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Saturday, May 04, 2002


WHY NOT PEACEKEEPERS? Jonathan Rauch has yet another first-rate piece in the National Journal, May 4, 2002, "The Middle East Is a Disaster. But Not an Emergency". (Note: I didn't have the URL when I first blogged this entry; thanks to reader Michael Levy for passing along the link.) Here is one excellent part, though all is much worth reading:
[H]ow about if America, leading an international effort, imposes at least an interim settlement and then enforces it with international peacekeepers, as the Clinton administration finally did in the former Yugoslavia?

     Even if you believe that America could get both sides to accept such a deal, the risks here are enormous -- greater, I think, than the proponents have acknowledged. Israelis would never accept a United Nations peacekeeping force that did not include Americans. The day American and other foreign forces landed in Palestine, any militant with a dime's worth of sense would know exactly what to do: Test the peacekeepers by attacking Israel with suicide bombers, rockets, mortars, or whatever works. Something like that, recall, happened in southern Lebanon in the early 1980s, when Palestinian militants exchanged blows with Israel over the heads of a United Nations peacekeeping force. (The U.N. force, by the way, is still there and has suffered 245 fatalities to date.)

     If peacekeepers allowed Israel to respond militarily to strikes from Palestine, the war would be on again, this time with hapless peacekeepers diving for cover in the middle. On the other hand, if the peacekeepers restrained the Israelis, they would effectively shield the aggressors, as foreign forces ended up doing in Bosnia.

     In any case, surely the only way to hold off an Israeli response would be for the peacekeepers to promise to hunt down the bombers themselves. If they kept that promise, they would turn the Israeli-Palestinian military conflict into an American-Palestinian military conflict -- an outcome that Osama bin Laden would dearly love.

     More likely, they would squabble about what to do, taking halfhearted measures and creating an endless "coalition crisis." The militants would love that, too. After a while, Israel would get fed up and roll its tanks to the border, causing a diplomatic or even military showdown between Israel and the peacekeepers. By this point, the militants would be beside themselves with glee.
Depressing logic, I think, but utterly persuasive.

Friday, May 03, 2002


WHOOPS: It turns out that the KCRW-FM (89.9) radio program was just being taped at 3:30, and will be aired at 6:30 this evening. It should also in theory be available online. Today's show is on "Teacher Power," but the first few minutes are a newsy bit, and that's when I'm on.


FROM PROF. ROBERT TURNER: Robert Turner, associate director of the Center for National Security Law at the University of Virginia, sent the following to an academic discussion list on which I hang out; and he was kind enough to give me permission to post it.

     This is a long item, and I'm not sure I agree with 100% of it -- but I'm not sure that matters, since I am far from an expert on this stuff. Robert Turner, though, definitely is an expert: Besides being involved with the Center for National Security Law, he has also served in various posts in the White House, the Pentagon, the State Department, and the Senate Foreign Relations Committee, been a former three-term chairman of the ABA Standing Committee on Law and National Security, and written more works on the subject than I can mention. So here are his views, in his own words (though with some slight formatting changes by me):

Terrorism and the Middle East

by Robert Turner, Center for National Security Law, University of Virginia

     I have almost taken pride in staying out of the Middle East imbroglio -- in part because I was so deeply involved in debates over Vietnam, Central America, and other controversies. Over the years, I have been very critical of efforts by AIPAC and other special-interest groups for their high-pressure tactics with Congress, where I worked for many years. In 1981, while working as Special Assistant to the Under Secretary of Defense for Policy, I was an active player in persuading the Senate not to block the sale of AWACS to Saudi Arabia. I am also intelligent enough to count the number of States on both sides of the conflict, their populations, and their critical resources relevant to U.S. national security interests. I recall seeing photographs of Palestinian refugees many decades ago and feeling pity and sympathy -- hoping that a solution could be found that would give them some opportunity to have a peaceful and happy life.

     Were America France, we ought to be supporting the Arabs. But I like to believe that we have some character as a nation -- some principle and some courage. In addition to a need for oil and friends, it is in our short- and long-term self interest to promote democracy, peace, and to oppose terrorism. I don't claim to be an expert, but from my perspective we are not doing enough to support Israel at the present time. As I see the quarrel, while Israel is far from perfect (remember their attack on the Liberty and the fact that they bartered tremendously sensitive U.S. national security secrets they obtained from Jonathan Pollard to the Soviet Union), from my perspective they are the victim in the current use of force.

     In terms of jus ad bellum (the international law governing the initiation of coercion), Israel does not wish to conquer or dominate its neighbors, it wishes to live in peace. Most of the Arab States and the Palestinians don't like Jews or Israel and believe Israel should be destroyed. They have repeatedly attacked Israel, and under international law Israel has a well-established right to use lethal force in self defense.

     We turn next to jus in bello (the international law regulating the use of force in terms of what weapons may be used against what targets, etc.). And as I read their arguments, supporters of the PLO are outraged and argue Israel is the "aggressor" because "Israel hit us back first." All of the anger about Israeli occupation of the West Bank and other territories ignores the reality that those territories were seized as a direct result of illegal acts of aggression (and, quite possibly, Genocide) by many Arab States.

     I don't much care if Arabs and Jews don't much like each other; but I do care -- and as a nation we all ought to care -- if either side attempts to murder the other. I take great pride that one of the goals in most of the recent U.S. use-of-force situations has been the protection of Muslems from abuse. I have no strong preference between Jews and Muslems -- to me the issue is about peace.

     Once force becomes necessary in self-defense or collective self-defense, there are two modern American paradigms about how to conduct it. In Vietnam, for the first seven years or so, we tried "gradualism" and "hitting softly" in the hope that our adversaries would be nice and stop murdering people. We drew lines in the sand, and when they were crossed we stepped backwards and drew new lines, announcing that "this time" we really "meant it" and were serious. And our adversaries took us as fools and stepped up their aggression. Robert McNamara's betrayal of his public trust bordered on treason, in my view.

     The other paradigm is reflected in our handling of the 1991 Gulf War. We responded decisively with overwhelming force. True, some argue we may have stopped 48 hours too soon -- that point is open to legitimate debate. But by hitting decisively we broke the enemy's will and achieved victory (at least on the primary goal of removing Iraqi forces from Kuwait) with incredibly low US casualties. And we sent a signal to tyrants around the world that America was back, and that aggression would not go unchallenged.

     Then, in the Clinton Administration, we returned to the timidity and vacillation of the Vietnam era, making repeated threats to track down and punish terrorists and then sending a cruise missile or two in the early hours of the morning to blow up an empty building or two. No wonder Osama bin Laden was not deterred. When Clinton ordered the under-armed Harlan County to retreat from Port-Au-Prince Harbor in response to a bunch of women and kids banging pots and pans on the docks, we signaled Pyongyang, Baghdad, and other havens of tyranny that America had lost its courage and its vision -- and we have paid a price for that.

     Israel is a country of about six million people fighting for its survival. On a per-capita basis, the terrorist killing of about 86 Israelis would equal our losses on September 11th. In the past 2 1/2 years, nearly 500 Israelis have been killed including at least 165 civilians killed by suicide bombers.

     In other words, when you adjust the September 11 figures to reflect the large number of non-Americans in the Trade Center, suicide bombers alone have proportionally murdered far more than twice as many Israelis as we lost to all forms of international terrorism during this same period of time. We invaded Afghanistan, slaughtered substantial numbers of suspected terrorists, and now have sent combat units into Pakistan -- determined to root out, capture, or destroy the last vestiges of terrorism. But we seem outraged that Israel feels a need to do something serious about the even greater threats to its own security.

     I have been engaged in the study of terrorism, off and on, for more than three decades -- beginning as a junior Army officer on detail to the U.S. Embassy in Saigon and charged with investigating and analyzing Viet Cong assassination and other acts of terrorism. I've been giving lectures in the United States on terrorism for many years. The only thing that really shocked me about Sept. 11 was how well executed the attacks were -- as in the past we have often benefited from the incompetence of our adversaries. Two things since 9-11 have surprised me -- the absence of new attacks (which I attribute in part to the FBI's detaining of suspects) and the absence of suicide bombings in this country. I continue to expect such attacks to take place.

     We cannot bulletproof the United States. Even after decades of attacks, Israel -- a country far more security conscious than we will ever be -- is unable to stop suicide bombings.

     Just as there may not be a complete solution to the problems of school violence (if we destroyed all guns it would be a simple matter to rig make-shift explosives that would do even greater damage), we may always be vulnerable to violence by individuals who are willing to give up their lives. Deterrence in that setting is difficult.

     But incentive structures matter. And there are some things that we can do to discourage such attacks.

     The fact that we can't bulletproof our country doesn't mean we should not take reasonable steps to make successful terrorism more difficult, and for the first time I now have the impression that we are doing a good job in screening airline travelers in terms of what they can take on an airplane with their person. (But a suicide bomber can still easily get a bomb on board in checked baggage, and a clever terrorist could still get weapons on board in carry-on luggage.)

     I think one of our central messages ought to run something like this:
Like pirates, terrorists -- irrespective of their cause -- are the common enemy of all mankind. In determining whether an accused individual is in reality a terrorist, we will comply with fundamental rules of due process of law.

     We will abide by fundamental principles of international law in our treatment of all people in our custody -- including prohibiting summary execution, torture, and the like. There will be a presumption of innocence. But we recognize that our commitment to protect civil liberties of suspected terrorists must be balanced against our commitment to protect the lives of all of our citizens, and thus in a period of heightened threat some adjustments in traditional practices may be warranted. But if in the end we fundamentally undermine our system of civil liberties, the terrorists will have won a great victory. We won't let that happen.

     We are going to make every reasonable effort to prevent terrorism, but we realize that if you are willing to give up your life you may well be able to kill some of us. But understand one thing. When all the dust clears, you and the cause for which you claim to struggle will have been the losers. Because we will never give in to terrorism or reward terrorists for killing our people or our friends.
     It is still unclear to me what role, if any, U.S. support for Israel had in the 9-11 attacks. But if our best intelligence tells us that was a driving force, then I would support the congressional enactment of an "Osama bin Laden Memorial Supplemental Security Assistance and Anti-Terrorism Act" to provide additional funds for Israel to use in its war on terrorism.

     Let the word go forth that the direct consequences of murdering 4,000 people in the United States was to greatly strengthen Israel's counter-terrorism program. Attack America again, and you will strengthen Israel (and the global war on terrorism) still more. (Of course, then we must guard against terrorist attacks from Israel made to look like PLO attacks. By passing sensitive U.S. intelligence information to Moscow, the Israelis have made it clear that they perceive themselves as having "interest" rather than "friends." If we can end terrorism and restore peace to the Middle East, I would gladly reconsider the issue of U.S. aid to Israel in the economic and military spheres.)

     I recall reading an article several decades ago that reflected the essence of brilliance in political warfare. According to this story, comedian Dick Gregory was performing (I think in the 1960s) in a club in Alabama, South Carolina, or other then-hostile territory. Shortly after he began his show, a man at a table near the stage shouted out "the N word."

     Gregory stopped his performance, glared at the man for a moment, and then said "Would you say that again?" The man took the challenge and yelled out the word again, a big smile on his face. Gregory replied -- and this is but a paraphrase, as I haven't seen the article for 20-30 years: "Thank you, Sir. You see, I have a clause in my contract with this establishment that provides that I get an extra $50 every time someone uses that word. And I can really use the money." According to the report, there was laughter and applause -- which continued through the rest of the show. Message: Incentives matter.

     The Palestinians have suffered. They deserve better. But I believe our position ought to be that we are not even going to discuss their grievances until two things happen:

     1. They and their supporters must recognize that Israel is a sovereign State that has a right to exist; and

     2. They have to publicly denounce and actively work to bring a complete end to terrorism.

     Our intelligence people can tell us whether Arafat is seriously working to end terrorism or actually promoting it and just giving lip service to a contrary view. He spent much of his life as a terrorist, and as far as I am concerned he has little to commend himself unless he starts NOW to work seriously for peace. If that doesn't happen immediately and the Israelis wish to work with a different leadership, I would not discourage that.

     If we can find anyone in Europe besides Tony Blair who has any leadership potential, character, courage, and vision, we ought to work with them (and other potential allies around the globe, including the Russians and Chinese) to establish a united front against terrorism.

     And perhaps there are additional disincentives we can offer:

     What if we told Arafat that he has 30 days to demonstrate a serious commitment to ending terrorism or we will withdraw our recognition from the PLO?

     What if we announced that -- so long as Israel behaves -- if dramatic improvement is not made on the terrorism front within a given period (perhaps 60 days), we and our allies will recognize Israeli control of the "occupied territories" as permanent and sovereign Israeli territory? Israel has repeatedly offered to trade land for peace -- perhaps we can provide some incentives for the Palestinians and their supporters to "fish or get off the pot." But again, we can't allow a few extremists to undermine good faith efforts for peace -- and that's where our intelligence capabilities become critically important.

     At some point, we need to recognize the free, liberal democracies are on both moral and pragmatic grounds superior to authoritarian and totalitarian regimes. I'm not talking about a "just war" to "liberate" the oppressed peoples of the world. But I do think it is in our interest to work more closely with democratic governments, to reaffirm our belief that sovereignty comes from the people and not the Prince. I don't see why we can't use incentives to encourage other nations to move towards democracy. One thing that seems absolutely clear is that democracies are less aggressive (in terms of jus ad bellum).

     We ought to be looking for ways to tell the world:

     1. If you engage in or support terrorism, you are not welcome in the presence of civilized nations.

     2. If you are peaceful but do not have a legitimate mandate from your people to govern and represent them in international fora, you are welcome to come and to talk and listen, but you won't be a full member of the world community and will not be eligible for full benefits (no key to the executive bathroom and perhaps even no right to vote on key decisions).

     3. If you have the mandate of your people to govern, are non-aggressive towards other States and reasonable in your treatment of all people (but no genocide of your minority groups, widespread torture, or the like), you can become a full member with all rights in the world community.

     4. If you qualify for 3 and also have the wisdom to embrace free markets and free trade, you will be well on your way to tremendous prosperity for your people and a successful role in the world community.

     But in the meantime, while we are dreaming of someday promoting a perfect world of free people and free markets, if we are serious about fighting terrorism I believe we need to rethink our decision to pressure Israel to "hit softer" in its struggle for survival against some rather nasty terrorist groups.

End of Robert Turner piece


MORE ON THE CREATOR AND INALIENABLE RIGHTS. Yesterday I commented on The American Prospect's Tapped faulting Ashcroft for "giv[ing] a speech about how our inalienable rights come from God, not the Constitution." Today, they respond, with refreshing candor and good humor:
Several readers have written in regarding our comment . . . . Eugene Volokh even blogged it, apparently on the assumption that our comment was based on some deep reading of the Constitution, the Founding Father[s], etc. Let's back up a bit. Tapped had no intention of starting a debate about church, state, or the relationship between liberalism and religion. We were just taking a cheap shot at Ashcroft! Our observation, slightly more cogently and politely phrased, would be this: Ashcroft sounds, to us, like the kind of religious conservative who believes that religious authority is (or should be) the basis for political legitimacy in the United States. Tapped disagrees. Strongly. Now, certain components of the Tapped brain trust are indicating that they would like to expand on the original post, so we may be coming back to this.
     I definitely do hope that Tapped does comment further on this. I particularly look forward to their
  1. explaining why what's good when done in the Declaration of the Independence isn't good when done by Ashcroft,

  2. by extension explaining why deeply religious people ought not discuss their constitutional vision with reference to their religious philosophy, when it's OK for us secularists to discuss our constitutional vision with reference to our equally unprovable secular moral philosophy, and

  3. doing this in a way that exonerates all the many explicitly religious advocates from the abolitionist, civil rights, and anti-war movements, as well as the American Revolutionary movement.
     A tall order, folks -- but I think you brought it on yourselves with what your said. And no fair responding by faulting Ashcroft for some other things that he might have said; they weren't your original charge against him.


"WATCH WHAT YOU SAY, OR BE READY TO PAY": Walter Olson's excellent points to a Chicago Tribune article which urges employers to suppress office humor, for fear of government-imposed legal liability.

     As I've often said before, workplace harassment law -- essentially a nationwide federal-government-imposed speech code -- is one of the vaguest, broadest speech restrictions to come down the pike in years. And, sadly, few First Amendment activists have really seriously confronted the problems with it.

     The title of this post, by the way, is borrowed from the title to an Investor's Business Daily article (discussed here) aimed at teaching managers how to minimize their liability risks. "Watch what you say, or be ready to pay" -- chilling advice in a nation supposedly protected by the First Amendment.


RADIO: I should be on KCRW (89.9 FM) in Los Angeles at around 3:30 pm today, commenting on the California Supreme Court's "commercial speech" decision. As always with the news biz, this is subject to change without notice.


GIRLS. The American Prospect's Tapped blog, always an enjoyable read, has the following item this morning:
GIRL TALK. Speaking of Gale Norton (see below), Tapped is tickled by the following story. It seems Norton, EPA Secretary Christie Whitman and Secretary of Agriculture Ann Veneman were enjoying one of their regular lunches this week when a lower level EPA administrator issued a letter attacking one of Interior's favored causes -- snowmobiling in Yellowstone. When Norton found out later she felt back-stabbed and called Whitman to rant. Whitman's now ordered that such matters should come through her office. But forget about the policy details: We want to know what Norton, Whitman, and Veneman were talking about at lunch. How Karen Hughes' departure made them think about their own families? Why wasn't Condi invited? And do they have slumber parties too?
     I have nothing against this post as such; I didn't see the gag as super-funny or highly insightful, but maybe that's just me, and in any event if one wants to do this sort off-the-cuff political irreverence, some of the items will fall flat. I'm glad Tapped is at least trying. (A Tapped post from the day before says "Tapped is strongly averse to political correctness in all its nefarious forms, including hypersensitivity about race and 'stereotypes.' (As in many things, Tapped thinks a healthy sense of humor goes a long way.)")

     But any guesses about the likely reaction if a center-right magazine blogged the same sort of item about the "girls" in a hypothetical Democratic Administration?


DEMOCRACY: The often spot-on Michael Kinsley, writing in Slate, errs, I think, in his recent column on democracy. Kinsley begins by criticizing America's willingness to install a king on the Afghan throne,
[T]he United States of America was long associated with the idea of rejecting kings. And that "branding strategy," as the business world calls it, worked pretty well. When we find ourselves installing kings instead, the course of human events has taken a strange turn.
then goes on to criticize (in my view, on highly inadequate evidence) George W. Bush for "[not] get[ting] it about democracy" -- "He uses the word but doesn't feel it in his bones -- and then closes with
Doesn't our president understand that there are two different kinds of nations in the world? There are nations where the rulers are determined by heredity -- where the person in charge is in charge for no better reason than that his or her father was in charge before him. Then there are nations where the rulers are determined by democracy -- where the person in charge is in charge because he or she got the most votes in an election among the citizens. And in this great divide, the United States stands proudly on the side of -- of --

     Oh, never mind.
     I'm afraid that it's Kinsley himself who errs about the nature of democracy, and demonstrably so. First, his categorization of nations is obviously incomplete: Where does one fit China, for instance, which is neither a hereditary monarchy nor democracy? Second, once one completes this categorization, one sees that there are four kinds of nations: democratic monarchies (e.g., Britain or the Netherlands), nondemocratic monarchies (e.g., Saudi Arabia), democratic nonmonarchies (e.g., the U.S.), and nondemocratic nonmonarchies (e.g., China or Iraq).

     And third, once one looks closely at these four categories (a two-by-two matrix, really), one sees what I had thought the 20th century had uncontroversially taught us -- there's very little correlation between whether a country is a hereditary monarchy and whether it's democratic. The important substantive question is whether the country is fundamentally run my democratic processes; the formal question of whether the leader is determined by heredity ends up having virtually nothing to do with it. Consider, for instance, Europe, which is chock full of monarchies, every significant one democratic.

     Now Kinsley might respond that he was referring to whether the country is in fact ruled by a monarch, not just whether there's a figurehead on a throne. Even so, his two-part division of the world would be mistaken -- but more importantly, this would make his whole point moot, since at the start of the article he admits that the Afghan king is intended to be a figurehead ("The idea, presumably, is not that the king would actually run things but that he and his family could concentrate on the activities we associate with modern royalty -- smiling and waving, committing adultery, getting divorced -- while the real work of nation-building swirls on around him"; I love Kinsley's style).

     Now I should add that emotionally I'm a small-r republican like Kinsley; I think that even figurehead monarchs are symbolically wrong, and I wish that the British and the other Europeans would just give them up as a matter of principle. I particularly disliked the whole American Princess Di obsession, at the wedding, the funeral, and in between (I had more respect for the British obsession, but I still wish that princess fixations would become things of the past).

     But I have to admit that, in reality, figurehead monarchy seems to do little ill to a polity, and might on balance do some good (though I can't be sure). Theoretically, such monarchy should have indirect costs because of its symbolism and political theory -- but as a practical matter, these costs seem to be purely speculative.

     Opposition to figurehead monarchy (at least absent some concrete reasons why this figurehead monarch in this country is a bad idea, reasons that Kinsley does not give) thus proves to be more an esthetic judgment than anything else. And surely such an esthetic judgment is not a good reason to criticize the Administration's support for an Afghan king -- or fault Bush for not "get[ting]" or not "understand[ing]" something that he, by all accounts a profoundly practical man, probably understands perfectly well.

Thursday, May 02, 2002


I FEEL BAD ABOUT THIS, BUT . . .: The American Prospect said some very nice things about my criticism of Wayne LaPierre; and I really appreciate that. This also makes me feel bad about quibbling with the remainder of their post, which reads:
[Volokh writes]: such language "[U]ndermines our ability to live in peace in a constitutional culture that, whether you like it or not, is composed of people with many different views about the Constitution." Bravo. We'll try and remember Volokh's words the next time John Ashcroft gives a speech about how our inalienable rights come from God, not the Constitution.
But I just can't help myself: Wasn't it the Declaration of Independence that said that our inalienable rights come from God? And didn't the Framers see the Constitution simply as recognizing such pre-existing rights, rather than creating them by an act of governmental grace?

     Now I'm pretty secular myself, but it seems to me quite sensible that the majority of Americans who are religious would take the Declaration of Independence at its word. One can disagree with John Ashcroft on many things, but why on this?

     (By the way, the "our inalienable rights come from God" line is such an echo of the Declaration that I wonder whether I might have missed some hidden meaning there, or some implicit praise of Ashcroft -- if I completely misunderstood the post, I'd much appreciate the correction.)

     UPDATE: Andrew Sullivan (search for "ISN'T IT RICH?") makes the same point, though far more eloquently, about Frank Rich's similar criticism of Ashcroft. A brief excerpt:
Here, after all, is what John F. Kennedy said in his inaugural address: "And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe -- the belief that the rights of man come not from the generosity of the state, but from the hand of God." Does Frank Rich believe that Kennedy was a would-be Torquemada? Or is the point here not a defense of secularism but a partisan shot at the left's designated enemy number one?"


NATIONAL ACADEMY OF SCIENCES REPORT: The National Academy of Sciences just released a report on Youth, Pornography, and the Internet; I played a small role in it (as the coordinator, which means I submitted some comments on the first draft and then made sure that the staff adequately responded to the other commentators' comments in the final draft), and was very impressed with both the process and the result. The drafters should be congratulated on a job well done. Check out Declan McCullagh's characteristically fine Wired piece on the subject.


MORE ON SECESSION AND SLAVERY: Reader Neel Krishnaswami pointed me to Mississippi secession declaration which begins,
In the momentous step which our State has taken of dissolving its connection with the government of which we so long formed a part, it is but just that we should declare the prominent reasons which have induced our course.

     Our position is thoroughly identified with the institution of slavery -- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin. . . .
Likewise, the second half of the South Carolina secession declaration, which contains the substantive disagreements that South Carolina had with the North, focuses on slavery, largely faulting the Northern states for inadequately enforcing the Fugitive Slave Act and for inflaming abolitionist feeling.

     The Georgia secession declaration starts with "The people of Georgia having dissolved their political connection with the Government of the United States of America, present to their confederates and the world the causes which have led to the separation. For the last ten years we have had numerous and serious causes of complaint against our non-slave-holding confederate States with reference to the subject of African slavery. . . ." Texas? More of the same.

     I realize these are just the four state declarations that I happened to easily find (I'm not sure whether the other states had long explanations of their reasons at all) -- but they're pretty strong evidence that secession, the Confederacy, and thus the Confederate flag were pretty closely linked to the perpetuation of slavery. Check them out for yourselves and see if I'm mistaken.


BUSINESS SPEECH IN PUBLIC DEBATES: Many people have been criticizing Nike (whether accurately or not) for letting its subcontractors make products under supposedly inadequate work conditions. Nike has responded with its version of events.

     The California Supreme Court has just held today that Nike's statements -- because they were in part aimed at getting people to keep buying Nike products -- are "commercial speech," and may thus be punished if they're false or misleading. "Commercial speech," which really means commercial advertising and material similar to it, is less protected than "noncommercial speech"; noncommercial speech may be punished if it's knowingly or recklessly false, but (generally) not if it's misleading or honestly mistaken.

     There's a reasonable argument in favor of this decision; such statements about businesses are indeed partly aimed at getting people to buy the business's products, which is one hallmark of "commercial speech." But I'm troubled by the possibility that businesses' speech about important public matters can now be punished if judges and juries find it to be "misleading", whatever exactly that means -- while the businesses' foes can at most be punished for knowing or reckless falsehoods, and can say misleading things with impunity.

     Here's a hypothetical, for those of you who don't sympathize with Nike (and note that the false and misleading statements by Nike are at this point merely alleged; nothing has been proven at trial). Say that pro-life activists accuse an abortion clinic of using some supposedly heinous or dangerous abortion procedure. The doctors who co-own the abortion clinic say -- in op-eds, in interviews with newspapers, and in public debates, that, no, what we do is ethical, humane, and reliable.

     The clinic is accused not just of making false statements, but of misleading ones. A local jury (and assume that the locale is strongly pro-life) finds that the clinic's statements were "misleading," though not in fact false, and imposes huge damages liability. A judge issues an injunction against such statements (since injunctions against misleading commercial speech are permissible). A good process under the First Amendment, or a bad one?


THAT'S WHY IT'S POETRY: I finally got the full text of a story that has been bouncing around in my head for several years, courtesy of Edward de Grazia, Girls Lean Back Everywhere 335-36 (1992).

     In the late 1950s, California prosecutors brought obscenity charges against the publisher of Allen Ginsberg's poem Howl. One difficulty, of course, was figuring out what exactly this poem meant, but fortunately -- as often happens in obscenity cases -- the defense produced an expert witness, literary critic Mark Schorer, to testify about the subject. Here's the exchange I vaguely remembered:
Prosecutor: I presume you understand the whole thing, is that right?:

Schorer: I hope so. It's not always easy to know that one understands exactly what a contemporary poet is saying. . . .

Prosecutor: Do you understand what "angelheaded hipsters burning for the ancient heavenly connection to the starry dynamo in the machinery of night" means?

Schorer: Sir, you can't translate poetry into prose. That's why it's poetry.


EUGENICS: Since Instapundit brings up the subject of eugenics, I feel I need to chime in, because, well, I'm named Eugene. And the roots of the words are even the same.

     OK, now that I've established My Superior Credentials, I have virtually nothing to add except one observation: People practice eugenics all the time. When you choose whom to marry and have kids with, and you select a smart partner even in part because you want to have smart kids (of course there are other reasons to choose a smart spouse, but in my book this is a big one), you're practicing eugenics -- you're consciously trying to improve your children's genetic endowment.

     True, you can say that you're doing it "naturally," rather than "artificially," but I've never been persuaded by such distinctions. Filth is natural; soap is artificial. Having lots of children die young is natural; immunization is artificial. Improving your kids' intelligence and health by wise mating decisions coupled with lots of luck is natural. Genetic screening for deadly recessive genes (as I'm told is done by some Ashkenazi Jews with regard to Tay-Sachs) is artificial, but better than not doing it. More advanced genetic planning and modificiation may be still more artificial, but that doesn't tell me that anything is wrong with it.

     Glenn is absolutely right: The objection to eugenics must be to coerced eugenics, not to voluntary attempts at improving your children's lot.


THE CIVIL WAR, FREEDOM, AND MAKING DECISIONS GIVEN LIMITED TIME: Following my anti-confederate-flag post, a friend (a very smart and thoughtful Libertarian, and not a Southerner, either) suggested that my Civil War History might be wrong, and pointed me to this Lew Rockwell item for the argument.

     The Civil War, the supposedly libertarian Rockwell argues, wasn't really about preserving slavery at all -- that conventional wisdom is "'an idle, unprofitable tale' instead of the truth." Rather, the war was primarily about justified Southern resistance to Northern-imposed tariffs. "It was about the principle of self-determination and the right not to be taxed to support an alien regime. Another way of putting this is that the war was about freedom, and the South was on the same side as the original American revolutionaries."

     So here's the problem for me, and I think it's probably also the problem for most of you: We're not experts on tariff history; and we don't have the time to read every item of historical or scientific revisionism that claims conventional wisdom is wrong about the Civil War, the Holocaust, evolution, the Moon Landing, AIDS, and so on. We're aware that sometimes conventional wisdom really is badly wrong. But at the same time we recognize that most of the time it is basically right, and that most of the time we need to rely on it, whether as to history, science, medicine, or what have you. How do we know whether some particular criticism of conventional wisdom is unsound?

     Well, one rule of thumb I follow is that if the criticism makes errors -- or exhibits intellectual dishonesty -- in those sections that I do know something about, then I'm not going to trust it in the other sections. This isn't a perfect guide; even a stopped clock is right twice a day. But it's a pretty good first cut when we do not have world enough and time to investigate everything for ourselves.

     And, boy, under that test the Rockwell article does not instill confidence.

     1. A curious sort of libertarianism. It's interesting that the first paragraph of Rockwell's piece speaks about how the Civil War "transformed the American regime from a federalist system based on freedom to a centralized state that circumscribed liberty in the name of public order." But nowhere on that page does the author acknowledge that maybe the pre-War regime wasn't *entirely* based on freedom, say, perhaps because it denied the most basic attributes of freedom to some class of people. (Nor was this just a state matter, by the way; the federal government had to be complicit with this because of the Fugitive Slave Clause.) Nor does he mention that the pre-War regime massively denied freedom of speech even to whites, who were legally prohibited in the South from questioning slavery. (This too was partly enforced through the federal government, because the post office, under Southern pressure, refused to mail abolitionist material to the South.)

     The same problem continues throughout. "In effect, the South was being looted to pay for the North's early version of industrial policy." Shocking! But oddly enough no mention of the fact that Southern slaves were being looted to pay for their masters' lifestyles.

     "The South as a region was being reduced to a slave status, with the federal government as its master." An interesting comparison. Were Southern women being routinely raped by the federal government? Were Southern men being whipped by the federal government? Southern families broken up at the federal government's whim?

     Likewise, near the end: "It [the war] was about the principle of self-determination and the right not to be taxed to support an alien regime. Another way of putting this is that the war was about freedom, and the South was on the same side as the original American revolutionaries."

     Is that really quite accurate? Was the war about Southerners' "self-determination," or about the right of one group of people (Southern whites) to determine not just their own fates, but the fates of another group of people? And even if whites were fighting for a sort of "freedom" for themselves, isn't it worth acknowledging that maybe they were also fighting for a system that had just a bit of a problem in the "freedom" department?

     I guess I just don't find terribly credible an account that talks about "freedom," "loot[ing]," and "slavery," without even acknowledging that maybe the pre-War regime wasn't really all that free, or that the tariff isn't really quite the same as people owning other people. It's a strange sort of libertarianism that just happens to miss these basic liberty-oriented points. If the Rockwell position is so intellectually dishonest on this point, I'm not disposed to trust it on the other points.

     2. The North's failings. Rockwell's treatment of the North's failings on slavery and blacks is likewise extremely weak, largely resting on non sequiturs. For instance, Rockwell writes that "Before the war, Lincoln himself had pledged to leave slavery intact" and "to enforce the fugitive slaves laws." So? Lincoln disapproved of slavery, but he knew that the federal government's power was distinctly limited, both as a constitutional matter and a political matter; the Thirteenth Amendment was needed to ban slavery because without it, Congress -- and certainly the President -- couldn't have done it alone.

     Likewise, Rockwell writes "[n]either did [Lincoln] lift a finger to repeal the anti-Negro laws that besotted all Northern states, Illinois in particular." And this means what? That Lincoln and others didn't believe in full racial equality? I'm not sure about Lincoln, but I'll gladly concede that even many people who supported the abolition of slavery were racists. But there's a big difference between supporting race discrimination (even legally sanctioned race discrimination) and supporting people owning other people. An author who misses this distinction -- whether on the Left, on the Right, or a libertarian -- is not, I think, worth trusting.

     Rockwell follows the "neither did he lift a finger to repeal the anti-Negro laws" sentence with this one: "Recall that the underground railroad ended, not in New York or Boston -- since dropping off blacks in those states would have been restricted -- but in Canada!" Yes, fugitive slaves dropped off in New York or Boston would have been arrested and returned to slavery because of the Fugitive Slave Act, a law backed by the South. Using this to blame the North and exonerate the South strikes me as an odd sort of argument -- a sort of argument that doesn't lead me to trust the author.

     The North was hardly morally perfect; and there's no doubt that most Northerners weren't willing to rock the boat enough to try to dislodge slavery altogether. But pointing out the slightness of Northern attempts to defend blacks were small -- without acknowledging the enormity of Southern crimes against blacks -- leads me to have grave doubt about the author's credibility.

     Finally, Rockwell's argument that "The Confederate Constitution did, however, make possible the gradual elimination of slavery, a process that would have been made easier had the North not so severely restricted the movements of former slaves" seems to me entirely unsupported by the facts -- check out The Confederate Constitution for yourself and see.

     The only way that the argument might conceivably be supported is by pointing out that the Confederate Constitution could conceivably be amended to, for instance, eliminate the language that "No . . . law denying or impairing the right of property in negro slaves shall be passed" -- but is this really "mak[ing] possible the gradual elimination of slavery"? Under this standard, any amendable Constitution makes possible any change whatsoever, since theoretically the Constitution could be amended to implement that change.

     3. Rockwell's own evidence of the importance of slavery to the conflict. Finally, even Rockwell's own account acknowledges that "Southern leaders . . . invoked slavery as a reason for secession and for the war," though he believes that historian Charles Adams was correct to say that Southern leaders were lying when they said so. "Adams believes that both Northern and Southern leaders were lying when they invoked slavery as a reason for secession and for the war. Northerners were seeking a moral pretext for an aggressive war, while Southern leaders were seeking a threat more concrete than the Northern tariff to justify a drive to political independence. This was rhetoric designed for mass consumption."

     If that's so, then apparently the masses, even if not the leaders, thought the war was about slavery; and ultimately part of the reason that the Southern masses endorsed secession -- at least in the view of their very own leaders -- was that this was needed to protect slavery. The Confederate flag is thus a symbol of a war that the masses saw as largely a battle to protect slavery, or at least to stop the North's attempts to interfere with slavery.

* * *

     The bottom line is that the antebellum South was a system that involved nothing short of atrocity. We do have to keep a historical perspective about this; slavery was a mainstay of human history for centuries, and while I think Jefferson, Washington, and others were wrong to keep slaves, their luster is great enough that it remains even with this tarnish. But by 1860, the rest of the Anglo-American world had abandoned slavery -- the Northern states in the late 1700s and early 1800s, and the British Empire in 1833, if my memory serves me right.

     The Southerners should have known better, and any libertarian should recognize that the Southern system was an appalling restraint on human liberty -- and that defending it in the name of "freedom" makes a mockery of that word. The Confederate flag is a symbol of a regime that deserves deep condemnation. And even if we see the flag in the best possible light -- as a symbol of the gallantry of those who fought for their country, right or wrong -- it still stands at best for noble individuals fighting in a deeply flawed cause.

     The Civil War was doubtless caused by a mix of causes, just as the Revolutionary War was caused by a mix of causes. But I have seen no credible evidence that undermines the proposition that Southern defense of slavery, and Northern opposition to slavery, was a huge part of that mix. The arguments on Rockwell's page are not credible; the ones that touch on matters about which I know something are so flawed that I am not inclined to trust the page on the other matters.


EXCELLENT LILEKS ARTICLE: Most of you have seen the reference already on Instapundit or on Megan McCardle's site, but for the six people who came to this site independently, here's the link to James Lileks' first-rate piece on the Middle East.


THE GREAT WHITE NORTH: Great piece about Canada by Jeremy Lott in Reason. I particularly love the story about how the actor who starred in the Molson's "we love Canada" commercials ended up moving to America -- er, to the U.S.


FALLING? The headline and subhead of Francis Fukuyama's Wall Street Journal piece today (registration required) proclaim: "The Fall of the Libertarians / Sept. 11 might have also brought down a political movement." Granted, headlines are not written by the author, and are sometimes misleading, but here it seems an accurate summary of Fukuyama's argument:
The libertarian wing of the [1980s & 1990s free-market] revolution overreached itself, and is now fighting rearguard actions on two fronts: foreign policy and biotechnology.
     The hostility of libertarians to big government extended to U.S. involvement in the world. The Cato Institute propounded isolationism in the '90s, on the ground that global leadership was too expensive. . . . Contrary to Mr. Reagan's vision of the U.S. as a "shining city on a hill," libertarians saw no larger meaning in America's global role, no reason to promote democracy and freedom abroad. Sept. 11 ended this line of argument. . . .
     The second area in which libertarians have overreached themselves is in biotechnology. . . . The fact that parents' interests may not coincide with a child's constitutes a "negative externality," that is, a harm inflicted on a third party to a transaction, of a sort that is usually considered legitimate grounds for government intervention. But it is just one of a broader class of potential externalities where an individually rational decision may harm society. [Fukuyama goes on to give various examples.] . . .
     We are at the beginning of a new phase of history where technology will give us power to create people born booted and spurred, and where animals that are today born with saddles on their backs could be given human characteristics. To say, with the libertarians, that individual freedom should encompass the freedom to redesign those natures on which ur very system of rights is based, is not to appeal to anything in the American political tradition. So it is perhaps appropriate that the liberal revolution of the 1980s and '90s, having morphed from classical liberalism to libertarianism, should today have crested and now be on the defensive.
     Now Fukuyama's substantive policy arguments are quite credible. He is right to stress the importance of national defense and even national greatness; and while I disagree with him about cloning, his arguments are plausible.
     The error comes in linking this to some Grand Decline of Libertarianism as a Political Force. To begin with, let's remember that pure libertarianism, or even the 99.44% pure libertarianism of the Cato variety, has never been a dominant political force; the purer it has been, the more it has been on the fringe.
     To the extent that libertarianism has worked itself into American political culture, it has been as what I call "presumptive libertarianism" -- a presumption that people should be free to choose, and free to keep and use their property, but one that can be rebutted when there are strong enough arguments to the contrary, e.g., national defense, protecting children, and so on. (In fact, that's what I call myself: A presumptive libertarian.) This approach is obviously much messier than pure libertarianism -- but it's also (1) the only approach that, in my view, is likely to work, and (2) the only approach that is likely to be accepted, even in part, by the public.
     And presumptive libertarianism has not been weakened at all, either by Sept. 11 or by the cloning debates. Lots of presumptive libertarians (for instance, Glenn Reynolds) are foreign policy hawks, often for the very reasons that Fukuyama endorses. And while most presumptive libertarians are much more open to cloning -- even reproductive and human-mod fying cloning -- than Fukuyama is, the cloning debates are, I think, actually strengthening their hands.
     Genetic experimentation prohibitions say "Cloning and genetic experimentation mess with nature, and may have bad consequences, so too bad for the scientists who want to learn more about life through experiments, for sick people who want the medical benefits of these procedures, and children who will continue to be born with genetic defects because these procedures are unavailable." Presumptive libertarians say "Scientists should generally have the freedom to experiment, people should generally have the freedom to have important life-saving technologies, and parents should generally have the freedom to make their children's lives better, unless the pro-restriction forces bear the burden of proving that this will indeed cause serious, tangible harm; and the restrictions should be the least restrictive ways of avoiding this harm." I think the presumptive libertarians' philosophy will ultimately be seen as much more appealing.
     So the only movement that has "fallen" -- pure libertarianism -- had never risen in the first place. And the movement that has risen, presumptive libertarianism, still seems to be as strong as before.


"THE LORD'S PRAYER" AS GRADUATION SONG: An Iowa family "took to the courts Monday to fight Woodbine High School’s traditional graduation song, which happens to be a little ditty entitled 'The Lord’s Prayer.'"

     I am not as opposed as some are to religious or quasi-religious symbols in public places. For instance, I think private groups have every right to engage in religious speech where other private groups are entitled to engage in secular speech -- this may seem obvious to some, but it's amazing how often religious speech is discriminatorily excluded from such fora. (There've been five such cases in the Supreme Court alone, all won by the religious speaker, and many others in lower courts.)

     I also think that the government is entitled to place religious imagery in broader contexts, for instance hang religious paintings alongside other paintings in government-run museums, or have religious songs be sung as part of a broader music program; religious art and religious music are huge parts of our artistic traditions, and it's wrong to try to expurgate them from public life. And I think that some symbols were either never religious in the first place (e.g., Christmas trees, despite their name) or have sufficiently lost their religious content (e.g., my own city of Los Angeles, or Thanksgiving and Christmas as national holidays) that the government may use them with no Establishment Clause difficulties. (Religious patriotic songs that are generally sung for their historical significance rather than their religious content, e.g., the Battle Hymn of the Republic, or the Star-Spangled Banner's stanza on "And this be our motto: 'In God is our trust,'" would probably fall in this category.)

     But I think that it does violate the Establishment Clause for a public high school to tell its graduates to sing an explicitly and primarily religious song, which cannot be seen as anything other than a religious song, and which is the graduation song rather than a part of a broader program of choral music. To me, the main question is: Is religion being treated equally, or is it being given special preference? Here, I think religion -- in fact, one particular religion or set of religions -- is being preferred. And just as saying "Christianity shall be the official religion of [the United States / this state / this school district]" would be a quintessential establishment of religion, so singing the Lord's Prayer as the main graduation song is also an establishment of religion (though admittedly a less significant one).


WHILE WE'RE AT IT: milli-Helen = amount of beauty required to launch one ship.


millipundit n. E21. [f. L. mille thousand + Skt. pandita learned, conversant with.]
     A standard unit of relative Weblog daily page hits, equal to 1/1000 of the daily page hits of (currently approx. 50,000). Under IEEE and ANSI conventions, a claim of x millipundits must generally be based on at least a week's worth of traffic; but millipundits may also be used to characterize the magnitude of one-day surges, when explicitly described as such. 10 millipundits = 1 centipundit. Syn. milliglenn. See also, in non-metric measurement systems, foot-pundit (1/5280 of 1000 millipundits), Fahrenpundit, dodecaKaus.

Wednesday, May 01, 2002


TWO TEARS IN A BUCKET: My friend Ann Salisbury, whom I know because she worked for the same judge for whom I once worked (the great Alex Kozinski), has just started her own Web log, Two Tears in a Bucket, and it promises to be excellent.

     I was quite troubled, however, by Ann's e-mail about this to me, which said "You've set a very bad example for me, Eugene." If this means that the blog was motivated even in small part by Sasha's and my work (and if it was, I'm sure it was only a small part), I feel terribly guilty -- Ann, remember that Sasha and I (and Glenn and Mickey and . . .) don't have to rack up billable hours! Just 'cause we do it, young lady, doesn't mean that it's OK for you to do it.

     On the other hand, I guess this means the Blogfather now has a grandblogson, since the Volokh Brothers blog was certainly much inspired by Glenn's.


FROM 500 TO 56: My colleague Andy Sabl pointed me to a Washington Times article that leads with the following:
Palestinian officials yesterday put the death toll at 56 in the two-week Israeli assault on Jenin, dropping claims of a massacre of 500 that had sparked demands for a U.N. investigation.
Remember, this is the Palestinians' own estimate. And while the intentional killing of 56 innocents would be a serious crime, my strong suspicion is that most of the 56 were Palestinian fighters lawfully killed in firefights, and that the remaining civilian deaths were the regrettable but inevitable consequences of fighters hiding themselves among noncombatants.

     If there is credible evidence of actual transgressions by the Israelis -- for instance, unlawful killing of prisoners, or intentional killing of noncombatants knowing them to be noncombatants -- that should certainly be investigated (though I'm not sure whether any international bodies can be trusted to properly investigate it). But the supposed "massacre" that has led to the loudest calls for investigation just didn't happen.


THANKS TO WILLIAM SULIK: I much appreciate William Sulik's kind words about my The Mechanisms of the Slippery Slope article. Since I write for a living, people sometimes ask me: "Isn't it hard to write?" My answer is, not really -- what's really hard is getting people to read.


PETITION OPPOSING BOYCOTT OF ISRAELI ACADEMIC INSTITUTIONS: I've never been super-hawkish with regard to Israel: The situtation in the Middle East, I've long felt, is a real mess, and while I certainly recognize Israel's right to exist, I've never been sure what mixture of force and conciliation is the right solution. The only thing that I have been sure of is that I don't know nearly enough to comment intelligently on the matter. Nonetheless, recent events have somewhat radicalized me, partly because I see so many people -- in America and elsewhere -- condemning Israel for doing pretty much what we've been doing (and rightly so) in Afghanistan, and what we might again do in Iraq. Whatever Israel's sins, it surely does not deserve much of the condemnation that it has recently received.

     I've been particularly incensed by the recent call by some (mostly European, I believe) academics to boycott Israeli academic institutions (click here for an example). I've therefore signed an academics' petition opposing this boycott, and I encourage other academics to do the same. The anti-boycott petition is short, calm, and measured, and can be endorsed even by those who have had reservations about various Israeli actions in the past.

     Note that the petition organizers call for signatures by academics only; I neither endorse nor condemn the decision, but just mention it for your information.


I think the "interrogation cupcake" is a reference to a very funny "Got Milk?" commercial that aired a few years ago.  In the commercial, two cops are interrogating a suspect.  They give him a cupcake, which he bolts down, then realizes he's thirsty.  At this point, one of the cops holds a glass of milk in front of him, saying, "We can do this the easy way...," then pulls back the milk, continuing "or the hard way...."
I didn't see the ad, and I'm not sure about the correction, but it's a nice theory!


TAXICAB FATALITIES: As promised, here are the stats on how risky cab driving is -- with thanks to reader Robert Racansky, who passed along the URL and saved me some research time. This list of the five occupations most at risk from workplace homicide is from table 9 of "Homicide in the Workplace," from the National Institute for Occupational Safety and Health; the most recent data, which I give here are from 1990-92:
OccupationWorkplace homicides per 100,000
Taxicab driver/chauffeur22.7
Police and detective -- public service6.1
Gas station/garage worker5.9
Security guard5.5

So cab driving is twice as dangerous as the next riskiest occupation, and nearly four times as dangerous as the next riskiest non-law-enforcement occupation.

     Remember this next time someone complains about how cab drivers are supposedly bigots because they refuse to serve certain areas, or even refuse to pick up people whose race (and likely gender and age) they associate with a higher risk of danger.


TIME PIT: A reader with whom I was having a substantive exchange added a P.S.: "Do you make any money (or even break even) on your blog? I'm thinking of launching one, but not as a money pit."

     This blog cost me all of $12/year, to knock out the blogspot advertising banner. If I didn't mind the advertising, it would be free. I also spend some money to register and have hosted the "" top-level domain, but I don't strictly need that, I did it even before the blog, and in any event my UCLA Faculty Support Account pays for that.

     Blogs aren't generally money pits -- they're time pits. They're ways of feeding our Communication Addiction. They're albatrosses that we've chosen to wear around our necks, reeking of dead fish but also the clean, open, salty sea. OK, I don't know where that came from. Blogging, like hanging out with friends or reading The Onion, is all about spending time and effort on something that gives no tangible reward whatsoever. You do it for the enjoyment of communicating, the excitement of spreading your ideas, and (let's face it) the vanity of knowing (hoping?) that someone is reading -- or not at all.

Tuesday, April 30, 2002


SILLY ANTI-ANTI-GUN RHETORIC: The American Prospect rightly condemns the NRA's Wayne LaPierre for this gem from a recent speech -- referring to the founder of Americans for Gun Safety (an ostensibly "moderate" pro-gun-control group), LaPierre said:
In fact, Andrew McKelvey's network kind of operates and sounds a lot like Osama bin Laden and the al Qaeda. A billionaire with an extremist political agenda, subverting honest diplomacy, using personal wealth to train and deploy activists, looking for vulnerabilities to attack, fomenting fear for political gain, funding an ongoing campaign to hijack your freedom and take a box-cutter to the Constitution. That's political terrorism, and it's a far greater threat to your freedom than any foreign force.
     The right to effective self-defense is, I think, a fundamental human liberty. I oppose people who want to undermine it, just as I oppose those who act to undermine free speech, private property, and other fundamental human liberties.

     But not everyone I disagree with -- even not everyone whose vision of liberty is different from mine, and in my eyes wrong -- is equivalent to Bin Laden. Equating McKelvey to Bin Laden is logically and morally unsound, because it's blind to the vast differences in the magnitude and character of different kinds of human misconduct. It's deeply unpersuasive and alienating to much of the public. And it undermines our ability to live in peace in a constitutional culture that, whether you like it or not, is composed of people with many different views about the Constitution.

     I have nothing as such against positions that some people label "extremist" -- sometimes the extreme solution is the right solution, and often it's a lot closer to the right answer than some "moderate" solutions. But I am deeply suspicious of extremist rhetoric, in the sense of rhetoric that treats every sin as equivalent, every crime as mass murder, and every foe as Hitler.

     (Sorry, no link to the American Prospect post itself, but you can find it by searching for "LaPierre" on their page.)


INTERROGATION CUPCAKE: Now that my brother has shifted the blog topic to baked goods, I thought I'd mention the oddest food product designation that I've seen. It's "Manirs [a name, I assume] Interrogation Cupcake," bought by my girlfriend at Whole Foods a couple of months ago. It unfortunately was a bit dry and not tremendously tasty, but hardly a serious aid to interrogation, I think. I welcome explanations.


FREE SPEECH AND LICENSE PLATE DESIGNS: A federal appellate court has just struck down Virginia's policy of barring Confederate flag symbols from custom-designed license plates.

     Virginia allows pretty much any group to set up its own license plate design; and if enough members of the group order this design from the state, the state will produce license plates with that design. This seems to be basically a fund-raising measure for the state.

     When the Sons of Confederate Veterans, however, asked for their plate, the state imposed a special restriction on them that was imposed on no other group: They couldn't include a logo, which in their case was a Confederate flag. This, the court concluded, was impermissible viewpoint discrimination on the state's part.

     I don't think this is an open-and-shut case: The government argued, in my view plausibly, that this wasn't a generalized benefit scheme aimed at stimulating a wide range of private speech -- such as the post office, the tax exemption for nonprofit groups, copyright law, or a funding program for all student newspapers at a university -- but rather the government's own speech endorsing the merits of certain groups. "When we authorize a group's license plate design," the government was essentially arguing, "we are communicating our judgment that the group is worthy enough that its design deserves to appear on state-produced and state-mandated plates."

     Nonetheless, I think the court had the better of this argument, because this program was so nonselective, and so focused on raising funds rather than genuinely praising certain groups, that it became an essentially open forum for a wide variety of private speech, rather than an expression of the government's own message. And under existing (and I think sound) First Amendment doctrine, when the government sets up this sort of essentially nonselective program that allows a wide range of private speech, it may not then impose viewpoint-based constraints (such as "no Confederate flag").

WHY I DISLIKE THE CONFEDERATE FLAG: I do not like the Confederate flag. It's the flag of a government that committed treason against the U.S. government, and that fought a civil war in order to preserve some of its residents' ability to own (which is to say control, tear from their families, beat, and rape) others of its residents. Yes, it's true that the war was also about local control and self-government -- but the reason this local control was threatened was precisely because the locals wanted to commit these atrocities against other locals. The South seceded following Lincoln's election not because they disliked his beard, but because they disagreed with his stand on slavery.

     If a country practiced slavery today, and we invaded the country to put an end to this, I think most of us would praise this action: Yes, it would be an interference with the local majority's sovereignty, but it would be amply justified by the way the majority was abusing its sovereignty. And surely few of us would revere the flag of the country that was being invaded, and that was defending its "freedom" to deprive others of their freedom. Self-government is not the only virtue, nor the highest.

     I realize that the overwhelming majority of those who display the flag today do not support slavery, and that most of them don't even support racism, but rather wave the flag as a symbol of Southern pride. I just think that it's a symbol of an aspect of the South -- at worst slavery and treason, and at best a gallant battle for an ultimately reprehensible cause -- that no-one should be proud of.

     Nonetheless, much as I disapprove of the Confederate flag, its display must remain constitutionally protected, just as much as the burning of the national flag or the display of Nazi or Communist or Islamo-fascist symbols must remain protected. For all its flaws, the ACLU is quite right on one key point: Speech restrictions breed other speech restrictions, as restraints that are sold as narrow and minor tend to grow much broader, and as what I call "censorship envy" leads other groups to want to jump on the bandwagon to suppress the speech that they dislike. We saw this with restrictions on Communist advocacy in the 1950s; we saw this with campus speech codes in the 1980s and 1990s; we are seeing this with workplace harassment law today. Best nip these processes in the bud, whenever we can.


MUFFIN? Speaking of codified maxims, my friend Garrett Moritz sends me to the state statutes database and the LEXIS search "official w/3 muffin," whence we learn that:
1. "The corn muffin shall be the official muffin of Massachusetts." Mass. Gen. Laws Ann. ch. 2, § 28.
2. "The blueberry muffin is adopted as the official muffin of the state of Minnesota." Minn. Stat. § 1.1496.
3. "The apple muffin shall be the official muffin of the state of New York." N.Y. State Law § 84.

Browsing through ch. 2 of the Massachusetts statutes, I find that our official berry is the cranberry (§ 39) and the official beverage is cranberry juice (§ 10) (Ocean Spray was formed in 1930 by three cranberry growers in Massachusetts and New Jersey). The flower or floral emblem is the mayflower -- no surprise there, but note that the regular $50 fine for digging it up or injuring it on public property or someone else's private property without permission gets increased to $100 if you do it "while in disguise or secretly in the nighttime" (§ 7). The dog or dog emblem is the Boston terrier (§ 14), while the cat or cat emblem is the tabby cat (§ 30). The official dessert or dessert emblem is the Boston cream pie (§ 41), while the official cookie is the chocolate chip cookie (§ 42), how boring. For the folk fans, we have an official folk song (Arlo Guthrie's "Massachusetts," § 20), folk dance (square dancing, § 32), and folk hero (Johnny Appleseed, § 40)... but also check out our official glee club song ("The Great State of Massachusetts," words by George A. Wells, music by J. Earl Bley, § 43) and our official polka (Lenny Gomulka's "Say Hello to Someone in Massachusetts," § 44). Like rocks? We've also got an official gem or gem emblem, fossil or fossil emblem, mineral or mineral emblem, rock or rock emblem, historical rock, explorer rock, building and monument stone, and an official soil (Paxton Soil Series, § 33). (Click here for a website of such symbols and emblems.)

Perhaps we might make 8:21 the official time of the Commonwealth; 5' 6" could be the official height, though length would be the official dimension. Official mathematical operation or mathematical operation emblem? Taking the natural log, no question about it. My friend Adam Raviv suggests that rain be the official weather, reckless driving the official misdemeanor, and Fauvism the official modern art movement of the Commonwealth.


WISDOM FROM THE CALIFORNIA CIVIL CODE: From the "Maxims of Jurisprudence" subdivision (they've been codified in California), Civil Code sec. 3546:
Things happen according to the ordinary course of nature and the ordinary habits of life.
Deep, man.


CRIME CAUSING POVERTY: In Chicago Saturday, I rode in a cab driven by a woman. I've ridden in hundreds, probably thousands, of cabs in my life, and I don't think more than five of the drivers have been women. Actually, I hadn't even noticed this until the first time I did have a woman driver.

     Why is this? It's obviously not that women lack the physical strength or the size. It's not that they tend to lack some specialized education. It's probably not discrimination, either; though there are artificial barriers to entry set up by city licensing authorities, I suspect that they could be overcome more easily than barriers in other fields where there's more specialized training and more guild sentiment.

     The reasons the cabbie gave were two: (1) the difficulty of juggling the job and childrearing -- a significant issue, but one that would only depress female participation, and not entirely eliminate it -- and (2) the reason that I had guessed when I first started thinking about this, which is physical safety. Driving a cab is one of the most dangerous jobs there is (I don't have the numbers handy, but they're startling; when I look them up again, I'll post it), because it puts you in a private place with a long sequence of strangers, often a night and often in bad parts of town. It's dangerous enough for male drivers; but with the extra risk of rape, it's prohibitively dangerous for female drivers.

     I don't know the solution to this. I think that letting drivers carry guns is a good start; my cabbie disagreed, because she thought that the drivers might get carried away in arguments with fares, but the track of record of laws that allow all law-abiding citizens to get licenses to carry guns suggests otherwise -- licenseholders almost never misuse the right to carry in public. But in any event, I doubt that broader gun carrying will solve the problem altogether. It will stop some crimes and deter others, but the risk would still be very high, especially since the fare will often have the drop on the driver.

     Rather, I mention this just because it illustrates two points. First, it reminds us how unsound it is to draw any inferences about job discrimination from aggregate statistics such as differing average wages for men and women. Women might on average make only X% of what men do, but this sort of correlation does nothing to demonstrate any causation by the one factor of job discrimination -- there are too many confounding factors, and one of them (though by no means the most important one) is unfortunately the risk of crime.

     Second, it stresses an oft-forgotten truism: That just as poverty causes crime, crime causes poverty. Driving a cab can in theory be a good job for poor and immigrant women trying to make ends meet. As I pointed out, it doesn't require strength, specialized training, or credentials. Women tend to be safer drivers than men. Though it does interfere with child care, that might not be a problem for some women, and others might be able to juggle their schedule with not much more difficulty than would be present for other jobs.

     But the risk of crime virtually eliminates this opportunity -- just as it eliminates so many opportunities for so many people, and disproportionately for poor people.

     Remember that the next time some supposed advocate for the poor or the minorities complains about the plight of street criminals imprisoned under an allegedly "draconian" justice system, or talks about "rebellions" or "uprisings" when the real word is "riot," "crime spree," or "pogrom." The people whom he is forgetting -- the people most hurt by the criminals and rioters -- are the very same poor and minority communities that these advocates claim to represent.


WHY WASPS ARE SMARTER THAN JEWS: Contrary to our high opinions of themselves, I think we have to admit that WASPs are smarter than we are. Proof positive: When WASPs want to start a new country, they do it in a place populated by American Indians. When Jews want to start a new country, they do it in a place populated by Arabs.

Monday, April 29, 2002


BUMPER STICKER SEEN BY MY FATHER IN TEXAS: "Driver carries only $20 -- in ammunition."


THE SONS OF MARTHA: This isn't remotely timely, but for some reason this poem was bouncing around the back of my mind. For a while it was adopted (understandably) by engineers as a sort of anthem, but I think it applies to many others.

     The poem is a reference to -- and in some ways a criticism of -- a passage from Luke, chapter 10, verses 38-42:

[38] Now it came to pass, as they went, that he entered into a certain village: and a certain woman named Martha received him into her house.

[39] And she had a sister called Mary, which also sat at Jesus' feet, and heard his word.

[40] But Martha was cumbered about much serving, and came to him, and said, Lord, dost thou not care that my sister hath left me to serve alone? bid her therefore that she help me.

[41] And Jesus answered and said unto her, Martha, Martha, thou art careful and troubled about many things:

[42] But one thing is needful: and Mary hath chosen that good part, which shall not be taken away from her.

     The word "careful," of course, means "full of care." Here then is the poem; my favorite stanza is the second:


by Rudyard Kipling

The Sons of Mary seldom bother, for they have inherited that good part;
But the Sons of Martha favour their Mother of the careful soul and the troubled heart.
And because she lost her temper once, and because she was rude to the Lord her Guest,
Her Sons must wait upon Mary's Sons, world without end, reprieve, or rest.

It is their care in all the ages to take the buffet and cushion the shock.
It is their care that the gear engages; it is their care that the switches lock.
It is their care that the wheels run truly; it is their care to embark and entrain,
Tally, transport, and deliver duly the Sons of Mary by land and main.

They say to mountains "Be ye removèd." They say to the lesser floods "Be dry."
Under their rods are the rocks reprovèd -- they are not afraid of that which is high.
Then do the hill-tops shake to the summit -- then is the bed of the deep laid bare,
That the Sons of Mary may overcome it, pleasantly sleeping and unaware.

They finger Death at their gloves' end where they piece and repiece the living wires.
He rears against the gates they tend: they feed him hungry behind their fires.
Early at dawn, ere men see clear, they stumble into his terrible stall,
And hale him forth like a haltered steer, and goad and turn him till evenfall.

To these from birth is Belief forbidden; from these till death is Relief afar.
They are concerned with matters hidden -- under the earthline their altars are --
The secret fountains to follow up, waters withdrawn to restore to the mouth,
And gather the floods as in a cup, and pour them again at a city's drouth.

They do not preach that their God will rouse them a little before the nuts work loose.
They do not preach that His Pity allows them to drop their job when they damn-well choose.
As in the thronged and the lighted ways, so in the dark and the desert they stand,
Wary and watchful all their days that their brethren's ways may be long in the land.

Raise ye the stone or cleave the wood to make a path more fair or flat;
Lo, it is black already with the blood some Son of Martha spilled for that!
Not as a ladder from earth to Heaven, not as a witness to any creed,
But simple service simply given to his own kind in their common need.

And the Sons of Mary smile and are blessèd -- they know the Angels are on their side.
They know in them is the Grace confessèd, and for them are the Mercies multiplied.
They sit at the feet -- they hear the Word -- they see how truly the Promise runs.
They have cast their burden upon the Lord, and -- the Lord He lays it on Martha's Sons!


MAKING FRANCE LOOK ALMOST GOOD: My friend John Rosenberg passes along the following comment, which I heartily endorse:
     David Ignatius, former assoc editor of the Wash. Post and now editor of the International Herald Tribune, has done what I would have thought impossible: make France look almost good. See "Racial Blinders," Wash. Post, Apr. 25, 2002):

     At first I thought it was going to be good. As an Alabamaian (at least until I left home for college), I've been waiting for someone to make the Le Pen/George Wallace comparison, and Ignatius started down that road. But then he fell into a mental pothole or something and wound up in Never-Never Land by concluding that the problem with the French is that they haven't learned, from us, that the way to solve the dark underclass problem is to give them . . . preferences! "France doesn't collect statistics by race or religion," he wrote in shock. "France's official race-blindness, coupled with its ultra-meritocratic educational system, has also blocked even the simplest forms of affirmative action."

     If only the French were smart enough to be like us!

      "America's progress came only after it admitted it had a racial crisis and began to enact laws to deal with it. Those laws gave a preferential treatment to minorities that infuriated many white Americans, but in time they helped change the social fabric of America. Above all, affirmative action helped make America feel like an 'opportunity society' for minorities that previously had little stake in the country."

     It's hard to know what's more off the wall here, the bizarre "history" that ignores Brown [v. Board of Education (1954)], ignores the Civil Rights Act [of 1964], ignores the Voting Rights Act, and says we didn't begin to deal with our problem until we enacted laws (what enacted laws is he thinking of?) that implemented preferences or the incredible opinion that if France would only abandon its silly universalism and enact preferences for its Muslim/Arab/North African immigrants they would be more smoothly integrated and everything would be hunky dory. He thinks this is the way to deal with the anger represented by Le Pen?

     Advice like this, as I say, almost makes one sympathetic with the French.


COPYRIGHT AND BOOKS: Instapundit points to a piece by SF author Eric Flint arguing that (1) "in the long run, it benefits an author to have a certain number of free or cheap titles of theirs readily available" -- for free! -- "to the public"; and that therefore (2) "the traditional 'encryption/enforcement' policy which has been followed thus far by most of the publishing industry is just plain stupid, as well as unconscionable from the viewpoint of infringing on personal liberties" (emphasis in original). It's not completely clear how far the author would take thesis 2, but he seems to be in favor of legally allowing fairly broad private copying of works, judging by his praise of Napster in the last paragraph of his article.

     The piece is quite interesting, and I recommend that you read it. What's more, I agree with thesis 1: Providing some material for free may well encourage people to buy other material that's not available for free, especially when the free material is still not as easy to read (because computers are unfortunately not yet as readable and portable as novels) as the for-pay material. And existing copyright law certainly lets copyright owners make this choice, if they think it will bear fruit for their products.

     The problem is that thesis 2 -- the most controversial item -- doesn't follow from thesis 1. If all of an author's books were available online for free (which may well happen if there's a relaxation of copyright laws or the unchecked growth of Napster-like products), and if electronic books will be as easy to read as paper books, as I think will happen soon enough, then I think the income of authors will substantially decline. What makes thesis 1 feasible is precisely that some books -- the newer, more popular ones -- are effectively protected against unauthorized copying. Without that effective protection (which thesis 2 seems to be attacking), there's good reason to think that the benefits outlined in thesis 1 will go away.

     Now though I teach and write about copyright law, I am not an unreserved fan of the copyright model. I certainly think that it's possible that on balance the costs of copyright law (interference with people's liberty to make whatever copies they please, interference with the creation of derivative works, inefficiencies caused by books being more expensive than they would be without the copyright-provided monopoly) outweigh the benefits. I'm not sure this is so, but I'm not sure of the opposite.

     But I think we should be clear-eyed about both the costs and the benefits of copyright law, and both the costs and benefits of the alternatives. If the alternative is simply to allow copyright owners the choice of which works (if any) to protect, through technology and through litigation, and which works (if any) to distribute for free, I think that's great. But if the alternative is to ban "the traditional" and supposedly "stupid" "'encryption/enforcement' policy," on the grounds that it "infring[es] on personal liberties," we have to recognize that this decision will have far more costs than what Eric Flint's essay seems to envision.


MORE VANITY: I mentioned my disagreement with the Washington Post's "vanity" argument on an election law discussion list, and got the following response from Bob Bauer, a top D.C. election law expert:
It may besurprising that I, good Democrat that I am, completely agree with Eugene Volokh. The Post reading of the situation is misguided, even silly. There are ample reasons why McConnell did not want the caption with the NRA's name in it -- reasons relating to public relations, even ones relating to case management. The Post commentary is fairlytypical of the waymany in thepress cover campaign finance reform issues, but it does not leave much of a mark on Mitch McConnell.


FREE SPEECH AND LIBERALS VS. CONSERVATIVES: Max Power provides a thoughtful and fair-minded critique of my free speech and liberals vs. conservatives study -- a critique that he himself doesn't subscribe to, but one that he thinks some people can plausibly levy. The heart of the critique, I think, is the following:
The two poles of Professor Volokh's binary ones and zeroes should not be {more speech, less speech}, but, rather, {individual power to speak, corporate and government power to stop or drown out individual speech}. . . . Were the Volokh methodology be used on this alternative metric, one would see the Court lining up in a spectrum more consistent with the stereotypical "liberal" and "conservative", "Democrat" and "Republican" labels.
     The problem, though, is that this alternative metric, while appealing-sounding, isn't terribly well-defined. Just to give four examples:
  1. How would one classify speech by the media? They are corporations, but their free speech rights (especially in libel and obscenity cases) have traditionally been strongly defended by liberals, and for good reasons.

  2. Likewise, where does one place expressive associations, such as the Boy Scouts, the ACLU, the NAACP, or the organizers of the St. Patrick's Day parade?

  3. What does "drown out" mean here? It's a seemingly appealing metaphor, but before we use it in a study, it would be good to specify it; and I think it would prove quite hard to specify it in any objective way.

  4. The Court -- including the Court's liberals, such as Justices Brennan, Marshall, and Blackmun in commercial speech cases such as Virginia Pharmacy, the case that founded modern commercial speech doctrine -- has stressed that corporate speech and commercial advertising should be protected not just to protect the rights of speakers but also the rights of listeners. Shutting up corporate speech on matters such as drug prices, the strength of alcohol products, and so on burdens not just Big Business but the Little Consumer. Where would one then put commercial speech cases?
     And of course these points show more than that the proposed distinction is vague; they also illustrate that hiding behind the vague distinction are some very important but unresolved and undiscussed policy choices -- for instance does speech put out by corporations really have no value, or at least to liberals, and, if so, why?

     So if someone wants to rerun my study using an alternative metric, I would be delighted to have them do that -- in fact, the table of cases I give in my Appendix should help their project -- and I'd love to hear the results. But first they should provide some objective definition of exactly what metric they use, so we can see whether it makes sense, and so we can make sure that their categorizations of the cases apply internally consistent standards.


PHOTO FROM THE UCLA BLOGGING PANEL, courtesy of Delusions of Adequacy. From left to right: Moderator Prof. Tim Groeling of the UCLA Communications Studies department; me, standing with a silly grin; Glenn Reynolds; Mickey Kaus.


SILLY DIG AT THE CHALLENGE TO "CAMPAIGN-FINANCE REFORM": A Washington Post editorial condemns McConnell on the following grounds:
But it turns out that something else is at stake in Mr. McConnell's suit, something whose protection -- like the Constitution -- apparently warrants the time and energy of his legal dream team: Mr. McConnell's ego. Not once, but twice this month, Mr. McConnell's lawyers have asked the court in writing to change the name of the case so that "McConnell" will appear in it.

This principled stand was necessitated by a bad turn from one of Mr. McConnell's putative allies: the National Rifle Association. The NRA had the temerity to beat Mr. McConnell into court. Under court rules, cases raising similar issues, when consolidated, use the name -- or caption -- of the first one filed. That means that the Supreme Court would end up handing down NRA v. FEC, rather than McConnell v. FEC. Mr. McConnell insisted that he be first, and the gun lobby uncharacteristically caved . . . .
     Now I find nothing implausible in the notion that a Senator might be vain; maybe that is the explanation for his action. But maybe McConnell thinks that the case and the policy theories that underlie it will be easier to sell to the public if it doesn't have the name of the NRA -- a group disliked by many (consider the Washington Post's labeling it "the gun lobby"; would it label the NAACP "the black lobby"?) -- in it. Of course, many do like the NRA, but McConnell may reasonably infer that a larger chunk of those people are already on his side in the "campaign finance reform" battle.

     Or maybe McConnell figures that he wants to demonstrate to his constituents that he's taking principled stands in defense of what he sees as their First Amendment rights. This may well be a self-interested action, if he thinks it'll increase his chances of reelection, but one that's quite justified in a democracy where politicians are supposed to take public responsibility for their viewpoints.

&nsbp;    Now maybe my conjectures are wrong and the Post's conjectures are right; but the Post says not a word that supports their conjecture over mine. Shouldn't a leading newspaper be a bit more fairminded in its commentary, and a bit more reluctant to turn a policy disagreement into name-calling?


WHY SCHOOL CHOICE IS CONSTITUTIONAL: Max Power asks "What is the argument being made why it's problematic for vouchers to go to a Jesuit high school, when government money subsidizes education at such Jesuit colleges as Georgetown University?" Powerful question, Max!

     I think the answer is "There is no good argument." Even-handed programs that provide K-12 school choice to students without regard to whether they're going to religious schools, secular private schools, or secular public schools, should be just as constitutional as even-handed college school choice programs (like the GI Bill) or even-handed income tax deductions for contributions to charitable institutions, whether religious or secular. No Establishment Clause problem there, because equal treatment is not establishment.

     I go into this in a lot of detail in a law review article -- titled "Equal Treatment Is Not Establishment," what a coincidence! -- and in less detail in a shorter New Republic article.

     I fully acknowledge, by the way, that the Court has held that K-12 students are sometimes different for Establishment Clause purposes than are college students -- but that's where the claim is that speech will be seen as endorsing religion or coercing religious practice. K-12 students are indeed more impressionable and coercable than college students, so a distinction might make sense in those contexts.

     But the argument against evenhanded funded programs doesn't focus on endorsement or coercion of the students. Rather, the theory is that evenhanded tax-funded programs are impermissible coercion of taxpayers whose money ends up going to religious purposes (among other purposes). And under that theory, it can't be relevant whether the taxpayers are coerced to indirectly pay money to K-12 religious education as opposed to religious education at the college level or to religious expenditures financed in part by tax exemptions. In my view, so long as the money is distributed evenhandedly, the fact that taxpayers are coerced to pay their taxes doesn't constitute establishment of religion, in any of these contexts.


SCORE ONE FOR CNSNEWS: CNSNews, very much to their credit, just corrected the article I complained about below. Corrections aren't as good as getting it right the first time, but they're much better than what usually happens with newspaper articles, especially in print sources.


MORE ON FREE SPEECH: Another Supreme Court case that fits with my theory that many (though not all) "conservatives" on the Court take a broader view of free speech than many (though not all) "liberals". This is Thompson v. Western States Medical Center, which just held unconstitutional a certain commercial speech restriction; the majority was O'Connor (moderate conservative), Kennedy (same), Scalia (conservative), Thomas (same), and Souter (moderate liberal), and the dissenters were Breyer (moderate liberal), Stevens and Ginsburg (same) and Rehnquist (conservative). Thomas wrote an opinion that took an especially broad view of free speech in this sort of case.

     As I've mentioned before, Kennedy takes the broadest view of free speech among the Justices; Souter and Thomas are tied for second. Breyer generally takes the narrowest. This doesn't mean Breyer is wrong and Kennedy is right -- sometimes, the free speech claimant should lose. But it does mean that casual assumptions that the liberals take a broad view of free speech and conservatives take a narrow view, which were indeed once true, are not true any longer.

Sunday, April 28, 2002


DON'T SUE FOR ISRAEL: A Texas-based automotive export firm seems to have rethought its apparent boycott of Israeli citizens and firms after a massive e-mail/fax campaign from 'hundreds of angry Americans.' A triumph of the free market? Not exactly -- the company representative only changed his tune 'after local lawyers contacted him threatening legal actions against his company.' These sorts of boycotts of 'friendly countries,' such as Israel, may be illegal under U.S. export regulations, 50 U.S.C. app. § 2407(a) (Export Administration Act of 1979, § 8(a), 93 Stat. 503, 521, which took effect on the expiration of the Export Administration Act of 1969, 83 Stat. 841, as amended in 1977, 91 Stat. 325) and also some provision related to the Ribicoff Amendment to the 1986 Tax Reform Act. Violations have to be reported to the Office of Antiboycott Compliance in the Bureau of Industry and Security, U.S. Department of Commerce.

Penalties include both 'real' penalties (fines) and denial of various export privileges and tax credits. According to the Office of Antiboycott Compliance, conduct that may be penalized and/or prohibited includes 'agreements to refuse or actual refusal to do business with or in Israel.' No private right of action, see Judge Easterbrook's opinion in Israel Aircraft Industries v. Sanwa Business Credit Corp., 16 F.3d 198 (7th Cir. 1994), but the government could prosecute the offending company. Is this for real? Well, here are some case histories -- three companies that were fined between $4000 and $104,000 by the Commerce Department for having certified to their Saudi customers that the products they shipped neither were Israeli nor had Israeli components. Yes, it's for real, pace Max Power.

My position on boycotts? Well, the Institute for Justice, where I worked last summer, filed an amicus brief in Boy Scouts v. Dale on behalf of Gays and Lesbians for Individual Liberty (motto: 'Free lives and free association'). Says IJ on its web site: 'While GLIL disagrees with the Boy Scouts' anti-gay policy, it recognizes the vital importance of freedom of association to all Americans, including gay Americans. Throughout this nation's history, gay Americans have suffered when freedom of association has not been respected. In particular, governments at all levels have targeted gay political organizations, student associations and bars for harassment. . . . [A] loss for the Boy Scouts would not be a victory for gay Americans. Diminished protection for the freedom of association, for instance, would endanger the ability of gay Americans to maintain exclusively gay organizations.' Substitute Jews for gays, and you have my view. The freedom to not support people you don't like is one of the most sacred liberties, and those who identify with persecuted groups should be most concerned about protecting that freedom, if not by trying to get the law repealed, at the very least by not suing and not threatening legal action under unjust laws that help their cause. They came for the Israel boycotters, and I did nothing, because I was not an Israel boycotter.

Mind you, the folks suing, or threatening legal action, may well be groups with good names and fuzzy-sounding causes, not that that makes it any better; if anything, it may make it a bit worse, to the extent that people think Jews in general favor commandeering the resources of innocent Texas auto exporters to fight the Palestinians. The Yahoo litigation I talked about below was started by the Union of Jewish Students and the International Anti-Racism and Anti-Semitism League and continued with participation from the Association of Deportees of Auschwitz and the Camps of Upper Silesia. The anti-racist speech litigation (it's not just against Le Pen) is also driven by similar groups. A local National Front politician, Georges Theil, was sued by SOS-Racisme in 2001 for negationism (Le Monde, February 19, 2001). SOS-Racisme teamed up with MRAP (the Movement Against Racism and for Friendship Among Peoples -- how can we disagree with that?) and the League for the Rights of Man to sue National Front mayor Catherine Megret for provocation to discrimination and racial hatred; she apparently said in a speech that there were differences between the races and that immigrants were colonizers who only came to France for the money (Le Figaro, July 1, 1997). (Agence France Presse, March 12, 1992, reports that it works the other way too -- Socialist businessman Bernard Tapie paid 1500 F to each of three National Front activists who sued him for calling Le Pen supporters 'bastards.' Some of you may, at this point, remember Oprah Winfrey the Texas cattlemen.)

As a Jew and a future lawyer (I mention this not because I'm a practicing one of either but because what Jews do reflects on Jews, and likewise for lawyers), I wish these people would find a positive outlet for their energy. There are, according to Jewish organization Aish HaTorah, at least 54 ways you can help Israel, and they mostly look fine, except for #16, Unity! ('Let us abstain from saying (or listening to) anything bad about any Jew, any group of Jews, or even the Israeli government unless it is constructive critique.'). (Well, I suppose you might abstain from saying or listening to anything bad about anyone unless it's constructive critique, just don't save it for the Jews; just a little matter of personal ethics there.) But please, don't sue for Israel.

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