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Saturday, October 16, 2004

Mark Steyn on the canadian health care system.--

Mark Steyn has a column on the Canadian health care system (written for Canadians). He makes a point that I had never thought about before:

When health care is the government's responsibility, it becomes its principal responsibility. Imagine if we [in Canada] had as many high-profile conferences on national security as we do on health. But we don't. Because the minute you make government the provider of health care, you ensure that, come election time, the electorate identifies health as its number one concern. Thus, in a democracy, the very fact of socialized health care seduces government away from its prime responsibility - the defence of the realm. In the Canadian cabinet, the Health portfolio is more prestigious than Defence. Think Donald Rumsfeld would regard it as a promotion if he were moved to Health?

This line of thinking is interesting--that when the government takes over health care, health care becomes the primary concern of government. It also explains one of the odd differences between European and American conservatives. European conservatives tend to be strongly anti-immigration; American conservatives are not. In the General Social Survey, conservatives differ insignificantly from political moderates on favoring more or less immigration. Liberals are slightly but significantly more pro-immigration than either conservatives or moderates.

Once almost everyone in a country accepts that the primary concern of government is providing things that individuals and employers might provide (as may be true in parts of Europe), then opposition to the liberal consensus becomes focused on keeping others (immigrants) from sharing in the country's seeming largesse. In the US, on the other hand, political conservatism is focused, not on immigration, but on the size of government--as well as, of course, moral and social issues.

UPDATE: My comments were not about the current election, but rather about conservatives and their views in the general public. I would strongly recommend Stuart Benjamin's post above, which points out what a disaster on smaller government George Bush has been. While I don't believe that Kerry would be any better on this than Bush, Benjamin offers some genuine reasons (not just speculations) on why Kerry should theoretically be better than Bush on this. I suppose it depends mostly on whether Kerry gets his wishes on health care. Also, one should figure in not just legislation, but the appointments to the courts and the agencies. Which candidate's appointments would favor smaller government? I, for one, like the current slightly left of center orientation of the Supreme Court and the lower courts (eg, abortion, affirmative action, free speech), and would not like to see a significant shift one way or the other.

CAMPAIGN SPAM:

Is anyone else getting spammed to death by the Bush-Cheney Campaign (or perhaps Kerry-Edwards as appropriate)? I swear every day I open my email I have at least one email from "Mark Racicot" or "Ed Gillespie." Is this their way of trying to get me to contribute more money--by annoying me?

Jon Stewart:

Jon Stewart takes on Tucker Carlson and Paul Begala of CNN's Crossfire here. (Compressed .wmv file; the video is about 13 minutes long.)

Law Student Forces Change in College Application Policy:

A very interesting story from today's New York Times.

Metal Detector at Protest Ruled Unconstitutional: Yesterday, the Eleventh Circuit held that a city police policy requiring everyone attending a November 2002 protest against the "School of the Americas" to pass through a metal detector violated the Fourth and First Amendments.

  The court's opinion is particularly notable for its rebuke of the city's effort to justify use of the metal detector based on 9/11:
  The City's brief begins with the bold declaration that "[l]ocal governments need an opinion that, without question, allows non-discriminatory, low-level magnetometer searches at large gatherings." Appellees' Brief at 13. Citing nothing more than a single case from 1980, the City contends that "[p]ost September 11, 2001, this Court can determine [that] the preventive measure of a magnetometer at large gatherings is constitutional as a matter of law." Id. (citing Donovan v. Dewey, 452 U.S. 594, 606 (1980)).

  This argument is troubling. While the threat of terrorism is omnipresent, we cannot use it as the basis for restricting the scope of the Fourth Amendment's protections in any large gathering of people. In the absence of some reason to believe that international terrorists would target or infiltrate this protest, there is no basis for using September 11 as an excuse for searching the protestors.

  Even putting aside the City's ill-advised and groundless reference to September 11, its demand for the unbridled power to perform "magnetometer searches at [all] large gatherings" is untenable. The text of the Fourth Amendment contains no exception for large gatherings of people. . . .
If It Involves Datamining, It Must Be Bad:

Two years ago, public concern over the proposed Total Information Awareness datamining program led Congress to defund the program. At the time, the thinking was that while the private sector and the international community was free to gather, scan, and assess large databases for all sorts of purposes, it was problematic to have the United States government trying to do that here in the United States.

  I'm a bit puzzled, then, by a front page article in the Washington Post announcing with considerable alarm that a new company has formed: Global Information Group, a company that plans on doing data gathering and mining for the private sector out of the Bahamas. The company has hired a former government official, Ben Bell, who used to be the Director of the Transportation Security Administration's Office of National Risk Assessment. According to the Post:

The company plans to do such things as assess foreign job candidates for risk, conduct background checks on cargo ship crews or take stock of people who want to open bank accounts in the United States, documents and interviews show. It also will provide something the company calls "terrorist risk identity assessment," a company document shows.
Why is the new company troublesome? Well, if TIA was problematic because it was a U.S. government program that would operate in the United States, the Post article suggests that the new company is troublesome because it is not a U.S. government program and it would not operate in the United States:
  Legal and privacy specialists said the company raises troubling new questions about the ability of computers — in both the government and private sectors — to collect and analyze personal information for homeland security. These critics said Global's initiative echoes the aims of the troubled government passenger-screening system, as well as another controversial program at the Defense Department that was shut down by Congress called Total Information Awareness.
  An important difference from those programs, these critics said, is that Global operates in private hands, offshore and beyond the oversight that stymied the government programs. "As a business matter, there are layers of legal protections and public relations protections they can get by going offshore," Peter P. Swire, a law professor at Ohio State University and privacy counselor in the Clinton administration. "It might meet business interests, but not necessarily the public interest."
  Charles Lewis, executive director of the Center for Public Integrity, said he worries that Global will become a contractor for government work that government officials could not get backing to do themselves. "He is making a highly controversial program more controversial," Lewis said about Bell. "Now he's doing it offshore and making money off of it."
  UPDATE: This page provides some context. It explains that the author of the Post story, Robert O'Harrow, "has carved out a data privacy beat" and has links to many other stories O'Harrow has written for the Post that raise the same privacy concerns.

Friday, October 15, 2004

Reasons to Love The Corner:

Rick Brookhiser quoting Muddy Waters. (The anti-immigration stuff, on the other hand, I could certainly do without.)

The Long-Delayed Jane Fonda Blacklist:

This statement in a Slate review of Trey Parker's and Matt Stone's Team America: World Police struck me as odd:

[W]hen Alec Baldwin, Sean Penn, Tim Robbins, Susan Sarandon, and Janeane Garofolo moronically align themselves with Kim Jong-il and start wielding automatic weapons against Team America, well . . . Leftist actors learned from Vietnam not to cozy up to dictators: Jane Fonda, one of the best actresses of her generation, hasn't worked in more than a decade.

I certainly don't think Alec Baldwin et al. are big fans of Kim Jong-Il, but I suspect that this isn't exactly Parker & Stone's point (hard to tell for sure what their point is until I see the movie, but it's a fair bet that over-the-top comedians' comedy isn't exactly to be interpreted literally). But setting that aside, I have two questions.

(1) Jane Fonda worked quite a bit in the aftermath of the Vietnam war, when you'd think her sympathies with the North Vietnamese would have hurt her most, and then during the Reagan Administration. She then apparently did nothing until the forthcoming Monster-in-Law — including through the Clinton era. Is it really that plausible that Fonda's not working in the 1990s, while having worked through the 1970s and 1980s, stems from her pro-North Vietnam activities?

(2) Have leftist actors not been cozying up to Fidel Castro? Or is he not a dictator?

Thursday, October 14, 2004

Conference on Lochner v. New York: On Friday and Saturday of this week (October 15-16), Boston University School of Law is holding a conference to commemorate the centennial of the landmark Supreme Court case of Lochner v. New York. In Lochner, the Supreme Court held that a state maximum hours laws for bakery workers violated the Due Process Clause of the Fourteenth Amendment because it interfered with the liberty of contract. (The case was decided in 1905, and the law review issue in which the paper are to be published will appear in 2005.) The case later came to be reviled by the Supreme Court and constitutional law professors, though in recent years it has received somewhat more sympathetic treatment by some legal academics.

Very interesting papers will be given by Lynn A. Baker (Texas), Jack M. Balkin (Yale), Barry Cushman (Virginia), Pamela S. Karlan (Stanford), and Keith E. Whittington (Princeton). Commentators include: David E. Bernstein (GMU & the Volokh Conspiracy), William E. Forbath (Texas), Richard Thompson Ford (Stanford), Howard Gillman USC) and Joseph W. Singer (Harvard).

The conference begins with a panel I will moderate on Jack Balkin's paper on Friday at 3:00pm, followed by the other four papers on Saturday. Faculty, law students and other readers of the Volokh Conspiracy are welcome to attend free of charge. Even if you cannot come both days, stop by for whatever you can catch. And identify yourself as a Volokh Conspiracy reader.

Additional details, including the location, schedule and bios of speakers can be found here.
The Alabama Brief: Can a short and factual amicus brief persuade someone that the Constitution permits capital punishment for crimes committed at the age of 16 and 17? If press coverage of the Supreme Court argument in Roper v. Simmons is any indication, this brief is the one to read to find out. It was written by my law school classmate (and former Souter clerk) Kevin Newsom, now the Solicitor General of Alabama.

  At least one blogger is among the converted. In a post titled The Winning Brief, Crime & Federalism explains that the Alabama brief changed his mind:
  Alabama's Solictor General . . . puts forth the most compelling argument for giving juries the ability to sentence young people to death that I have ever seen. . . .
  . . .
  If Justice Kennedy (or Justice O'Connor) finds that the Eighth Amendment does not prohibit executing people for crimes committed while young, I would not only understand him, but I would agree. I changed my mind. And I did so because of one man's writing.
DOJ Report on Prosecuting Intellectual Property Violations:

The Justice Department formed a task force a while back to consider DOJ strategies for prosecuting intellectual property crimes. The 96-page report is now out, available here. The basic recommendation: add more investigative resources and increase the number of prosecutors.

Slippery Slopes in New York:

I'll be giving a talk on Mechanisms of the Slippery Slope this coming Monday, (1) at 12:30 pm at Columbia Law school, 116th & Amsterdam, room 101, and (2) at 3:30 pm at Fordham Law School, 140 W. 62nd St., McNally Amphitheater. Both events are free and I think both are open to the public.

Government suppression of unpopular speech:

The Foundation for Individual Rights in Education, whom I have generally found quite trustworthy, reports what sounds like a glaring threat of a First Amendment violation:

Less than one year after the University of Massachusetts Amherst defended the free speech rights of a columnist who celebrated the death of Army Ranger Pat Tillman, the university has campaigned to persecute nine students who were seen in photographs containing a caricature of one of them as the "Grand Wizard" of the Ku Klux Klan. The drawing, which was intended to mock both the Klan itself and spurious accusations of "racism" made during the course of a student government election campaign, depicted the so-called Grand Wizard with his eyes crossed and his tongue hanging out of his mouth. The mere existence of such a drawing led UMass to charge the nine students with "harassment" and threaten them with penalties ranging from criminal charges to expulsion. . . .

On March 26, 2004, after the elections for the UMass Student Government Association (SGA), several candidates gathered in a student organization office for a post-election party. One student at the party, Patrick Higgins, was defeated in a race for SGA President during which he was labeled a "racist" for opposing a plan to set aside a number of seats in the Student Senate solely for members of a campus group called ALANA. (Eventually the plan was judged unconstitutional by UMass's own general counsel.) ALANA claims to represent "African, Latino/a, Asian/Pacific Islander, and Native American" students at UMass.

In an effort to mock the charges of racism, a person at the party drew a caricature of Higgins as a member of the Ku Klux Klan on a dry-erase board. The "Grand Wizard" was depicted wearing a pointed hat and a cape, and holding a burning cross. With his eyes crossed and his tongue hanging out of his mouth, the "Wizard" had a speech bubble written over his head that read, "I LOVE ALANA!!" See the caricature here. One of the partygoers took photographs of the caricature and posted them on his personal website. An unknown student later circulated the photographs around campus, along with others that appear to show some of the partygoers drinking alcohol. . . .

After controversy erupted, UMass Amherst Vice Chancellor for Student Affairs Michael Gargano told the Daily Collegian campus newspaper, "I have the authority to remove these people from office . . . I could give them 500 hours of community service, have them conduct an open forum discussion; I have a variety of sanctions at my disposal. I'm not ruling out dismissal." Gargano further articulated his threats at a September 27 "diversity panel," stating, "[I]f the Student Government Association doesn't move on it, I will. Are we clear? Resign!"

The same "diversity panel," consisting of Gargano, SGA President Eduardo Bustamante, and several UMass faculty members, labeled the nine students in the photos the "KKK Nine," implying that they supported the Ku Klux Klan. . . . .

UMass has charged all nine students with "harassment conduct less than a physical attack" and other charges related to the consumption of alcohol. During the resulting judicial proceedings, UMass has offered "settlements" that include punishments far more severe than those typically imposed for first-time alcohol offenses.

On October 7, FIRE wrote UMass Amherst Chancellor John V. Lombardi on behalf of the students, pointing out that not only was the drawing irresponsibly mischaracterized [as an experssion of support for the KKK], but that it was also constitutionally protected expression that UMass, as a state institution, was forbidden to punish. FIRE pointed out that "the First Amendment protects even extraordinarily offensive satire and parody," and emphasized that any punishment decisions "must be made without reference to the 'offensive' caricature." Read FIRE's letter to UMass here.

UMass's actions in this case stand in stark contrast to its treatment of Rene Gonzalez, a UMass graduate student who wrote an article for the Daily Collegian last spring that called NFL player turned Army Ranger Pat Tillman an "idiot" and said that "this was a 'G.I. Joe' guy who got what was coming to him." UMass rightly refused to take official action against Gonzalez. Instead, UMass system President Jack Wilson responded, "While I recognize Rene Gonzalez's right of free speech, I must also assert my right of free speech to criticize what he said."

"President Wilson made the right decision once, and we are hopeful that he will do so again in the face of the hysteria surrounding this drawing. We hope that President Wilson and Chancellor Lombardi will demonstrate continued faith in the power of the marketplace of ideas to deal with expression that some might find offensive. Otherwise, UMass will become just one other disappointing example of the many colleges and universities that simply give up on free speech," concluded FIRE's French. . . .

Punishing students for this sort of speech -- whether dismissing them or giving them community service or requiring them to conduct discussions -- is clearly a First Amendment violation. It would be so even if they genuinely expressed support for the KKK, which they weren't doing.

It's a little less clear whether a university could remove student government officials based on their constitutionally protected speech. I doubt it, since the officials aren't university employees, but represent the students; but the matter isn't completely clear. But even if the university has this legal power, surely this is not a sensible situation to use it.

In any case, I think it's appalling that University officials would be threatening students with clearly unconstitutional disciplinary sanctions for their constitutionally protected expression. One might have thought that the last 15 years of campus speech code litigation would have taught public university officials that labeling speech "harassment conduct" (note again the "harassment" rhetoric, apparently borrowed from hostile environment harassment law) can't magically dissolve the constraints imposed by the First Amendment. Apparently one would have thought wrong.

Disney Getting Sued Because of the Copyright Term Extension Act?

Disney, which was apparently a major driving force behind the Copyright Term Extension Act's retroactive extension of preexisting copyrights -- Mickey Mouse was about to fall in the public domain, and now Disney has 20 more years of monopoly over him -- is apparently in some trouble because of that very Act:

"Peter and the Starcatchers" by Dave Barry and Ridley Pearson and published by Disney's Hyperion Books is billed as a prequel to the children's classic, "Peter Pan."

Great Ormond Street [hospital for children] was left the royalties to Peter Pan in 1929 by the author, J.M. Barrie . . . . This weekend sees the UK premiere of a film about Barrie's life, "Finding Neverland" -- starring Johnny Depp, Kate Winslet and Dustin Hoffman. The hospital will receive royalties from book excerpts portrayed in the film.

But the hospital charity says is getting nothing from "Peter and the Starcatchers" . . . . They say the book has been published without its permission.

A spokesman for the hospital told CNN that Great Ormond Street held the copyright to Peter Pan in the United States until 2023 -- although it runs out in EU countries in 2007 -- and said: "We are considering our options."

Disney, meanwhile, has insisted that Peter Pan is out of copyright in the United States.

"The copyright to the J.M. Barrie stories expired in the U.S. prior to 1998, the effective date of the U.S. Copyright Extension Act, and thus were ineligible for any extension of their term," Disney said in a statement to the Daily Telegraph. . . .

I'm pretty sure that Disney is right: Peter Pan was apparently published from 1902 to 1911 (there were different versions), so even if we use the latest date, 1911, the book fell into the public domain in the U.S. 75 years late, in 1986. (At the time, the term of protection was, more or less, the author's life plus 50 years for works written in 1978 or later, or 75 years for works published before 1978.) The Copyright Term Extension Act didn't revive the copyrights on such works, though it did extend -- inappropriately, in my view -- those copyrights that were still in effect. Unless I'm missing something here, the hospital would have no case.

So Disney should be off the hook, as should others who want to build on Peter Pan. That's good, for the same reason that it's good that we have a rich public domain full of other works (Shakespeare, Swift, Dickens, and so on) that people can reinterpret, adapt, and republish. There would have been some poetic justice in Disney's being stuck with the consequences of its earlier lobbying, especially since Disney, like other authors and employers of authors, has so often taken advantage of a rich public domain in making its work. But at first glance, it looks like Disney's source material in this instance is indeed in the public domain, despite the Term Extension Act.

Poll Consistency:

Jim's report below that the post-debate polls show "different results" is subject to an important caveat: the one poll that did not show Kerry as the winner was this ABC News poll that found the debate a draw only after polling substantially more Republicans than Democrats (38% to 30%, with another 28% being independents). Among independents polled by ABC News, 42% thought Kerry was the winner, and 35% thought Bush was the winner.

  It seems to me that the best way to read the ABC News poll is that Kerry was the slight winner, which seems to match the results in the other polls. ABC News prefers to report that the debate was a draw — with the proviso in fine print that polling a draw in a Republican-dominated polling group "makes the draw more of an accomplishment for Kerry."

Post-Debate Polls Show Different Results.--

The New York Times is reporting that the ABC post-debate poll shows a near tie on who won the debate: Kerry 42% v. Bush 41%.

The Gallup Poll shows a Kerry win: 52% to 39%.

A CBS Poll also shows a Kerry win: 39% to 25%.
The 3d Debate Transcript.--

Here is the transcript of the 3d debate. Bob Schieffer comes off looking like he's from the same shop that gave us the forged Killian memos and the email draft hoax--what a coincidence, he is.

Given Teresa("no blood for oil") Heinz Kerry, the only hard question John Kerry got all night was "I'd like to ask each of you, what is the most important thing you've learned from these strong women?"--and Kerry got to listen to Bush's answer first.

UPDATE: — OK, so Kerry should have answered the question about what he learned from his strong wife in this way (I'm recylcing a joke I heard last spring):

[What KERRY might have said]: I developed my economic plan for the country from interacting with both my wives. Now I just need to find a rich country for the US to marry.

Wednesday, October 13, 2004

The latest from Mark Steyn.--

One of the best things about being a new blogger is getting to link Mark Steyn, this time on John Edwards:

I don't care about Edwards' dad and his heartwarming, sepia-hued vignettes any more than I cared about the mythical ''coatless girl'' he used to cite in his primary speeches: a wee shivering thing whose coatlessness was supposedly a result of Bush-Cheney reducing her parents to poverty. I offered to buy a coat for any authentically coatless girl the campaign managed to produce. Not the most generous offer on my part -- girls' winter coats are $9.99 at Wal-Mart -- but the Edwards camp never took me up on it. Do you recognize this Dickensian image of America? It's true there are some folks who are having a tough time finding work in certain Rust Belt states. In 2003, the U.S. unemployment rate was 6 percent, which is considered high. In Canada it was 7.8 percent; France 9.7 percent; Germany 10.5 percent -- and in the last two cases these levels are permanent features of the landscape, as they would be in America if the Democrats ever get the opportunity to impose the Franco-German high-cost social welfare/government health care system John Kerry admires so much. America's ''bright light'' isn't ''flickering.'' It's Europe where the lights are about to go out, permanently.

So, when John Edwards starts doing his John-Boy Walton routine, I say put a sock in it. If necessary, borrow a sock from the coatless girl, if her dad hasn't sold her socks to raise the trolley-car fare to send her for an interview for the chimney sweep's job at the robber baron's mansion on the other side of town.

Sex and Jeopardy:

Cool post about a funny answer on Jeopardy; be sure to check out the comments as well. Many thanks to my former student Kevan Choset.

Jim Lindgren, extortion, and the Supreme Court:

Jim's post below led me to look up the case he Supreme Court he mentioned, Evans v. United States. I had known that Jim had written about extortion and also about blackmail, but I hadn't remembered the role of his article in Evans. Having looked at the case again, let me just say that this is the sort of citation by Supreme Court opinions that we law professors dream about. ("The Court's historical analysis rests upon a theory set forth in one law review article," the dissent complained.) I am even more impressed by Jim than I had been before.

A caution on the Nevada vote fraud story.-- Like Eugene, I was going to post on the Nevada vote fraud story.

But then I saw Kerry Spot's post pointing out that the supposed Republican leaning Nevada vote organization appears to be part of the Democratic get-out-the-vote drive, including ACORN, who has been implicated in voting fraud charges in other states.

I decided not to post until this has been sorted out, but Eugene's characteristically cautious post caused me to reconsider.

The Nevada account could be real Republican dirty tricks, or it could be Democratic dirty tricks: throwing out some Democratic registrations and tipping off the press where to find them. I am skeptical that an organization backed by ACORN, the AFL-CIO, and Emily's List would be tossing out Democratic ballots except to trick the press. But stranger things have happened.

Is the Nevada story a hoax, or is it true? I don't know.

UPDATE: A reader sent a link to this story that suggests that two voter organizations are using the same name, which may make the Nevada news report more plausible.

2d UPDATE: Mark Kleiman is angry enough about the Nevada trashing of ballots to offer a modest proposal for capital punishment or torture for those committing election fraud.

Related Posts (on one page):

  1. "Voter Fraud Charges Collapse":
  2. A caution on the Nevada vote fraud story.--
  3. Pretty appalling, if true:
Pretty appalling, if true:

Reader Anna Kipnis passes along this Las Vegas TV station story about possible election fraud:

Employees of a private voter registration company allege that hundreds, perhaps thousands of voters who may think they are registered will be rudely surprised on election day. The company claims hundreds of registration forms were thrown in the trash. . . .

The out-of-state firm has been in Las Vegas for the past few months, registering voters. It employed up to 300 part-time workers and collected hundreds of registrations per day, but former employees of the company say that Voters Outreach of America only wanted Republican registrations.

Two former workers say they personally witnessed company supervisors rip up and trash registration forms signed by Democrats.

"We caught her taking Democrats out of my pile, handed them to her assistant and he ripped them up right in front of us. I grabbed some of them out of the garbage and she tells her assisatnt to get those from me," said Eric Russell, former Voters Outreach employee.

Eric Russell managed to retrieve a pile of shredded paperwork including signed voter registration forms, all from Democrats. We took them to the Clark County Election Department and confirmed that they had not, in fact, been filed with the county as required by law. . . .

Voter registration drives have often been a partisan activity, since the parties have a strong incentive to register voters who they think will be sympathic; and there's nothing wrong in parties targeting places that they think are likely to be frequented by party sympathizers. But obviously it's quite bad — and I suspect seriously criminal — to purport to register someone but then throw out their forms, making them think that they're now officially registered when they really aren't.

UPDATE: Reader Brett Bellmore passes along another story about similar fraud:

The U.S. Justice Department and state police are investigating widespread allegations of criminal vote fraud in Florida, days before the state closes registration for the presidential election. . . .

A field director for one of the many national partisan organizations trying to drum up votes in Florida admits to routine efforts to rig the outcome. They include submitting thousands of invalid voter registration cards, as well as failing to turn in boxes of cards filled out to register Republicans.

"There was a lot of fraud committed," said Mac Stuart, former Miami-Dade field director for ACORN. Among his allegations — that ACORN "quality control" workers routinely kicked back Republican voter registrations while paying for Democratic ones. "They said they had enough," he said. . . .

Stuart is listed as a plaintiff in a notice of intent to sue ACORN and others in a discrimination class-action lawsuit. . . .

Stuart said ACORN officials at state headquarters in Tampa were aware of what was going on, and discouraged him from talking about it. He said he was ultimately fired as "a loose cannon."

While Republican registrations were ignored, Stuart said those of convicted felons were eagerly sought, even though by law they are ineligible until they are granted clemency by the state. . . .

The article also mentions another alleged fraud:

In Leon County, elections supervisor Ion Sancho said he found nearly 1,000 apparently fraudulent party-change forms. All were to re-register African American Democrats at Florida A&M University as Republican. . . .

FURTHER UPDATE (Feb. 8, 2006): It seems that the charges in the update were in fact not true. According to the St. Petersburg Times (Dec. 15, 2005),

Fourteen months after a campaign to increase Florida's minimum wage drew allegations of voter fraud, a federal judge in South Florida has ruled at least some of those accusations against grass roots political group ACORN were so baseless they amount to defamation.

U.S. District Judge James King has dismissed a lawsuit brought by Mac Stuart, a former ACORN employee, saying Stuart never provided evidence to support his claim that he was fired because he uncovered voter fraud. . . .

The judge upheld ACORN's counterclaim that Stuart's lack of evidence made his allegations libel and slander. The group has always claimed it fired Stuart for insubordination. . . .

An investigation by the Florida Department of Law Enforcement also found no evidence of criminal activity at ACORN, department officials confirmed Wednesday. . . .

I'm sorry to have inadvertently passed along the erroneous accusations, but glad to be able to report this latest development.

Election Analysis:

Larry Sabato offers an interesting analysis of the horse race for the Presidency here. Thanks to Ramesh Ponnuru at The Corner for the pointer.

O'Reilly files extortion lawsuit.-- Bill O'Reilly, whom I generally find unwatchable, is in trouble and is fighting back.

Matt Drudge has the details on an extortion lawsuit filed by Bill O'Reilly against Andrea Mackris, a FOX associate producer, and her lawyers, the Morelli law firm. According to the O'Reilly filing, the producer alleged sexual harassment by O'Reilly and may have taped him making offensive statements. Then she threatened O'Reilly with exposure unless he paid $60 million.

Defendants demanded $60 million in hush money to keep quiet and never once lowered this outrageous, extortionate demand. At one of the meetings, Morelli allowed the Fox and News Corp representatives to read a draft of a harassment complaint ("the draft complaint") that he threatened to file on Mackris's behalf. The draft complaint contained several lengthy block quotes of statements that O'Reilly allegedly made to Mackris. The length of the quotes and the specific verbiage used made it appear that Mackris was taping O'Reilly during the conversations. Morelli, though, refused to permit the Fox and News Corp representatives to have a copy of the complete draft complaint, providing them only with an excerpt.

The draft complaint does not assert that either Fox or O'Reilly has caused Mackris to suffer any adverse employment action. Nor does it assert that Mackris complained to anyone in authority at Fox about any unwelcomed or inappropriate conduct by anyone. Moreover, Defendants never claimed otherwise in any of the aforementioned telephone conversations or meetings.

Further underscoring the extortionate nature and intent of Defendants' conduct, Morelli holds himself and his firm out as employment law specialists. He therefore must be presumed to know that given the absence of any adverse employment actions taken by Fox or O'Reilly against Mackris (e.g., termination, demotion, reduction in salary), her failure to complain to Fox's Human Resources Department about O'Reilly alleged harassment will be fatal to her harassment claims in accordance with the decisions of the U.S. Supreme Court and the courts of New York.

Morelli also knows that there is no possible justification for seeking a $60 million settlement of his client's claims even if the alleged few conversations occurred. For example, the Morelli Firm's website boasts of major victories in employment discrimination and harassment cases none higher, though, than "$3.75 million for a woman forced to have sexual relations with her boss" (Exhibit D), which plainly involved conduct far more egregious than that alleged by Mackris. Accordingly, Morelli and presumably Mackris know that their demand that Fox pay $60 million to keep this matter out of the court and out of the media is nothing short of attempted extortion.

The extortive nature of Defendants' demands and the baseless nature of Mackris's claims are further revealed by the recent September 7, 2004 e-mail that Mackris sent to a friend at CNN who asked, "How are things?" Just three weeks before Morelli's September 29 letter and years after her claimed tribulations began, Mackris responded:

to answer your question, things are: wonderful, amazing, fun, creative, invigorating, secure, well-managed, challenging, interesting, fun and surrounded by really good, fun people. i'm home and i'll never leave again.

This suit raises interesting issues because someone with an underlying legal claim may threaten to expose it to reach a reasonable settlement. Yet if the amount sought is so substantially out of line with the injury and the threat to embarrass is a big part of the threat, then a criminal charge of extortion can be established.

The chief example here is the Cosby case, where Autumn Jackson, who may have been Cosby's daughter, threatened exposure unless he paid her $40 million. Despite having some possible claim for support as a child, she was convicted because of the excessiveness of her claims and the threats of exposure.

Further, in State v. Harrington, 260 A.2d 692 (Vt. 1969), a lawyer for the wife in a fault-based divorce action was convicted of attempting to extort a settlement by threatening to expose a relevant part of the case, the husband's extramarital affair. The lawyer was also disbarred. The threat to go to the newspapers was explicit and the amount sought may have been excessive.

My knowledge of blackmail and extortion law is on the criminal side, where my views on extortion were adopted by the US Supreme Court in US v. Evans (1992). Unfortunately, this is a tort action, in which O'Reilly has several tort theories--a field outside my expertise. So there may well be a good criminal charge that could be brought against Mackris and her lawyers, depending on the excessiveness of the amount sought and the use of the threat of exposure. This potential criminal offense probably has some tort analogues, but I'm not the one to judge.

UPDATE: In the Cosby case, the 2d Circuit Court of Appeals initially overturned the convictions for a too broad instruction to the jury and then upheld the convictions because the improper instructions were harmless error. They describe their view of the law in two opinions:
[From 180 F.3d at 81:] The evidence at trial was plainly sufficient to support verdicts of guilty had the jury been properly instructed. Even if Jackson were Cosby's child, a rational jury could find that her demand, given her age (22) and the amount ($ 40 million), did not reflect a plausible claim for support. The evidence supported an inference that Jackson had no right to demand money from Cosby pursuant to a contract or promise and no right to insist that she be included in his will. The jury thus could have found that her threat to disclose was the only leverage she had to extract money from him; that if she sold her story to The Globe, she would lose that leverage; and that if Cosby had capitulated and paid her in order to prevent disclosure, there was no logical guarantee that there would not be a similar threat and demand in the future. Thus, had the jury been instructed that the "with intent to extort" element meant that defendants could be found guilty of violating § 875(d) only if Jackson's threat to disclose was issued in connection with a claim for money to which she was not entitled or which had no nexus to a plausible claim of right, the jury could permissibly have returned verdicts of guilty on that count.

[From 196 F.3d at 387:] We reasoned, however, that not all threats to reputation accompanied by demands of money are inherently wrongful, see id. at 67, and we inferred that Congress meant § 875(d) to criminalize only such threats as are wrongful, see id. at 67-70. We concluded that the court's instruction "erroneously allowed the jury to find defendants guilty of violating that section on the premise that any and every threat to reputation in order to obtain money is inherently wrongful," id. at 71-72, and that the court should instead have informed the jury of the wrongfulness element by instructing that § 875(d) prohibits obtaining money or a thing of value from another by use of threats to reputation only if the defendant has no plausible claim of right to the money demanded or if there is no nexus between the threat and the defendant's claim, see 180 F.3d at 71.
2d UPDATE: Now Andrea Mackris's complaint is at the Smoking Gun. I have read only parts of it, but it is detailed and extremely embarrassing. If her allegations are true, then O'Reilly should be in deep trouble, whatever the merits of his lawsuit for extortion.
Debate on Law, Executive Power, and National Security

between Prof. John Choon Yoo (Berkeley) and Prof. George Harris (McGeorge, counsel to John Walker Lindh): Eliot Fladen, who helped put it together, has a quasi-transcript.

The "Kerry as Chamberlain" meme.--

A number of commentators have been making the link between John Kerry and Neville Chamberlain, such as Ed Koch and the guys at Powerline. Long before John Kerry emerged from the pack of Democratic candidates, I was struck by the parallels to England in the 1930s. Although Bush is DEFINITELY no Churchill, the response of intellectuals and the press was quite similar. Churchill was depicted as a simple-minded warmonger who lacked the nuance to deal with Hitler.

The best window into this is the 2d of William Manchester's Churchill biographies: Last Lion: Churchill: Alone, 1932-1940, a brilliant book.

When Kerry talks of holding bilateral talks with North Korea (after their breach of the Clinton-era Jimmy Carter negotiated agreement) as if this is a solution, I wonder whether he really understands the world. When Kerry talks about going to the UN and signaling a change in US foreign policy (presumably toward a less aggressive posture), I worry that he is just out of touch. I don't think that John Kerry "gets it."

The way to deal with threats like 1930s fascism or 2000s Islamofascism is not to wait for a consensus to fight back, because there will never be a world-wide consensus to do so--not when countries would rather negotiate than stop the fascists. Even Tony Blair's UK negotiated with the terrorists who nonetheless cut off Kenneth Bigley's head.

With anti-semitism on the rise in Europe, I worry about the future. I was looking at US Gallup Poll data from April 1938. US respondents were asked: "Do you think the persecution of the Jews in Europe has been their own fault?" 65% said that Jewish persecution was "entirely" or "partly" their fault.

For decades, I used to hear "never again." I didn't know then what I know now: that many meant "Never again, unless a Republican is President" or "Never again, unless it would mean crediting a Republican with liberating millions of oppressed Iraqis" or "Never again, unless it cost a couple of thousand lives in the US military."

UPDATE: One of the more incredible stories in Manchester's 2d Churchill biography is that even after war was declared in 1939, the British government was afraid to make Hitler angry by putting Churchill in the cabinet. Today, some people are more worried that the US is being too aggressive, rather than not aggressive enough.

"Derbyshire Award":

Andrew Sullivan gives "Derbyshire Award" nominations to examples of what he sees as overheated and bigoted or otherwise unfair rhetoric. I think his nominations are often quite insightful, but here's one that I can't agree with:

DERBYSHIRE AWARD NOMINEE: "[A]bortion is in our day what slavery was in Lincoln's. To vote for John Kerry in 2004 would be far worse, however, than to have voted against Lincoln and for his Democratic opponent in 1860. Stephen Douglas at least supported allowing states that opposed slavery to ban it. And he did not favor federal funding or subsidies for slavery. John Kerry takes the opposite view on both points when it comes to abortion. On the great evil of his own day, Senator Douglas was merely John Kerry-lite." - Robert George and Gerald Bradley, co-authors of the FMA, in NRO. Now I get the Dred Scott reference.

I don't think abortion is murder (and, no, I won't get into that substantive debate, simply because I don't think there's much new that can be added to it). But I know that some decent people do think so, and it's an entirely understandable position.

Even someone who is otherwise libertarian, or even otherwise liberal, may reach this position if he just accepts one moral axiom that I don't accept — that human life begins at conception — but that isn't inherently inconsistent with my other moral views. Just as I don't find it ridiculous that some people would treat chimpanzees and gorillas as having a right to life (and even a right to life of the same magnitude as do humans), so I don't find it ridiculous that some people would take the same view about fetuses. (It's conceivable that a libertarian who believes that life begins at conception might nonetheless conclude that abortion should be permissible in cases of rape, but let's aside this issue for now; the great majority of pregnancies do not result from rape.)

And if I am right on this, then surely the George & Bradley position is quite understandable, and even not particularly intemperate. If abortion is murder, then Roe v. Wade is not just a legal authorization for genocide, but a constitutional protection for genocide. The slavery of millions was a heinous evil, but murder of a million children per year would be an even greater evil. And indeed the pro-abortion-rights position would require all states to tolerate such murder; the mainstream pro-slavery position would have at least allowed states to outlaw slavery, and thus to permit slavery to be reduced and even eliminated through normal majoritarian legislative processes.

Now my sense is that many people who take the pro-life position don't really think that abortion is exactly the same as murder, or else we'd be seeing a lot more anti-abortion activity, including more attacks on abortion clinics, more killings of abortion providers, and so on. Likewise, we'd be seeing more calls for punishing the woman — perhaps with the death penalty, or perhaps with life imprisonment or close to it — as well as the abortion provider.

But if one does think that it's murder, or even that it's killing that's roughly the moral equivalent of slavery if not precisely of genocide, then the George & Bradley perspective is right, and quite unsurprising. That isn't reason to agree with them: If one is pro-choice, then they're wrong. But it seems to me that there's nothing worthy of mockery in their view.

UPDATE: Reader Stuart Buck correctly pointed out that I'm being somewhat inexact in using "human life." What I meant, and what is usually meant by this, is "human life of the sort entitled to rights."

The two are often thought of as different at the end of life -- a human being who is entirely brain-dead may still be said to be "alive," but many people would think that it's permissible to stop artificial life support for him. They may also be thought of as different at the beginning of life: Some may say that human life does begin at conception, but that the fetus doesn't become a rights-bearing creature until has developed to some level; just as a human stops being a rights-bearing creature once it has lost enough function, for instance when it's brain-dead. It's thus more accurate to say that the debate isn't about when human life as such begins or ends, but about when rights-holding human life begins or ends.

In any case, I add this for the sake of precision; it doesn't affect my main analysis above.

Tuesday, October 12, 2004

T-Shirts for Law Students:

Find them here. Expensive, but funny; this is my favorite. Thanks to AI for the pointer.

Corporate law and Sinclair Broadcasting:

Corporate law maven Stephen Bainbridge writes:

Sinclair Broadcasting Group Inc., which owns 60-odd TV stations in many major US media markets, has ordered its stations to preempt ordinary programming in order to air "Stolen Honor: Wounds That Never Heal," a film about Senator John Kerry's Vietnam record that many regard as being anti-Kerry.

Some have suggested that Sinclair shareholders sue Sinclair's board of directors to prevent the airing of the program and/or to recover damages. Would such a suit succeed? The short answer: almost certainly not. The long answer follows. . . .

Go to his post, linked to above, for that long answer.

Even more swamped than usual:

Please expect even slower response to e-mail (and more likelihood of no response at all) than usual. Very sorry.

Another anti-New Deal Cartoon from the Chicago Defender:

Hundreds of thousands of African American farm laborers were forced off their land by the New Deal's two Agricultural Adjustment Acts. As economic historian Gavin Wright points out in his book Old South, New South, the New Dealers wanted to force the South to shift from an agricultural and low-wage economy to a modern, industrial, higher-productiviy and wage economy. Wright suggests that the New Deal policy worked out in the end, though this happy ending strikes me as more fortuitous than causal. Regardless, there was great short-term human cost to the New Deal's more tepid version of Stalin's and Mao's modernization programs, as this Chicago Defender cartoon suggests. Moreover, there were some negative long-term consequences as well. Contrary to popular myth, the Great Migration in the '40s and '50s was as much a result of "push" (AAA, mechanization (not always unrelated to the AAA), uniform national minimum wage) as "pull," and African Americans who went North found themselves living in areas with among the highest unemployment in the country, sowing some of the seeds of today's "underclass" (see chapter 5 of this book).

Age and Maturity of Decisionmaking: Tomorrow the Supreme Court will hear oral argument in Roper v. Simmons, a case that considers whether the Eighth Amendment prohibits capital punishment for crimes committed at the age of 16 or 17. One of the interesting questions potentially implicated by the case is whether people who are 16 and 17 tend to make less mature judgments than adults.

  As best I can tell, the most relevant scientific study on this question is Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable than Adults, 18 Behav. Sci. & Law 741-760 (2000). An excerpt from the abstract summarizes the basic goals and conclusions of the study:
This study examines the influence of three psychosocial factors (responsibility, perspective, and temperance) on maturity of judgment in a sample of over 1,000 participants ranging in age from 12 to 48 years. Participants completed assessments of their psychosocial maturity in the aforementioned domains and responded to a series of hypothetical decision-making dilemmas about potentially antisocial or risky behavior. Socially responsible decision making is significantly more common among young adults than among adolescents, but does not increase appreciably after age 19. Individuals exhibiting higher levels of responsibility, perspective, and temperance displayed more mature decision-making than those with lower scores on these psychosocial factors, regardless of age. Adolescents, on average, scored significantly worse than adults, but individual differences in judgment within each adolescent age group were considerable.
The study isn't available online, but I obtained a copy and gave it a quick read. (Or at least I tried — it's not easy stuff to understand.) A few quick thoughts about the study:

  (1) The data was generated from self-reported questionnaires. Subjects of different ages were asked to report how they would respond in various hypothetical situations, and the authors of the paper reached their conclusions about the maturity of people of different ages by assuming that the answers were accurate. I am no expert on these matters, but I wonder if this method introduces a potential bias: I can imagine that adults might feel obligated to describe their behavior and reactions as more mature than adolescents.

  (2) The authors compared the attitudes of juveniles to young adults by comparing the attitudes of junior high and high school students to the attitudes of college students. Again, this seems like a possible source of bias: my sense is that as you go up the educational ladder, you begin to see a smaller cross-section of persons of a given age. Lots of people don't go to college, and it seems plausible that the subset of persons who go to college are likely to be more mature than others. To the extent that the paper finds that high school students are less mature than college students, we might wonder whether this is a characteristic of people who go to college rather than a characteristic of their age.

  (3) The authors conclude that "[i]ndividuals differ considerably in the timing of the development of psychological maturity, making it difficult to define a chronological boundary between immaturity and maturity." (p758) At the same time, they find that "some time during late adolescence" most people have a jump in their level of psychosocial maturity. For the purpose of the study, the authors define psychosocial maturity as a combination of three factors: a person's sense of personal responsibility for their actions, the degree to which a person recognizes both short and long-term consequences of their actions, and a person's ability to exercise restraint and self-control over their actions.

  UPDATE: After reading over the conclusions of the study one more time, I think I was a bit inaccurate in saying that the study finds a "jump" in maturity in late adolescence. Rather, the study finds that the psychosocial maturity of most people reaches a plateau after late adolescence, and that there is "important progress" in the development of psychosocial maturity during the period of late adolescence.
The Rapid Decline of Free Speech in Canada:

Quebec's Human Rights Commission has ordered a man to pay a $1,000 fine because he referred to another man as a "fifi," the French equivalent of "fag." Worse yet, the comment wasn't made to the complainant (which would at least raise red flags about an implicit threat or true harassment of the individual), but to his "traveling companion." According to the CBC, the "Rights Commission ruled that the term was an inappropriate way of referring to homosexuals and adds to the disgrace and lack of respect of human dignity people are entitled to."

Now, it's obviously not nice to call someone a "fifi." But when the State can punish individuals for "inappropriate" comments they make in private, noncommercial contexts, the slippery slope towards authoritarianism is steep indeed. This, of course, is not the first example of the growing Canadian intolerance of freedom of speech.

Thanks to Professor Moin Yahya for the tip.

Any Canadians offended by most post should read this before emailing.

New Blog on the "Kerry Doctrine":

My friend and William and Mary law professor Alan Meese is now blogging about the "Kerry Doctrine" and related matters. Check it out.

Monday, October 11, 2004

How do we pronounce "Volokh"?

A reader asks, so we answer: It rhymes with "pollock" (in English, of course; it's different in Russian).

LOTS OF INTERESTING POSTS

up right now over at Vice Squad. Check 'em out.

A bit more on the Indymedia subpoena story:

InstaPundit posts about this, together with an e-mail from a reader speculating why the server company may have just given FBI the whole servers:

I work in a huge company with a lot of rack-mounted servers.

We have no "documented process" that an Operator (or even Technician) could provide the contents of a server.

We have mainframe tape drives and remote backup systems, but they are all proprietary -- and complicated to use.

It's not like we can just burn a DL-DVD (or 10+) and provide a backup of the hundreds of gigs of data that a server holds. Not only do we not have the burner or the media, we also don't have the procedures. If it's not documented and approved, an Operator cannot perform the action on the production data. And only an Operator can perform tasks relating to production data -- not Technicians.

It would be far, far easier to just shut down the boxes, pull them, and give them to the Feds. Two non-production servers could be re-assigned and automated restores queued. The process for swapping out failed servers (which is what this simulates) is documented and proceduralized.

That's how we would handle it, if it ever came up.

I can't say, though, whether this would be the standard operating procedure at most hosting companies.

U of C Lawprof Douglas Lichtman

is guest-blogging over at Crescat on self-help and the law. It's very interesting stuff; the first post is here, and the second is here.

Elections and Wars:

Over at the Yin Blog, law prof Kevin Heller points to this article in the L.A. Times about the Bush Administration apparently delaying an offensive in Iraq until the election is over.

Tentative Thoughts on the Indymedia Server Story: I have a few quick and tentative thoughts on the Indymedia server seizure story that Eugene discusses below.

  First, it is important to recognize that this is an Italian and Swiss investigation, not a U.S. investigation. U.S. officials are involved only because the U.S. is obligated to help the Italians and Swiss under international treaties known as Mutual Legal Assistance Treaties. These treaties say that when one country is investigating a felony crime in their country and evidence is located in a second country — not uncommon in Internet-related cases — the second counrty must help the first obtain the evidence so long as the conduct under investigation would be a crime in the second country as well. For example, if someone in the U.S. runs an illegal business using computer servers in Italy, U.S. investigators can request legal assistance from the Italians to help gather evidence and send it to the United States for use at trial. This case is the reverse: it is a Swiss and Italian investigation, and the Swiss and Italians requested that U.S. officials help them gather evidence in the U.S.

  U.S. officials still must comply with the First and Fourth Amendment, as well as other laws; they can only obtain the needed court order if doing so would be allowable under United States law for an equivalent domestic investigation. Given that teams of DOJ career lawyers screen and review MLAT requests before they are processed, the chances are quite high that this was all done correctly under United States law.

  Second, it remains unclear whether the FBI ordered the server owner to hand over its hardware, and it seems quite unlikely that the FBI ordered any websites shut down. This story suggests that the FBI obtained a subpoena requesting information on behalf of the Italian and Siwss authorities from Rackspace, a U.S.-based web-hosting service with a branch in the UK that has Indymedias as one of its clients. We don't know if the subpoena merely requested that Rackspace give the FBI specific information about how its servers had been used, or whether it was actually a request to hand over the server within a specific period of time. (The latter seeems rather unlikely to me, but you never know.) All we know is that Rackspace complied with the subpoena by handing over servers located in the UK, apparently to UK authorities (although that's unclear, too.) It seems that some websites were temporarily disabled when Rackspace switched servers.

  More when the facts become clearer...
More on Kerry, terrorism, and prostitution: I appreciate Orin's post about Kerry's experience as a lawyer fighting organized crime; and it might indeed shed light on why Kerry used the odd analogy that I discussed in this post.

Nonetheless, even if Kerry was hearkening back to his experience prosecuting organized crime — including organized crime that ran illegal gambling, and perhaps even (by analogy) organized crime that ran prostitution — I'm still puzzled why he'd use prostitution and illegal gambling as an analogy, rather than murder, arson, extortion enforced by violence, and so on.

After all, when prosecutors crack down on a crime organization that controls prostitution, it's not just that they won't eliminate prostitution altogether: They're highly unlikely to even substantially diminish it. They may destroy the organized crime-run prostitution rings, but this will still leave a vast amount of prostitution out there, perhaps even involving the very same prostitutes.

In fact, cracking down on the crime organization might even sometimes increase the amount of prostitution, if for instance the organization was violently blocking new competition. In any case, while organized crime control of prostitution might be largely though not completely supressible (perhaps most effectively by legalizing prostitution), prostitution itself does not seem to be even largely suppressible, given current, past, and likely future political realities. Certainly law enforcement doesn't treat it as something that can be vastly reduced, or that is even worth vastly reducing.

I don't know to what extent this is true of illegal gambling, but I suspect that something similar operates there as well. One can certainly fight, with considerable success, organized crime control of gambling. But I suspect that most prosecutors' offices don't expect that they can vastly reduce the amount of illegal gambling as such, and don't try very hard to do it. And again, the main strategy for reducing illegal gambling seems to be broadening legal gambling.

So I continue to be troubled by Kerry's choice of analogies in his quote, which as you recall is this:

When . . . Kerry [was asked] what it would take for Americans to feel safe again, he displayed a much less apocalyptic worldview. "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance," Kerry said. "As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."
It seems to me that our attitudes towards what is a not deeply threatening level of terrorism (which, I agree, is more than zero) should be vastly different from our attitudes towards what would be a tolerable level of prostitution or illegal gambling. And the difference is so great that I wonder whether the person who makes such an analogy is missing something big.

And more broadly, my thought experiment challenge in the Analogy about Analogies post still stands:

Let's say that in response to a sharp increase in the number of rapes, or of racist anti-black violence, or anti-Semitic violence, a President John Kerry had declared War on Rape / War on Racism / War on Anti-Semitism (a somewhat more metaphorical war than the War on Terrorism, but still close enough).

Let's also say that Governor George W. Bush, who was challenging President Kerry in the presidential election wanted to argue that this is a different sort of war, one in which we can't expect total victory. He certainly wasn't arguing that nothing should be done about racism, anti-black violence, or anti-Semitic violence. He had his own proposals, though ones that Kerry's supporters thought weren't tough enough, and were otherwise misguided. But he wanted to point out that we should be realistic about this: We shouldn't talk the rhetoric of total victory, where we had to realize that some background level of rape, anti-black violence, or anti-Semitic violence was inevitable. And let's say that this is how he made this point:

We have to get back to the place we were, where [rapists / Klansmen / anti-Semitic attackers] are not the focus of our lives, but they're a nuisance. As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life.
The letter of this argument is quite correct: Indeed, even the best strategy could at best just reduce the incidence of rape, anti-black violence, and anti-Semitic violence to a level that, while regrettable, is in some sense tolerable.

But would we be happy with Governor Bush's use of the analogy to prostitution or illegal gambling (for more details, see below)? Or would we think that, though the letter is accurate, the use of such an analogy seems inconsistent with the spirit that we're looking for in someone who can effectively fight the very serious evils that need to be fought?
Let's even stipulate that Governor Bush had earlier been a prosecutor who fought crime organizations that had controlled illegal gambling and, let's say, prostitution. Would that really challenge our likely reaction to his statement?
Indymedia server seizure:

This story about the seizure of some Indymedia servers is intriguing and potentially troubling, depending on the relevant facts, but maddeningly vague about those facts (though the vagueness might well be because the Web hosting company is quiet, not because the BBC knows stuff it isn't telling):

The FBI has shut down some 20 sites which were part of an alternative media network known as Indymedia.

A US court order forced the firm hosting the material to hand over two servers in the UK used by the group. . . .

The reasons behind the seizure are unclear but the FBI has reportedly said the action was taken at the request of Italian and Swiss authorities. . . .

The servers affected were run by Rackspace, a US web hosting company with offices in London.

It said it had received a court order from the US authorities last Thursday to hand over the computer equipment at its UK hosting facility. . . . It said it was responding to an order issued under the Mutual Legal Assistance Treaty. Under the agreement, countries assist each other in investigations such as international terrorism, kidnapping and money laundering[.]

The reasons behind the action against the Indymedia websites are unclear. . . .

"Indymedia had been asked last month by the FBI to remove a story about Swiss undercover police from one of the websites hosted at Rackspace," said [Indymedia] in a statement.

"It is not known, however, whether Thursday's order is related to that incident since the order was issued to Rackspace and not to Indymedia." . . .

A FBI spokesperson told the AFP news agency that it was not an FBI operation, saying the order had been issued at the request of Italian and Swiss authorities. . . .

The seizure has sparked off protests from journalist groups. . . .

The UK site of Indymedia is back up and running but several of the other 20 sites affected are still offline. . . .

Here are a few possibly important points, though based on guesses.

1. It sounds to me like the order involved was "turn over evidence," not "stop operating." The servers seem to have been seized because they supposedly contain evidence relevant to some investigation. There doesn't seem to be any legal requirement that the sites be shut down, though of course they'll be down for some time while the hosting company (or some other company, if this one doesn't want to be involved any more) puts the sites — presumably from backups or cached versions — on some other server.

2. It also sounds like the order was a subpoena, not a search warrant (or some special order that's closer to a subpoena than to a search warrant). In the U.S., police searches of private property must comply with the Fourth Amendment, which often requires a warrant based on probable cause to believe that the property contains evidence of a crime. But subpoenas — orders that someone testify, or turn over documents — do not require probable cause. They can be issued based simply on a showing that they are reasonably likely to yield relevant information, directly or indirectly.

You can be called to testify (even to testify about First Amendment activity, such as a defendant's conversations with you) without a showing of probable cause. Likewise, you or a business can be called to turn over material in your possession without such a showing.

I suspect that this case involves a subpoena rather than a search warrant because I doubt the FBI would have any authority to execute search warrants in the U.K. I therefore think that they delivered the order to the company, the company complied, and the FBI hauled away the stuff. [UPDATE: My friend and coblogger Orin Kerr points to this article, which makes clear that the order was indeed a subpoena, not a search warrant.]

3. In the U.S., there are special First Amendment restrictions on seizures of constitutionally protected material, developed in the obscenity context but applicable elsewhere. To quote the Supreme Court in Fort Wayne Books v. Indiana (1989),

[T]his Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as "obscene." . . . [T]he Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a "procedure 'designed to focus searchingly on the question of obscenity.'"

We refined that approach further in our subsequent decisions. . . . [T]he Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.

Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.

4. Nonetheless, it's not completely clear what exactly this would mean here. First, the classic distinction between (A) seizing a copy of a book for evidence purposes and leaving the store free to distribute other copies and (B) seizing the whole stock because you think it's all likely to be contraband doesn't quite apply here: The seizure is for evidentiary purposes, but it's likely to also interfere with Indymedia's ability to distribute its material, albeit likely only for a few days, if the material is properly backed up. It thus seems to fall into a gray area between the seizure of one book and the seizure of all copies of that book (though maybe it's close to the seizure of the movie theater's reel of film, which is likely the only copy in its possession, but which likely could be replaced in a few days). Second, it's not clear whether the rules I cited above, which were developed in the context of searches, also apply to subpoenas.

5. It's also not completely clear how these rules apply to subpoenas outside the U.S.; I would presume that a U.S. court order served on a U.S. company would be governed by the Fourth Amendment even if the property involved is overseas, but I can't be positive. I would also presume that the order would also be constrained by the First Amendment (see below).

6. Finally, the most important question is the vaguest of all: What exactly is the underlying justification for the subpoena? If there's reason to believe that the Web server contains evidence of, say, illegal money laundering activity, and that the best way of getting this evidence is getting the entire server rather than just having the company turn over the records related to one particular account, the subpoena seems eminently justifiable.

On the other hand, if the relevant information is obviously in just one particular place on the disks, the normal procedure would be to have the company turn over copies of those records. I doubt that AOL, for instance, should be asked to turn over a whole computer (or array of computers) simply because there's a subpoena for one subscriber's records. A subpoena that asks for the whole server

Likewise, if the subpoena is for evidence of what would in the U.S. be constitutionally protected speech — e.g., if some country is subpoenaing the computer to get evidence of anti-Islamic or neo-Nazi speech — then I don't think a U.S. court should be allowed to order it seized. (There may be some uncertainty about that because the information is not in the U.S., see item 5 above; but my sense is that the First Amendment would apply to U.S. court orders, and U.S. courts' enforcement of foreign requests, aimed at U.S. citizens or businesses even if the order is to be enforced outside the U.S. There is some caselaw, for instance, barring U.S. courts from enforcing foreign court judgments that are based on what would in the U.S. be constitutionally protected speech; not exactly what's going on here, but close in some respects.)

7. Finally, I think the Privacy Protection Act of 1980 probably wouldn't apply; as best I can tell, it has generally been read as applying only to government searches of media offices, not subpoenas. See, e.g., State v. Salsbury, 129 Idaho 307 (1996) ("Basically, the act implements a 'subpoena first' rule which requires, with a few exceptions, that a law enforcement officer use a subpoena first, rather than a search warrant to obtain evidence from any person planning to publicly communicate information."). It's true that here the subpoena would be followed by a government search of the servers, but it seems to me that the Privacy Protection Act would likely still not apply — but I can't claim to be an expert on the Act.

* * *

In any case, those are my tentative thoughts on what seems an interesting — and potentially highly controversial — story. I would love to hear (1) more information on the factual details behind the story, if anyone knows them, and (2) more information on legal questions from any lawyer or law professor who is an expert on the field (lay speculation about the way things ought to be is probably not going to be that helpful).

Possible Explanation for Kerry's Analogy:

In two posts below (see here and here), Eugene questions John Kerry's underlying thinking about the war on terror based on a somewhat odd analogy Kerry used in a recent New York Times interview. Here is the key quote from the Times story:

When . . . Kerry [was asked] what it would take for Americans to feel safe again, he displayed a much less apocalyptic worldview. "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance," Kerry said. "As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."

Eugene considers whether this comparison may reveal Kerry to be a bit soft on terrorism; of all the crimes to pick, Kerry happens to compare terrorism to illegal gambling and other crimes that are generally considered low priorities for law enforcement.

  Eugene may be on to something, but there is another, more charitable, explanation for Kerry's partciular choice of words. Kerry's first big job after law school was as the First Assistant District Attorney (the #2 prosecutor) with the Middlesex County (Massachusetts) DA's Office. According to this Boston Globe article, Kerry overhauled the office in part by focusing on the threat of organized crime:

With a $3.8 million infusion of federal funds he helped obtain, Kerry nearly tripled the staff . . . . He launched initiatives that were innovative at the time: special units to prosecute white-collar and organized crime . . . and a system for fast-tracking priority cases to trial. He also directed the investigation that led to the first conviction of Somerville's Howie Winter, one of the state's notorious gangsters.

According to this article, Howie Winter was notorious for running an illegal gambling empire:

Among the top cases on which Kerry worked was the prosecution of Howie Winter, an organized crime leader who ran gambling rackets in the Boston area and western Massachusetts. Winter was sentenced to 20 years in prison.

While Kerry's choice of analogies appears a bit strange at first, it seems plausible that he was simply relying on his experience setting priorities for the Middlesex County DA's Office back in the 1970s. Kerry prosecuted illegal gambling cases, and presumably had to defend his focus on such cases against critics who claimed that there was no point in prosecuting them.

  Of course, this doesn't mean that Kerry is right to see the war on terror as similar to his prior battles against organized crime and illegal gambling. But I think this history may shed some light on why Kerry chose the specific examples he did.

  UPDATE: Check out this CNN.com story about how the Bush campaign is planning to use the quote in campaign advertisements.

Sunday, October 10, 2004

An analogy about analogies:

Here's a thought experiment related to the Kerry quote below. Let's say that in response to a sharp increase in the number of rapes, or of racist anti-black violence, or anti-Semitic violence, a President John Kerry had declared War on Rape / War on Racism / War on Anti-Semitism (a somewhat more metaphorical war than the War on Terrorism, but still close enough).

Let's also say that Governor George W. Bush, who was challenging President Kerry in the presidential election wanted to argue that this is a different sort of war, one in which we can't expect total victory. He certainly wasn't arguing that nothing should be done about racism, anti-black violence, or anti-Semitic violence. He had his own proposals, though ones that Kerry's supporters thought weren't tough enough, and were otherwise misguided. But he wanted to point out that we should be realistic about this: We shouldn't talk the rhetoric of total victory, where we had to realize that some background level of rape, anti-black violence, or anti-Semitic violence was inevitable. And let's say that this is how he made this point:

We have to get back to the place we were, where [rapists / Klansmen / anti-Semitic attackers] are not the focus of our lives, but they're a nuisance. As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life.

The letter of this argument is quite correct: Indeed, even the best strategy could at best just reduce the incidence of rape, anti-black violence, and anti-Semitic violence to a level that, while regrettable, is in some sense tolerable.

But would we be happy with Governor Bush's use of the analogy to prostitution or illegal gambling (for more details, see below)? Or would we think that, though the letter is accurate, the use of such an analogy seems inconsistent with the spirit that we're looking for in someone who can effectively fight the very serious evils that need to be fought?

Terrorism and prostitution:

From a long and interesting article in today's New York Times Magazine:

When I asked Kerry what it would take for Americans to feel safe again, he displayed a much less apocalyptic worldview. "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance," Kerry said. "As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."

I see Kerry's point: Terrorists, unlike Nazi Germany or the USSR, can't be entirely defeated, because there'll always be the possibility that some more springing up. We can end the war on some particular terrorists by killing them all or getting them to stop, but we can't end the war on terrorism generally that way. The best we can hope for is that there'll be a lot fewer terrorist attacks. That's certainly an important point, and it's worth keeping in mind.

But what remarkable analogies Kerry started with: prostitution and illegal gambling. The way law enforcement has dealt with prostitution and illegal gambling is by occasionally trying to shut down the most visible and obvious instances, tolerating what is likely millions of violations of the law per year, de jure legalizing many sorts of gambling, and de jure legalizing one sort of prostitution in Nevada, and de facto legalizing many sorts of prostitution almost everywhere; as best I can tell, "escort services" are very rarely prosecuted, to the point that they are listed in the Yellow Pages.

These are examples of practical surrender, or at least a cease-fire punctuated by occasional but largely half-hearted and ineffectual sorties. It's true that illegal gambling and prostitution aren't "threatening the fabric of [American] life," but that's because they never threatened it that much in the first place. One can live in a nation with millions of acts of prostitution or illegal gambling per year or per day. There are good reasons for simply calling off those wars altogether. Surely the strategy for dealing with terrorism must be very different, in nearly every conceivable way, from the strategy for dealing with prostitution or illegal gambling. (Maybe if Kerry had simply compared terrorism to organized crime, the analogy might have been a bit closer. But even there, it would be pretty distant, and in any event "organized crime" seemed in his quote to be a way of characterizing certain kinds of prostitution or illegal gambling offenses — he didn't even refer to the more harmful forms of organized crime.)

I realize that quotes in newspaper articles (yes, even in the New York Times) can be taken out of context. Still, this was a pretty long and self-contained quote, which suggests that Kerry was indeed making this analogy, and making it deliberately. And it strikes me as a singularly inapt analogy to make, an analogy that ought to make one question its user's underlying thinking about the problem.