Friday, September 24, 2004

Slippery Slopes:

I'll be giving a talk on Mechanisms of the Slippery Slope next Tuesday, the 28th, from 12:30 pm to 1:30 pm in room 79A at the Stanford law school; Stanford lawprof Robert Weisberg will be commenting. The talk is being put on by the Federalist Society, but I hope that it'll be pretty nonpolitical, and will be of interest to liberals, conservatives, libertarians, and others.

Everyone is welcome, though I can't vouch for the ease of finding parking if you're coming in from outside Stanford.

"Under God" and Jurisdiction Stripping:

A bunch of people e-mailed me to ask about this subject, so I blogged about it today at, where I've been guest-blogging this week. An excerpt:

The House of Representatives just passed a bill that says: "No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance . . . or its recitation."

The theory, as I understand it, is to keep the federal courts from striking down the words "under God" in the Pledge. The Ninth Circuit federal court of appeals, of course, held in 2002 that the teacher-led recitation of those words in government-run schools violated the Establishment Clause, even when pupils were legally allowed to remain quiet if they preferred. Earlier this year, the Supreme Court set aside that decision, but on procedural grounds, without confronting the legal question.

The trouble is that the proposed law might have the perverse effect of jeopardizing the "under God" rather than preserving it. . . .

Jonathan Rauch on campaign finance law restricting free speech:

See his column here; an excerpt:



Item -- In June, the FEC ruled that the Bill of Rights Educational Foundation, an Arizona nonprofit corporation headed by a conservative activist named David Hardy, could not advertise Hardy's pro-gun documentary ("The Rights of the People") on television and radio during the pre-election season. The FEC noted that the film featured federal candidates and thus qualified as "electioneering communication." Hardy, according to news accounts (I could not reach him by phone or e-mail), yanked the film until after the election.

Item -- On September 9, the FEC ruled that a conservative group called Citizens United was not a "media organization" and therefore could not use unrestricted money to broadcast ads marketing a book and film critical of Democratic presidential candidate John Kerry. "Not everyone can be a media organization," said one FEC commissioner.

Item -- Also on September 9, the FEC ruled that the Ripon Society, a Republican group, could run TV ads touting the anti-terrorism efforts of "Republicans in Congress" because no political candidate was referred to in the ads.

Item -- That day, the FEC also ruled that a Wisconsin car dealership, called the Russ Darrow Group, could continue using its own name in its car ads during the election season. Russ Darrow Jr., the patriarch of the company and father of its current president, was running for Senate in Wisconsin (he lost in the primary). The FEC found that the dealership's ads were not "electioneering" because they did not feature the candidate himself.

Set aside how you or I might have decided any of these cases. Focus on the fact that federal bureaucracies -- the FEC and ultimately the federal courts -- are now in the business of making such decisions. . . .

Occidental College's censorship of radio station --

The Foundation for Individual Rights in Education has an op-ed on this.

A bit more on Presbyterians and Israel:

Some readers pointed this out, and Eugene Kontorovich (the author of the op-ed I linked to on the subject) also confirms it: The divestment action was taken, as the op-ed mentioned, by the Presbyterian Church (U.S.A.); but there are other Presbyterian denominations in America that didn't join in that. No word on what the Judean People's Liberation Front has to say about that.

Kerry wins 75% support from key demographic:

See here for the story. Many thanks to my future sister-in-law, Hanah Metchis.

More about "Banning" the Bible:

A reader writes, apropos the Republican mailer whose cover suggested that the "liberal agenda" involved "Banning" the Bible:

I understand the legalistic impulse to look at the fine print but could you explain your readers how fine print regarding the precise intention of the word "banning" would invalidate that the mailer is dishonest? By contrasting the "gay marriage allowed" to the "Bible banned" in such a graphic manner, the mailer unambiguously creates the IMPRESSION (which is what it intends to do) that bibles will not will be allowed in Arkansas if "liberals" would have it their way. No fine print is going to change that. Surely creating such an impression is dishonest.

A reference to "banning" the Bible is ambiguous. It could mean utterly prohibiting it, subject to criminal penalties for private possession and distribution — the literal meaning, but of course not a very plausible one. Or it could also mean, as this post points out (citing the usage by the American Library Association), excluding the Bible from some places, such as public school curricula, monuments in government buildings (e.g., Ten Commandments displays), and so on. It could also mean legally punishing certain uses of the Bible, such as workplace postings of anti-homosexual verses (perhaps under the rubrics of hostile work environment law, hostile educational environment law, or hostile public accommodations environment law).

Consider an analogy: Say that a Democratic flyer complained of a "conservative agenda" that involved "destroying a woman's right to choose." Literally, "right to choose" might be read as meaning the right to, well, choose things — like one's husband, one's religion, whether to own a gun, and so on. But we wouldn't condemn the flyer as dishonest, on the grounds that conservatives have no desire to interfere with many choices on women's part. In context, it's pretty clear that the flyer is referring to a particular thing that's often labeled (though controversially so) as the "right to choose": the right to choose to have an abortion. And many conservatives do indeed want to (whether rightly or wrongly) block women from being able to choose abortions, at least in many circumstances.

Before we condemned the flyer, we'd have to see what it said on the inside: If it elaborated the cover claim as "conservatives want to reduce women to slavery, as property of their husbands," then one would certainly condemn that as dishonest. If it elaborated it as "conservatives want to prevent women from being able to choose abortion," then it would not be dishonest (though it might not be as nuanced as what a more careful academic analysis would provide). If it didn't elaborate at all, then we'd ask how most readers would perceive the statement — especially keeping in mind that readers expect political mailers to involve some degree of hyperbole and oversimplification — and if we concluded that they would perceive it as applying only to abortion, we'd again say that the statement isn't dishonest.

Likewise here. "Right to choose" is somewhat less ambiguous than a reference to a book being "banned" — the purely literal meaning of "right to choose" (right to choose generally, as opposed to abortions in particular) is more rarely used than the purely literal meaning of "banning" books. Still, in context, I suspect that most people seeing a claim that the "liberal agenda" involves "bann[ing]" the Bible would understand it as referring to something less than a criminal prohibition on all possession of the Bible; rather, I suspect that they'd probably see it as something more like the American Library Association's definition, or some other more modest meaning. The insides of the mailer could confirm this suspicion, or rebut it. But without seeing the insides, I don't think that we can condemn the mailer cover as dishonest.

"Banning" the Bible:

Reader Matt Johnson reminds me that the American Library Association -- hardly known as a bastion of Republicanism -- defines "banning" of books to include "remov[al of] material from the curriculum" of a public school. Under that definition, many liberals do support "banning" the Bible: If a school teaches the Bible as part of its normal curriculum (except in unusual contexts, such as for instance a comparative religion class, likely in the upper grades), then liberals would want it to be "removed . . . from the curriculum."

This is, of course, apropos the Republican mailer that suggests that the "liberal agenda" would lead to the Bible being "banned" and same-sex marriage being "allowed." As I mentioned in my original post, it's hard to tell whether this is "dishonest" (as one correspondent of mine suggested) without seeing the inside of the mailer. If the senders are really claiming that liberals would want to criminalize all distribution and reading of the Bible, even on private property, then that charge is pretty dishonest. But if the inside of the mailer makes clear that they are just claiming that liberals would want to ban the distribution and use of the Bible in public schools (again, except in certain unusual contexts) -- the very meaning that the American Library Association uses -- then there's no dishonesty there.

Incidentally, I would not use the word "ban" myself to refer to removal of a book from a curriculum; government agents must select what's in the government-run schools, and if a lower-level employee (a teacher) selects a book, I don't think there's anything inherently wrong in a higher-level official (a principal or a school board) changing that selection. The particular choice may be foolish, but because it's an unwise decision to remove a book from the curriculum, not because all such decisions are wrong. Nor would I call them "bans," since the book is still available elsewhere.

Nonetheless, if this is what the Republican mailer meant by the Bible being "banned," then the American Library Association usage further illustrates that such a meaning isn't inherently dishonest, and -- even if imprecise -- probably within the boundaries of legitimate political hyperbole. But, as I've said before, if anyone can pass along to me the contents of the inside of the mailer, we may get a better idea of what meaning of "banned" was involved.

Thursday, September 23, 2004

More on Nebraska ACLU seeking gag order on the press:

I wanted to see the ACLU's brief in support of its motion asking a court to order the Omaha World-Herald not to publish the name of an ACLU client-plaintiff. The ACLU was kind enough to pass along the court's order denying the motion, and the text of the motion itself, but it said that it couldn't pass along the brief supporting the motion -- which contains all the argument and citations of authority -- because all other documents are sealed. (The judge had already, I think at the ACLU's request, restricted the parties from revealing the plaintiff's name, and thus presumably ordered some documents to be sealed; the question in the motion was whether he could restrict newspapers who aren't parties to the case from doing the same.)

So I can't really evaluate the merits of the ACLU's arguments as well as I'd like. But just focusing on the existing law, and setting aside any creative arguments that the ACLU might have made and I haven't thought of, it's not surprising that the judge denied the ACLU's request, and it would be surprising if that denial were overturned.

Max Boot on Wars, Presidents, and Errors:

Here's his L.A. Times column; I pass it along (with all the proper permissions) as full text rather than just as a link, so that people don't have to go through the L.A. Times registration scheme. I'm no expert on the subject, but Max is (he's a fellow at the Council on Foreign Relations, and author of The Savage Wars of Peace: Small Wars and the Rise of American Power); and while I don't know whether he's right, I certainly hope that he is:

History Can Offer Bush Hope ...

John Kerry is right to accuse President Bush of "colossal failures of judgment" in Iraq. These range from decisions taken in the early days of the occupation, such as the premature disbanding of Iraq's army, to more recent missteps, such as allowing Fallouja to become a terrorist sanctuary.

Reading the depressing headlines, one is tempted to ask: Has any president in U.S. history ever botched a war or its aftermath so badly?

Actually, yes. Most wartime presidents have made catastrophic blunders, from James Madison losing his capital to the British in 1814 to Harry Truman getting embroiled with China in 1950. Errors tend to shrink in retrospect if committed in a winning cause (Korea); they get magnified in a losing one (Vietnam).

Despite all that's gone wrong so far, Iraq could still go either way. (In one recent poll, 51% of Iraqis said their country was headed in "the right direction"; only 31% felt it was going the wrong way.)

Lest we be too hard on Bush, it's useful to recall the travails of the nation's two most successful commanders in chief, Abraham Lincoln and Franklin Roosevelt.

Lincoln is remembered, of course, for winning the Civil War and freeing the slaves. We tend to forget that along the way he lost more battles than any other president: First and Second Bull Run, Fredericksburg, Chancellorsville, Chickamauga.... The list of federal defeats was long and dispiriting. So was the list of federal victories (e.g., Antietam, Gettysburg) that could have been exploited to shorten the conflict, but weren't.

As the Union's fortunes fell, opponents tarred Lincoln with invective that might make even Michael Moore blush. Harper's magazine called him a "despot, liar, thief, braggart, buffoon, usurper, monster, ignoramus." As late as the summer of 1864, Lincoln appeared likely to lose his bid for reelection. Only the fall of Atlanta on Sept. 2 saved his presidency.

Most of the Union's failures were because of inept generalship, but it was Lincoln who chose the generals, including many political appointees with scant military experience. He ultimately won the war only by backing Ulysses Grant's brutal attritional tactics that have often been criticized as sheer butchery.

Roosevelt had more than his share of mistakes too, the most notorious being his failure to prevent the attack on Pearl Harbor, even though U.S. code breakers had given him better intelligence than Bush had before Sept. 11. FDR also did not do enough to prepare the armed forces for war, and then pushed them into early offensives at Guadalcanal and North Africa that took a heavy toll on inexperienced troops. At Kasserine Pass, Tunisia, in 1943, the U.S. Army was mauled by veteran German units, losing more than 6,000 soldiers.

The Allies went on to win the war but still suffered many snafus, such as Operation Market Garden, a failed airborne assault on Holland in September 1944, and the Battle of the Bulge three months later, when a massive German onslaught in the Ardennes caught U.S. troops napping.

Though FDR bore only indirect responsibility for most of these screw-ups, he was more directly culpable for other bad calls, such as the decision to detain 120,000 Japanese Americans without any proof of their disloyalty. Like Lincoln, who jailed suspected Southern sympathizers without trial, Roosevelt was guilty of civil liberties restrictions that were light-years beyond the Patriot Act. And, like Bush, Roosevelt didn't do enough to prepare for the postwar period. His failure to occupy more of Eastern Europe before the Red Army arrived consigned millions to tyranny; his failure to plan for the future of Korea and Vietnam after the Japanese left helped lead to two wars that killed 100,000 Americans.

None of this is meant in any way to denigrate the inspired leadership of two great presidents. Both Lincoln and Roosevelt were brilliant wartime leaders precisely because they were able to overcome adversity and inspire the country toward ultimate victory with their unflagging will to win. That's what Bush is trying to do today.

And, no, I'm not suggesting Bush is another Lincoln or Roosevelt. But even if Bush hasn't reached their lofty heights, neither has he experienced their depths of despair. We are losing one or two soldiers a day in Iraq. Lincoln lost an average of 250 daily for four years, Roosevelt 300 daily for more than 3 1/2 years. If they could overcome such numbing losses to prevail against far more formidable foes than we face now, it's ludicrous to give in to today's fashionable funk.

"Colossal failures of judgment" are to be expected in wartime; I daresay even John Kerry (whose judgment on Iraq changes every 30 minutes) might commit a few. They do not have to spell defeat now any more than they did in 1865 or 1945.

More on Vanity Fair and Bush v. Gore: SCOTUSblog has posted copies of the Vanity Fair article on Bush v. Gore, in case you haven't seen it. Part 1 here; Part 2 here.

  Will Baude offers some interesting comments on the article over at Crescat Sententia. An excerpt:
  Reading the VF article pushed me more closely to thinking that the decision was reached legitimately, by justices honestly trying to sort out the right answers to a mess of legal issues. I don't think that's the effect the author of the piece intended (unless the author is very very clever), but it's partially the result of useless little jibes . . .
  The authors attempt to defend their bias with the argument that it was mostly the liberal clerks who were willing to break their vows of confidentiality to speak to them: "...if this account may at times be lopsided, partisan, speculative, and incomplete, it's by far the best and most informative we have." But that apologia only justifies the bias in quotes and reported or guessed-at facts. It doesn't provide any explanation for the article's relentlessly partisan tone, bizarre mix of naivete and cynicism, and unconstructive and unsubstantiated jabs.
  UPDATE: Rick Hasen adds some thoughts here.
A Tough Market for Women?: The Legal Times has a story on law school faculty hiring entitled 'A Tough Market for Women.' The article notes that while most entering law school classes have close to as many women as men, most faculties remain male-dominated. The article makes the case that women are underrepresented among law professors for a number of reasons, ranging from the glass ceiling to the old boys' network:
  According to the Association of American Law Schools Statistical Report on Law School Faculty for 2002-2003, fully tenured female law professors make up 25.2 percent of law faculties nationwide and 34.2 percent of the total law faculty count. That's certainly progress from the 13 percent of female law school professors in 1991. But with that rate of growth — roughly 1 percent a year — it will take another 25 years for women to reach the 50-percent mark.

  . . .
  Studies also show that women are less likely than men to receive the coveted leadership positions. For instance, women hold 16 percent of all dean positions in the country, according to a study by the American Bar Association's Commission on Women in the Profession. The dean positions matter, observers say, because deans influence hirings and promotions.

  "It's safe to say that there's been considerable progress, but 20 percent is not 50 percent," says Joan Williams, a law professor and director of the Program on WorkLife Law at American University's Washington College of Law.

  Lisa Lerman, a Catholic University law professor, agrees. "Things have improved in general, but it really depends on the school."

  Why do women continue to lag behind?
  For the most part, the status of women law professors today merely reflects the "glass ceiling" for women in many professions. The reasons for its persistence are less clear: overt discrimination is either nonexistent or hard to prove. Nevertheless, a variety of factors that arise during the hiring or promotion process — including ones based on the personal choices of the applicants themselves — appears to cause a woman's career inertia at all levels of law schools.

  The article then discusses possible explanations for the low status of women within legal academia: the time demands required to earn tenure; the importance of the informal "old boys' network," which tends to exclude women; the likelihood that women are more caring than men, and therefore spent more time developing personal relationships with their students that results in less time for scholarship; discrimination against women in assigning committee work; and more.

  Unfortunately, the article overlooks a rather significant aspect of its statistical evidence. The statistics offered in the article describes the present percentages of male vs. female faculty members who are full professors or on faculties as a whole, instead of the gender ratios of recently-hired or recently-tenured law professors. This is important because most faculties were all-male not long ago; if a law school hires 50% women starting at a particular point, and women are promoted at the same rate as men, it will take a few decades before the older male faculty members retire and the overall ratio approaches 50%. Deans tend to be more senior, too, so you would expect those numbers to lag the most.

  I don't know of any statistics on the rate of tenure and promotion among law professors broken down by gender. The statistics on the entry-level tenure-track hiring process suggest significant gender equality, however. Over the last dozen years, the new professors at the tenure-track Assistant Professor and Associate Professor rank were 45.6% women, and 54.4% men. (See here, Table 8B) Further, the AALS statistics on success rates suggest that female candidates may actually have an easier time getting a law teaching job than male candidates do. From the period of 1991 to 2003, men who registered with the AALS found a teaching job 11.3% of the time, while women who registered with the AALS found a teaching job 13.9% of the time.

  This is particularly notable given the very troubling evidence that women tend to underperform as compared to men on several of the key criteria typically used to select faculty candidates. At elite law schools that tend to produce the most future professors, the evidence suggests that female students tend on average to get lower grades, tend to be underrepresented among those on law review at many schools, and also tend to be less likely to obtain prestigious clerkships. Despite this disadvantage, women candidates appear to find more success on the law teaching market than men. There are lots of possible explanations for this — perhaps men are more likely to try to get a teaching job even if they are not likely to be competitive — but it is consistent with the anecdotal evidence that most law school faculties consider it a "plus" when a faculty candidate is a woman.

  Is there a glass ceiling at tenure and promotion for female candidates? I don't know of any statistics on this question. As Brian Leiter has noted, law schools tenure a very high percentage of tenure-track professors; tenure is considered relatively easy to obtain. Given this, I find it a bit less likely than otherwise that the tenure hurdle would generate significant gender biases. I don't want to oversimplify a complicated issue. Law schools tend to hire and promote candidates who are willing and able to devote countless hours to study and writing, and on balance, for a number of reasons, this remains more socially acceptable for men than for women. The gender disparities among law students are real and very troubling. Still, my very tentative sense is that the slow pace of change in the gender ratios of law professors is due primarily to the long careers of professors more than any glass ceiling.
Online Bookselling: Ever wonder what percentage of people who look at a book's listing on Amazon actually purchase it? Here's one datum: I have a click through link to Amazon's listing of You Can't Say That! book on my academic home page, on the book's home page, and I also occasionally use this link on Volokh. Because I was curious about the question above, I signed up for Amazon's Associates program, which gives me a small commission on every purchase made through this link, and, more important for my curiosity, allows me to track both traffic and purchases. Since January 1 of this year, 1,040 people have clicked on my Amazon link to the book. Of those 1,040 people, eight actually purchased it (seven new copies and one used copy) for an incredible 130 to 1 ratio of browsers to purchasers (some of the individuals, however, may have purchased the book from Amazon at some other time, using another Amazon link). Note that these were people who already had enough interest in the book to click on a link to it, and many of them were likely reasonably familiar with the book already, if they visited from VC or the book's home page. Random browsing, one would assume, would result in a signicantly worse ratio of browsers to purchasers. Other relevant data: the book has a relatively modest purchase price on Amazon ($14), and its Amazon ranking has varied from a high of 59 (after I was interviewed by Walter Williams on the Rush Limbaugh show) to a recent low of 100,000. Conclusion: online bookselling, and bookselling in general, is a tough business!
The good news from an author's perspective, I suppose, is that my data suggest that sales reflect only a fraction of the total interest in a book. Of course, if you are trying to make a living writing books (which I'm not), that's also the bad news.
New Reviews of "You Can't Say That" I've linked to several new (or at least, new to me) reviews of my book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, on the book's homepage.

Wednesday, September 22, 2004

Banning the Bible:

A reader points to this story:



Does anyone have any more details on what the mailer says inside? Does it specifically refer to the "liberal agenda" being banning the Bibles in public schools, banning anti-gay messages from the Bible, banning Bibles generally, or something else?

Certainly if the claim is that the liberal agenda includes actually banning the Bible as such, that seems quite false. (Unfortunately, hostile environment law may sometimes be interpreted as restricting the publication of Bible verses when this may offend people based on religion, sexual orientation, sex, and the like; but though I quite oppose that, it still seems wrong to say that liberals would ban the Bible more generally.) On the other hand, if the mailer makes clear that it's discussing banning Bibles in schools, or something else that's at least plausible, then it's the AP story that's misleading for not mentioning this.

If anyone has a copy of the mailer, please e-mail me at volokh at — I'd love to see it. Thanks!

UPDATE: Several people sent me the links to this copy of the cover of a flyer that was apparently sent in Arkansas -- but it seems to be just the cover, not the inside contents. Does anyone have a copy of the material inside as well, so I can see whether the inside elaborates on the claim on the cover?

Presbyterian boycott of Israel:

GMU lawprof Eugene Kontorovich writes about this:

The divestment action manifests a singular animosity towards Israel. The Presbyterians have not divested their funds from any of the cruel regimes of the world: not from China for its ethnic cleansing of Tibetans, and its repression of Muslems and Falun Gong; and not even from Sudan, currently engaged in the extermination of Africans in Darfur. But then again, Syria has not boycotted those states either.

One would expect the Presbyterian Church to use its economic clout with an eye to punishing the many regimes around the world that oppress their fellow Christians, and call attention to their plight. However, the church has not taken action against such nations as Sudan, Somalia, Nigeria, or North Korea (whose government has reportedly murdered 300,000 Christians), where anti-Christian persecution has been detailed by Christian human-rights groups. . . .

Related Posts (on one page):

  1. A bit more on Presbyterians and Israel:
  2. Presbyterian boycott of Israel:
William Safire apparently errs about possible federal fraud prosecution:

William Safire writes:

"Whoever, having devised any scheme or artifice to defraud transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both." [18 U.S.C. sec. 1343.] . . .

At the root of what is today treated as an embarrassing blunder by duped CBS journalists may turn out to be a felony by its faithless sources.

Some person or persons conceived a scheme to create a series of false Texas Air National Guard documents and append a photocopied signature to one of them. The perpetrator then helped cause the fraudulent file to be transmitted by means of television communication to millions of voters for the purpose of influencing a federal election. . . .

I don't think that attempts to dupe voters into believe something qualify as attempts "to defraud." The Supreme Court has held, in McNally v. United States (1987),

[T]he words "to defraud" commonly refer "to wronging one in his property rights by dishonest methods or schemes," and "usually signify the deprivation of something of value by trick, deceit, chicane or overreaching." . . . We believe that Congress' intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes [i.e., frauds involving money and property]. . . . [W]e read [sec.] 1341 as limited in scope to the protection of property rights. . . .

Congress later provided that sec. 1343 also applied to "scheme[s] or artifice[s] to deprive another of the intangible right of honest services," 18 U.S.C. sec. 1346, which allowed prosecutions of corrupt government officials whose conduct deprived the public of its right to the officials' honest services. But Congress did not extend sec. 1343 to cover all deliberate lies, or even deliberate lies that are aimed at duping voters (or lies that give the liar access to campaign officials, which Safire suggests this lie might have done). So some statutes — see the posts noted below — might indeed punish such forgeries. But they aren't as easy to find as one might like, and sec. 1343 isn't one.

Crusaders, Columbus, and more:

My new guest blog post at is now up; here are the first few paragraphs:

Tongue Tied on reports -- presumably with disapproval, as an example of politically correct excess -- that

A Pennsylvania man is on a quest to rid a local Catholic high school of the "crusader" nickname because he says it represents an evil, violent chapter in the history of the Christian church, reports the Patriot News.

Perhaps to the surprise of some of my readers, I think the Pennsylvania man is (mostly) right.

Nebraska ACLU and lawyers' ethical obligations:

A few readers asked, apropos this post: Does the Nebraska ACLU have an ethical obligation to try to protect its client, even if that means asking for a court-imposed restriction on the press, and perhaps undermining its credibiltiy in future free speech cases?

My understanding -- which my colleague Norm Spaulding confirms -- is that (1) the ACLU can probably ask the client to agree up front that there are some things it won't do to represent him, but (2) if there was no such agreement, the ACLU may in fact be obligated to do all it can to protect the client. (I had meant to foreshadow that in the original post, but forgot to.) Public interest organizations often do agree with a client that the organization will do certain things (for instance, litigate the theory that is likely to set the precedent they like) and not do other things even if they're in the client's best interest (for instance, spend many hours getting the client a remedy that sets no helpful precedent). That's part of the deal: If a public interest firm is to invest its time and effort in a case, it can reasonably insist that it will seek those remedies that really serve its goals, and that it won't do other things that undermine its goals.

So I think the Nebraska ACLU should have made clear to the client up front that it wouldn't try to gag the media as part of its attempt to protect the client. But if it failed to do so, then maybe it is indeed stuck.

Here's the ACLU's press release, by the way:

ACLU denied court order protecting client from danger of attacks in Ten Commandments Case

ACLU Nebraska announced today that it sought and was denied a restraining order prohibiting the Omaha World Herald from identifying a plaintiff whose identity is under a court-ordered protective seal. The ACLU appeared before Judge Richard Kopf on Tuesday afternoon and asked the court for a temporary restraining order protecting the identify of John Doe, the plaintiff in the ACLU's suit over a religious monument in a Plattsmouth city park.

"We are concerned that our client's life will be placed at risk if his name is disclosed," said ACLU Executive Director Tim Butz. "We are at a loss to explain how identifying him by name will foster any public debate. All it will do is fuel hatred and perhaps lead to harm to our client and his family. Now that the World Herald has been told it may publish our client's name, we ask in the name of common decency that they not do so.

"The World Herald has already shown its editorial hostility to our Plattsmouth case and will paint our efforts as a violation of the First Amendment. We see it as something we were required to do in order to zealously represent our client's interest. In a perfect world, we would not have had to do seek this order, but then in a perfect world the newspaper would not have threatened to place our client's life at risk.

"It is unusual for the ACLU to be in court taking a position such as this, and we are the first to admit that this was difficult for us to do. The World Herald placed us in a conflict not of our choosing. We had only two choices, and we did not like either of them. We could do something that appears at first blush to be contrary to the First Amendment or we could do nothing and allow our client to be placed in jeopardy.

"Had there been time, we would have preferred to have a non-ACLU attorney represent him in today's hearing, but the World Herald would not give us any assurances that they would not publish his name before this could happen. As his counsel of record, our attorneys had to act and act quickly. The canon of ethics requires that we act in our client's interest and not in our own.

"We will review today's order with our client and allow him to determine what next steps will be taken."

Swaggart on Swaggart:

From the San Francisco Chronicle,






I leave it to readers to decide how much of an apology this really is. Thanks to Renato Mariotti for the pointer.

Christian bloggers on Swaggart:

Joe Carter (Evangelical Outpost) has some interesting comments, as does Rob Vischer (Mirror of Justice).

Nebraska ACLU asks for injunction against speech:

The Omaha World-Herald reports:

In a stark turnabout from its free-speech advocacy, the ACLU urged a judge Monday to prevent the Omaha World-Herald from publishing the name of the Plattsmouth, Neb., man who sued the city over a Ten Commandments monument.

Amy Miller, legal director of the American Civil Liberties Union Nebraska, asked the U.S. District Court for an order prohibiting The World-Herald from disclosing the man's identity, arguing that his safety and well-being would be endangered.

The newspaper vowed to fight the ACLU's request, saying it will continue to report on the court case because it is part of a major public policy issue. . . .

When the ACLU filed a lawsuit on the man's behalf three years ago, attorneys argued that the man should be able to proceed under the name John Doe. The ACLU said the pseudonym was necessary because of threats the man received over his protest of the monument in a city park.

Federal magistrate David L. Piester allowed the man to proceed anonymously, but that order applied only to the attorneys and the parties involved in the case. . . .

Now the ACLU wants the court to issue an order of confidentiality on the plaintiff's identity to apply beyond the courtroom. . . .

I highly doubt that the ACLU will win. (Note, incidentally, that this is yet another example of a Crime-Facilitating Speech controversy, since the ACLU is arguing that the publication of the plaintiff's name would facilitate crimes against him, even though the newspapers might not intend that result.) And I think it's also likely to lose some of its credibility in future cases where it tries to defend potentially harmful speech. True, they might reasonably argue that there's a difference between the speech they're trying to restrict here and the speech they try to protect elsewhere. But many in the public might not buy those arguments, and might see the ACLU as being unprincipled, and as simply trying to restrict speech that hurt its favored causes while protecting speech that helps its favored causes. And the ACLU's reputation for principled defense of free speech, and the grudging admiration that this has at times earned the ACLU even from some of its opponents, is one of its most valuable assets.

As I understand it, ACLU chapters have a lot of autonomy, and this decision by the Nebraska ACLU is likely not endorsed — and might even be much disapproved of, for all I know — by headquarters or by other chapters. People therefore ought not ascribe the decision to the ACLU generally; though in practice, I suspect that people will, given that most aren't aware of how the ACLU hierarchy operates. That's the nature of trademarks: One user of the mark can taint it in a way that affects all the other users as well, rightly or wrongly.

I hope to get a copy of the ACLU's motion in this case soon, and perhaps this might shed more light on the subject; if so, I'll blog more about it.

Conditions of Release and Technological Change: In a forthcoming article, I argue that the rapid pace of technological change makes it difficult for courts to craft lasting Fourth Amendment rules when technology is in flux. Soon after a court's rule is announced, the technological facts may change, requiring a new rule or leaving the validity of the old rule uncertain. On Monday, the Second Circuit decided a case that was keenly aware of this problem in the context of supervised release restrictions. In United States v. Balon, the defendant was sentenced to a 5 year prison term for child pornography offenses, to be followed by a period of supervised release. The district court imposed all sorts of restrictions on the defendant's computer use for the supervised release period following the defendant's prison term. (Supervised release is basically post-jail probation.) Balon appealed the conditions, arguing that they were "not reasonably related to the offense of conviction and involve a greater deprivation of liberty than reasonably necessary" under the relevant statutory standard.

  In an opinion by Judge Winter, the Second Circuit did something very interesting; the panel held that the challenges to the computer-related conditions were not yet ripe because the underlying technological facts may change between now and the time when the defendant is released from prison:
We find that the conditions reasonably relate to his offense, but whether they involve a greater deprivation of liberty than reasonably necessary is a question that is governed by the state of computer technology. Because it is currently impossible to predict the state of computer technology at the commencement of Balon's supervised release period, we find most of his challenges premature. We therefore leave the technology-dependent conditions with instructions to the district court to reconsider them at Balon's or the government's request near the time of Balon's supervised release term. As to the challenged conditions not directly dependent upon computer technology, we affirm.
  This is a pretty smart approach, I think. The courts can't craft a long-standing rule based on the facts because the technology is changing the facts so quickly; this approach lets the courts create a rule closer to the time of the rule-application.

Tuesday, September 21, 2004

Something for Everyone: It's hard to imagine a news story that combines sex, crime, elite law schools, civil liberties, and law school loans. But I think we may have a candidate in this story from yesterday's Oakland Tribune. Excerpts:
  Feds seeking $61K from alleged call girl
  No charges filed against Stanford Law graduate who lived in Oakland

  Federal prosecutors argue the government should keep $61,000 in cash seized from an Oakland woman who allegedly worked as a high-priced call girl to repay student loans from her time at Stanford Law School.
  Court documents detail how agents sifted through trash, conducted surveillance, interviewed clients and a colleague, pored over tax returns and surfed the Internet to build a case for keeping money seized from [Jane Doe], 31 — who they say used the name "Brazil" and charged $1,300 for two hours.
  But all jokes about the declining value of a Stanford law degree aside, [Doe] hasn't been charged with a federal crime.
  . . .
  [Doe]'s Web site remained active this week, registered in her name to her former address in Palo Alto; she moved to an apartment overlooking Oakland's Lake Merritt in September 2002, but a security guard at the building Friday said [Doe] no longer lives there.
  The Web site, depicting her in various lingerie-clad poses, describes her as a "Portuguese-speaking entertainer and physical model.
  "The quintessential Gemini, I am an unusual mix of well-educated good-girl and erotic-Bachian-sensualist, with some down-to-earth sweetness thrown in," it says. "I am sure you will never forget any time you spend with me and I look forward to meeting you soon.".
  . . . .
  The government's forfeiture complaint filed in July says [Doe] operated an interstate prostitution business since at least August 2001 — three months after earning her degree at Stanford Law School — by charging up to $1,300 for two hours, $5,000 for overnight and $15,000 for three days to serve clients in the Bay Area, Los Angeles, Washington, D.C., New York City, Chicago and Seattle..
  The complaint says investigators in September 2002 searched trash put out from [Doe]'s Palo Alto apartment, recovering items such as a law book containing $2,400 in $100 bills; bills and invoices from Washington, D.C., hotels; business cards in the name of "Brazil;" condoms; invoices for large cash purchases; tax records; an admission card for the July 2001 California Bar Exam; and a promotional postcard from a Southern California woman.

UPDATE, by Eugene Volokh: I deleted the name some years after the post went up, with Orin’s permission and based on a request from the woman involved and her new husband; now that years have passed and the story is no longer in the news, that seemed like the kind thing to do under these particular circumstances.

House Approves Penalties for False Web Records: Reuters reports:
 The U.S. House of Representatives on Tuesday approved a bill that would increase jail time for identity thieves and other fraudulent Web users who register sites under false identities.
 The bill, which passed by voice vote, would not directly outlaw the use of fraudulent registration information.
 Rather, it would increase by up to seven years the prison terms of those convicted of felonies.
 It must be approved by the Senate before it becomes law.
 Online investigators frequently find that suspects have filled out Web-site registration records with clearly fraudulent information — providing "555-555-5555" as a phone number or "Small Wok Way, Chopstick Town, WI" as a street address.
 As many as 10 percent of the Internet's 30 million domain names may be registered under false identities, according to a study released last year.
 "The government must play a greater role in detecting those who conceal their identities online," said Texas Republican Rep. Lamar Smith, a sponsor of the bill.
This is a potentially interesting development, although I haven't looked at the legislation myself to see whether the Reuters description is accurate. I'll have to check to see if this has a prayer on the Senate side, too.
Christianity Today weblog on Swaggart:

To its credit, Christianity Today magazine's weblog reports (thanks to Patrick Oden for the pointer):

Speaking of televangelists ...

Crouch [a figure from the preceding story] isn't the only TV preacher who needs help with his theology this week. In his September 12 broadcast, Jimmy Swaggart (remember him?) demonstrated exactly how not to oppose gay marriage. "I'm trying to find the correct name for it . . . this utter absolute, asinine, idiotic stupidity of men marrying men," he said. "I've never seen a man in my life I wanted to marry. And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died."


Homophobia might be a word thrown about too carelessly by the left, but remarks like Swaggart's are why the word exists in the first place. Let's be "blunt and plain": Biblically speaking, for a Christian minister to make such a comment is at least as sinful as it is for people to engage in homosexual activity.

The Canadian Radio Television Commission is investigating whether the broadcast, which aired on a Toronto station as well as several Christian stations in the U.S., constituted a criminal offense. The station that aired it apologized and called it "a serious breach" of Canadian broadcast regulations.

Jimmy Swaggart Ministries has removed the broadcast from its online archives.

One more related point: Leviticus 20:13 unfortunately does say "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them." I am very glad that most, likely nearly all, American Christians — and even those who tend to endorse a literal approach to the Bible — do not to my knowledge take this as a literal suggestion to kill homosexuals. I'm sure there are good Biblical arguments for why this passage ought not be taken that way, and I certainly hope that people follow these arguments.

But it seems to me that Christian leaders, especially in those denominations that do often speak about the importance of literal adherence to the Bible — and particularly stress the literal force of the Bible when citing Leviticus 18:22 ("Thou shalt not lie with mankind, as with womankind: it is abomination") as their chief support for less militant opposition to homosexuality — be watchful for other Christian leaders who may have been unduly swayed by the isolated Leviticus 20:13 text, or who may in any event be reinforcing the tendency of some parishioners to focus on the isolated text.

Again, I stress that American Christians, including ones who are relatively literal in their Biblical interpretation, generally do not support killing homosexuals. Yet it seems to me that thoughtful Christians should be aware of the potential of Leviticus 20:13 to do harm (especially, as I said, when citing Leviticus 18:22), and should use those opportunities that arise to warn fellow Christians about it. The Swaggart outburst seems to me one such opportunity.

Anthrax Threat Case: Does sending cornstarch designed to look like anthrax through the mail with the intent to scare the recipient violate the federal threat statute? In a 2-1 decision, the Third Circuit has ruled that the answer is yes. Here's the relevant statute, 18 U.S.C. 876(c):
Whoever knowingly so deposits [in the U.S. mail] any communication . . . addressed to any other person and containing . . . any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both.
In an opinion by Judge Fuentes, the panel ruled that the cornstarch was a communication (because it was designed to communicate a message), and that it contained a threat (both because it would naturally induce fear and because it suggested that additional mailings may be on the way). Judge Stapleton dissented, agreeing that there was a communication but finding no threat:
  I cannot conclude that the message"I have just poisoned you" can constitute a "threat" within the meaning of § 876. Such a message bears no indication that any conduct will be forthcoming by the sender.
  In this case, I have no doubt that a reasonable recipient of Zavrel's envelopes would believe that his health, and even his life, was in danger. That belief, however, could only have arisen from an event that had already occurred, i.e., exposure to the white powdery substance, and not from any future conduct that was yet to be undertaken
My initial sense is that Judge Stapleton has the much stronger argument. Either way, it's an interesting case. Thanks to Howard for the link.
Murder at Harvard?:

An interesting story from today's Washington Post.

More (Deserved) Media-Bashing: It's well-known in the blogosphere that Reuters refuses to call terrorists "terrorists," preferring various euphemisms and evasions.Via Honest Reporting, we get a revealing perspective on Reuters' integrity.

The New York Times reports that Reuters is upset that the CanWest newspaper chain changed a Reuters story to describe the Al Asqa Martyrs' brigade, a Palestinian terrorist group, as "a terrorist group":
So there you have it. Remember how CNN admitted that its reports from Iraq were constrained by fear for its reporters safety, as well as concern for access to the country? Now Reuters is admitting that its phraseology on arguably the most important issue of our times is dictated by fear of offending terrorists and their sympathizers. And if something as simple as use of the word "terrorist" is dictated by such fears, do we have any reason to trust that Reuters' coverage of the War on Terror, the Oslo War, and other terrorism-related stories is not being compromised by similar fears?
CBS and the media more broadly:

Mickey Kaus quotes a reader who makes an excellent point — last week, "Sandy Genelius, a network spokeswoman, said, 'We are confident about the chain of custody; we're confident in how we secured the documents'" (I'm quoting the Sept. 14 New York Times). But "[h]ow could they be confident of the chain of custody if, as appears, they never even spoke" to the National Guardsman from whom Burkett claims he got the documents (he now says he got them from some other source that he won't disclose)?

They might have had good reason to go with documents that they thought were properly authenticated (that's a strange thing to think here, but I still assume they did originally think it), even if the chain of custody — the evidence of how they got from the files to CBS — was bad. (I say "might.") But it seems just wrong, and knowingly wrong, to say that they "are confident about the chain of custody" in a situation like this.

On the other hand, who knows? Maybe the New York Times misquoted Genelius. What can one say after the failings of the media (perhaps the inevitable failings of any human institution) have been proven to one so often, at so many levels?

That's what's so sad: Surely the aggregate of Rathergate, the Jayson Blair scandal, the chronic misreporting about assault weapons, or any other individual incident, and everything else we've seen over the last several years — often thanks to the media criticism of blogging (a medium that thrives on media criticism) — has opened our eyes to just how little one can trust what one sees in the news media.

And yet no matter how skeptical one tries to be, one can't double-check everything. We have to trust outside sources. But the same sources that claim to be so trustworthy are, it turns out, often untrustworthy, sometimes in huge ways (falling for outright frauds) but also often in many small ways (media bias, whether political, social, or personal, that repeatedly leads to erroneous and misleading information).

I suspect this has been true all along — it's just that we can't ignore it any more. We have to learn to live with a world of extraordinarily imperfect information. And that's a lot more work than assuming that the media (or at least certain media) is highly accurate.

More on Swaggart:

I continue to feel strongly about the need for ideological movements (whether Christians, liberals, conservatives, and so on) to police their own, and publicly condemn them when they merit condemnation. Nonetheless, I've gotten two kinds of responses that, if factually well-founded, would undermine this as to Swaggart.

First, a couple of people suggested that "kill them and tell God they died" is a colloquial phrase in Texas and Louisiana that is a facetious way of saying "I'm really annoyed by this person" — often someone close to you — but with no real connotation of killing, or even of murderous anger (see, e.g., this book title). I'd never heard of this usage before some readers told me about it; and the context, "And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died," with accompanying talk of "abomination" and "utter absolute, asinine, idiotic stupidity," surely didn't seem like good-natured joking about being really annoyed about something. Swaggart's manner also didn't seem humorous, and I suspect that at least people in his Canadian audience (the program was broadcast in Canada as well as in Louisiana) didn't see it as a joke. But I do want to flag the possibility that this was pretty misplaced and callous humor rather than serious anger.

Second, some readers suggested that Swaggart is so marginal that he doesn't merit attention, even negative attention. As reader David Allen colorfully put it,

While I agree with you in general (policing your own, etc), at what point of silly "off the deep end" nutcase do we get to ignore people? I mean, I can ignore the guy on the corner who gets arrested regularly for flashing traffic, saying God told him to, right?

In my book (and a lot of others, I think), Swaggart is a pathetic and previously exposed con-man. How long do we need to pay attention to him?

I was struck by Swaggart's statement because Swaggart was very big in the 1980s; he has been described as "the most popular television preacher of his day", and even accounting for some hyperbole, he was surely near the very top. The prostitute scandals, which led to his being disgraced and apparently disciplined by his own denomination, surely brought him down. But my assumption is that, given his continuing ministry and continuing TV presence, coupled with his past fame, he still has some influence — while many Christians rightly ignore him, he has enough sway with some that he does deserve denunciation. My sense is that anyone who is on television (and not just the 3 am local public access cable) has some potential to do harm.

Still, if my impression based on his past fame is mistaken, and Swaggart today really is a laughingstock with next to no influence, even in the evangelical community (the natural place for him to have some lingering appeal), then I agree that this makes condemning him much less important. Still worth doing, I think, but considerably less imperative.

UPDATE: A couple of readers, in making the second point I was responding to above, suggested that Swaggart was to modern American Christians was like Michael Moore to liberals and Democrats or Pat Buchanan to conservatives and Republicans. If that's right, then it supports my point that Christians should disavow appalling things said by Swaggart. Moore and Buchanan may not be middle-of-the-road Democrats or Republicans, but they do have substantial followings, I believe, within those movements. (Moore more so than Buchanan, I suspect, since Buchanan is generally seen as yesterday's news, but even Buchanan does still seem to enjoy, to the best of my knowledge, some respect from one corner of conservatism.) If Moore says outrageous things speaking as a liberal or a Democrat, or if Buchanan says outrageous things speaking as a conservative or a Republican, then mainstream leaders of those movements should indeed denounce them -- both to help stop such outrageous sentiments from spreading, and to protect the good name of the ideological movement generally.

On the other hand, if Swaggart is a much more marginal figure, like Lyndon LaRouche -- an analogy another reader drew -- then denouncing him becomes less important.

Cell Phones:

Love'em or hate'em, cell phones have changed our daily experiences over the last decade. Christine Rosen has authored a thoughtful essay, Our Cell Phones, Ourselves, that considers some of those changes:

But if this ubiquitous technology is now a normal part of life, our adjustment to it has not been without consequences. Especially in the United States, where cell phone use still remains low compared to other countries, we are rapidly approaching a tipping point with this technology. How has it changed our behavior, and how might it continue to do so? What new rules ought we to impose on its use? Most importantly, how has the wireless telephone encouraged us to connect individually but disconnect socially, ceding, in the process, much that was civil and civilized about the use of public space?

Monday, September 20, 2004

Flip Side of Bush Protest Arrests:

While the recent case of Sue Niederer looks kind of bogus when put under the microscope, it is worth pointing out that other cases are not so bogus. In particular, this case from July looks like a legitimate case of a couple being arrested for their anti-Bush speech. The ACLU has recently brought a lawsuit in the case, complaint available here, so I suspect we will hear more about it.

Justice Scalia the Pragmatist?: Tonight I attended a lecture by Justice Antonin Scalia, entitled The Courts and Democracy, hosted by the Ethics and Public Policy Center here in Washington, DC. Scalia hit on a number of his usual themes: the dangers of a living Constitution, the tension between democracy and expansive judicial interpretations of the Constitution, etc. But I was interested in the degree to which his vision was essentially pragmatist, or to be more specific, formalism justified by pragmatism. Here's my best recollection of his basic argument, along with a few comments.

  Scalia began by discussing how in the late 19th and early 20th century, it was broadly believed that the problems of a complex industrial democracy needed to be resolved by "experts." If only you could have an "expert" resolve difficult questions, people figured, then you could get a neutral nonpolitical answer to difficult political questions. In time we have realized that this doesn't work, Scalia noted. Political questions often boil down to policy preferences, and experts have no greater insight into the "right" policy preferences than any one else. These are questions with no right answer, and experts have no advantage in resolving them.


  I haven't read all of Scalia's writings, but my sense is that his rationale for judicial restraint in the context of moral questions was more pragmatist than his usual approach. That is, Scalia didn't say that courts should defer to the democratic process in the context of moral questions because for better or worse the Constitution commands it. Primarily he argued that courts should defer because they are institutionally poorly equipped to resolve those types of questions. This may be my quirky and idiosyncratic reaction to Scalia's address — if any VC readers were present and think I am mispresenting Scalia's speech, please contact me — but I found his reliance on pragmatist themes a bit surprising.

  I don't think the lecture will be broadcast or published, but there were a number of journalists present who I gather will be filing reports shortly.

  UPDATE: Here is Hope Yen's Associated Press story on the speech. It doesn't mention legal theory. Go figure.
Jimmy Swaggart, unclear on the Ten Commandments:

Swaggart says this about homosexuals:


The audience laughs and cheers, though when Swaggart is saying the "I'm gonna kill him" part, he sure doesn't seem to be joking. Andrew Sullivan points to the program, available here; check out the material starting at around 36:00 — I watched it, and the transcript is right. Later, as Andrew says, "Swaggart also claims he has nothing against 'the poor homosexual,'" except that he seems to think it's fine to kill them.

There's apparently talk about the Canadian government trying to punish this, since it was broadcast in Canada. I don't support that, and I'm quite sure that the First Amendment wouldn't allow such speech to be punished in the U.S.

But it seems to me that decent Christians ought to condemn this defender of murder, who publicly says that he'd violate the Ten Commandments when someone "looks at [him]" the wrong way, while purporting to preach God's word and lead Christian congregations. Tell us, at least, that this supposed Christian — who was once one of the nation's leading evangelists, until he was tripped up by another of the Commandments — doesn't speak for you.

UPDATE: Sweeney A. (Res Ipsa Loquitur) writes:

Eugene is certainly right that ethical people should condemn [Swaggart's] words, but one wonder's about Eugene's implication that this moral stain is automatically conferred to other Christians until they renounce it. One might say that for a Christian who has heard this comment to consciously refuse to renounce it is a tacit endorsement. That may be true, but the very terms in which Volokh has couched the ultimatum is unfair.

Since advocating murder because a gay man looks at you wrong is an obvious violation of the Christian ethic, why should Christians, qua Christians, feel obligated to renounce the remarks any more than people who share the last name of Swaggart?

For the record, I condemn the remarks, but Volokh's post was an unfair example of guilt by association.

Christianity is a belief system — not just an involuntary status such as race or ethnicity, but a consciously chosen belief system that is based on certain writings and certain traditions. Historically, Christians have often stressed the importance of those writings, which supposedly provide something of an objective standard of behavior, and of a Christian community, which helps enforce this behavioral standard. In recent decades, many Christians have also tried to downplay denominational differences (say, between Protestants and Catholics), and to stress the common purpose of those who follow Jesus's teachings.

When someone who is a Christian minister, and still something of a Christian leader, makes a claim about what Christian scriptures mean, it seems to me that those Christians who condemn his views — and condemn them as deeply evil, rather than just subtly or slightly wrong — do have a responsibility to speak out. Though this man calls himself a Christian leader, they should say, his is not the Christianity that we endorse. That, I think, is needed for them (1) to better educate their own children (whom they've presumably raised to have at least some respect for Christian leaders), (2) to diminish the chance that their fellow parishioners will be seduced from the righteous path by this Christian leader's cachet, and (3) to make clearer to the non-Christian world that the Christian mainstream does not endorse this interpretation of Christian scriptures.

That's not guilt by association: I do not condemn people simply because those who share their religious affiliation advocate bad things. I do expect Christians (or, in analogous situations, Muslims or religious Jews), as people who care about the reputation of Christianity and of the Christian community of belief, to want to tell the world: "True Christianity, as I understand it, doesn't endorse such atrocities" (and, in particular, doesn't follow Leviticus 20:13, "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them"). And when people don't object to what is done in the name of their religion by those who claim to share it — when they don't express any interest in the religion's being tainted by the views of those who speak on its behalf — then I do wonder whether those people might in fact agree (or at least not strongly disagree) with those who purport to speak on their religion's behalf.

As to Swaggart's actions being "an obvious violation of the Christian ethic" — well, since so little is obvious in religion and in scriptural interpretation, it seems to me that non-Christians would understandably like some assurance from other Christians that this is indeed so. And Christians should try to remind those, like Swaggart and apparently some of his congregation, that they are indeed obviously wrong, and are undermining Christianity's reputation.

FURTHER UPDATE: I've gotten a bunch more messages along the vein of the one I quote in the UPDATE above; but I'm still of the view that I expressed originally.

I'm not asking for anything much — I'm simply saying that Christians should be outraged at Swaggart's essentially slandering their religion, and should denounce his views, to make clear that his views (though purportedly Christian) are not mainstream Christian views. Swaggart calls himself a Christian; was once a very prominent minister; continues apparently to have some influence; and purports to interpret the Bible. His statements are representations of what Christianity is supposed to be about. I would think that Christians would want to denounce those representations, and the closer they are in denomination to him (e.g., Protestants, evangelical Protestants, etc.), the more they would want to do that.

This is the standard that I use for members of my ideological movement — when Republicans say outrageous things, it seems to me that we Republicans ought to condemn them, to try to redeem the movement's good name. Careful readers of this blog will notice that I have done this in the past, and that many other Republicans have done it as well. This is one of the responsibilities of being part of an ideological movement, of urging others to join your movement, and of praising the movement as good for society: You need to police your own, or those who purport to be your own. Not an onerous responsibility, or an unreasonable imposition, it seems to me.


"Speech as Conduct":

I'm glad to say that my Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones is now off my desk and sent to the law reviews. Now I can move on to some new projects (the chief one likely being Freedom of Speech and Child Custody).

CBS statements:

Drudge was indeed right. Here's the official Rather statement:

Last week, amid increasing questions about the authenticity of documents used in support of a "60 Minutes Wednesday" story about President Bush's time in the Texas Air National Guard, CBS News vowed to re-examine the documents in question-and their source-vigorously. And we promised that we would let the American public know what this examination turned up, whatever the outcome.




Here's the CBS statement on Bill Burkett's role in all this:

Bill Burkett, in a weekend interview with CBS News Anchor and Correspondent Dan Rather, has acknowledged that he provided the now-disputed documents used in the Sept. 8 "60 Minutes Wednesday" report on President Bush's service in the Texas Air National Guard.



And here's more from CBS.


A reader writes, apropos the various posts on homosexuality:

I think the basic problem is simple: many people find anal sex to be gross. Unfortunately, in thinking so, people seem to very carefully overlook the reality that pretty much EVERY form of sex is pretty darn gross from the standpoint of "finer sensibilities." It's just that human lust seems to be in part designed to help overide such considerations and carefully change the subject from "hygine" to "hell yeah!" Some blinders seem built in to the human psyche, and, I guess, thankfuly so.

I've always thought that if people applied otherwise applicable standards of ickiness to sex or to food, no-one would ever enjoy either. (Do you know what's crawled all over that carrot? Do you know how many microscopic bugs there are on that sandwich?)

Drudge posts purported Rather statement:

The Drudge Report reports:



Now, after extensive additional interviews, I no longer have the confidence in these documents that would allow us to continue vouching for them journalistically. I find we have been misled on the key question of how our source for the documents came into possession of these papers. That, combined with some of the questions that have been raised in public and in the press, leads me to a point where -- if I knew then what I know now -- I would not have gone ahead with the story as it was aired, and I certainly would not have used the documents in question.



I don't know whether this is authentic -- I guess we'll hear soon enough if it isn't.

Thanks to reader Stephen St. Onge for the pointer.

More on liberals and moral relativism:

Many thanks to all those who responded to my Friday post on moral relativism and liberals. I'm guest-blogging at this week (though I'll still be posting more often here than there), and I've posted a much elaborated version of my post there. I hope the version responds to most of the objections that I've gotten, though I hope to blog some more responses here later today.

Kerry supporter vs. Bush supporter on medical malpractice reform,

at See the first pro-Kerry post (from Ron Chusid, Doctors for Kerry) and the first pro-Bush post (from Ted Frank, a lawyer and coblogger at

Pleading guilty:

I got an e-mail from a blogger mentioning this post, which faults Mayor Bloomberg for urging arrested protesters to plead guilty. The newspaper article about Bloomberg's statements says:

Everyone arrested during the Republican convention "might as well just plead guilty and go on" rather than take their fight to court, Mayor Bloomberg said yesterday.

Hundreds of people who were arrested during the GOP convention last month claim they were wrongly detained, abused by cops and held longer than necessary in order to keep them off the streets.

But Bloomberg insisted that there's no proof that the NYPD did anything wrong. "There is absolutely no evidence whatsoever that there was any intent by any law-enforcement official to hold people any longer than was absolutely necessary to process them," he said before marching in the Mexican Day Parade on Madison Avenue.

Bloomberg pointed out that many protesters who were arrested have already pleaded guilty. "I suspect that most of them [did so] because they know they don't have a case," he said. "They broke the law . . . They might as well just plead guilty and go on."

The poster proceeds to call Bloomberg and his remarks, a "jackhole," an "unmitigated moron," an "idiot," an "impaired imbecile," "limitless[ly] stupid[]," a "buffoon," "clunkhead," "inane," and "plain dumb." Why? Here's the argument, shorn of the rhetoric. Because of the principle "Innocent until proven guilty," "the Fifth and Sixth Amendments," and "[t]he government['s being] required to prove its case beyond a reasonable doubt," it's somehow wrong for the mayor to even urge — not force, but just urge — people to plead guilty.

Not much of an argument, it seems to me. Certainly people who are guilty — recall that Bloomberg's assertion, which the poster does not criticize on the facts, is that the people are indeed guilty — are entitled to plead not guilty and demand a trial. But government officials are equally entitled to suggest that the cases against them are strong, and that it's better for them as well as for the city to admit their guilt.

What's more, presumably Mayor Bloomberg believes that the protesters are not only legally guilty, but also morally culpable. If so, then he is certainly free to argue that it's even morally better for them to admit their guilt, rather than to waste New York taxpayers' money and city officials' time and effort challenging the prosecution.

That one has a constitutional right to do something (whether it's to publish a racist manifesto, burn the American flag, get an abortion, have ten children that one can't afford, own a gun, or plead not guilty) doesn't mean that government officials are somehow "idiot[s]" for arguing to people that the better — better for the person, better for the City, and better morally — course of action is not to exercise that right. Naturally, one may disagree with them on the merits, by explaining why one thinks the person should indeed exercise the right; but simply saying that it's a constitutional right hardly resolves the question whether it's right, moral, or wise for the person to exercise it.

But beyond this, if I'm right and the poster is mistaken (and that the Mayor's position is at least defensible, whether or not one thinks it's clearly correct), wouldn't it have been a little more prudent for the poster to have made his objection more calmly? First, this might have made it easier for him to notice that while the post was long on rhetoric, it missed an important logical step — the explanation for why having a constitutional right to demand a trial should lead one to think that it's improper for government officials to urge people not to exercise that right. And, second, I know that I'd be less embarrassed to have made an error when the error led me to say "this is why I think the Mayor is mistaken" than when it led me to throw a bunch of personal insults.

CBS seems ready to admit at least partial error in Rathergate:

The New York Times reports that



But they cautioned that CBS News could still pull back from an announcement. . . . The developments last night marked a dramatic turn for CBS News, which for a week stood steadfastly by its Sept. 8 report as various document experts asserted that the typeface of the memos could have been produced only by a modern-day word processor, not Vietnam War-era typewriters. . . .




Another Detail Maureen Dowd Missed: This is an update to yesterday's post on Maureen Dowd's Sunday New York Times column No Stars, Just Cuffs, about "Sue Niederer, 55, of Hopewell, N.J., [who] got handcuffed, arrested and charged with a crime for daring to challenge the Bush policy in Iraq." It turns out that the charges against Niederer were dismissed by the Mercer Country Prosecutor, who wisely exercised his prosecutorial discretion and declined to prosecute the case. In a published statement, the County prosecutor explained:
  It is our determination that the police officers had more than enough probable cause to arrest Ms. Sapir-Niederer and were justified in the their actions . . . Taking all factors into consideration, including the recent loss of her son while serving in the armed forces in Iraq, I believe that the continued prosecution of this matter would serve no useful purpose.
  Perhaps the most interesting part of this is the timing. Niederer interrupted the Laura Bush rally and was arrested on Thursday; the prosecutor declined to prosecute, had the charges dismissed, and released his statement explaining the decision on Friday. Maureen Dowd's column describing how Niederer was arrested and charged to "squelch" her speech appeared two days later, on Sunday, without any mention that the charges against her had been dismissed already.

  To be fair, Dowd does not say anything in her column about Niederer being prosecuted; she limited the description to Niederer's being handcuffed, arrested, and charged. That is factually true. So here, unlike with Dowd's statement that Niederer left voluntarily, my concern is with completeness, not inaccuracy. I realize that Dowd's column is an opinion column rather than a news article, but the fact that the charges against Niederer had been dismissed already seems worth pointing out in the story.

Sunday, September 19, 2004

What he said:

I just read Larry Solum's post on hypotheticals that Orin praised, and I agree: It's a great post that every incoming law student — and maybe even some who have been in school for a year or two — should read.

UPDATE: Or to really persuade you, following the lead of Larry's post itself, it's a great post. It's a great post. It's a great post. (And, no, I'm not going to explain this.)

Hypothetical Questions:

Over at Legal Theory Blog, Larry Solum has a terrific post on why law professors ask hypothetical questions. If you're a first-year law student, or just interested in legal education, be sure to check it out.

Forthcoming books about historian scandals:

Ralph Luker has notes on two recent books on the subject, which cover Ambrose, Bellesiles, Ellis, and more.

From the Grapevine's preliminary look at galleys, it appears that Hoffer [one author] finds larger patterns of plagiarism in the work of Ambrose and Goodwin than they were initially charged with. He does apparently find Bellesiles guilty of having committed fraud. And he does, apparently, find the personal deceptions of Joseph Ellis having crept into his otherwise distinguished published work. A more ominous note, suggesting that Hoffer has spread his net far beyond Ambrose, Bellesiles, Ellis, and Goodwin, makes me think that historians . . . will glance at the packaging, take it to our offices, close the door behind us, and check to see if our names appear in the index. . . .

Maureen Dowd's Police State: Maureen Dowd's latest New York Times column, "No Stars, Just Cuffs," describes what appears to be a terrible violation of the First Amendment:
  In World Wars I and II, gold star mothers were the queens of their neighborhoods, the stars in their windows ensuring that they would be treated with great respect for their sacrifice in sending sons overseas to fight and die against the Germans and Japanese.
  She came to a Laura Bush rally last week at a firehouse in Hamilton, N.J., wearing a T-shirt that blazed with her agony and anger: "President Bush You Killed My Son."
  Mrs. Niederer tried to shout while the first lady was delivering her standard ode to her husband's efforts to fight terrorism. She wanted to know why the Bush twins weren't serving in Iraq "if it's such a justified war," as she put it afterward. The Record of Hackensack, N.J., reported that the mother of the dead soldier was boxed in by Bush supporters yelling "Four more years!" and wielding "Bush/Cheney" signs. Though she eventually left voluntarily, she was charged with trespassing while talking to reporters.
  The moment was emblematic of how far the Bushies will go to squelch any voice that presents a view of Iraq that's different from the sunny party line, which they continue to dish out despite a torrent of alarming evidence to the contrary.
  Sounds bad, doesn't it? As Brian Leiter puts it in his understated way, "Sieg heil, American style"? It seems bad enough that I began to wonder if it could have been quite as bad as Dowd suggests. I know this will shock VC readers, but a bit of google and Westlaw research suggests it wasn't.

  To begin with, I am unsure how Dowd reaches the conclusion that Niederer "eventually left voluntarily." According to Niederer herself, as reported here, as soon as she started shouting "it became chaotic and I was pushed and shoved." "[Secret Service agents] engulfed me. It wasn't plain, ordinary folks, but people in suits with earphones." The Secret Service agents escorted her to the exit of the building. Once near the exit, Niederer "refused to leave," according to this report:
  As the Hamilton police and Secret Service agents surrounded her and reporters pressed her with questions, she held her ground, claiming "I had my ticket" to attend the speech by the first lady.
  Police subsequently handcuffed her and she was led away to a nearby van. As she was escorted, she repeatedly shouted "Police brutality" and demanded to know her rights and the charges.
  Later, she was charged with defiant trespass and released.
  Hmm, so much for leaving voluntarily. Well, what about the basis for the trespass charge? Was Niederer's arrest a flimsy pretext for suppressing anti-Bush views, as Dowd suggests, or was there a solid basis for a trespass charge? We get a few more details of the facts from the New York Daily News, which reports Niederer's description of what happened as follows:
  "The police said I was trespassing because I was blocking an exit from the hall while I spoke to reporters," [Niederer] said.
  "I said how could I be trespassing when I had an entry card to be there? This is a democratic country. I should have the right to say what I want at all times, and not be arrested because my thoughts are different to the President's."
  . . . .
  "The police were very nice to me," she said. "I don't think they wanted to arrest me, but they did what they felt they had to do. I'm expecting the charge to be dismissed."
(This is an aside, but is anyone else struck by the fact that Niederer "repeatedly shouted 'police brutality'" while she was being arrested but soon afterwards volunteered that "the police were very nice to me"? Oh well, back to the story.) We get still more details about Neider's theory of why she was not trespassing from the Asbury Park Press:
  "I had a ticket to get in," said Niederer, adding that Hamilton police kept her ticket as evidence. "I was in there legitimately."
  Niederer said she obtained a ticket by going to Republican campaign headquarters Tuesday, as a local newspaper had advised readers to do. She said some campaign workers recognized her as an outspoken anti-war activist, but still gave her a ticket. No one stopped Niederer when she checked in by name at yesterday's event.
  Okay, those are the facts, let's now turn to the law. Niederer was charged under New Jersey's defiant trespasser statute, N.J.S.A. 2C:18-3(b), which prohibits leaving private property after the owner/operator of the property has told you to leave:
  Defiant trespasser. A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he . . . remains in any place as to which notice against trespass is given by . . . [a]ctual communication to the actor.

  Defenses. It is an affirmative defense to prosecution under this section that . . . [t]he structure was at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the structure[.]
  Under New Jersey precedents, it seems likely that Niederer violated this provision. The fact that she had a ticket to enter the firehouse for the speech doesn't answer the question, as permission granted can also be revoked. For example, in State v. Brennan, 344 N.J.Super. 136, 780 A.2d 585 (N.J. App. Div. 2001), the defendant became disruptive at a public meeting and was told by the police to leave. The defendant refused, and was charged and convicted of defiant trespass. The Appellate Division affirmed the conviction, holding that refusal to obey a reasonable police order to leave violated the statute:
  Although defendant had been lawfully on the premises, when the police officers asked him to leave, that privilege was revoked.
Id. at 146. Similarly, in State v. Dargon, 165 N.J.Super. 500, 398 A.2d 891 (N.J. App. Div. 1978), union representatives were granted permission to come to a private hospital to represent the union prior to the opening of a unionization vote. When the polls opened, the representatives decided to stay to monitor the vote. After they were asked to leave and refused, the representatives were arrested and charged with defiant trespass. The Appellate Division affirmed the convictions:
  Although defendants entered the premises with the permission of the hospital for the limited purpose of the preliminary representation of the Association prior to the opening of the polls, the hospital authorities had the right to ask them to leave the building thereafter. And whether they were in the lobby or elsewhere in the building, their deliberate and persistent refusal to leave pursuant to the several requests rendered them wilful trespassers within the interdiction of the foregoing statute.
Id. at 503-04.

  Based on these precedents, it seems that the ticket Niederer received to attend the speech did not give her an inalienable right to stay on the premises. Although we don't know the facts with enough specificity to know for sure, it seems that once she was told to leave by officers acting reasonably within the scope of their duties, Niederer's permission to remain was revoked.

  But did Niederer actually know that she did not have permission to stay on the premises? The statute was not violated unless Niederer knew that she was "not licensed or privileged" to remain on the property. Niederer knew that she had been told to leave, but presumably will claim that she didn't know that being told to leave was enough to make her presence unauthorized. However, under New Jersey law what matters is her knowledge of the relevant facts, not Niederer's beliefs that the ticket trumped as a matter of law: "Neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the code so provides." N.J.S.A. 2C:2-2(d). Although I couldn't find any cases on point, my understanding is that this means that Niederer can be prosecuted if she knew she had been told to leave by the authorities, even if she had a good faith (but incorrect) belief that the ticket gave her a legal right to remain on the premises.

  Of course, this doesn't mean that Niederer should be prosecuted. I have tremendous sympathy for her situation; she has suffered a tragic loss. But at least on the facts that we know, Maureen Dowd's statement that Niederer was "handcuffed, arrested and charged with a crime for daring to challenge the Bush policy in Iraq" seems a bit hard to square with reality.