Those who want a sense of what the self-described pedophile blogger's site has looked like in the past can see archived pages here. The blogger is obviously a disturbed and disturbing man -- at best someone who has fun scaring the wits out of parents, and at worst a child molester -- but I think it's necessary to see his work to get a sense of what legal responses would be permissible or impermissible.

Most of the pictures aren't included in the archive, which is good for the pictures' subjects but makes it a little harder to evaluate. The one picture I saw, which was purportedly taken in South America, does fit with the media reports that the pictures on his sites have not themselves been pornographic (though obviously they are disturbing and menacing in context).

if this Asheville Citizen-Times report is correct:

A couple who said they were protesting the state of the country by flying the U.S. flag upside down with signs pinned to it found themselves in jail following a scuffle with a deputy Wednesday morning.

Mark and Deborah Kuhn were arrested on two counts of assault on a government employee, resisting arrest and a rarely used charge, desecrating an American flag, all misdemeanors....

Arrest reports show Buncombe County Sheriff’s deputy Brian Scarborough went to the Kuhns’ home on 68 Brevard Road about 8:45 a.m. Wednesday to investigate a complaint of an American flag on display after being desecrated.

State law prohibits anyone from knowingly mutilating, defiling, defacing or trampling the U.S. or North Carolina flags. Lt. Randy Sorrells of the Buncombe County Sheriff’s Office said the Kuhns desecrated the flag by pinning signs to it, not by flying it upside down....

The assault and resisting arrest charges may be proper, depending on what the facts are. But the Constitution does not allow punishment for desecrating the flag. U.S. v. Eichman so held as to a federal law punishing anyone who "mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States." And the North Carolina law, "It shall be unlawful for any person willfully and knowingly to cast contempt upon any flag of the United States or upon any flag of North Carolina by public acts of physical contact including, but not limited to, mutilation, defiling, defacing or trampling," is indistinguishable for First Amendment purposes from the law struck down in Eichman.

Thanks to Matt Caplan for the pointer.

If you support a reintroduction of the Fairness Doctrine — which is to say a rule under which broadcasters are obligated to give "each side of [the debate on public] issues ... fair coverage" — how would you envision its being enforced?

1. Multiple sides: For instance, say that a talk show host argues in favor of legalization of drugs. The broadcaster would then have to give time to the pro-drug-war perspective. But what if someone demands time for an intermediate proposal, such as keeping drugs illegal but ratcheting down penalties? Should the broadcaster be obligated only to carry some rival views (i.e., the broadcaster could choose), the most opposed views (i.e., the broadcaster would have to take the hard-core pro-drug-war advocate but not the mid-course advocate), the most popular rival views, all rival views, or all credible-seeming rival views? How should this be decided?

2. Broadcaster choice aimed at discrediting rival views: In particular, if the broadcaster has discretion about which views to choose, what if the broadcaster deliberately chooses the most extremist rival speakers — or for that matter, rival speakers who are just inarticulate or foolish — to present the contrary views?

3. Amount of time: How much time must the broadcaster devote to presenting contrary views — as much time as was given to the original views? Just some modest amount of time?

4. Extremist views: Would the KKK have to be given time to respond to pro-racial-tolerance views? Would jihadists have to be given time to respond to insults of al Qaeda?

Of course, these problems arose before 1987, while the Fairness Doctrine was in operation. The general answer was apparently this, according to Krattenmaker & Powe's Regulating Broadcast Programming:

[A station] can determine largely as it pleases how much time to devote to the differing viewpoints and who and what materials to use in presenting each side. To reduce the need for close and sustained agency supervision of broadcasters, the Commission built into the doctrine a remarkable amount of broadcaster discretion. As a result, surprisingly little balance is necessary to meet the obligation to cover all significant sides of an issue.

Would that approach, in your view, suffice? Would you prefer something more demanding, and, if so, how would you define it, and how would you answer the questions I gave above?

More broadly, I take it that things have changed since the 1980s. Most importantly, the Internet has made it much easier for activists to organize. If a broadcaster broadcasts some anti-gun presentation, I take it that gun rights activists can within hours learn about it, file many demands for time to respond, and even create striking video responses (or perhaps edit them from existing materials).

Where before a broadcaster might have gone only a few demands for response time, now a broadcaster may find itself getting multiple demands daily for nearly every controversial issue it covers. And if a broadcaster appears to be providing only "surprisingly little balance," these same well-organized groups can arrange the filing of multiple complaints with the FCC — again, every time a broadcaster is accused of not promptly responding as to any controversial issue it covers.

There would certainly be lots of incentive for activists in a wide range of fields to get aggressive about demanding response time, and complaining about perceived inadequacies in response time: The activists will feel that they are fighting back against the Bad Biased Media (whichever way they think the media is biased). They will get a chance to get extra airing for their views. And they will suspect that their actions may in some measure deter the Bad Biased Media from expressing those views that trigger the activists' aggressive response.

In any case, perhaps I'm wrong about the changing environment; but in any event surely any reinstituted Fairness Doctrine would have to confront the questions I raised above in items 1 through 4. If you support the Fairness Doctrine, how would you answer those questions?

A colleague of mine wants examples that would go in these paragraphs (paragraphs that are broken up here for easier reading online):

Businesses often seek to find new applications for existing products. Hummers, the transport of choice of the Governor of California, began as a multipurpose military vehicle known as Humvees. And the commonly prescribed drug for erectile dysfunction, Viagra, was initially designed to treat hypertension. [** Here is where the examples should go, either to supplement or to supplant the Hummers / Viagra examples. **]

Here, we examine whether the dual income tax regimes (that is, the explicit separate taxation of income from capital and income from labor) found in the Nordic countries might provide a useful model for developing countries. We appreciate that transplanting legal regimes or using prescription drugs for other purposes — known as “off-label uses” in pharmaceutical jargon — is often misguided and may result in undesirable and unintended consequences. And the economic, political, and tax environment in the Nordic countries differ greatly from the circumstance in most developing countries.

Nonetheless, while the dual income tax regimes in the Nordic countries were designed specially to address a problem that does not exist in many developing countries, the approach of explicitly providing separate tax regimes for income from capital and income from labor in developing countries may substantially improve the tax regimes of those countries....

Any suggestions? Again, we're looking for examples of products that originally served market or application A, looked like they wouldn't work well for market or application B, but, to many people's surprise, worked just fine for B, though perhaps different reasons than the ones that made them work in A. Please post them in the comments. Thanks!

Many comments on the recent child custody thread point out that judges are supposed to decide based on the best interests of the child, and that they may therefore evaluate parents' childrearing decisions in ways that government officials normally don't. And I agree that this is in considerable measure true.

But there should remain, I think, constitutional limits on what judges can do. The Supreme Court's 1984 Palmore v. Sidoti decision is an excellent example: The Equal Protection Clause bars a judge from granting custody to one parent instead of another based on the other parent's having entered into an interracial relationship (or marriage). And this is so even if the judge sincerely (and perhaps even reasonably) believes that a child might face more social problems if the child is reared in a mixed-race family.

Likewise, many state courts have held that judges can't restrict a visiting parent's exposing his children to his own religion, even when the custodial parent is teaching a different religion, at least in the absence of a showing of likely serious harm to the child. A judge may theorize, perhaps even plausibly so, that it's better for children to learn one religion rather than two rival ones. But he can't implement his theory through an order restricting one parent's teachings, since that would violate the Free Exercise Clause.

Several state courts have similarly held that judges can't hold a parent's lack of religion against him in a child custody proceeding -- again, even if the judge sincerely believes that it's in a child's best interests to grow up in a more religious home. The Establishment Clause bars such preferences.

It seems to me these courts are quite right. Indeed, a parent's Due Process Clause right to have custody of the child may have to give way in divorce cases, since both parents can't live apart and at the same time live together full time with the children, and since even joint legal decisionmaking for the child may be impossible when the parents are unable to get along; but this reason for restricting parental rights generally doesn't justify restrictions on Equal Protection Clause, Free Exercise Clause, Establishment Clause, and Free Speech Clause constraints on the government.

Likewise, perhaps even these constitutional constraints must give way when genuinely necessary to prevent likely serious harm to the child, on a sort of "compelling government interest" rationale; I'm skeptical of that in many instances (see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006)), but I see the force of the argument. But I don't think that a simple desire to serve the child's best interests slightly better (in the family judge's view) justifies departing from the constitutional constraints.

That's why I'm so troubled when some family courts do prefer the more religious or churchgoing parent over the less religious or churchgoing parent, in my view a blatant violation of the Establishment Clause. That's why I'm troubled when some family courts restrict parents' teaching their children various disfavored ideologies, whether racism, Communism, support for the propriety of homosexuality, hostility to homosexuality, support for the propriety of polygamy, Wiccanism, and so on. And that's why I'm troubled when family courts suggest that parents could be penalized because they don't teach their one-quarter Korean children things that all-white children needn't be taught, or because they don't live in sufficiently "divers[e]" neighborhoods.

A family court judge necessarily has broad power over children's (and therefore parents') lives. It doesn't follow, though, that this power should be entirely free of the Equal Protection Clause, Establishment Clause, Free Exercise Clause, or the Free Speech Clause.

From the Albany Times-Union:

Some of the 5,000 prospective lawyers who took the essay portion of the state bar exam online this week fear their efforts have been lost because of a computer glitch....

John McAlary, executive director of the state Board of Law Examiners, said a small number of candidates were affected by the glitches. He was unable to say exactly how many.... The

He said he is confident every essay will be recovered because multiple backups were in place....

Let's hope so. Oh, and speaking of lawyering, note the last two sentences of this paragraph: "Software Secure posted a statement to its Web site Thursday saying the problem was identified and that a tool was created to recover backup files saved during the examination. A company official who refused to identify himself said he was not prepared to comment early today. He would not even confirm the online statement."

Thanks to Tom Klotzbach for the pointer.

Ward Farnsworth, a friend of mine who teaches at Boston University law school, has just published a new book, The Legal Analyst. It's an excellent book, especially for law students and incoming law students — thoughtful, well-written, and useful.

I'm delighted to say that Ward will be guest-blogging about the book next week. For now, here's a brief summary from the Preface:

The book is a user’s guide to tools for thinking about legal questions. It divides up the world of law according to techniques for thinking about it, then gives lots of examples of how the techniques work — a bit of criminal or tort law here, a bit of contract or constitutional law there, and so forth. In essence I’ve tried to take the most interesting ideas one learns about in law school — or should learn, or might wish to have learned --­ and explain them in ways that are clear and that convey why thinking about legal questions is an exciting, intellectually satisfying activity (or why some of us think so, anyway).

This might sound like a book for law students, or for people heading to law school, and it is indeed meant to help them; when a new recruit asks me what they might find helpful to read during the summer before law school, I’ve never been sure what to suggest, and this book should be a help to them. But it is also meant for anyone else interested in law, professional or amateur. This is the book I would have liked before I went to law school, when I understood almost none of what it explains. It also is the book I would have liked when I got out of law school, at which time I understood about half of it. It even is the book I’d like to have had at various earlier points during my teaching career, as when I wasn’t sure about the meaning of a stag hunt or the conjunction paradox.

See also the Table of Contents and these three sample chapters, all available at The Legal Analyst site.

Disclosure: One of the chapters is adapted from my The Mechanisms of the Slippery Slope.

I quoted and criticize below an Iowa appellate decision that said (paragrpah break added):

Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage.

However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.

My view is that courts ought not take the view that children with some Korean blood ought to be taught Korean culture, or ought to live in places that have "diversity." These factors should not be considered in the best interests of the child analysis, absent extraordinary circumstances (which I briefly discussed in the original post).

Some commenters criticized my criticism, reasoning along these lines: "My reading of the opinion is that the parties argued the issue of being able to expose the child to her ethnic background (including martial arts instruction) and the court simply referred to these arguments in a summary fashion. I strongly doubt the court would have included that reference in its opinion if the parties hadn't made it an issue in their briefs and/or oral arguments." "Everyone is over-reacting. This would be a different matter altogether if the Court's ruling actually had been based on the heritage factor. But it wasn't. The trial court just used a factual finding (i.e., both sides would help foster Korean heritage) to neutralize an argument raised by the losing side (i.e., Korean heritage must be fostered). The bottom line is that the 'heritage' argument failed on its facts, thus rendering moot any discussion of its legal significance."

I agree that courts are often guided by what the parties argue. But it seems to me that if a court discusses a particular fact, it implicitly suggests that the fact is legally relevant, and that the case might have come out differently — not would surely have come out differently, but might have come out differently — had this fact been absent. And if it would be improper (or even unconstitutional) for a court to make such a fact relevant, then the court should be careful not to recite the fact in way that suggests that the fact is relevant.

Consider two analogous passages from hypothetical Iowa Court of Appeals opinions. First:

Harold argues that Anjela is an American and it is important for her to be taught a maximum of patriotic values. He contends that Anjela's paternal grandmother, Song, is a patriot and can expose Anjela to the glory of American greatness. We recognize the importance of Angela's patriotic upbringing.

However, Casey is very supportive to Anjela's relationship with Song and Anjela's patriotic education. At the time of trial, Casey was planning to enroll Anjela in the local Daughters of the American Revolution children's education classes. In addition, the areas where Casey and Harold live have approximately the same amount of strong pro-American feeling. We believe Anjela would have sufficient opportunities to learn patriotism under Casey's care.

Second:

Harold argues that Anjela is a grandchild of Christians and it is important for her to be raised Christian. He contends that Anjela's paternal grandmother, Song, is a Christian and she can expose Anjela to Christianity. We recognize the importance of Angela's being raised in the faith of her ancestors.

However, Casey is very supportive to Anjela's relationship with Song and her interest in Christianity. At the time of trial, Casey was planning to take Anjela to church often. In addition, the areas where Casey and Harold live have approximately the same amount of Christian population. We believe Anjela would have sufficient opportunities to be involved with her religious heritage under Casey's care.

I take it that we'd treat these hypothetical decisions as strongly suggesting that a parent's lack of patriotism and lack of willingness to raise a child Christian (or at least to raise a child in the child's ancestors' religion) would count against the parent in the custody decision. In this particular case, the parent avoided this by being suitably patriotic and suitably open to raising the child Christian. But we'd read this opinion as strongly suggesting that in another case, a parent might lose custody from being insufficiently patriotic or insufficiently willing to raise the child in the right religion.

If you were a lawyer who saw a court decision like this, would you advise your client, "Oh, never mind, if you're raising your child not to value patriotism [or religiosity], and your ex-spouse argues that this is against the child's best interests, a local court would just ignore that. Sure, in this decision the court mentioned these factors, but only in a summary fashion, and only to rebut one side's argument. If Casey hadn't been raising Anjela patriotic or Christian, the court would still have ruled for Casey, and dismissed Harold's arguments as irrelevant."?

Or would you believe that you should say, "It's hard to tell for sure, but it looks like this court thinks that whether a parent is giving the child a patriotic [or religious] upbringing is potentially relevant. After all, it did discuss these facts, rather than just dismissing Harold's arguments as irrelevant; and it ruled for Casey on the grounds that she was teaching the child patriotism [or religion], rather than on the grounds that it doesn't matter whether she was teaching the child this way. So if you want to improve your chances of keeping custody, you'd best show a willingness to teach the child patriotism [or religion]."?

I would say the latter: The court's decision would signal to me that there's a substantial likelihood that a court would prefer parents who are providing patriotic or religious upbringings over those who aren't. And if I'm right, then the same should be said about the real Iowa Court of Appeals decision that I quoted at the start of this post.

One could still argue that it's proper for the court to suggest that parents who teach their quarter-Korean children about their Korean "ethnic heritage" should be preferred (all else being equal) over those who don't want to teach their children this way, though I disagree (for reasons I mentioned in the earlier post). But I don't think the court's discussion can be dismissed as a merely passing reference to the parties' arguments, with no suggestion about the way the court might rule in future cases.

From what is otherwise a pretty standard "best interests of the child" analysis in a child custody case, Foster v. Waterman, 2007 WL 2119125 (Iowa App. July 25):

Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage. However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.

Seems to me that courts have no business deciding, whether in a child custody case or elsewhere, how much and what sort of a connection a child should have "with her ethnic heritage." Some parents want their children to be closely connected to the culture of the child's ancestors (or of some of the child's ancestors). Others don't much care, because they reject the notion of bonds with ancestral ethnic groups; or they may even want to deliberately sever a link with a culture of which they disapprove. A court ought to remain agnostic between these approaches.

There may be some rare exceptions to this principle (though I'm not positive even about these): Perhaps in some situations there might be some serious evidence that one parent's approach to the child's racial background is against a child's best interests, for instance if a child who looks very different from other children is having serious social troubles as a result, but one of the parents isn't doing anything to try to deal with that. If an older child has herself developed some emotional connection with her ethnic background, and wants to continue that connection, a court might count in a parent's favor that parent's willingness to accommodate the child's preferences. And it may well be in a child's best interests to learn a foreign language, though learning Spanish (even in Iowa) is probably more in the child's interests than learning Korean.

But in general, a court shouldn't take the view that the ethnically quarter-Korean (or for that matter that the full-blooded Korean) should get more (or less) in touch with her heritage, or should live in a more (or less) "divers[e]" neighborhood. And it's just zany for a court to view a parent's willingness to enroll the quarter-Korean child in a martial arts class as remotely relevant to the child's best interests.

A few weeks ago, I posted about whether credit card providers should be liable for knowingly facilitating sales of infringing materials. A Ninth Circuit decision said that this did not constitute contributory infringement; Judge Kozinski dissented, saying it did, and I generally endorsed his position, at least as a matter of current law.

Many commenters disagreed, making various arguments. Among other things, they argued that we shouldn't "in effect, force credit card companies to become copyright police ... who have an affirmative duty to expend massive resources surfing the web verifying complaints of copyright infringement"; that the law shouldn't take the view that "preventing infringement should be a primary concern for all unrelated businesses"; that such contributory liability shouldn't exist at least until there's a judicial finding that the recipient of the money is indeed an infringer; and that the credit card companies shouldn't be liable unless they know that the specific transaction they're facilitating is infringing (as opposed to just that the target site is engaged in massive infringement).

These are all plausible arguments, but I wanted to revisit the question by asking a broader question: When should someone be held legally liable for helping others commit crimes or torts? In criminal law, the question is when someone should be guilty of the crimes of "aiding and abetting" or (in some jurisdictions) "criminal facilitation." In tort law, the question is when someone should be liable as an accessory; contributory copyright infringement law is in large measure the application of this general tort law principle.

The theory is that at some point helping someone commit a wrong -- especially a wrong to an identifiable innocent third party -- is itself the commission of a wrong. By threatening to hold you liable we aren't asking you to become the "police," in the sense of someone who is expected to actively try to catch wrongdoers. Rather, we're asking you not to participate in others' wrongdoing. The question is when this is a reasonable demand.

1. Majority criminal law view: Oddly enough, the matter is not fully settled even as to criminal law. The dominant view seems to be that you are liable as an aider or abetter if you (here I quote the Model Penal Code, which isn't far from the majority rule on this point) solicit, aid, agree, or attempt to aid another in committing a crime, with the purpose -- the "conscious object" -- of promoting the crime. This means that if you give a gun, a knife, gasoline, a rope, or whatever else to a criminal with the purpose of helping him commit a crime with the gun, you're committing a crime. But if you simply know that he will likely commit a crime, but don't have the conscious object of helping him (perhaps, for instance, you're selling the goods just like you'd sell them to anyone else, with the sole object of making money from the sale), then you're not guilty.

2. Minority criminal law view: But quite a few jurisdictions do allow punishment even if you merely know that you're helping someone commit a crime, or even if you know that there's a high probability you're helping someone commit a crime. Some jurisdictions do this for all serious crimes, others just for some crimes; and some treat this as aiding and abetting, punishable the same way the aided crime is punished, while others impose a lower sentence. For instance, consider New York Penal Law § 115.00: "A person is guilty of criminal facilitation in the fourth degree [a class A misdemeanor] when, believing it probable that he is rendering aid ... to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony." Or consider Indiana Code Ann. § 35-41-2-4: "A person who knowingly or intentionally aids ... another person to commit an offense commits that offense." Or see the dictum in People v. Lauria, 59 Cal. Rptr. 628, 633-35 (Ct. App. 1967), which suggests aiding and abetting liability based on mere knowledge that one is aiding a crime would be proper if the crime were serious enough.

Of course, if you have a credible claim that you were forced into this ("I had to sell the knife to the gangster, or else he'd have attacked me himself"), you'd have a duress defense. And this liability would not apply if you're selling a product to the public at large, and you merely know that some fraction of the population -- and you don't know who -- are misusing the product (whether the product is a gun, a knife, a bottle of vodka, a photocopier, or whatever else).

But as a general matter under this view you have an obligation not to help anyone commit a crime, if you know that your actions would help that criminal commit the crime (and knowledge of very high likelihood is probably enough), or maybe even if you just know that it's "probable" your actions would help the criminal.

3. Tort law: The tort law view, as best I can tell, mirrors what is reported by the Restatement (Second) of Torts § 876: "[O]ne is subject to liability if he ... knows that [an]other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other." That's the knowledge-is-enough view that's very close to what Judge Kozinski was urging as to aiding copyright infringement (which is after all itself a tort).

Now note that under all these doctrines, one can be liable even thought there's been no judicial finding that the person you're helping is committing a crime or tort. True, if you're genuinely not sure that the person you're helping will use your help for criminal or tortious purposes, then the "knowledge" requirement isn't satisfied. But you often will be pretty sure -- sure enough to qualify for knowledge. Note that even the criminal law, which is usually more demanding than tort law, tends to conclude that "knowledge is established if a person is aware of a high probability of [the] existence [of a fact], unless he actually believes that it does not exist," Model Penal Code § 2.02(7). "'[K]nowingly' in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously [i.e., deliberately] avoided it." United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc).

I also suspect that you wouldn't have to be certain that every single weapon you sell to a tortfeasor is going to be used for tortious purposes. (Maybe that one gun I sold is the one gun he'll keep for purely defensive purposes.) So long as you know that the person to whom you're constantly providing services is routinely using them for tortious or criminal purposes, I expect you'd be liable under either tort law (#3) or the minority criminal law rule (#2; for liability under #1 you'd have to have the purpose of helping commit the crime).

So that's the big picture, far outside the current debates about copyright infringement. You are generally required by the law not to knowingly helping others commit torts. You are even criminally punishable in some jurisdictions for knowingly helping others commit crimes.

You thus have a duty in all these jurisdictions to organize your affairs so that once you are aware that your conduct is helping particular criminals or tortfeasors, you stop. This imposes some burden on you, including some burden of checking things further once you become aware of a high probability that you're helping someone commit a crime or tort.

Let me then ask people, both at this big-picture level and in the context of financial intermediaries -- such as credit card companies -- who are given very solid evidence that their dealings with someone are helping that person commit a crime or tort. Should entities that help in the commission of such crimes and torts then be liable (civilly or criminally) for so helping? Should it vary materially depending on the crime and the tort? Or should the test turn on something else?

Egypt's Grand Mufti Ali Gomaa — described by Agence France Press as "Egypt's official religious advisor" wrote last week in a Newsweek/Washington Post "On Faith" forum:

The essential question before us is can a person who is Muslim choose a religion other than Islam? The answer is yes, they can, because the Quran says, “Unto you your religion, and unto me my religion,” [Quran, 109:6], and, “Whosoever will, let him believe, and whosoever will, let him disbelieve,” [Quran, 18:29], and, “There is no compulsion in religion. The right direction is distinct from error,” [Quran, 2:256].

These verses from the Quran discuss a freedom that God affords all people. But from a religious perspective, the act of abandoning one’s religion is a sin punishable by God on the Day of Judgment. If the case in question is one of merely rejecting faith, then there is no worldly punishment. If, however, the crime of undermining the foundations of the society is added to the sin of apostasy, then the case must be referred to a judicial system whose role is to protect the integrity of the society. Otherwise, the matter is left until the Day of Judgment, and it is not to be dealt with in the life of this world. It is an issue of conscience, and it is between the individual and God. In the life of this world, “There is no compulsion in religion,” in the life of this world, “Unto you your religion and unto me my religion,” and in the life of this world, “He who wills believes and he who wills disbelieves,” while bearing in mind that God will punish this sin on the Day of Judgment, unless it is combined with an attempt to undermine the stability of the society, in which case it is the society that holds them to account, not Islam.

All religions have doctrinal points that define what it is to be an adherent of that religion. These are divine injunctions that form the basis of every religion, but they are not a means for imposing a certain system of belief on others by force. According to Islam, it is not permitted for Muslims to reject their faith, so if a Muslim were to leave Islam and adopt another religion, they would thereby be committing a sin in the eyes of Islam. Religious belief and practice is a personal matter, and society only intervenes when that personal matter becomes public and threatens the well-being of its members.

In some cases, this sin of the individual may also represent a greater break with the commonly held values of a society in an attempt to undermine its foundations or even attack its citizenry. Depending on the circumstances, this may reach the level of a crime of sedition against one’s society. Penalizing this sedition may be at odds with some conceptions of freedom that would go so far as to ensure people the freedom to destroy the society in which they live. This is a freedom that we do not allow since preservation of the society takes precedence over personal freedoms. This was the basis of the Islamic perspective on apostasy when committed at certain times and under certain circumstances.

Unfortunately, the Gulf News now reports something different:

Egypt's top cleric yesterday denied in a statement that he had said a Muslim can give up his faith without punishment.

Ali Goma'a, the mufti of Egypt, was quoted as saying in a posting on a Washington Post-Newsweek forum that Muslims are free to change their faith and this is a matter between an individual and God.

"What I actually said is that Islam prohibits a Muslim from changing his religion and that apostasy is a crime, which must be punished," Goma'a said.

The alleged fatwa coincides with an uproar over the case of 12 Egyptians who converted to Islam from Christianity and now want to re-embrace Christianity....

Commentator Ali Eteraz (a fairly left-wing lawyer, if I read his profile correctly) tries to reconcile the two at The Guardian's site:

Conversation with Gomaa's people reveals that his actual quote given to the [Gulf News] newspaper was: "This disobedience can, in some of its manifestations, embody a departure from the general norms ... and a kind of crime that would necessitate punishment."

This direct turn-around, (or guarded qualification if one accepts Gomaa's version of what he said), appeared curious to many. What happened? Does Dr Gomaa think that an apostate should be punished, or does he not?

A close read of Gomaa's Newsweek opinion shows that the answer is "both". The opinion is a serious bit of legal reasoning. On one hand Gomaa indeed eliminates the death penalty for apostasy in Islamic law (by citing Quranic verses dealing with freedom of conscience), which is a major event. However, on the other hand, he grants to the Egyptian "judicial system" the authority to prosecute certain apostates — those that leave Islam in "public" — for the "crime of undermining the foundations of society". He ends up proposing a new criminal cause of action called "sedition against one's society". Sedition is not an Islamic term. It is a secular term that does not exist in the Quran.

Is it the case that Gomaa found a way to affirm penalising public apostasy via the back door? Yes, he did. The question is, why did he use a back door at all? Like thousands of Islamic jurists in the past, he could have easily said that Islam requires punishing apostates and be done with it. Yet he didn't do that. He first said that Islam was against penalising private apostasy, and he then moved to penalise public apostasy because it was a social (and not religious) problem.

Why go to all these lengths?

Simple: Muslim leaders are no longer relying upon religious law — "because God said so" — to justify their religious ends. Instead, they are coming up with what we western lawyers call "value-neutral terminology." I saw this in Pakistan's Women's Protection Bill last year. In order to pull rape cases out of the Shariah courts, reformers created new secular crimes to replace what used to be Shariah crimes. They did so even though the new secular crimes did not qualitatively differ from old religious crimes (ie "fornication" was renamed "lewdness"). This was smart. "Fornication" is a Quranic term backed by Islamic law but "lewdness" is a value-neutral term with no fixed meaning except what a contemporary criminal court decides (and in Pakistan's case, the criminal courts are secular). If, and when, a law against "lewdness" is abolished, abolition wouldn't be considered an assault on religion as it was never a religious term to begin with.

This sort of transubstantiation of religious ideas into secular terminology is the west's original contribution to government, and the backbone of liberalism. Starting at the Enlightenment, western leaders took their appeals to God or religious law, out of lawmaking (even if they secretly did wish to satisfy God or religious law). Even at the height of conservatism in the US, when proposing legislation, the most fundamentalist Christian Congressperson will not invoke Jesus. His or her faith might certainly inform his positions but the Congressperson will seek non-religious ways of winning the argument: patriotism, commerce, public health, or social good. This is what Gomaa is doing with apostasy.

Certainly none of us agree with Gomaa that apostasy be classified as sedition, or even be punished at all; but we must at least appreciate that he tried to assert his position in an explicitly non-religious manner.

Gomaa's Newsweek opinion does not directly advance the rights of apostates as western newspapers initially thought. In political terms it doesn't help apostates at all. It is, however, an opinion that starts, just barely, to separate religion from state. Such a trend will lead to Muslim fundamentalists in the future having to justify their imposition on non-Muslims in "secular" or "value-neutral" terms. That creates a much more even playing-field for non-Muslim minorities in Muslim countries. Further, by taking the imprimatur of Islam out of the discussion, and leaving the crime to be defined by the state, Gomaa, one of the top Islamic scholars in Egypt, has deferred a religious question to Mubarak (and in the future, one hopes to Egyptian democrats). In other words, he has "rendered unto Caesar" - which is a nascent version of separation of religion from state.

Muslims like Gomaa, by pulling Islam out of political debates, can, and are, creating the conditions for liberalism. We should celebrate that while remembering that they will not work at a pace dictated by us in the west.

The complaint is here; it alleges that Deputy PTO Director Margaret Peterlin lacks the statutorily required "professional background and experience in patent or trademark law."

I can't speak to whether the deputy director in fact lacks such background and experience. Her biography doesn't stress much of it, though it points to quite substantial general legal credentials; but according to the Washington Post, patent office spokeswoman Brigid Quinn reported that "Peterlin has 'had direct involvement in oversight of the USPTO and every piece of patent, trademark and copyright-related legislation considered on the House floor over the past five years.'"

I'm more interested in the institutional question here: What should courts do with vague criteria such as "shall ... [have] a professional background and experience in patent or trademark law," criteria that give no instructions about the level of background and experience required? I'm not an administrative law expert, but I'm inclined to say that this is the sort of judgment that is left to the Director (and, indirectly, to the Secretary of Commerce and the President, who can decide to remove the Deputy Director), not to courts. But I'd love to hear what administrative law experts have to say about this, and about other procedural questions that this lawsuit raises.

Thanks to Michael Hall for the pointer.

The amendment, enacted in 2004, provides,

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

A preexisting state statute, Ohio Rev. Code 2919.25(A), provides, "No person shall knowingly cause or attempt to cause physical harm to a family or household member," with "family or household member" defined to include not just spouses and relatives, but also "a person living as a spouse," in turn defined to include "a person who ... is cohabiting with the offender," which is in turn defined as living together with "sharing of familial or financial responsibilities and ... consortium.... Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations." (I take it that when pushed on this, Ohio courts would require a sexual or at least a romantic relationship, or else siblings living together with "mutual respect, ... affection, ... society, cooperation, solace, comfort, aid of each other, [and] friendship" would be treated as "living as ... spouse[s].")

Defendant Michael Carswell was indicted for causing or attempting to cause harm to a woman with whom he was living but to whom he wasn't married. He argued this violate the anti-same-sex-marriage amendment because the treatment of people "living as ... spouse[s]" the same way as spouses involved the creation of "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." A trial court agreed with Carswell; the court of appeals reversed; and the Ohio Supreme Court agreed to hear the case.

In today's decision, the court held 6-1 (five Justices in the majority, one concurring in the judgment only) that "the second sentence of the amendment means the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage -– a marriage substitute" (emphasis added). A provision treating certain unmarried couples as legally tantamount to spouses for one purpose (domestic violence law) doesn't account.

This seems to me generally right. I'd say that a legal status that bears nearly all the attributes of marriage would probably count as "intend[ing] to approximate the design, qualities, significance or effect of marriage" (emphasis added), and I expect that if such a status was enacted and challenged, the court wouldn't feel entirely wedded to the "all of the attributes" language. But a legal status that focuses only on one consequence that accompanies various relationships, including marriage, just isn't an "approximat[ion]" of either the design, qualities, significance, or effect of marriage.

It's true that a test that focuses on whether the legal status has "nearly all" the attributes of the marriage is in some measure vague. But that's a vagueness that stems from the vague constitutional term "approximates." And the domestic violence law challenged in this litigation is very far from any gray zone.

Frank Cross writes, though in the course of making a separate point,

I was advising a conservative student arguing in a debate against gay marriage and suggested he say "gay" rather than "homosexual."

I have a simple suggestion: same-sex marriage. It's clear, descriptive, and does not unnecessarily distract listeners into thinking about subsets of the field. Many people who engage in same-sex marriage -- especially same-sex marriage among two women -- are bisexual, not homosexual; using the term "homosexual" may needlessly focus on the sexual orientation of the participants, rather than on the nature of the union. Likewise, using the term "gay" may needlessly lead listeners to think of male-male marriages to the exclusion of female-female ones.

Neither of the other terms is wrong. "Gay" is sometimes used to mean "gay or lesbian," "homosexual" is often used to mean "homosexuals or bisexuals, so long as the bisexuals are behaving in ways that reflect their homosexual rather than heterosexual attraction," and of course both "gay marriage" and "homosexual marriage" are generally used to mean "same-sex marriage." But they do risk needlessly making the listener think of something other than what you're talking about -- which is same-sex marriage, whether male-male or female-female. I don't condemn people who use them, but I think the more useful approach is to go with "same-sex marriage."

I will sometimes run the risk of offending some people, in order to fight what strike me as unsound attempts to buffalo people into not using certain words. But I see no such benefit in avoiding the descriptive and clear "same-sex marriage," which avoids needlessly focusing listeners on one or another subset of the behavior and its participants.

The South Florida Sun-Sentinel reports:

Terry Lee Alexander ... was sitting on his bunk alone in his cell masturbating when a female deputy, monitoring his cell from a nearby control room, took offense.

Today he's scheduled to go to trial to fight a misdemeanor indecent exposure charge and the maximum one-year jail sentence that would go with a conviction. The incident occurred in November.

Although masturbation, a common jailhouse occurrence, violates most jail and prison rules, it doesn't often result in criminal charges. It is generally dealt with internally with a disciplinary write-up and temporary loss of phone or recreation privileges, Florida jail and prison officials said....

Deputy Coryus Veal ... has brought similar charges against seven other inmates in six months.

Seems to me that this sort of restriction is guaranteed to be flouted, and is needlessly cruel. If a prison wants to limit the more visible forms of masturbation, that's fine, so long as it informs inmates what they may and may not do. But a total ban on masturbation strikes me as a very bad idea.

The story suggests that the policy in practice turns on the visibility of the masturbation — "Generally, we prosecute such cases in which the inmate exposes himself in such plain view of the detention staff or other persons," said a prosecutor's office spokesman. But there's no evidence that inmates know what is and is not allowed. And while most of us would know enough, even without being told, not to visibly masturbate in front of strangers, I take it that many inmates aren't constantly conscious of being observed by video, or aware that it's OK to masturbate if they do so under a blanket but not otherwise.

Such prosecutions also lead to situations such as this (thanks to How Appealing for the pointer):

[D]efense attorney Kathleen McHugh ... faced 17 prospective jurors and asked point-blank who among them had never masturbated.

No hands went up.

Then, she went one-by-one, asking each prospective juror if he or she had ever masturbated.

All nine men said yes, two of the 10 women said no.

At least I appreciate the honesty of south Florida male jurors.

UPDATE: The prisoner has been convicted.

Can anyone who knows something about modern Greece tell me what (if anything) the inhabitants of Lesbos — Lesvos in modern Greek, I believe — think about the term "lesbian"? Do they perceive it as annoying? Offensive? Amusing? Is there no dominant view on the subject?

Relatedly, my quick searches suggest that the term "lesbian" is also present in other European languages, such as French and Greek. Is it identical to those languages' terms for inhabitants of Lesbos (or perhaps just the terms for female inhabitants of Lesbos, in languages that distinguish gender in such proper names)? Is it similar?

I ask these questions not to make some point, but just because I'm curious about how people react to historical accidents such as this one. (A different, though perhaps indirectly related, question: Do the inhabitants of Lesbos view Sappho as a heroine, the way many places view local girls/boys who made it big, or do they view her askance? [UPDATE: See below.])

A separate question, which might make some point, but which I stress is analytically distinct from the empirical questions I ask above: Say that the inhabitants of Lesbos find the term offensive. Should others, including lesbians, try to shift to a different term? Or should they go ahead with the term that they've used for a long time?

UPDATE: Thanks to Dr. Weevil, and Lesbian Fiction Herstory (which I found through a search inspired by Dr. Weevil's comment), I can illustrate this post with this statute of Sappho that is apparently in the town square of Mytilini, the main city of Lesbos:

Thanks to Diana Hsieh (NoodleFood):

TO: CU-Boulder Students

FROM: Office of the President

SENDER: officeofthepresident@cu.edu

DATE: 07/24/07

SUBJECT: Communication from President Hank Brown on the Board of Regents Vote

Dear Students of the University of Colorado,

The Board of Regents today voted to accept my recommendation to dismiss Professor Ward Churchill from the faculty.

I made the recommendation for the good of the university. CU's success depends upon its reputation for academic integrity. A public research university such as ours requires public faith that each faculty member's professional activities and search for truth are conducted according to the high standards on which CU's reputation rests.

We are accountable to those who have a stake in the university: the people of Colorado who contribute $200 million annually in tax dollars, the federal entities that provide some $640 million annually in research funding, the donors who gave us more than $130 million this year to enhance academic quality, the alumni who want to maintain the value of their degrees, the faculty and staff who expect their colleagues to act with integrity, and the students who trust that faculty who teach them meet the high professional standards of the university and the profession.

Given the record of the case and findings of Professor Churchill's faculty peers, I determined that allowing him to remain on the faculty would cast a shadow on our reputation for academic integrity.

Throughout the case, we have adhered to shared governance procedures as determined by the CU Faculty Senate Constitution and Bylaws and adopted by the Board of Regents. During the course of two-plus years, Professor Churchill presented his position in writing, in person, with his attorney and with witnesses of his choosing. He was afforded full due process.

More than 20 tenured faculty members (from CU and other universities) on three separate panels conducted a thorough review of his work and found that the evidence shows Professor Churchill engaged in research misconduct, and that it required serious sanction. The record of the case shows a pattern of serious, repeated and deliberate research misconduct that falls below the minimum standard of professional integrity, including fabrication, falsification, improper citation and plagiarism. No university can abide such serious academic misconduct.

Professor Churchill fabricated historical events and sought to support his fabrications by manufacturing articles under other names. His publications show more than just sloppy citations or using the work of others without crediting them. The Investigative Committee of the Standing Committee on Research Misconduct found multiple instances of falsification, fabrication and plagiarism. Any student engaging in such a wide range of academic misconduct would be seriously sanctioned. We should hold our faculty to a high standard of professionalism

While Professor Churchill's peers on the faculty panels were unanimous in finding research misconduct, views on the appropriate sanction varied. Some faculty recommended dismissal while others suggested a less severe penalty. My obligation as president is to recommend to the Board of Regents an appropriate sanction that is for the good of the university.

Some on the Boulder campus and beyond claim Professor Churchill was singled out because of public condemnation of his writing about September 11, 2001. They see this case as a referendum on academic freedom. The university determined early in the process that his speech was not at issue, but that his research was. The prohibition against research misconduct extends to all faculty, regardless of their political views. We cannot abandon our professional standards and exempt faculty members from being accountable for the integrity of their research simply because their views are controversial.

Professor Churchill's activities not only run counter to the essence of academic freedom, but also threaten its foundation. Academic freedom is intended to protect the exploration and teaching of unpopular, even controversial ideas. But that pursuit must be accompanied by the standards of the profession. Academic freedom does not protect research misconduct. After his research misconduct was identified, Professor Churchill did not admit any errors or come forward to correct the record, as is expected in the profession.

CU's most important asset is its academic reputation. Professor Churchill's actions reflect poorly on the University of Colorado, but we will not let the research misconduct of one individual tarnish our reputation. Our faculty members take pride in their work and demonstrate their respect for the high standards of their profession and this university day in and day out. Professor Churchill's research misconduct is an affront to those who conduct themselves with integrity.

We will remain accountable to those who have high expectations of Colorado's flagship university. And our faculty will remain true to high professional standards to ensure our reputation for academic integrity remains intact.

Sincerely,
Hank Brown
President

I think President Brown's action is correct, for reasons I gave last year:

As best I can tell, from what press accounts I've read and from the Report itself, Churchill hasn't shown any contrition. His falsification, fabrication, and plagiarism (in the Committee's words), which the Committee quite plausibly found to be deliberate, are substantial.

And these are falsehoods in his published work, which can readily be checked. How can his future students be confident that things he says in class are accurate? (Yes, we try to instill skepticism in our students, but they still rightly expect that they can count on our factual assertions, rather than double-checking every word.) How can his colleagues, and Colorado taxpayers, be confident that his students are learning things accurately? His work has been cited by over 100 times in law reviews alone, and law isn't even his main field; I assume that quite a few scholars are now wondering whether their reliance on his work led their own work to be in error. How can other scholars, and his other readers, ever rely on anything he says?

It seems to me that keeping him on the faculty would be a substantial disservice to Colorado students, Colorado taxpayers, and the academic fields in which he works. I hope that in its sympathy for a colleague, and its desire to avoid hassle or even litigation, the University doesn't lose sight of that.

A commenter writes:

One easy way to identify a Christianist or a bigot is their use of the word homosexual, when the term we use for ourselves is gay or lesbian.

I've heard similar objections elsewhere (or else I wouldn't have responded to an isolated comment), but I find them utterly unpersuasive.

First, the descriptive assertion that there's a high correlation between use of the term "homosexual" and the speaker's hostility to homosexuals strikes me as entirely unfounded. Search the archives of the New York Times — or for that matter the Advocate — the works of Andrew Sullivan, and a wide variety of other sources, and you'll see.

Second, I'm not even persuaded by the assertion that homosexuals themselves generally prefer "gay" or "lesbian," even in contexts where "homosexual" is more precise (such as when one is talking about either gays or lesbians and wants to use one word that doesn't imply — as "gay" in some measure does — a limitation to one sex). The speaker may be accurately reporting the views of those particular gays and lesbians whom he knows, and who are vocal on the subject; I'm skeptical of his knowledge of the views of homosexuals generally.

Just to give some examples from similar contexts (as I've noted before), a 1995 Labor Department survey reported that 50% of American Indians preferred "American Indian" and only 37% preferred "Native American"; 44% of blacks preferred "Black" and only 40% preferred "African-American" or "Afro-American"; 58% preferred "Hispanic" and only 12% preferred "Latino" (no separate data was given for "Latino/a"). Matters may have shifted some since 1995, but not vastly; and I'm pretty sure that in 1995, the preferred terms among activists were "Native American," "African-American," and (here I'm less sure) "Latino," yet the actual majority (or, for blacks, plurality) preferences were different. (Source: U.S. News & World Report, Nov. 20, 1995.) Even if I thought that I had some moral or good manners responsibility to use the label preferred by a strong majority of the group, I see no basis for accepting such a responsibility to use the label preferred by a vocal minority, or even half of the group.

Third, as I have described here, the argument that "the group prefers to be called X, so you have a good-manners obligation to call it that" is not enough of an argument in my book — even if there is adequate evidence that the group prefers that.

Naturally, there are clearly pejorative ways to use certain words (including "gay," "lesbian," or anything else). But I'm not going to let people buffalo me, or stand by quietly while people try to buffalo others, into abandoning the clear, useful, and generally nonpejoratively used term "homosexual."

UPDATE: On reflection, I thought I'd quote much of the older post I linked to above (which was about some people's preference for "handicapped" over "disabled," but which should largely apply here as well):

2. Moreover, shifting from an old label to a new label is not cost-free. It's not cost-free for the speaker. Sometimes the new term has shades of meaning that aren't quite apt for certain uses, and thus requires extra work to think through. ("African-American," for instance, isn't a racial group, but a racial subset of Americans; it thus isn't always an apt substitute.) Sometimes the new term carries an ideological literal meaning that the spaker may disliks evoking, even when it's fairly clear that he's using the term just as a label and not for its literal meaning. This is clearest for "differently abled" or "Latter-Day Saint" (I have nothing against Mormons, but I prefer not to call them Saints, even with the implied quotes). But it may also apply in other situations, such as with "disabled"; some people may genuinely prefer to stress the handicap (i.e., burden) under which a person labors rather than his disability.

Sometimes the word acquires a connotation of adherence to the ideology that spawned it; the word "womyn" may be the most famous example, though I suspect that these days it's so often used facetiously that people may want to avoid it for that reason as well. Speakers may then resist using the term because they don't want to be seen as proclaiming allegiance to an ideology that they do not adhere to. Sometimes the new term is just clunkier and sounds more stilted to many people; some, I suspect, take this view as to African-American, and I suspect that headline writers are especially unhappy with it.

3. But the more important cost to the speaker is that telling people that they should stop saying certain words, not because those words are likely to be reasonably interpreted as expressing hostility, but simply because some other people dislike those words, is itself something of an affront to dignity and a possible source of offense. Even the good-mannered among us cherish our freedom to speak as we please, and while we try not to be rude (in the sense of slighting others or saying bad things about them), we understandably bristle at being told to stop using this word and start using that one on pain of Being a Bad Person.

A sound explanation that shows why people are reasonably offended by a term (for instance, an explanation to someone coming from Russia, where "black" is insulting much like "yellow" would be, and "negro" is considered the proper scientific term, that in America "negro" is so rarely used that it sounds like a deliberate insult at worst or one of those what-did-he-mean-by-that? archaicisms at best) might soften the sting. But simply saying "most of us like this term, so stop using this other one that you've used all your life" is a legitimate source of offense for those whose speech people are trying to control. It's even more such a source if those people were once taught by then-representatives of the same group that "handicapped" was the better term, and some years later are now told that it's become bad. And it's especially so when the number of forbidden words grows and grows ("rule of thumb," "Chinese wall," "seminal," etc.).

4. On top of that, there's also another substantial cost to the "If you aren't a bigot, stop saying 'handicapped' and say 'disabled' instead" approach: It may actually increase how often the group that one is trying to protect from offense ends up feeling offended.

If handicapped people learn that some people say "disabled" and others say "handicapped," and that neither is evidence of hostility, a few might still bristle at one (or the other); but many will be satisfied by the explanation that decent people use both. But say that everyone is told that "disabled" is the one right term, and some decent people don't go along, whether because of force of habit, strong preference for "handicapped," or just bristling at being told what to say. Then handicapped people who hear the term may well become more offended, because they've been taught that the word is offensive.

People who might even prefer to shrug the term off might feel almost obligated to take it as an insult. If someone calls me "Gene" rather than "Eugene," I'm a little annoyed (that's just not the name I prefer in English), but I assume that it's just because they've fallen into that habit with other Eugenes they know, who do go by Gene in a way that I don't. I assume the speaker's intentions were good, and I think I'm happier for it.

But if someone started a campaign of insisting that calling me Gene is actually rude, perhaps even insulting (because the diminutive implies a diminution of my status), I'd both hear "Gene" a bit less often, and be much more annoyed when I do hear it, precisely because I'll worry that it's a deliberate violation of the New Good Manners Rule and thus a deliberate slight. Those who make the handicapped/disabled issue into a matter of identity politics rather than just a matter of apricot/apricot (or even Gene/Eugene) may thus increase the amount of hurt feelings on both sides.

5. So I think the approach that's more tolerant of speakers, ultimately more likely to avoid offense to the subjects of the speech, and less likely to be subject to the whims of a small minority of activists is generally to tolerate both the old terms and the new terms, and not consider either to be a breach of good manners.

There are exceptions. One, as I noted above, is when one term is so often used pejoratively that reasonable listeners might assume that the current user is using it pejoratively. Another is when the term is so archaic that it will make people wonder whether the speakers must have some ulterior motive in using it (the obvious motive, which is that it's a commonly used term that springs to people's minds naturally, being absent). There may well be others; rules of manners are often not competely simple and crisp. But as to handicapped/disabled, or American Indian/Native American, or black/African American, the let-at-least-a-couple-flowers-bloom approach strikes me as the clearly preferable one.

but you might have lost it by having ads or a tipjar. I posted about this a couple of years ago, but I was reminded of it recently (fortunately not because of anything involving this site), so I thought I'd post again about it. (Thanks to Kurt Opsahl of the Electronic Frontier Foundation for first suggesting this point, and to my wife for her advice on insurance law. Please note, though, that I'm not an insurance lawyer, though I've done a bit of research on this subject. Don't take this to the bank, and do let me know if you are an insurance lawyer and have some corrections. Consider this general speculation about the lay of the land, and not individualized legal advice.)

1. It turns out that homeowner's insurance policies, and possibly also some renter's insurance policies, generally cover libel lawsuits. That may sound odd, but the policies tend to cover both damage to your property (the main reason, I suspect, that most people buy these) and liability for unintentional harm that you inflict on others. One policy that I read, for instance, says that

If a claim is made or a suit is brought against any insured for damages because of bodily injury . . . caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit of liability for the damages for which the insured is legally liable; and

2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent. . . .

POLICY DEFINITIONS . . .

"Bodily injury" means; . . . personal injury . . . arising out of . . . libel, slander or defamation of character; or . . . invasion of privacy.

If you have an umbrella liability policy, it may provide extra monetary coverage. Of course, you're only covered if your insurance contract does indeed specify this, explicitly or implicitly. You ought to read your policy (they are often quite readable), and pay close attention both to the body of the policy and any separate definitions section.

2. These policies generally don't cover punitive damages, but they do cover both compensatory damages and litigation defense costs. Fortunately, that's what you most want to have covered.

Libel cases are hard for plaintiffs to win, and punitive damages are especially hard to get. If you're writing on matters of public concern, and are sued for libel, you can't be liable for punitive damages unless a jury finds that you knew your statement was false or at least knew it was quite likely false but blithely published it without any investigation. So chances are you won't be on the hook for punitive damages, or even for compensatory damages.

But even if you win, you could spend huge amounts of money defending yourself. That's where the insurance can be especially handy.

3. However, these policies generally explicitly exclude liability related to "business pursuits." The exclusion and the definition of "business pursuits" may vary from policy to policy, so check yours (and again check both the homeowners' insurance and your umbrella policy, if you have it). Still, I'm told that most policies just say "business pursuits," and sometimes define them as referring to a "trade, occupation, or profession."

If your blog is entirely noncommercial — you neither have ads nor solicit donations for a tip jar, and you don't systematically use your blog as primarily promotion for your business — then you should be covered for libel lawsuits arising out of your blog posts, because the blogging wouldn't be a business pursuit. (Possible exception: If your primary occupation is a professor or a journalist, then even noncommercial posting on topics related to your specialty may conceivably be seen as part of your main occupational "business pursuit"; I know of no precedents one way or the other about this.)

But if you make some money out of it, even a small amount, then in many states you probably won't be covered. In a few states (as best I can tell, Georgia, Indiana, Minnesota, Mississippi, North Carolina), even a blog that makes some money will be covered if blogging isn't your primary occupation. In Arkansas, Idaho, Louisiana, and Michigan, you might be able to get coverage on the theory that making money wasn't your primary motive in blogging, and that you were instead doing it as a hobby with money being only a side consideration. Still, the majority view, as I understand it, is that any moneymaking component (so long as it's regular, rather than just one-time or highly intermittent) makes your blogging into business activity and thus excludes it from coverage. This isn't entirely clear, but that's my sense from reading some cases and a couple of reference works.

4. This means that if you're worried about the risk of libel lawsuits, you might want to consider staying entirely noncommercial. Naturally, you wouldn't have to do it if you live in a state which reads the "business pursuits" exception narrowly. (Most homeowner's insurance policies, I'm told, don't have a separate provision indicating what state law would be used to interpret them, so courts would generally apply the law of where you live.) And if you figure that you'll make lots of money from the ads or the tip jar, you might be willing to run the risk, especially because libel lawsuits against bloggers are thankfully rare, and because you might think that your posts would be unlikely to trigger a lawsuit.

But if you think that having libel insurance will let you sleep better at night, you might conclude that it's better to forgo, say, $500 worth of advertising income in a year in order to remain insured.

5. What should you do if you get a threatening letter?

1. Read your insurance policy. As I said, it may not be a hard read. Pay close attention to all the sections, to see if there might be some unexpected exclusion that may apply. Also pay close to attention to the definitions section, since some terms may be defined in counterintuitive ways.

2. Immediately notify your insurance company, in writing, that there might be a claim against you; send it a copy of the nastygram you received, and a dated cover letter. Tell the company that you need to consult a lawyer to deal with the threatening letter, and ask it to get you a lawyer right away, or to authorize you to consult one yourself on their dime. The insurance company may not have an obligation to pay your lawyer's bills until the lawsuit is filed, but it doesn't hurt to ask.

   I'm told that you can usually do the notification through your insurance broker, who knows how to deal with the company, and whom to talk to there. In any case, talk to your broker and see whether he'll do the notification for you or whether you ought to notify them yourself.

   Always communicate in writing, keep copies of all communications, and date all your communications. You can also call them (particularly important if you need to nag them), but confirm any substantive communications in writing.

3. If the other side's gripe with you is sound — if you did indeed err — post a correction. It's the right thing to do, and it may avoid a lawsuit.

4. If a Complaint is filed against you in court, notify the insurance company about that, too, by sending them a copy of the Complaint with a dated cover letter. Demand that they get back to you quickly about whether they're hiring a lawyer on your behalf.

   If the insurance company doesn't get back to you quickly with an answer, hire a lawyer yourself, and show him a copy of the insurance policy. Then inform the company that you've hired the lawyer, and that you expect the company to pay the bills. Bug the insurance people repeatedly, if necessary, including through your insurance broker. If your policy covers libel, and you aren't within the business pursuits exclusion, you likely have a very strong case for coverage; but they can still be slow, and you need to be the squeaky wheel.

5. If you do hire a lawyer, show him the policy, and negotiate with him in light of the policy. See if he would agree to represent you for rates that he's pretty sure the insurance company would pay. See if he would agree not to charge you if the insurance company denies coverage. That, of course, depends on his sense of how likely coverage seems to be. But cyber-libel cases are potentially pretty interesting, even glamorous. Some lawyers may be willing to take a small risk of nonpayment to do a fun case like that.

In any case, these are just a few thoughts; use these numbers for comparison, your mileage may vary. But keep in mind that (1) you may already have libel insurance for your blogging, (2) you might lose it, depending on the state you're in, if you sell ads, have a tipjar, or otherwise make even small sums of money from your blog, (3) you may therefore want to plan your blog financing accordingly, if you're the worrying sort (or for that matter the libeling sort), and (4) if you are sued or threatened with a lawsuit, look carefully at your insurance policies, notify your insurance company immediately and in writing, and bug it repeatedly for an answer.

The ambition to do better than our neighbours is in many departments of life a virtue; in pronunciation it is a vice; there the only right ambition is to do as our neighbours.

Fowler goes on to acknowledge and discuss important subsidiary questions, such as who counts as "our neighbours" for this purpose. But the opening sentence, which I quote above, still tells you most of what you need to know.

Thanks to commenter wm13 who reminded me of the source, and of the precise quote.

John Bambenek (BlogCritics) has filed a complaint with the Federal Elections Commission, alleging that DailyKos is a "political committee" that is subject to various federal elections law registration and reporting requirements with which it hasn't complied. After all, Bambenek argues, the DailyKos itself says that it is "about electing Democrats," and is therefore a political committee.

Fortunately, even partisan blogs are not covered by federal election law, because — as the FEC ruled in November 2005 — they are covered under the "press exception" to campaign finance law. The ruling, which came in response to a request by Fired Up, a Missouri democratic activist blog, concluded (citations omitted, some paragraph breaks added):

The Act and Commission regulations define the terms “contribution” and “expenditure” to include any gift of money or “anything of value” for the purpose of influencing a Federal election. However, there is an exception for “any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication ... unless the facility is owned or controlled by any political party, political committee, or candidate[.]” This exclusion is known as the “press exception.”

The Commission has applied a two-step analysis to determine whether the press exception applies. First, the Commission asks whether the entity engaging in the activity is a press entity as described by the Act and Commission regulations. Second, in determining the scope of the exception, the Commission considers: (1) whether the press entity is owned or controlled by a political party, political committee, or candidate; and (2) whether the press entity is acting as a press entity in conducting the activity at issue (i.e., whether the entity is acting in its “legitimate press function”). Two considerations in applying this analysis include whether the entity’s materials are available to the general public and are comparable in form to those ordinarily issued by the entity....

Fired Up qualifies as a press entity. Its websites are both available to the general public and are the online equivalent of a newspaper, magazine, or other periodical publication as described in the Act and Commission regulations.

An examination of Fired Up’s websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up’s commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities’ websites and through Fired Up’s original reporting. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. Reader comments appearing on Fired Up’s websites are similar to letters to the editor and do not alter the basic function of Fired Up.

According to the House report on the 1974 amendments to the Act, the press exception made plain Congress’s intent that the Act would not “limit or burden in any way the first amendment freedoms of the press ...” and would assure “the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns.” Consistent with this intent, the Commission has already expressly extended the press exception to qualified activities that appear on the Internet.... Thus, Fired Up is a press entity and satisfies the first step of the press exception test....

Fired Up is a for-profit LLC and is not owned or controlled by any political party, political committee, or candidate. Given that Fired Up’s operation of its websites is at the core of its activities as a press entity, its provision of news stories, commentary, and editorials on its websites falls within Fired Up’s legitimate press function. Thus, because Fired Up is a press entity, and neither it nor its websites are owned or controlled by any political party, political committee, or candidate, the costs Fired Up incurs in covering or carrying a news story, commentary, or editorial on its websites are exempt from the definitions of “contribution” and “expenditure.”

The Commission notes that an entity otherwise eligible for the press exception would not lose its eligibility merely because of a lack of objectivity in a news story, commentary, or editorial, even if the news story, commentary, or editorial expressly advocates the election or defeat of a clearly identified candidate for Federal office....

The same, I think, would be said about DailyKos and lots of other political blogs (with some exceptions, such as blogs that are run directly by a political party or candidate).

There is much to criticize in modern federal campaign finance law; and it may well be that the press exception should be even broader than it is — though keep in mind that broadening the exception, or repealing the law altogether, would interfere with disclosure requirements (which even many critics of contribution and spending limits support) and not just spending limits.

Nonetheless, the press exception as the FEC has rightly interpreted it is broad enough to cover blogs, even highly partisan blogs that aim to elect Democrats, just as it covers partisan magazines such as the National Review or the Nation.

Note also this defense this morning of DailyKos by David Freddoso (the Corner, National Review), comments to the FEC urging regulation of political blogs by Democracy 21, the Campaign Legal Center, and the Center for Responsive Politics, a concurring opinion by two FEC commissioners that seems to call for a somewhat narrower view of the "press exception" than the majority would adopt, and this letter supporting the Fired Up decision from Duncan Black (Atrios), Markos Moulitsas Zuniga (DailyKos) and Matt Stoller (MyDD).

A commenter writes:

Baloney, we should not accept the degradation of distinctions, clarity, etc., that illiterates introduce into the language. To grill is not to barbeque. At present does not mean presently. Anxious does not mean eager. And to beg the question does not mean suggests the question. Except to people who have no concern for communicating clearly.

3. a. At the present time; at this time, at present, now.
Apparently avoided in literary use between the 17th and 20th centuries, but in regular use in most English dialects and by Scottish writers; revived in the 20th cent. in the U.S., subsequently in Britain and elsewhere. Regarded by some usage writers, esp. after the mid 20th cent., as erroneous or ambiguous.

?a1425 (c1380) CHAUCER tr. Boethius De Consol. Philos. V. pr. vi. 122 The science of hym..lokith in his simple knowynge alle thingis of preterit ryght as thei weren idoon presently ryght now. c1450 (1410) J. WALTON tr. Boethius De Consol. Philos. (Linc. Cathedral 103) 325 {Th}e estate of souereigne god on hye Is stondyng euere in one..All-gates in hym-selfe presentlye. 1489 CAXTON tr. C. de Pisan Bk. Fayttes of Armes I. v. 11 Charles the fyfthe..fader of this that presently regneth. a1533 LD. BERNERS tr. A. de Guevara Golden Bk. Marcus Aurelius (1546) G g ij b, Dedes done presently in our daies. 1563 L. HUMPHREY Nobles of Nobilitye sig. vii, Wherfore the quaffing of the dutche Nobilitye is presently haled through al realmes. 1637 R. HUMFREY tr. St. Ambrose Christian Offices I. 31 A reward to be rendred hereafter, not presently. 1697 tr. C'tess D'Aunoy's Trav. (1706) 191 It is, says he, too long and melancholy a Mischance to relate presently. 1740 J. TULL Horse-hoeing Husb. Suppl. 257 Enough to make the Horse hoing common in Time to come, if not presently. 1764 T. REID Inquiry Human Mind vi. §17 The question presently under consideration. 1826 SCOTT Provinc. Antiq. 85 Sir William Rae, Baronet,..presently Lord Advocate. 1849 J. RUSKIN Seven Lamps Archit. vi. 171 Our presently disputed claims. 1897 A. GEIKIE Anc. Volcanoes Brit. I. I. i. 5 The presently active volcano must be the basis and starting-point of inquiry. 1901 Leeds Mercury 4 July, A young man belonging to Rotherham and presently staying with his parents at Bridlington. 1939 Topeka (Kansas) State Jrnl. 20 Feb. 12/1 Sunner is presently minister of interior and one of the outstanding leaders of the Falangists. 1957 G. MARX Let. 12 Apr. (1967) 213, I am presently building a house and doing my own show, but sometime within the next two months I'll make it. 1958 Economist 9 Aug. 433/1 The praise presently being heaped upon him seems to be..a consequence of the recent recovery in the Conservatives' fortunes. 1971 Nature 2 July 23/1 The Caribbean area is a subplate presently attached to the South American plate. 1997 Independent 5 May (Media Plus Suppl.) 4/1 Good Housekeeping..presently makes a tidy sum selling cookery books and kitchenware.

My question: Even if you are a prescriptivist, should you trust the prescriptions of "stubbs" and those who take his view, and treat the "at present" sense of "presently" as having been "introduce[d] into the language" by illiterates? Or should you take the view that what Chaucer, Sir Walter Scott, and Ruskin -- as well as many other users of the English language -- have written is actually quite literate?

More broadly, how can you, in the face of this evidence, claim that "At present does not mean presently"? What odd meanings of "does not mean" and "illiterates" would you need to use to make such claims?

Alan Gunn comments:

It's not possible, or even desirable, to stop English from changing in this way, but why should we encourage it, or think it always a good thing? I'd just add that changes like this not only make understanding more difficult during the transition, they end up making older writings hard for modern readers to understand. And some of the changes are downright ugly: to me, at least, an ordinary English word like "happen" sounds better than "transpire." (And I suspect the people who like words like "transpire" of trying to talk down to people who use normal English words. Lots of them seem to have gone to expensive schools, and to talk about their schooling at length.)

As it happens, I don't like "transpire" to mean "happen" for reasons similar to Alan's: "Happen" sounds simpler and less Latinate. But claims about how some new usage is supposedly a "change" -- especially, by implication a recent change (since all usages are novel if you go back far enough) -- always make me want to go check, preferably in the Oxford English Dictionary. And here's what I see in the OED:

b. Misused for: To occur, happen, take place.
Evidently arising from misunderstanding such a sentence as ‘What had transpired during his absence he did not know’.

1775 A. ADAMS Let. 31 July in J. & A. Adams Familiar Lett. Revolution (1876) 91 There is nothing new transpired since I wrote you last. 1804 Age of Inquiry (Hartford, Conn.) 46 When..the reformation transpired in England..almost the whole nation rejoiced. 1810 F. DUDLEY Amoroso I. 14 Could short-sighted mortality..foresee events that are about to transpire. 1828 WEBSTER, Transpire..3. To happen or come to pass. 1841 W. L. GARRISON in Life (1889) III. 16 An event..which we believe transpired eighteen hundred years ago. 1848 DICKENS Dombey xxxii, Few changes{em}hardly any{em}have transpired among his ship's company. 1858 HAWTHORNE Fr. & It. Note-bks. I. 225 Accurate information on whatever subject transpired. 1883 L. OLIPHANT Altiora Peto I. 277 His account of what transpired was so utterly unlike what I expected.

Third, the misusers include, among others, Dickens and Hawthorne. So the word has commonly been used in a particular way. It has been used this way for a long time. And it has been used this way by some of the leading English-language writers. How then can we report this as a "misuse" as opposed to just a use (or perhaps a use that originated from a misconception, though that hardly makes the use a misuse today)?

A commenter provides the following:

Back to the subject at hand: One of my own pet peeves is the use of "insure" where the writer clearly means "ensure". "Affect" for "effect" is just as bad, but not nearly as common; these days, it seems like everybody and his dog misuses "insure". I'd check a dictionary or style manual for support, but I'm worried that the new usage of "insure" has become so common that they may consider it correct.

Oh, buddy, it's worse than you can imagine. Much worse. From the Oxford English Dictionary definition of "insure" (definition 5 is the modern one, but I include #1 because of the back-reference to it in #5):

1. trans. To make (a person) sure (of a thing); to give security to (a person) for the fulfilment of something: cf. ASSURE v. 9, ENSURE v. 1, 2. Obs.

c1440 Promp. Parv. 262/2 Insuryn, or make suere, assecuro. 1681-6 J. SCOTT Chr. Life (1747) III. 21 Thus Christ..hath taken the most effectual Care to insure the mutual Performance of this everlasting Covenant to both Parties..to insure God of our performing our Part..and to insure us of God's performing his Part....

5. trans. To make certain, to secure, to guarantee (some thing, event, etc.): = ASSURE v. 5, 7a, ENSURE v. 8, 9.

1681-6 [see sense 1]. 1809 W. IRVING Knickerb. VII. xiii. (1849) 450 Such supineness insures the very evil from which it shrinks. 1821 MRS. SHERWOOD Hist. Geo. Desmond 19 He had insured for me the situation of a writer on the Bengal establishment. 1849 RUSKIN Sev. Lamps vi. §8. 170 Want of care in the points which insure the building's endurance. a1862 BUCKLE Civiliz. viii. (1873) 462 An ardour which could hardly fail to insure success.

It's not that the new usage of "insure" has made it "become" correct. It's that "insure" to mean "ensure" has been standard English since the late 1600s. "Insure" to mean "secure the payment of a sum of money in the event of loss of or damage to property" is attested in the OED only fifty years earlier (1635), and even that quote uses "ensure" and "insure" interchangeably: "Authorising your petitioner to ensure all your majesty's subjects whatsoever for soe much of their estates combustible as they themselves shall conceive in danger of Fire, not taking above 12d. per centum yearly for soe much soe insured."

Now as it happens I don't like "insure" to mean "ensure," either. Using "insure" may lead the reader to think of insurance, which may thus be slightly distracting. Such usage would almost never be ambiguous, because the following word or words will make clear which sense of "insure" is meant. And English is so full of words with multiple meanings that English speakers are unlikely to be much distracted by another such word. Still, I have an esthetic preference for limiting "insure" to situations involving insurance, and perhaps there's some practical benefit for following such a practice.

But it's one thing to say "potentially needlessly distracting," "esthetically displeasing," "inelegant," or "pet peeve[]" -- it's another to say "misuse[]" or "[not] correct." When current dictionaries report that this usage is common today (see, for instance, this Usage Note, this definition, and this definition), and when the usage has been attested in the Oxford English Dictionary since the late 1600s, how could even a prescriptivist credibly argue that it's wrong?

A comment on the What Do Descriptivists Teach Their Children thread lead me to think: Will I practice what I preach with my children? Will I indeed teach them (once they're at an age to grasp this) that "ain't" is simply something that one would be wise not to use — for fear of being perceived as ill-educated — or will I break down and just insist that it's wrong, wrong, wrong?

I like to think that I'll teach my kids the truth as I see it — but in addition to the intellectual and moral reasons to do this, I have a more practical one: My views on "ain't" are now online. One day my boys will be able to look for them. And I can't afford to say anything that the results of a search for site:volokh.com "ain't" will contradict.

A commenter asks, "Why is it OK to prescribe, and indeed proscribe, vocabulary, but not syntax?"

My sense is that descriptivists — and certainly this descriptivist — think that the guide to vocabulary is usage: An English word means what English speakers use it to mean. Dictionaries that reflect a word's meaning also tend to preserve that meaning, because they tend to lead people who consult the dictionary to use the word the same way.

Consider an example: Many English speakers use "presently" to mean "at present" and many use it to mean "in the near future." I see no basis for saying that one or the other usage is "wrong." One or both usages may be dangerous: People who want to avoid puzzling some listeners should probably avoid the "in the near future" usage, and people who want to avoid alienating some listeners may want to avoid the "at present" usage. What's more, the danger may be unnecessary: One can usually just say "now" or "soon," as the case may be, instead. But while there may be reason to avoid one or both meanings, I see no reason for calling either incorrect.

Of course, this doesn't mean that anything goes: If I use "presently" to mean "with presents," as in "I'm coming to your birthday party presently," I've made a mistake, because I've departed from the norms of actual usage. Likewise if I write the word as "presenly," or pronounce it with the emphasis on the "sent."

But to a descriptivist, the test is actual usage. If some self-appointed language policeman insists that "presently" can only mean "in the near future," the descriptivist will demand to see a warrant. And since the descriptivist respects no warrant other than the grown order of the English language as it has in fact grown, the descriptivist will ignore the policeman's complaint as being the policeman's private prejudice rather than an obligatory language rule.

I vaguely recall hearing two phrases about language, which were roughly:

1. Understand as the learned, but speak as the common. (This was apparently a translation from Latin.)

2. Unlike with morals, where our goal should be to act better than one's neighbors, with language our goal should be to speak just like our neighbors.

Unfortunately, I don't recall the precise wording, except to remember that it was considerably better than what I reproduce above. Can anyone remind me what the quotes were?

By the way, I realize that proverbs like this aren't always exactly right, and are in any event oversimplifications. Naturally, it's generally good to speak more accurately, more precisely, and more clearly than your neighbors -- the point of both sayings is simply that effective communication usually calls for a style that is familiar to listeners, and that doesn't distract or alienate listeners by departing too much from the norms of the listeners' place and class.

A commenter asks a good question: "What do anti-prescriptivists tell their own children?"

My children are 2 and 3, and I'm told that at those ages it's more effective just to speak around your children the way you want them to speak, rather than setting rules for them. But I've certainly thought about what I ought to tell my children eventually; here are a few thoughts, with the understanding that "no battle plan survives contact with the enemy."

1. Be age-appropriate. A nuanced rule that may work for an older teenager might not work well for a younger child.

2. Teach children to speak and write in ways that will serve them well. My goal isn't to make sure that my child follows the technical rules of grammar. My goal is to make sure that he can speak and write in ways that are clear, that make him look educated, and that will make him seem pleasant and careful rather than pompous and offputting.

There's nothing wrong with the word "ain't," which has been used for centuries, and which I can find no abstract logical reason for condemning. It's just that today using it will lead quite a few people to think the less of you -- much more so than splitting infinitives would, for instance -- and the safe bet is to avoid it, except in fairly clearly jocular contexts. Likewise, there are lots of sesquipedalian words that aren't "wrong," but that one generally shouldn't use (though one should know in case others use them).

3. Teach older children to be skeptical of language myths. I plan to teach my children to be skeptical generally. But language is one area where I've come across especially many enduring myths, including myths -- about grammar, usage, etymology, and more. Children should learn that, so that they can develop their skepticism, and so that they can better learn what the actual rules are (and of course there are rules, just rules that are dictated by actual usage).

4. Explain to older children that English is a grown order, not a made order. This is itself an interesting and useful observation, but it may also help them think about how other things (such as markets) are largely grown orders.

5. Try to get my children to be interested in -- even fascinated by -- the language. I get a lot of pleasure out of thinking, reading, and talking about language, and I hope they will, too. And I think that thinking and caring about language will make one a more knowledgeable, careful, and effective user of the language.

6. Teach children not to correct others' grammar and usage, except in certain contexts and manners in which such correction is socially acceptable. As I noted before, that's both a good way of avoiding social friction, and a good way of avoiding the embarrassment of finding that the speaker you're correcting was actually quite right, and that your correction was incorrect.

One thing that bugs me about many prescriptivist claims (not all, just many) is that they just don't do much to prove that the prescription on which they are relying is indeed in any meaningful sense authoritative. Even if one accepts that "proper English" is to be defined by The Authorities, one needs to further show that The Authorities indeed frown on the particular usage. Instead, one often (again, not always, but often) gets a mix of the following:

1. Bare assertion: Someone says "forte," in the sense of "strength," as "for-tay." Wrong, someone else says, because the right way of saying it is "fort." But even a prescriptivist has to explain why this common pronunciation violates some particular prescriptive rule. Yet often prescriptivists don't point to any such rule — in this instance, for instance, the person who made the objection didn't point to the rule, and I doubt that she could have pointed to such a rule (judging by the sources I've consulted).

In conversation, of course there's no time to look up the term and to give a more complete argument. Some people, though, avoid that by not correcting other people's pronunciation — whether as a matter of good manners or just as a matter of caution, since there are lots of usage and pronunciation myths out there (and I mean myths that even many prescriptivists, I'd wager, would acknowledge as myths). Unless you're very sure of yourself, there's a good chance that the complaint you're about to make is unfounded even for prescriptivists.

In writing, there often is time to check one's claims, and find support for them. Why not do so? If you're going to argue that someone got something wrong, why not make sure that it is he who is wrong, and also find a source that you can cite supporting your claim? In some situations, the error may be so uncontroversial that just pointing out will lead the reader to realize that an error has been made. (I'm happy to get e-mails pointing to typos and other errors, since then I can correct the post; and the great majority of these messages point to mistakes that are entirely uncontroversially mistakes.) But if there's some controversy, it seems that it would be helpful to figure out for sure if one is right, again by prescriptivist standards.

2. My teacher said so: A commenter writes,

Though I recognize that English is a living therefore mutable language I find that I remain a prescriptivist. I had a strict 7th grade English teacher who would never have permitted, "...to carefully say...". Split infinitives warrented rewrights of entire paragraphs. Perhaps we need to asssign some linguistic norms to "cultural literacy" in addition to correct or acceptable grammar.

The trouble is that not everything your 7th grade English teacher told you is necessarily so. As it happens, many eminently respected usage commentators — such as Fowler, for instance — have challenged the claim that split infinitives are wrong, and have argued that there is no basis for thinking that "no split infinitives" is a legitimate prescription. Perhaps they are the ones who are mistaken; but your 7th grade English teacher's say-so shouldn't be the deciding factor. More broadly, keep in mind that your teacher (1) might have been trying to teach you what she thought was clear or elegant usage, even at the expense of mislabeling as "wrong" usages that were grammatically sound but unclear, (2) might have been oversimplifying complex rules for the purposes of teaching you more effectively, (3) might have been a partisan of one side of the debate, and not told you that the "rules" she was teaching you were controversial, (4) might have been repeating usage myths that were passed along to her by her own teachers, or (5) might have been misremembered by you. Certainly her say-so isn't enough to define "correct or acceptable grammar" or "cultural literacy."

3. I am a language maven and I say so: One commenter, who has firm views that the subjunctive remains obligatory in prescriptive English in a certain context, reports that he is "a language maven with a stack of style manuals on my desk, paid to edit medical and technical literature and to coach students in taking the SAT." His view is that those who disagree with him on this must therefore be "ignoran[t] of simple, straightforward language rules," and is "a challenged speaker of English who writes as if he had never studied, let alone mastered, another language" (or so judged by "the erudite," apparently a category in which the commenter fits). Oddly enough, the commenter does not actually quote the manuals from the stack on his desk.

4. Your style manual is descriptivist bunk: I actually like to look things up in style manuals, and quote them. Thus, for instance, when writing about whether the subjunctive remains obligatory in English, I looked it up in Merriam-Webster's Webster's Dictionary of English Usage. Ah, some object, but that authority is descriptivist. Very well; Fowler reported the subjunctive to be generally dying, and while it is alive for "if ... were clauses expressing a hypothesis," he does not report is as obligatory. Burchfield's third edition of Fowler reports that it has enjoyed a resurgence, but it too does not claim that it is obligatory. The American Heritage does say that "According to traditional rules, you use the subjunctive to describe an occurrence that you have presupposed to be contrary to fact," though this doesn't resolve whether the traditional rules still remain the rules — and, more importantly, it doesn't resolve whether the subjunctive is obligatory in the context in which I used it, where my point was that the presupposed occurrence was not contrary to fact, but rather that its accuracy was controversial. The Columbia Guide isn't clear on this, but it does report that there is "much more divided usage and much more argument about the appropriate usage" on the was/were subjunctive than on the "finite verb" subjunctive ("In conditions contrary to fact, for example, finite verbs such as arrive are rarely put into the subjunctive, except in the most careful Formal English.").

So what we have is disagreement among respected authorities, with at least a good deal of acknowledgment that there is "argument about the appropriate usage." Doubtless the descriptivist sources are the most accepting of a broad range of common usage. But either some prescriptivist sources do at least acknowledge the uncertainty, or the bulk of the authorities has become descriptivist. (Both might also be true.) What basis is there for those who look to the Authorities to simply disregard so many sources? Sure, if all the authorities become descriptivist, then that makes it hard for prescriptivists who care about the authorities. But that's part of the problem with prescriptivism: If you think the prescriptions of the authorities should define the language, you're in trouble when the authorities disagree with that view.

5. But we need rules! Some prescriptivists at this point turn to a general defense of prescriptivism, and of the importance of rules. Very well; at some point, even descriptivists agree with this — rules of grammar are important, and there are plenty of rules that actually do operate in the speech and writing of the great bulk of English speakers. You'll never hear someone saying "I have write to an e-mail" instead of "I have to write an e-mail." There surely is a rule of grammar related to infinitives in play here.

But that there should be rules — and even that there should be rules condemning common usage as well as descriptively highly deviant usage (a matter on prescriptivists and descriptivists do generally disagree) — is not much of an argument in favor of this particular rule. Accepting prescriptivism in general doesn't entail condemning split infinitives as wrong unless one can point so some binding prescription about split infinitives.

6. And we need clarity and precision: Some prescriptivists at time defend prescriptivism on the grounds that certain prescriptivist rules foster clarity and precision, and avoid ambiguity. But, first, not all unclear or imprecise usages are wrong, even if a clear or precise one is better. And, second, many of the often-condemned usages are not at all unclear or imprecise. "To boldly go where no man has gone before" is no less clear or precise than "Boldly to go where no man has gone before." And in fact, sometimes split infinitives are clearer and less ambiguous than the unsplit ones. "To [adverb] [verb]" makes clear that the adverb modifies the verb; in "[adverb] to [verb]" and "to [verb] [adverb]" the adverb might apply to the preceding or following verbs. Consider Garner's example, "she expects to more than double her profits next year," or Fowler's, "modifications intended to better equip successful candidates for careers in India," and see what happens when the "more than" or "better" gets moved outside the infinitive.

7. If you violate these rules, you'll annoy your prescriptivist readers: Finally, some readers argue that splitting infinitives, putting prepositions at the end of sentences, or violating various other supposed prescriptions simply annoys some readers, and makes them think the less of you. This is the argument I most sympathize with, because it's a descriptivist argument: Though a usage may track what many people, and maybe even almost all people, say and write, it may annoy the remainder so much that cautious writers ought to avoid it. And that's true even if the prescription is utter myth — for instance, if, as with the claim that it's wrong to put a preposition at the end of a sentence, virtually no major reference work accepts the prescription (or at least so my research has led me to conclude). So long as the myth is prevalent enough, one should take it into account, an odd analog of the descriptivist claim that once a usage is prevalent enough, we cannot condemn it as "wrong."

Yet while careful writers should think about this — in fact, I warn students whom I'm advising when they use words that arouse hostility, even if I think the hostility is unjustified — this is an argument about what's prudent, not about what's right. That people are hostile to prepositions at the end of sentences, and believe that there's a rule of grammar condemning them, doesn't make such placement of prepositions wrong as a grammatical matter.

So if you're a prescriptivist, I might not be able to persuade you to convert to descriptivism. But at least I hope that some prescriptivists may be convinced to be more careful about the prescriptivist claims they make. If they argue that the rules of good grammar should be set by authorities, they ought to explain which authorities support the rule they're invoking, and why those authorities — as opposed to whatever rival authorities there may be — are the ones that we should see as binding.

I've argued earlier that the Court has been right to treat content-based speech restrictions much more harshly than content-neutral speech restrictions. But this left open the question: Why should the Court be so skeptical even about modest content-based regulations, which don't entirely ban certain ideas but merely restrict them while leaving open ample alternative channels? Such a test is applicable to content-neutral restrictions — why not content-based ones? Here is my answer, adapted from my Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell L. Rev. 1277 (2005).

The Limits of the “Ample Alternative Channels” Inquiry, Both as to Content-Neutral Restrictions and as to Content-Based Restrictions: I have argued that content-based restrictions are dangerous because they risk broadly suppressing certain viewpoints or facts. But one could respond that, instead of presumptively prohibiting content-based speech restrictions, courts could try to prevent serious burdens on speech the same way they do with content-neutral restrictions: by asking whether the restrictions leave open “ample alternative channels” for expression.

I think, though, that the Court has been right to reject such proposals and to treat content-based restrictions as presumptively unconstitutional without an inquiry into how much the restriction burdens speech or into whether the restriction leaves open ample alternative channels. To begin with, the record of the ample alternative channels inquiry in the content-neutral restriction test hasn’t been very good. The Court has at times applied it in a demanding manner, for instance insisting that alternative channels aren’t ample if they materially raise the price of speaking, make it harder for speakers to reach the same listeners, or subtly influence the content of the message by changing the medium. But at other times, the Justices have treated this requirement as only a weak constraint. Such a disparity is to be expected given the vagueness of the term “ample.”

In fact, the chief practical limit on content-neutral restrictions has not been the “ample alternative channels” inquiry, but the political reality mentioned above: Most realistically enactable restrictions on the noncommunicative aspects of speech do leave open fairly substantial alternative channels for expressing the same ideas. So even if the Court underenforces the ample alternative channels prong, few views or subjects will likely be broadly silenced.

But it’s much more likely that a politically feasible restriction on the communicative aspects of speech will substantially block people from expressing a particular viewpoint. This is true even when the restriction is framed as facially content-neutral, or even as speech-neutral — consider, for instance, the Espionage Act in Schenck. Judicial underenforcement of the ample alternative channels prong for content-based restrictions would thus be much more dangerous than underenforcement in the context of content-neutral restraints.

The Limits of the “Ample Alternative Channels” Inquiry as to Content-Based Restrictions: Judicial underenforcement of the ample alternative channels prong would also be more likely when the case involves content-based restrictions, whether they are facially content-based or content-based as applied. “Ample” is a vague term, and one that requires contestable predictions about the law’s effects on a complex system of speakers and listeners. There is a large gray area in which the quality of the alternative channels would be hard to estimate.

And when the restriction will likely cover only a particular message — pro-boycott speech, anti-draft speech, and so on — the normal risk of judicial error and deliberate or subconscious prejudice is magnified because the judges know well which side of the political debate will lose as a result of their decision. In such a scenario, it’s especially likely that judges will apply the vague “ample alternative channels” standard in a way that’s not protective enough of unpopular speakers. It is probably no accident that the low water mark of the requirement, City of Renton v. Playtime Theatres, Inc., involved a restriction that was limited to sexually-themed speech, even though the Court treated the restriction as content-neutral.

Moreover, one restriction aimed at the communicative impact of certain speech is likely to be followed by other such restrictions. Content-based restrictions don’t appear randomly: They arise because some fairly powerful segment of society (in government or out of it) believes that a certain kind of speech is dangerous, or — as to laws that aren’t facially content-based but are content-based as applied — believes that all conduct that’s likely to cause certain effects is dangerous.

If such a group succeeds in restricting, say, Communist speech in some contexts, it seems likely that it will also want to restrict Communist speech in other contexts. Likewise, if a movement tries to restrict bigoted speech in workplaces, perhaps using generally applicable hostile work environment harassment law, it will also likely try to use similar educational and public accommodations harassment rules to restrict speech in educational institutions or places of public accommodation. (That has in fact been the pattern of restrictions on Communist advocacy, antiwar speech, sexually themed speech, pro-civil-rights speech, and racist speech.)

Each success will help validate the pro-restriction forces’ positions in the eyes of voters and legislators who are on the fence. Moreover, each success may reinforce the enthusiasm of the supporters of the restrictions. And government restrictions on such speech are also likely to be accompanied by private restrictions on such speech, for instance by private broadcasters, publishers, employers, and commercial property owners. As a result, even when each restriction standing alone imposes only a modest burden on speech, the aggregate of all the restrictions can end up being quite burdensome.

It is, of course, possible for courts to consider this risk, to allow only the first few restrictions, and then to strike down any new restrictions once the alternative channels no longer seem to be ample. But that’s a hard project for courts to engage in, especially when they are armed only with the vague “ample alternative channels” standard. Judges may find it hard to explain why they are treating two seemingly similar restrictions differently, simply because of the order in which the restrictions were enacted. And because “ample” lacks an objective absolute definition, courts may end up applying a relative criterion — how many channels the restriction leaves open compared to those available before this restriction was enacted, or how many it leaves open compared to those that it shuts down. If that is so, courts might indeed allow a sequence of restrictions that gradually but substantially reduces the alternative channels, even if the courts would have struck down a restriction that tried to impose the same burden all at once.

Conclusion: For all these reasons, the Court has been right to treat restrictions that are content-based as applied — even if they are facially generally applicable to both speech and conduct — with the same skepticism as it has used for restrictions that are content-based on their face. It’s the only approach that is consistent with Hustler, Claiborne Hardware, and the other similar cases. It’s properly hostile to the government’s attempts to restrict speech because of the informative or persuasive power of the speech. And it’s necessary to prevent the government from having the power to broadly suppress certain facts and ideas.

When speech is punished precisely because of what it communicates — for instance, because it may persuade people to violate the law or to boycott someone, because it may offend some listeners, or because it may convey information that helps people commit crimes — the law is operating as a content-based speech restriction. The law is restricting speech precisely because of what is spoken. Therefore, courts should subject such a law to serious First Amendment analysis; they ought not dodge this analysis by simply relabeling the speech as “conduct.”

I'm not a separation-of-powers maven, but my sense is that the Reagan Administration — and, more recently, the current Administration — have been right to say no. The issue has of course come up in the executive privilege context:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege....

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege....

The Justice Department is apparently relying on the reasoning given in this Reagan Justice Department Office of Legal Counsel memo; and my sense is that the memo is generally quite correct.

1. Recall that all this is happening because of the existence of the executive privilege — the executive branch's qualified (which is to say not absolute) right to refuse to allow testimony about confidential communications within the branch. The scope of the privilege is complex, as are the circumstances in which it can be overcome. But this is the privilege that the administration is asserting (as best I can tell at least plausibly) to block testimony and production of documents by chief of staff Joshua Bolten and former White House counsel Harriet Miers. The official view of the Justice Department (whether one thinks it right or wrong) is that the matter is covered by the executive privilege, and that Congress therefore lacks constitutional power to order the testimony and production of documents by the witnesses.

2. Now at this point, one way Congress can enforce its subpoenas is by prosecuting the witnesses in federal court for the crime of contempt of Congress (which, despite its name, in this case simply means refusal to testify when ordered to do so). But since federal prosecutions are generally initiated by the executive branch, Congress would have to get a federal prosecutor to get an indictment from a grand jury and then proceed with the prosecution. And there is a federal statute under which Congress claims the power to order prosecutors to do so.

The trouble is that this means (a) stripping the executive branch of its traditional "prosecutorial discretion," which is to say the discretion to decide whether to charge any particular potential defendant, and (b) ordering the executive branch to prosecute someone who, according to the executive branch's official view, is innocent. The executive branch's position is that Bolten and Miers have a good defense to the subpoena, much as a private lawyer ordered to testify about confidential conversations with his client would have a good defense — privilege. They are therefore not guilty of the crime of contempt of Congress.

It seems to me that action (a) is indeed a violation of the separation of powers, because it is placing in Congress's hands — rather than in the executive's — the quintessentially executive decision whether a federal prosecutor would prosecute someone in federal court. Even Morrison v. Olson, which upheld a special statute authorizing a special prosecutor who would be outside the President's authority, does not, it seems to me, go that far; among other things, it does not allow the legislature to mandate a prosecution. And action (b) is likewise solidly against our constitutional traditions, even accepting the propriety of independent prosecutors: When an independent prosecutor is prosecuting someone, I take it he believes (as prosecutors generally should believe) that there is at least probable cause to think that the target is guilty. Here the statute involves Congress ordering the Justice Department to prosecute someone who is, according to the officially decided view of that very same Justice Department, clearly innocent.

3. This having been said, firmly insisting on denying Congress any power to initiate prosecutions of people who resist its commands — commands that Congress wants to argue are lawful — would indeed make it much harder for Congress to make its commands stick. Impeachment, whether of the President or of subordinates, would still be an option, but there are many problems with it. As it happens, though, the law has long recognized two tools that Congress has here, one of which is a deep but narrow exception to the normal principles of separation of powers. Marty Lederman (Balkinization) (who I think likely disagrees with me on parts of what I say above) points to them. "Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena." And

Congress can itself prosecute the contumacious official(s) to coerce them to comply — a power that the Supreme Court has affirmed. See Jurney v. MacCracken, 294 U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also Groppi v. Leslie, 404 U.S. 496, 499 (1972). As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course 'leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it'" (quoting Anderson).

How would such self-help work? Well, believe it or not, the Sergeant-at-Arms of the Senate or House would personally arrest the officials and detain them in the Capitol jail or guardhouse (assuming such a facility still exists). (One of my students last semester noticed this gem on the website of the current Senate Sergeant-at-Arms, Terrance Gainer: "The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States." We wondered in class: What could possibly have motivated Mr. Gainer or his staff to post that provocation?) The person would then be tried by the legislative house and, if found guilty (of civil contempt), could be detained until compliance with the subpoena or until the session of Congress ends, Anderson, 19 U.S. at 231, whichever comes first.

Congress has not invoked this authority since 1935 and, as far as I know, has never used it against a current or former government official. (The closest case was probably the contempt at issue in McGrain v. Daugherty, 273 U.S. 135 (1927), which was imposed against Mally Daugherty, a bank president and the brother of resigned and disgraced Attorney General Harry Daugherty, who Congress was investigating in connection with the Teapot Dome scandal.)

This latter approach is something that was a shocker to me when I first learned about it; after all, here Congress would not only order a prosecution, but could actually try and punish the person, though subject to certain limits. This is a deeper departure from the separation of powers than simply ordering the Justice Department to prosecute — in front of a normal judge and jury — would be.

Nonetheless, it is a departure that is sanctioned by longstanding legal doctrines, and (relatedly) by our constitutional history. It may be less pernicious in certain ways, because at least it is a departure that does not force a prosecuting office to prosecute someone who they think is innocent. But more importantly, it seems like the legally authorized approach — the use of a traditional and narrow departure from standard constitutional norms, and not a new departure.

4. My tentative view, then, is that when the Justice Department takes the view that a witness is properly claiming executive privilege, it should not prosecute the witness for contempt of Congress, and any attempts by Congress to force it into such a prosecution are unconstitutional. Congress retains tools to vindicate its interests. It's just that the tool of forcing the Justice Department to prosecute is not a permissible one.