gay male patrons as a form of entertainment. To regard the gay male patrons of the venue as providing an entertainment or spectacle to be stared at as one would at an animal at a zoo, devalues and dehumanises them. It is, although subtle, another form of sexuality-based humiliation or discrimination. In my view, it is appropriate to grant the exemption.

A few thoughts:

(1) I sympathize with everyone's desire not to be attacked or insulted, and gays certainly have special reason to worry about that. But if the concern is antigay violence or insults, I'm not sure how the "gay men only" policy would address that.

I take it that the bouncers at the nightclub don't have perfect gaydar; I doubt they'd evict a group of would-be harassers (likely an all-male group, I'd expect) because they can tell the harassers aren't gay. They'd evict them because they're being violent or insulting. Why then not just have a policy of evicting the violent.

(2) If the concern is about gays' discomfort with being viewed in a certain way, isn't that close kin to the concern that has long been used to support discrimination against gays? (A) Some straight men don't like feeling that they are being viewed with lust by some gays. (B) Some gay men don't like the feeling that their social activities are being viewed as entertainment by some women.

The premise of bans on sexual orientation discrimination is that attitude (A) is no reason to exclude people from public places based on sexual orientation: If you don't like what you think someone is thinking when he's looking at you, deal with it, don't have him kicked out. Why should attitude (B) be any more persuasive a justification for discrimination?

(3) If the concern is about gays wanting to be in a predominantly gay environment, my sense is that successful gay venues can generally accomplish this just fine without kicking out nongays. Such venues tend to disproportionately attract gays, and while there are occasional outsiders visiting, the repeat business will largely be those people who feel most comfortable in the environment, and most interested in the environment. (Maybe I'm too influenced by having lived near West Hollywood for so long, though; I'd love to hear what others with other experiences have to say about this.) And even if for some reason too many straights show up and the venue stops being seen as having "the atmosphere which the company wishes to create," I don't quite see why maintaining a mostly-gay atmosphere is any stronger a justification for discrimination than maintaining an all-straight atmosphere, an all-male atmosphere, an all-female atmosphere, an all-Armenian atmosphere, or whatever else.

(4) One can debate whether bans on sexual orientation discrimination (or other discrimination) in privately owned public places are sound. But it seems to me that the project of persuading people to treat people equally without regard to sexual orientation will be more retarded than advanced by having the antidiscrimination law itself discriminate. Even if there are exceptions to this, and one accepts "affirmative action" justifications for special treatment for historically disfavored groups, it seems to me that there ought to be at least some powerful and factually supported reason for any particular justification. I don't see much such reason here.

to defile the very soil of this land." That's the message of a New Zealand church leader who is urging rejection of a New Zealand Human Rights Commission's draft statement that New Zealand "had no 'established religion,'" and who is supporting a declaration "that New Zealand was a Christian nation."

There are lots of different ways that a free nation can handle its religious history; I don't want to suggest that the approach of the American Constitutions -- an express prohibition on establishment of religion both in the federal constitution and in nearly all state constitutions -- or the approach of the U.S. Supreme Court's Establishment Clause precedent is the only right way. England is a free country, in which to my knowledge citizens enjoy a great deal of religious freedom and religious equality (at least with respect to the government) even though the Anglican Church is the established church. The same is true, to my knowledge, of many Western European countries.

My personal preference is for a system in which the government may not discriminate among religious people and institutions; generally may not discriminate in favor of or against religious people and institutions (subject to some possible narrow exceptions that I won't go into here); generally may not fund religious observances in their capacity as religious observances (as opposed to giving religious people and institutions equal access to broadly available funding programs); but may engage in certain kinds of religious speech, especially those that can't be extirpated without denying a great deal of the nation's history. But there's a lot of room for different approaches here, it seems to me.

Yet no country, it seems to me, can sensibly be called free if it balks at "allow[ing] foreign religions and foreign beliefs and other philosophies to proliferate into [the] country," and officially treats religious conversion as a form of "defile[ment] of the very soil of this land." Freedom means the freedom of citizens to change their own minds, and to change the minds of others, through persuasion. And that's true on religious topics as well as political topics. One can debate on the borderline about which ideas might be so dangerous and so extreme to be off limits. (I prefer, however, the American approach, in which all ideas can be advocated, and in which the narrow content-based restrictions are designed so that they don't stop the debate about any ideas.) But any definition of "so dangerous and so extreme to be off limits" that covers all non-Christian -- or non-Muslim or whatever else -- ideas is a definition that's inconsistent with freedom.

Now it doesn't sound like the church leader (Bishop Brian Tamaki) and the other participants are expressly calling now for a prohibition on other religions. But listen to Tamaki's statement: "This nation must have the right to be able to discuss and to talk about whether we are going to establish and affirm and accept our religious identity as a country, or whether we are going to walk away and let that be lost, perhaps forever, and to allow foreign religions and foreign beliefs and other philosophies to proliferate into our country and begin to defile the very soil of this land." He certainly sounds like he doesn't want to "allow foreign religions and foreign beliefs," and like he thinks his audience agrees. He sees foreign religions as not just error but as a "defile[ment]." He sees the two alternatives are either "allow[ing] foreign religions and foreign beliefs" or "establish[ing] and affirm[ing] and accept[ing] our religious identity as a country."

The concern of those who support strong anti-establishment measures -- including ones stronger than I would support -- is precisely that modest tolerance for government endorsement of a religion will lead to broad intolerance (including governmental intolerance) for other religions. Justice Scalia and others who would take a narrower view of the Establishment Clause stress that one can have some degree of endorsement of broad religious traditions but still have religious freedom and religious equality in tangible rights and benefits. I take it that others in other countries take a similar view.

But Bishop Tamaki's rhetoric points in the opposite direction: a stark choice between anti-establishment rules on the one hand and "[dis]allow[ing] foreign religions and foreign beliefs." If that's the choice, I'll gladly choose the former, despite the bowdlerizing of government speech this may cause (and that I would not prefer). I hope that others in free countries (or countries aspiring to freedom) would do the same. And those who want a middle path, and who want to urge a Scaliaesque preservation of national religious traditions while still supporting -- and assuring the public that they support -- religious freedom and equal treatment of citizens without regard to religion, should distance themselves from views such as Bishop Tamaki's.

Thanks to InstaPundit for the pointer.

The Second Amendment Foundation is complaining about this incident:

Chuck's Gun Shop, 14310 S. Indiana Ave., was the target of the protest [march led by Jesse Jackson]. The protesters blamed Chuck's, which is just across the border from Chicago, for many of the guns on the city's streets....

Jackson and Revs. James Meeks and Michael Pfleger encouraged the crowd to push for stricter gun laws. They vowed that the rally was just the beginning and that civil disobedience was possible....

The SAF reports,

In a stunning audio recording of Pfleger’s remarks, the pastor of St. Sabina’s Church can clearly be heard stating, “John Riggio ... we’re going to find you and snuff you out.” Moments later, Pfleger added, “We’re going to snuff out John Riggio, we’re going to snuff out legislators that are voting ... against our gun laws and we’re coming for you because we are not going to sit idly.”

The SAF argues that this is a death threat, and demands that the Justice Department investigate Pfleger for this.

My sense, from having listened to the audio, is that Pfleger meant "snuff out" as referring to lawfully driving Pfleger out of business using protest and social condemnation. This is a public, peaceful rally. The speaker does not have a history of violence. The surrounding statements relate to political actions. I know of no pro-gun-control violence against gun store owners; a statement such as this might be interpreted differently against the backdrop of such violence.

And of course whether something is intended to be understood, and is likely to be understood, as a threat does turn on context. The newspaper story, for instance, further reports: "About 30 counterprotesters stood outside the store. One man carried a sign that read, 'Jesse — How many armed guards do you have?'" In some situations, "How many armed guards do you have?" might be a threat, suggesting that you don't have enough guards to protect you against my retaliation. In this situation, it pretty clearly means "Isn't it unfair that you employ armed guards, but you're not respectful enough of law-abiding citizens' rights to arm themselves to guard themselves?"

This having been said, "snuff out" does seem like a pretty poor choice of words, since it sometimes means "kill," especially when used about a particular person. "Let's snuff out Jesse Jackson," for instance, would likely convey at least a possibility of physical menace, and a considerably stronger possibility than involved in the "armed guards" statement (which might be interpreted as threatening, but only with a good deal more indirection).

It's ambiguous enough that, in many contexts, people should understand it as likely not being a threat. But the ambiguity also suggests that it may rightly, and needlessly, worry people who think a less benign meaning is intended. Nor is there even the justification that there's something particularly logically or rhetorically apt about the statement that makes it an especially valuable way of conveying the message.

I see little justification in general for trying to drive out of business a particular gun store, at least in the absence of some evidence — and none is mentioned in the newspaper article — that it is somehow unusually lax in, say, checking buyers' backgrounds or stopping obvious straw purchases. That the gun store is particularly near Chicago is hardly justification itself; driving it out of business would simply require criminals to go a little further down the road. But at least there is a plausible argument to be had on these points. There seems to me no justification for putting the debate in terms often associated with murder.

UPDATE: Reader Brett Bellmore suggests that the call might be for illegal "civil disobedience" as well as legal protesting and social pressure; the article says, "Jackson and Revs. James Meeks and Michael Pfleger encouraged the crowd to push for stricter gun laws. They vowed that the rally was just the beginning and that civil disobedience was possible." I hadn't focused on possible civil disobedience against the gun store (I suppose a sit-in at a gun store would be conceivable but rather unusual). But if such action does turn from "possible" to "real," for instance involving blocking the door of the store or some such, then the action would indeed be illegal.

From the Canadian Press, Jan. 25, 2007 (via Daniel Pipes and David Bernstein):

The Crown says a Montreal man's refusal to grant his Muslim wife a Shariah divorce should be considered an aggravating factor when he is sentenced Friday for stabbing her and their baby daughter.... The Crown has asked for a seven-year sentence, citing the refusal to grant the Shariah divorce as an aggravating factor.

Of course, a secular Canadian divorce is all that's needed for secular purposes, in Canada and in other non-Muslim countries. But the article suggests that without a religious divorce, the wife might still be seen as married in some Muslim countries; and my sense (though please correct me if I'm mistaken) is that she might also be seen as married by the Muslim community, so that, for instance, there would be social pressure against her remarrying.

Should such extra punishment for failure to perform a religious ceremony be permitted? Or does it improperly coerce religious behavior? In the U.S., similar questions have arisen with regard to "Get laws," though these are special civil laws limiting access to divorce rather than enhanced criminal punishments.

Under Jewish law, at least as understood by many Jews, a civil divorce decree isn’t enough to terminate the marriage from a religious standpoint -- unless the husband gives the wife a bill of divorce, called a Get (pronounced just like the word “get”), she may not remarry. If she civilly remarries before receiving a Get, her sexual relations with her new husband are seen as adulterous, notwithstanding her civil divorce; also, any children born of such a civil remarriage are treated as illegitimate, and may not marry freely within the Jewish community. A recalcitrant wife may cause somewhat similar problems for the divorcing husband if she refuses to accept the Get.

Of course, all these impairments are purely a matter of Jewish law; American secular law does not at all enforce them. Nonetheless, they are taken seriously by many observant Jews, and women who have been refused Gittin and the smaller group of men whose ex-wives have refused to accept Gittin are put in a difficult position. The ability to impose this position can also give a spouse substantial leverage to try to negotiate a more favorable settlement as a condition of giving (or receiving) the Get.

The Get laws are the attempts of a few states to deal with this problem; here, for instance, is New York Domestic Relations Law § 253:

3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement:

(i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce; or

(ii) that the defendant has waived in writing the requirements of this subdivision....

6.... “[B]arrier to remarriage” includes, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party’s commission or withholding of any voluntary act....

7. No final judgment of annulment or divorce shall be entered, notwithstanding the filing of the plaintiff’s sworn statement prescribed by this section, if the clergyman or minister who has solemnized the marriage certifies, in a sworn statement, that he or she has solemnized the marriage and that, to his or her knowledge, the plaintiff has failed to take all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce, provided that the said clergyman or minister is alive and available and competent to testify at the time when final judgment would be entered....

9. Nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue....

My sense is that the Get laws, as well as enhanced criminal punishments for refusing to give a religious divorce (whether Jewish, Islamic, or otherwise), would (in the U.S.) generally violate the First Amendment, because they would indeed impermissibly coerce the performance of a religious act. It's true that the religious act has important social effects among members of that religion, and that refusing to give it could be used as a bargaining chip in property settlement or child custody negotiations. But it seems to me that these social effects within the religious community, whether as a result of the performance or nonperformance of religious acts (whether divorce, excommunication, refusal to baptize, or whatever else), or for that matter as a result of practices such as shunning, must be beyond the scope of civil law. (The argument about shunning is subtly different from the others, but they're related, and the others all focus on the principle that the Establishment Clause bars the government from coercing the performance of a religious act.) Compare Megibow v. Megibow, 612 N.Y.S.2d 758 (1994) (ordering husband to give get, and not discussing the First Amendment question) with Aflalo v. Aflalo, 295 N.J. Super. 527 (1996) (holding that such an order would violate the First Amendment). See generally Lisa Zornberg, Beyond the Constitution: Is the New York Get Legislation Good Law?, 15 Pace L. Rev. 703 (1995).

Note, though, the twist in this case: It sounds like the refusal to give a religious divorce has not only a social effect within a religious community, but also has foreign legal ramifications. Might that justify legal pressure to give a divorce, on the theory that what is being required is an act with independent legal significance? Or should the religious nature of the act categorically foreclose the government (at least if the case happened in the U.S.) from mandating the act?

Finally, note that the matter may well be different if the parties had entered into a civil contract to perform a religious act (whether to give a divorce, to raise the children in some religion, or whatever else). The Canadian Press article notes one such case that was pending in January before the Canadian Supreme Court. ("The divorce agreement stipulated that [the husband] agree to the ghet -- something he did not do [for 15 years after the divorce]. [The wife], who now lives in New York, was awarded $47,500 because she couldn't marry or have children in the interim, but that judgment was overturned by the provincial appeals court.")

In any case, an interesting set of controversies -- and a reminder that a lot of the legal controversies in Western countries involving Muslim religious practices are, as a legal matter, closely connected with other controversies involving the practices of other religious groups.

The Australian (a newspaper) reports:

Nada Roude, of the NSW Islamic Council, said Hirsi Ali's comments on the prophet Mohammed were a "no-go zone".

"They (prophets) are not just like you and me, they have special status — you're supposed to show respect," Ms Roude said.

"There have to be boundaries in how far you go in respecting other's beliefs. The reaction from the community is likely to be quite worrying." ...

Ms Roude said there seemed to be a double standard about who was allowed to visit Australia, particularly as Hirsi Ali's visit appeared to have the potential to incite hatred.

"Muslims are not treated the same," she said. "There are a set of rules for one community and another for the rest of the community. Anyone who causes harm to our society because they have the right to express their opinion is not welcome." ...

A tip: When you warn that your religious community will respond to critical speech in a "worrying" way, it is that response — and your use of that response as an attempt to deter such speech — that has the most potential to incite hostility. Oddly enough, citizens of a free country are often hostile (sometimes even to the point of hatred) to ideologies that demand suppression of critical religious views. And if your view is that Islam is a religion of peace, and that the overwhelming majority of Muslims don't support religious violence, then condemn the (by hypothesis) small and unrepresentative segment of the community that is likely to act violently rather than using the "reaction from the community" as a threat in your political advocacy.

As to one set of rules for one community and another for the rest of the community, does Australia really try to exclude people who harshly criticize Christianity, or depict Jesus in a blasphemous light? Coercive government actions to restrict blasphemy of Christianity are not completely unheard of in recent decades in Western democracies — see Otto-Preminger-Institut v. Austria, in which the European Court of Human Rights upheld such an action (in 1994) — but I've heard of none in Australia, nor any attempts to exclude visitors to Australia based on their blasphemous religious speech. And if Australia does allow free speech on religious matters, then who is the one who's seeking "a set of rules for one community and another for the rest of the community"?

Thanks to InstaPundit and to Andrew Bolt's blog at the Herald Sun for the pointer.

So go to dogpile (a search engine results aggregator, it appears), and enter "gun" or anything with it ("gun control," "guns of navarone," and more"). You'll get this response, unless you have a cookie set with dogpile from a previous iteration:

You've entered a Web search term that is likely to contain adult content.

Would you like to:
View Unfiltered Dogpile Web results with Adult Content.
View Filtered Dogpile Web results with NO Adult Content.
Filtered Results only include Web results from partners that provide such results.

Warning!!! If you are under 18 or live in a place that viewing adult content is prohibited, please revise your search.

Your Search Filter is currently moderate.

Now I don't want to suggest that the filter is particularly onerous. In fact, in some ways it's the opposite: It lets your kids avoid it just by clicking on "View Unfiltered Dogpile Web results with Adult Content," or, at most by following the Preferences link in the search results (if you've set a preference that prevents the above warning from coming up). Dogpile even prominently tells the user, with every batch of search results, "Your urrent preferences are set to filter results for this type of keyword and/or search. Click here to change your preferences." Oh, and the first result in the "heavy" filtering mode for sex? "Free Sexy Webcam Striptease Videos" (which seems to be exactly what the name suggests).

On the other hand, how can we know? I'm not aware of whether dogpile actually filters out much gun stuff using its filter. The no filtering query returns 65 results while the heavy filtering query returns 62 results; I haven't compared them closely, partly because the most obvious difference is in the order of results — for instance, heavy filtering gives the Wikipedia entry for "gun" as #1 and the official site for "gun the game" as #2, and no filtering reverses that order.

But dogpile's description of its filtering hardly instills confidence: It describes the filter as being "designed to filter out sexually explicit material from your results." If that's all dogpile is doing, there seems to be little reason to warn readers about searches involving "gun." Something is happening under the hood, and we don't know what it is — an inherent problem with all filtering software, but even more of a problem when one part of the site tells you one thing about the filter ("designed to filter out sexually explicit material") and another part tells you another ("gun" is "a Web search term that is likely to contain adult content"). Doesn't make this search engine look particularly trustworthy, it seems to me.

Thanks to Peter Buxtun for the pointer.

UPDATE: Some readers have suggested that "gun" could be flagged because it's occasionally used as a slang term for "penis." But "peter" and "johnson" are probably more commonly used as slang terms for penis than "gun," and they rightly aren't barred. If every term that has a primary meaning far removed from "penis," but has sometimes been used as slang for "penis," were filtered, that would be a very long list.