The Volokh Conspiracy

The court has just approved the subpoena against the service provider in the Apple v. Does case, which involves trade secrets that were leaked to and then posted on some blogs.

The judge did not deal with any possible subpoenas against the bloggers. He thus didn't decide whether bloggers are entitled to be treated the same as other journalists, but concluded that in any event the subpoena against the service provider -- which the service provider isn't contesting -- is constitutionally permissible.

The judge did, however, signal that he isn't fond of third parties posting illegally leaked trade secret, analogizing them to "fences" of stolen information. I have argued that the First Amendment bars imposing trade secret liability on third parties, such as newspapers or Web sites, see pp. 739-48 of this article, but it sounds like the judge disagrees.

I'm not a fan of political patronage systems myself, but a few years ago my brother Sasha pointed me to this great quote from George Washington Plunkitt, a Tammany Hall political boss of the late 1800s and early 1900s; I added it as an epigraph to the patronage cases section of my First Amendment textbook:

The civil service humbug is underminin’ our institutions and if a halt ain’t called soon this great republic will tumble down like a Park-avenue house when they were buildin’ the subway, and on its ruins will rise another Russian government.

This is an awful serious proposition... Let me argue it out for you. I ain’t up on sillygisms, but I can give you some arguments that nobody can answer.

First this great and glorious country was built up by political parties; second, parties can’t hold together if their workers don’t get the offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there’ll be h--- to pay...

Let me tell you that patriotism has been dying out fast for the last twenty years. Before then when a party won, its workers got everything in sight. That was somethin’ to make a man patriotic. Now, when a party wins and its men come forward and ask for their reward, their reply is, ‘Nothin’ doin’, unless you can answer a list of questions about Egyptian mummies and how many years it will take for a bird to wear out a mass of iron as big as the earth by steppin’ on it once in a century?’”

A reader pointed me to a Web post titled "Jews and Self-Loathing," which condemns some Jewish writers' work that "promote[s] their own stereotypes," and expresses doubt that "certain forms of Jewish humor is really good for the Jews."

I'm always skeptical of these claims of "self-loathing," whether in politics or in literature or entertainment. They generally strike me as hyperbole that works to insult but not really to enlighten.

I suppose some Jews who portray Jewish characters with negative traits may actually loathe themselves, or loathe Jews (see Eric Muller's thoughts, and my response to them). I suspect that most don't.

Rather, they may want to criticize some aspects of Jewish life (whether Orthodox or secular). They may want to point out some aspects of common Jewish behavior that are funny.

Or they may just want to tell a story in which some character is Jewish, interesting, and credible. They may want to create rich characters that have good points as well as bad ones. They may want to describe characters as they or others see them: Saying that someone has a Jewish nose may indirectly bear on those very points. Or they may want to be vividly descriptive; a Jewish nose is not the same as a strong or prominent nose, for instance.

What's more, the ability to make fun of one's own group is often healthy: It helps people critically examine certain traits, and it also makes for good comedy. Conversely, judging either literature or comedy based on whether it's "good for the Jews" (or good for anyone else) tends to make for not very good literature or comedy.

There are, I'm sure, some costs in perpetuating stereotypes -- even often accurate, though naturally incomplete, stereotypes -- of Jews or of others, even in fiction. But I think there are greater costs in demanding that humor or storytelling be socially responsible. Sometimes there's a story that reflects badly on people in some group (consider movies about the Italian mafia). It's important for observers to realize (and if necessary to stress to others) that the story isn't supposed to characterize all or even most members of the group, but I don't think that authors should refrain from telling the story for fear that it will fuel wrongheaded views.

Now of course one can get only so far by talking about this in the abstract. The post points to an article that discusses Meet the Fokkers; I haven't seen the movie, so I can't speak to it. But I doubt that it truly represents self-loathing. And I suspect that asking Jewish writers to focus on whether their stories are bad for the Jews will just lead to bad Jewish writing.

in the USA Next gay wedding photo case, at least if this blog account is accurate.

The judge issued a temporary restraining order against further airing of the ad, apparently on the theory that the ad infringes the same-sex spouses' right to control the use of their likenesses (the right of publicity or the right to block misappropriation of likeness). I argue below that the right of publicity doesn't cover the use of people's likenesses in political ads, and I remain quite confident of that. But even if the plaintiffs potentially have a good damages claim, an injunction of such political ads before a trial on the merits — based not on a final judgment that the speech is unprotected but on a mere finding of likelihood of success — is an unconstitutional prior restraint.

Mark Lemley and I give more details in this article. I should say that some lower courts have authorized such preliminary injunctions in the past, but I think they were quite mistaken as a matter of First Amendment law. I hope USA Next promptly appeals; they have a very strong claim here, both under the First Amendment and under substantive right of publicity law, which is on their side.

Thanks to David Kravitz and Jason Walta for pointers to the story about the injunction.

Here's an excerpt from the press release:

A $25 million lawsuit was filed today against right-wing front group USA Next and political consulting firm Mark Montini International for stealing an Oregon couple’s wedding photo and using it without permission in a high-profile gay-bashing ad designed to drum up support for social security privatization. . . .

The suit alleges that the use of the couple’s image without permission constituted an invasion of privacy, was libelous, violated their right of publicity and constituted an intentional infliction of emotional distress.

In one version of the USA Next ad disseminated widely on the Internet in February, and aired repeatedly by television news programs and newspapers nationwide, the couple’s image, superimposed with a green checkmark, is side-by-side a picture of a US soldier with a red “X” across it. Below the photos is the phrase “The REAL AARP Agenda.”

I've read the Complaint and the case seems like a pretty clear loser:

1. The plaintiffs claim that the ad libeled them and placed them in a false light by "stating directly or by implication that the plaintiffs are unpatriotic American citizens who do not support the United States military while our nation is at war." But I don't think reasonable viewers would understand the ad that way.

   They would understand the ad as claiming (whether accurately or not) that the AARP doesn't support the military enough. They would understand the ad as implicitly claiming that gay marriage is bad (an opinion that can't form the basis for a libel claim). But nothing in the ad suggests to reasonable viewers that the men don't support the military. So there's no false statement about the plaintiffs, and thus no libel or false light claim.

2. The plaintiffs claim that the ad appropriated their likenesses in a way that benefited USA Next and Montini commercially. But political ads, even ones that help raise money for a group (or that earn the political consultant money), are treated as fully protected speech under the First Amendment, and not as the less protected "commercial speech." Such political ads are also generally not covered by the misappropriation of likeness tort, just as other fully constitutionally protected but commercial uses — news reporting, biography, fiction, and so on — are not covered. The misappropriation tort generally covers, with very few exceptions, only commercial advertising (rather than political advertising) and merchandising, such as T-shirts, action figures, and the like.

   The closest case I've found to this is Battaglieri v. Mackinac Center for Public Policy, a Michigan Court of Appeals case from 2004 that involved the unauthorized use of a person's name (whether it's name or likeness doesn't matter) in a political fundraising ad. And the court held that the ad was constitutionally protected against a misappropriation tort claim, even though "it was also a clear request for charitable contributions to support [defendant's] work."

   Also, though the lawsuit was filed in the District of Columbia, the general rule in misappropriation cases is that courts should apply the law of where the plaintiff lives. Here, that's Oregon, and the leading Oregon case on this — Anderson v. Fisher Broadcasting Companies, Inc., 712 P.2d 803 (Ore. 1986) — reads the misappropriation tort quite narrowly, basically applying only when the defendant "exploits a distinctive economic value of an individual's identity or image beyond that of other similar persons for purposes of associating it with a commercial product or service." I don't think that USA Next would be covered by this definition, since it's selling political ideas, not a commercial product or service.

3. The plaintiffs' invasion of privacy claims are just their false light claims and their appropriation claims; for historical reasons, both of these torts have often be labeled "invasion of privacy." They have no separate claim of invasion of privacy by wrongful disclosure of private facts. I think Oregon courts probably don't recognize such a claim, see Anderson; publishing a photo of people kissing in public isn't treated as such an invasion of privacy, Gill v. Hearst Pub. Co., 253 P.2d 441 (Cal. 1953); and in any case the plaintiffs aren't making such a claim.
4. The plaintiff's intentional infliction of emotional distress claim is also a pretty clear loser. Courts generally limit the tort to outrageous conduct, and set the outrageousness bar quite high; I doubt this would qualify as outrageous enough. Moreover, when the claim involves speech on matters of public concern, courts generally reject the claim on First Amendment grounds. (The Supreme Court has only held that statements about public figures on matters of public concern are generally immune from emotional distress liability under the First Amendment, and that decision didn't speak about statements about private figures on matters of public concern. But its logic would apply equally to such private-figure public-concern statements, and lower courts have indeed rejected emotional distress liability in such cases.)
5. Curiously, the strongest claim against USA Next would be a copyright claim brought by the copyright owner, which seems to be the Portland Tribune newspaper (or perhaps the photographer, if he was a freelancer and kept the copyright). But the copyright owner isn't suing (though it suggested that it might); the maximum damages in the copyright case would be $150,000, not $25 million; and USA Next would have a decent fair use defense (though it's hard to evaluate the likely strength of the defense, given how vague the fair use doctrine is).

So my sense is that the gay couple should lose, and will lose if the case comes to court, and USA Next will and should win. I sympathize with the plaintiffs' upset here, and I think it was rude for USA Next to drag the plaintiffs' picture into a political cause that they don't support. But, at least setting aside the copyright question, USA Next was behaving within its legal and constitutional rights.

based on a seemingly very thorough database (we're talking many entries per day). Cool and scary. Thanks to Neil Reinhardt for the pointer.

This story says yes:

Ynet has learned that 18-year-olds who tell recruiters they play the popular fantasy game are automatically given low security clearance.

“They're detached from reality and suscep[ti]ble to influence,” the army says.

I'm not sure how accurate the story is; for instance, a few paragraphs down it says:

"One of the tests we do, either by asking soldiers directly or through information provided us, is to ask whether they take part in the game," he says. "If a soldier answers in the affirmative, he is sent to a professional for an evaluation, usually a psychologist."

More than half of the soldiers sent for evaluation receive low security clearances, thus preventing them from serving in sensitive IDF positions, he says.

"Automatically given low security clearances" isn't the same as "more than half . . . receive low security clearances" (though it's not clear whether the denominator in the latter statistic is all people referred for evaluation, or just D&D players); and this is the sort of inconsistency that makes me uncertain about the rest of the story's claims.

Still, if the story is accurate, it seems odd. Maybe D&D circles have changed a lot, or maybe the ones I was in were unrepresentative — or maybe I'm a lousy judge of who's detached from reality and susceptible to influence. But my sense is that most D&D players are perfectly fine people. Geeks, mind you, but geek is good.

On the other hand, the Israeli military is supposed to be pretty sharp; doubtless it has the normal share of bureaucratic folly, but I'd assume that most of their judgments about soldierly quality are better than my judgments. So, who knows, maybe they're right.

Thanks to Dylan Alexander and Michael Koh for the pointer.

(Say, wasn't that a character I used to run when I was a Dungeons & Dragons player in high school?)

Prof. Volokh,

We were just informed about your blog post today about anti-semitism and racism on the site (your blog entry is being discussed at http://www.xoxohth.com/thread.php?thread_id=147012&forum_id=2).

We think your assessment was accurate: those threads are a very small fraction of the site, and even in those threads the overwhelming majority of posters are responding to the racists harshly. However, there are some additional points we'd like to make:

1) The site is clearly divided into on-topic and off-topic filters. We are very strong believers in the freedom of expression and the marketplace of ideas. This is why we allow off-topic discussion and almost never censor content, no matter how abhorrent it may be. However, we understand that not everyone wants to be exposed to such discussions. Some might simply want to browse the site for threads directly relating to law school, employment, etc. Go figure. Hence the on-topic/off-topic filters – the default option is on-topic mode, and in order to see the offensive material in question, one has to pro-actively enter off-topic ("expert") mode. If an individual does not want to be exposed to discussion of politics, sports, or racism, all that individual has to do to avoid 99+% of that content is stay in school-related mode.

2) That said, some posts do slip through the cracks. We trust our users to classify threads as school-related or off-topic, and although the overwhelming majority classifies their threads appropriately, on a daily basis you can expect at least one or two threads to slip through the cracks. This is usually not a big deal, but over a period of months it can add up, as you can see by the number of threads that appear in school-related mode when you search for racist terms. However, keep in mind that typical users are not going to see a flood of those threads when they go to the site. The only time you'll see twenty or so racist threads on the site is if you proactively search for them, which is what your colleague took upon himself to do when he used the search box to search the entire site specifically for those various racist terms he came up with.

3) The very reason our student-run community has been so much more phenomenally successful than all of its competitors, in its single year of existence, is that it respects the merits of the free, uninhibited exchange of ideas. In fact, one finds overall a much deeper and much more mature level of insight in a community where the ugliest depths of human opinion are confronted, rather than ignored. And the majority of the school-related content on the site speaks to that fact. That is our community; take it or leave it.

4) This community, which for the above reasons has been the object of ongoing controversy, has given birth to some truly noteworthy academic studies. Just today, one of the administrators, Anthony Ciolli, released a working paper on the determinants of law school national employment placement at elite firms (available at http://www.autoadmit.com/studies/ciolli). Another respected member of the community, Aaron Chalfin, this past November published a study on how law schools are ranked by current and prospective law students, which received much attention across the law school admissions community (available at http://www.autoadmit.com/studies/chalfin). There is no other admissions discussion board on the Internet whose members possess such a collective body of knowledge and wisdom, and we attribute that to the hands-off moderating philosophy we have discussed in this letter.

Anthony Ciolli, Jarret Cohen Administrators

Naturally, I can't speak to the merits of the site (though Xoxohth was quite a guy, 18/00 dexterity, 16 intelligence, . . . — or am I confusing him with Fafhrd), but I thought I'd post the operators' response.

UPDATE: Two correspondents have admonished me that only strength could be 18/00, not dexterity. That's not how I remember playing it (and recall that the rules of D&D were always flexible), but a quick google search reveals many more strength 18/00s than anything else 18/00. Naturally, this is very important for understanding the proper social response to racism and anti-Semitism on law student discussion sites.

From a Reuters story:

Former [Sex] Pistols bassist Glen Matlock has called for swearing on British television to be curbed . . . .

As a teenager, Matlock co-wrote some of the Pistols' most enduring anthems like God Save The Queen and Anarchy In The UK. He left the group early in 1977 and was replaced by Sid Vicious.

Sid Vicious could not be reached for comment.

(OK, I made that last sentence up, but it's true!) Thanks to reader Michael Greenspan for the pointer. Note: No need for e-mails that start with "Never mind the Volokhs . . ." -- Greenspan has preempted you.

A reader writes, apropos my comment about tell LEXIS and WESTLAW erors:

Look at 42 C.F.R. 441.303(f)(1), on LEXIS:

The annual average per capita expenditure estimate of the cost of home and community-based and other Medicaid services under the waiver must not exceed the estimated annual average per capita expenditures of the cost of services in the absence of a waiver. The estimates are to be based on the following equation:

D+D minutes > G+G minutes .

The symbol ">" means that the result of the left side of the equation must be less than or equal to the result of the right side of the equation.

D = the estimated annual average per capita Medicaid cost for home and community-based services for individuals in the waiver program.

D minutes = the estimated annual average per capita Medicaid cost for all other services provided to individuals in the waiver program.

G = the estimated annual average per capita Medicaid cost for hospital, NF, or ICF/MR care that would be incurred for individuals served in the waiver, were the waiver not granted.

G minutes = the estimated annual average per capita Medicaid costs for all services other than those included in factor G for individuals served in the waiver, were the waiver not granted.

First, notice that this inequality is called an equation, but let's let that pass. [EV: The word "equation" is in the CFR, not in the LEXIS version.]

Second, see how the greater than symbol is defined, for those readers who don't know math, to mean less than or equal to.

Third, why are two of the quantities called "D minutes" and "G minutes"? The definitions are similar to D and G, respectively, so that "D + D minutes" and "G + G minutes" are both total costs of something. So I figured out that they must be primes, which the translation to LEXIS must have converted into "minutes."

You can check the text of the regulation [here] and you'll see that, indeed, it is a less than or equal sign, and primes. [EV: I had trouble pulling up the PDF, but I trust my correspondent, and the text version

Finally, check the regulation on Westlaw (where I've often found there are fewer mistakes), and you'll see that they have it exactly right.

I'm pleased to say that my correspondent assures me that he is indeed reporting this to LEXIS. But let this be a warning to us all . . . . (And, yes, I do rely on LEXIS and WESTLAW versions of many documents myself, and count on cite-checkers to check them against the print versions, unless something strikes me as really wrong or the matter is extremely important. I try to be careful, but there are limits.)

Max Boot's column about Iwo Jima made me think of the Marine Corps, and reminded me of an incident a few years ago. I was having dinner with a think-tanker in D.C., and I noticed a pin he was wearing. He noticed me noticing, and asked me if I knew what it was.

The pin, which was small and had no legible writing, most obviously contained a two-dimensionable representation of the globe, with an eagle above it. But then I noticed that behind the globe was an anchor. "Is it related to the Navy?," I asked, entirely innocently. (Like many in my circle, I've had very little exposure to the military.)

Being an honest fellow, he had to admit that it was, in a sense -- but the way he bristled made it clear that he thought the relationship was something that was very minor, and that obscured much more than it revealed. Then I realized my error.

Max Boot, who has written on military history, has an op-ed on this subject, which struck me as interesting, both for its historical substance and its conclusion:

No [criticism of the decision to take Iwo Jima] was heard at the time, in part because of the rah-rah tone of World War II press coverage but also because Americans back then had a greater appreciation for the ugly, unpredictable nature of combat. They even coined a word for it: snafu (in polite language: "situation normal, all fouled up"). It's a shame that so many sentimental tributes to the veterans of the Good War elide this unpleasant reality, leaving us a bit less intellectually and emotionally prepared for the trauma of modern war.

"Avoid the passive voice!," writers are often told. That's good advice — but it shouldn't, I think, be taken to extremes.

Passive voice is bad for three reasons: (1) It tends to be less engaging, (2) it usually adds a few more words and some extra grammatical complexity, and (3) it tends to obscure who's actually doing something. "The dog was bitten by the man" is an example of passive voice bringing less verve, and requiring more words, than the active. "Mistakes were made" is the cliche example of passive voice as obfuscation or barrier to analysis.

But sometimes passive voice is just fine, especially when you want to focus on the object of the action rather than on the actor. Here's an example I ran across a while back: A draft said:

Neither we nor the government need sit idle when evil ideas are spread.

Someone suggested that it be changed (more or less) to:

Neither we nor the government need sit idle when people or groups spread evil ideas.

The original was in the active voice, but the "when" clause was in the passive. The replacement is entirely in the active.

But is the new version really better? It's actually a bit longer and more complex, because it adds a reference to the actor. The addition isn't just a single word, but the phrase "people or groups." The new phrase is relatively bloodless, and I suspect somewhat less vivid than "evil ideas."

More importantly, the new phrase needlessly shifts the reader's focus from the substantively important noun phrase — the "evil ideas," which are the reason that we must act rather than sitting idle — to the less significant "people or groups" that spread the ideas.

Now maybe there's some other value to the edit that I'm missing. But I do think that the partly passive original is more effective than the wholly active replacement.

UPDATE: An interesting item on passive voice in technical documentation.

I had an exchange with another lawprof that I thought might be worth airing, since it deals with the genuinely difficult question of the proper private, nongovernmental response to evil speech (which as it happens is the broadest version of the subject of my forthcoming law review article on "Deterring Speech: When Is It "McCarthyism"? When Is It Proper?). The lawprof wrote to me:

I read with some horror, and admiration for Eugene's forthrightness, the exchange with the NeoNazis who began "counting Jews" on the UCLA law faculty. These fringe nuts are a bit scary, but I must confess I find the following even scarier, since it involves the kids who are or may be our students: http://www.xoxohth.com/main.php?forum_id=2&hid=0&qu=jews

Click on a few of the threads that are called up, and you'll see what I mean. This purports to be a prelaw discussion site, and it appears a large number of applicants and current law students post there. If the appalling anti-semitism isn't enough, then try the racism: http://www.xoxohth.com/main.php?forum_id=2&hid=0&qu=nigger

or more here: http://www.xoxohth.com/main.php?forum_id=2&hid=0&qu=blacks

Perhaps if you called attention to this, the site's managers might "clean up" the content a bit? And perhaps students might be encouraged to move to the more mature and civil prelaw sites, such as www.lawschooldiscussion.org.

Here's a slightly cleaned up portion of my response, which I sent to the lawprof by e-mail:

Thanks very much for the kind words, and for the pointer — these are pretty appalling posts. But my sense from just a casual look was that (1) these threads are actually a small fraction of what is posted on the site (or so it seems from a quick look at http://xoxohth.com/main.php?forum_id=2 to see the most recent posts), and (2) in the few threads that I've seen, others are responding to the neo-Nazis, quite aptly and harshly. This is probably to the good, since (A) maybe a few of the idiots will be shaken out of their idiocy — not very likely, but it happens sometimes, and it's ultimately the only way of effectively fighting the problem, it seems to me — (B) and since decent readers will realize that these opinions are out there, and that it's important to respond to them. So it doesn't seem to me to be particularly wrong for the site managers people to maintain this as an unmoderated discussion board (I assume that it is).

I should stress again that I find these questions of what is the proper private response to be quite difficult, and my views on the subject are generally much more tentative than my views on many First Amendment questions. Nongovernmental entities may and often should do things that the government may not; and their ethical rights and obligations are often more complex and context-sensitive than what we'd expect from the law.

Also, if the discussion board decided to filter out rude statements in order to make the discussions more valuable, or even to filter out evil ideas because they don't want their property used to promulgate such ideas, I wouldn't object: I think they're ethically entitled to do this, and there's no reason to condemn them for it.

But I don't think they're ethically obligated to engage in such filtering, for the reasons in the start of my quote: Providing a forum for these posts, in a context where they can be quickly responded to, may actually be something of a public service.

UPDATE: My former student Raffi Melkonian writes:

I'm a long time user of the xoxo board. Your response to the lawprof . . . .is quite right. Sure, there are a wide range of stupid, racist, and otherwise unpleasant posts on the board. But it also provides a valuable service for law school applicants, facilitated by the higher traffic such openness (even to evil speech) provides. . . .

I confess that I haven't been following this closely, so I have no independent opinion on this; but Julian Ku (Opinion Juris), who specializes in international law, is on top of it. A brief summary:

I noted rumors/reports of this below, and now the New York Times confirms that the U.S. has withdrawn from the Optional Protocol to the Vienna Convention on Consular Relations. The Optional Protocol is the provision granting the International Court of Justice compulsory jurisdiction over disputes under the consular relations treaty and the basis for Mexico's (and Germany's) applications to the ICJ. If the U.S. has indeed legally withdrawn from the Optional Protocol, then the ICJ can no longer hear future cases brought by other countries with foreign nationals similarly situated to Mexico's nationals.

For Julian's observations, go here.