The Volokh Conspiracy

The theory strikes me as quite similar to that explained by Mark Seecof in his comments.

There's also some more material pointed to on SearchEngineWatch.

I noticed he'd been spamming our comments by putting up ads for his site. It's fine to link to a post on your site if it's related to something on-topic in your comment; it's even fine if the link is part of your signature; but cluttering our site up with unrelated ads for your site is not fine, and it's usually pretty easy to tell the difference — it surely was here.

A google search reveals that he's also been doing the same on other blogs. I've banned his IP address from our site, and I wanted to alert other bloggers, in case they want to do the same.

UPDATE: The Hollywood Liberal e-mailed me in response:

Sorry, didn't know that was a problem. I don't want to cause any trouble for you, or your site, which I really like I'll stay off of it from now on.

from New Jersey Star-Ledger columnist Paul Mulshine.

If Judge Alito (a conservative) replaces Justice O'Connor (a moderate conservative), that probably would shift the court in some measure to the right. When Justice Ginsburg (a moderate liberal) replaced Justice White (a mixed bag, moderately liberal on some things, centrist on some, conservative on most culture war issues, including abortion, the Establishment Clause, and gay rights), that shifted the court in some measure to the left. But, according to David Boaz, writing in Reason:

In the past three months, the major media have repeatedly hammered away at the theme that Judge Samuel Alito Jr. would "shift the Supreme Court to the right" if he replaced retiring Justice Sandra Day O'Connor.

According to Lexis/Nexis, major newspapers have used the phrase "shift the court" 36 times in their Alito coverage. They have referred to the "balance of the court" 32 times and "the court's balance" another 15. "Shift to the right" accounted for another 18 mentions.

Major radio and television programs indexed by Lexis/Nexis have used those phrases 63 times. CNN told viewers that Alito would "tilt the balance of the court" twice on the day President Bush nominated him. NPR's first-day story on "Morning Edition" was headlined "Alito could move court dramatically to the right." ...

[But around the time of the Ginsburg appointment, n]ot a single major newspaper used the phrases "shift the court," "shift to the left," or "balance of the court" in the six weeks between Clinton's nomination and the Senate's ratification of Ginsburg. Only one story in the Cleveland Plain-Dealer mentioned the "court's balance," and that writer thought that Ginsburg would move a "far right" court "toward the center."

The only network broadcast to use any of those phrases was an NPR interview in which liberal law professor Paul Rothstein of Georgetown University said that Ginsburg might offer a "subtle change ... a nuance" in "the balance of the court" because she would line up with Justice O'Connor in the center....

Clayton Cramer writes:

I suppose that they could have arrested him for public drunkenness, but they picked the far more serious offense:

A final-year Oxford University student from Belfast who called a mounted policeman’s horse gay will not be prosecuted, it was announced today.

Police stood by their decision to take Sam Brown (aged 21) to court for making “homophobic comments” after the Crown Prosecution Service today dropped the case.

Mr Brown approached the officer during a night out with friends in Oxford after his final exams, and said: “Excuse me, do you realise your horse is gay?”

Moments later, two Thames Valley Police squad cars appeared in the High Street and Mr Brown was arrested under section five of the Public Order Act for making homophobic remarks.

His remarks were deemed likely to cause harassment, alarm or distress.

To who? The horse? Apparently, the police were afraid that these remarks would have been offensive to those passing by:

A spokesman said: “We present the case to the CPS and the CPS make the decision to proceed or not.

“He made homophobic comments that were deemed offensive to people passing by.”

So far, so good -- an important illustration of how English law potentially restricts free speech (and why we might want to resist calls for the importation of foreign free speech norms into the U.S.). Yet here's what Mr. Cramer closes with:

You wonder on which side the ACLU would have been if a similar law and case presented itself. On the side of the drunken student's free speech rights? Or the right of the community to not hear ideas that offend?

Well, you might wonder this -- if you didn't know the ACLU's record on criminal prosecutions for bigoted speech. But if you did know it, or you decided to investigate it instead of wondering, you'd find:

1. In the highest-profile Supreme Court case of the last 15 years that dealt with criminal punishment for bigoted speech -- R.A.V. v. City of St. Paul (1992) -- the ACLU (both the national group and the local chapter) filed an amicus brief defending the right to say bigoted things. "[A] ban on expressive activities that 'arouse[] anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender' cannot be reconciled with our society's commitment that 'debate on public issues should be uninhibited, robust, and wide-open ....'" "It is tempting to say that the message conveyed by even the public burning of a cross during a political rally" -- the case involved racist crossburning, though the logic of the ACLU's argument applied to all bigoted speech -- "is so offensive, so hurtful, and so antithetical to the ideal of equality, that it ought to be subject to prohibition without the need for rigorous scrutiny of whether it crosses some First Amendment line from protected advocacy to unprotected threats or intimidation. The Constitution, however, does not tolerate such shortcuts."

2. In another recent case involving bigoted speech, Virginia v. Black, the local ACLU chapter likewise argued that bigoted speech is protected unless it fits within the threat exception or the incitement exception (or, possibly, the exception for face-to-face personal insults that are likely to start a fight). There, the ACLU was among the lawyers for the defendants.

3. The above two cases are most relevant to predicting the ACLU's position on the matter that Mr. Cramer points to -- criminal prosecution for offensive bigoted speech. But even if one looks to noncriminal penalties, and focuses on the highest-profile bigoted speech controversy of the last two decades, campus speech codes, one finds that the ACLU has supported free speech protection. (Three local chapters in California didn't take this view, but the national ACLU did.)

The ACLU has unfortunately supported speech restrictions under the rubric of workplace harassment law, though Nadine Strossen, the ACLU's President, publicly dissented from that position; but, even more unfortunately, the ACLU here is simply in the legal and social mainstream (for my dissenting views, see here, though even I would accept some restrictions on one-to-one insulting speech). In any event, it is the ACLU's past positions in cases involving criminal punishment of speech on the street that seems to be the best predictor of its future position in a case involving criminal punishment of speech.

So it seems to me that there's little call to imply that the ACLU would oppose protection of free speech in the case that Mr. Cramer describes. Those familiar with the ACLU's past position in such cases should see that pretty clearly.

The U.N. Office of the High Commissioner for Human Rights Resolution 2005/3 ("Combating defamation of religions") states, among other things:

The Commission on Human Rights ... [u]rges States to take resolute action to prohibit the dissemination through political institutions and organizations of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence ...

So harsh criticism of Scientology should be outlawed (unless somehow the government is empowered to decide that it's not a "real" religion). So would harsh criticism of Catholicism — which may well urge hostility to Catholic teachings and the Catholic hierarchy — on the grounds that it supposedly oppresses women or homosexuals. So would harsh criticism of militant Islam. Religious ideas and religious institutions, which are often among the most important and influential ideas and institutions, would thus be legally protected from strong condemnation, condemnation that in many instances (though of course people disagree on which instances) is entirely merited.

Perhaps not coincidentally, the UN High Commissioner for Human Rights, Louise Arbour, has recently publicly condemned a Danish newspaper that published a dozen drawings of Mohammed, some of which were pejorative and all of which were seen as blasphemous by many Muslims (since at least some strains of Islam prohibit depictions of Mohammed). Arbour said that she "deplore[d] any statement or act showing a lack of respect towards other people's religion," and "appointed to UN experts in the areas of religious freedom and racism to investigate the matter." The High Commissioner's office has "asked Danish Prime Minister Anders Fogh Rasmussen for "an official explanation," including asking "the Rasmussen government to respond to the question, 'Do the caricatures insult or discredit?'" If this were just the UN using its own megaphone to express its views, that would be troubling enough. But against the backdrop of the resolutions urging governments to legally suppress "xenophobic ideas and material aimed at any religion or its followers that constitute incitement to ... hostility," the call is even worse.

This also reminds me of my posts from 2003 and 2005 on how emerging "international law" principles can erode the Bill of Rights; as Prof. Peter Spiro, one of the leading U.S. international law scholars wrote in one of the leading U.S. law reviews, the President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "In the short term," international norms would and should be "relevan[t] ... in domestic constitutional interpretation." But "In the long run, it may point to the Constitution's more complete subordination."

And the article was both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run." "Constitutional rights 'adjusted' by treaty norms are changed by them. The Constitution is read to conform with the treaty."

What's more, I've heard international law fans urge that U.S. constitutional decisionmaking should be informed not just by express statements in treaties that the U.S. has signed and ratified, but also by international practice outside treaties, by statements in treaties that the U.S. hasn't signed or hasn't ratified, and by actions of international bodies established pursuant to treaties that the U.S. has ratified. What U.N. commissions say and do may thus ultimately affect not just international politics, but the constitutional rights of Danes, Americans, and anyone else who has a broader view of free speech than the U.N. seems to endorse. That's reason, I think, to pay close attention to how international institutions are trying to establish norms that demand suppression of free speech.

Thanks to The Brussels Journal and InstaPundit.com for pointers to the Denmark controversy, which I otherwise would have missed.

I thought I'd pass along another excerpt from my new Deterring Speech: When Is It "McCarthyism"? When Is It Proper? (93 Cal. L. Rev. 1413 (2005)); I omit the footnotes, but they're all in the PDF; if you wonder whether one of my assertion is well-supported, please check the footnotes first to see if they may answer your question. Next week, I'll probably blog excerpts on economic retaliation against speakers who are commentators rather than entertainers, and then on economic retaliation against other employees.

The blacklist is back, we are told. After Natalie Maines, lead singer of the country music band the Dixie Chicks, told fans during a London concert, “[W]e’re ashamed the President of the United States is from Texas,” many stations stopped playing her music, and some stations organized rallies at which Dixie Chicks CDs were crushed by bulldozers. MCI stopped using actor Danny Glover in its commercials, apparently because he signed various statements that harshly opposed the Iraq war and defended Fidel Castro. Susan Sarandon and Tim Robbins were disinvited from speaking engagements because of their opposition to the war in Iraq; Sean Penn apparently lost an acting role for the same reason.

How should we react when private entities economically retaliate against people based on their speech, or citizens urge those entities to do this? The retaliation is generally legal. Though some state laws restrict employers’ power to retaliate against employees for their political speech, I know of no laws that restrict companies’ power to retaliate against truly independent contractors. Moreover, media organizations may have a constitutional right to fire their employees for their political views, even if state law prohibits such firings. Calls for such retaliation by the public are likewise constitutionally protected. But are economic retaliation and calls for retaliation proper, or should we develop social norms against them? This, it seems to me, is a hard question, but let me offer a few observations.

Let me start by focusing on speech by entertainers. Entertainers are valued speakers because people like them. Danny Glover makes a good pitchman for MCI because people feel good about him: If MCI simply wanted someone who could act well in its commercials, it could have hired a nameless actor for much less. Susan Sarandon was invited to speak to the United Way because people want to hear the well-liked movie star Susan Sarandon, not because Sarandon is a national expert on women in volunteerism. People go to movies largely because they like the stars’ work, but also because they like the stars or at least like the image that the stars project; the same is true for musicians. That’s a big part of why entertainers have publicists.

When people stop liking you, whether because they think that you’re rude, vulgar, or foolish, your value as a speaker or pitchman falls. People are less likely to want to hear you or buy products that you promote. Those who hire you, invite you, or play your music might understandably switch to someone who alienates fewer audience members. What you gain from your sex appeal, coolness, or association with worthy causes, you lose from what people see as your rudeness, folly, hostility to projects they support, or association with causes they dislike. Tolerance demands that people neither beat you up for your views nor throw you in jail for them. But it doesn’t demand that people continue to like you—and if they don’t like you, then you won’t be as effective a promoter.

Naturally this may lead entertainers to think twice before expressing controversial views. The boycott against Florida orange juice because of spokeswoman Anita Bryant’s anti-gay stand surely taught many entertainers that. But if your livelihood turns on people’s affection for you, you can’t protect that affection while saying things that turn people off. And tolerance doesn’t require that people buy products promoted by celebrities whom they’ve come to distrust, hear songs by singers whom they no longer enjoy, or listen to speeches by entertainers who they’ve concluded are fools.

And just as entertainers derive much of their income from the public’s affection for them, they also derive much of their political clout from such affection and from their successes in fields quite unrelated to politics. Danny Glover’s signature on the anti-Iraq-war letter was valuable because he was a movie star, not because he was learned on international law. Natalie Maines had a large audience for her expression of contempt for President Bush because she was invited to sing, not because she was invited to deliver a political lecture.

Consumers know that by supporting Natalie Maines, they are indirectly helping support Maines’ political message, just as consumers know that by supporting a business, they are indirectly helping support the projects that the business or its owner funds. It seems quite legitimate for consumers to withdraw their support of entertainers and to use their economic power to pressure others to withdraw their support. Groups have organized consumer boycotts of businesses that contribute to Operation Rescue, to pro-life candidates and ballot measures, and to Planned Parenthood; others have pressured businesses to stop advertising on conservative Sinclair Broadcasting. Consumer retaliation against entertainers seems equally legitimate when a celebrity supports a cause by using her fame, rather than a business supporting a cause by using its money.

Here's what Kieran Healy (Crooked Timber) has to say.

Here's a question I just posed to a con law profs' discussion list; it strikes me as genuinely quite difficult, partly because the Supreme Court hasn't squarely confronted what rules should apply to facially content-neutral restrictions on newsgathering (as opposed to communicating the gathered news):

California Education Code 66450 provides that, generally speaking no person "shall prepare, cause to be prepared, give, sell, transfer, or otherwise distribute or publish, for any commercial purpose, any contemporaneous recording of [a normal public university class] . . . . This prohibition applies to a recording made in any medium, including, but not necessarily limited to, handwritten or typewritten class notes." "Commercial purpose" is defined to mean "any purpose that has financial or economic gain as an objective."

Say that The Davis Enterprise, a newspaper in the town that hosts UC Davis, has heard from students that some instructors are saying sexist and anti-gay things in their classes. They therefore try to get tape recordings of the classes so they can hear for themselves, and quote the material accurately and in context. But they can't just send in a staff reporter (since nonstudents generally aren't allowed to sit in on lectures), and students are reluctant to tape the class for free: "You folks are a for-profit venture," students they approach tell them, "and you get paid a salary for your work. If you want us to be your researchers, hire us as your researchers." They therefore hire some students as part-time researchers, whose job is to record the classes, and -- if the professors indeed say sexist or anti-gay things -- to pass along the tapes.

UC Davis tries to stop this, arguing that the practice violates the statute. Though the statute was seemingly enacted to bar people from taping and then reselling the tapes to classmates or to would-be students who don't want to pay the money to go to school, it on its face also seems to cover compensated taping for news-gathering purposes.

Is the statute constitutional, as applied to this form of news gathering?

I'd love to see in the comments some detailed legal analyses of the questions, but please comment on this post only if you are well-acquainted with First Amendment precedents. I'm interested both in analysis under current doctrine and the possible creation of new doctrine, but I'd like to see rules that are practically plausible, which generally requires that they fit well with the general fabric of First Amendment law -- hence my preference that the discussion be limited to people who know that fabric well.

Here's an example of why I think the UCLAProfs.com site is often shallow and unpersuasive, though as I note below I think some of the "those McCarthyites" criticisms of it are unpersuasive, too. From the front page of the site:

There's Something About Petitions

Given the vast number of radical petitions UCLA professors have signed in recent years, much of our university's faculty apparently follows a variation of Descartes' famous statement, Cogito, ergo sum (I think therefore I am): Signo, ergo sum, (I sign, therefore I am).

Preliminary UCLAProfs.com research has uncovered nearly 500 faculty signatures on petitions, open letters and public statements which take a wide variety of radical positions: anti-Israel, anti-Bush, anti-war. The list also demonstrates that a large number of UCLA professors are ardently in favor of affirmative action, and just as ardently opposed to conservative legal nominees, even opposing fellow alumni like Justice Janice Rogers Brown.

Various faculty profiles that I saw on the site also stress those petitions.

Consider:

1. The irrelevant data: Nearly 500 signatures (not 500 separate faculty members, but 500 signatures) on various petitions. And this matters because . . .?

2. More irrelevant data: "A large number of UCLA professors are ardently in favor of affirmative action, and just as ardently opposed to conservative legal nominees." So? In a faculty of thousands, of course there'd be a large number of UCLA professors ardently in favor of affirmative action. They're entitled to hold such views; why is it that important that they do hold such views? It doesn't show that the faculty is disproportionately left-wing. (It may well be, and certainly is in many departments, but we know that from other sources. That "a large number of UCLA professors" supports affirmative action is not evidence of that, given what a small fraction of UCLA professors must be in their petition signatories dataset.)

3. The putdown that's really a compliment: "... even opposing fellow alumni like Justice Janice Rogers Brown." Jeez, school spirit is all well and good, but it's hardly a sign of poor character that some people don't let their public policy judgment be swayed by school loyalty.

4. The exaggerated rhetoric: "[R]adical positions: anti-Israel, anti-Bush, anti-war" -- since when was being anti-Bush, a view that roughly half (if not more) of the population takes a "radical position"? Likewise as to opposition to the war or opposition to Israel. Now there are surely radical versions of those positions, and doubtless some of my colleagues hold them. But simply labeling "anti-Israel, anti-Bush, anti-war" as "radical positions," with no explanation of what's radical about them, is a self-caricature of conservatism.

As I've said before, it's perfectly legitimate to criticize professors. People even have the First Amendment right to do so unfairly, shallowly, and exaggeratedly. But such weakly reasoned criticism is hardly laudable -- and, I think, it usually (and especially in this instance) is likely to be counterproductive.

There's been much written in the last day or so about UCLAProfs.com, a site that criticizes supposedly extreme left-wing UCLA professors, and that "is offering students payments of up to $100 per class to provide information" — especially audiotapes — "on instructors who are 'abusive, one-sided or off-topic' in advocating political ideologies." My colleague Stephen Bainbridge has more.

I've checked out the site, and find many of the criticisms to be quite shallow and unpersuasive. (I should note that I've informally responded to some questions by the site's author in the past, but I doubt that I'd do so in the future, given the pretty low quality of the materials.) I also do think the offering of money to students is a bit unsavory, though I'm not positive how bad it is; much information-gathering, after all, is done by people who get paid, and sometimes get paid in rough correlation to the stuff they unearth. My colleague Jerry Kang points out that tape recording for money might violate a specific California statutory provision; it's an interesting question whether applying the law to tape recordings in this context (which is also far from the context that seems to have animated the enactment of the law) would be an unconstitutional burden on information gathering.

Nonetheless, I do think we need to put all this in perspective. My colleagues and I are public servants. We have a certain degree of influence over public affairs, both through our public commentary and through our teaching. Others disagree with us, and think we're doing a public disservice rather than a public service. They're entitled to criticize us, and to monitor our public performance of our duties to see whether that performance is, in their view, lacking. I try to imagine what I would think if someone from the Left set up a site to criticize Prof. Bainbridge, me, and my (rather few) conservative colleagues, and to solicit concrete evidence of our supposed misdeeds; I would like to think that I would recognize that this was their right, both legally and ethically.

Now it's true that this may have a "chilling effect" in the sense of deterring some people from saying controversial things, in class or outside it. But all criticism has such an effect; much criticism is intended to have such an effect. It's even good when criticism has such a deterrent effect, for instance when it deters us from saying foolish or unsound things. If you criticize my posts, my articles, or my lectures, and I recognize that your criticism is apt — that my lectures were too partisan, or that my arguments were unsound — then I may well change what I say. That's criticism performing its proper function.

And if I think your criticism is unsound, my duty is to remain undeterred. It's not always an easy duty to fulfill. But look: Most of my colleagues have tenure. Even our untenured colleagues have the protection of being reviewed by their peers, and peers who are generally unlikely to much sympathize with what the UCLAProfs.com site says. We're in a much better position than other public servants, who routinely have to deal with criticism. If we're not robust enough to resist unsound criticisms — if we're deterred from saying certain things even when we think they should be said — what's the point of all the employment protections we have?

If people are criticizing us unfairly, we should fault them for that. (Stephen Bainbridge does so, for instance.) But labeling this (as one professor quoted here did) "a reactionary form of McCarthyism" strikes me as no more sound or effective than the pejoratives that UCLAProfs.com sometimes uses itself. As Prof. Bainbridge points out, "If you can't tell the difference between the abuse of position by a United States Senator backed by the coercive power of the state and the exercise of free speech by a bunch of disgruntled alumni, well...."

UPDATE: Stephen Bainbridge writes more about the power of technology, and closes with this:

Getting feedback from the proletariat is always unsettling for authority figures . . . . The initial and, perhaps natural, reaction is to decry it as McCarthyism and a danger and so on.

Upon mature reflection, however, we have to realize that the world has changed. Those over whom we have authority now have at their disposal technology that gives them a very loud megaphone. Very public criticism has become the lot of all authority figures, including those within the ivory tower.

Much of that criticism will be unfair, uninformed, or just plain dumb. Isn't it Sturgeon's Law that says 90% of everything is crap? But so what? As my friend and colleague Eugene Volokh notes [quote of the "if I think your criticism is unsound, my duty is to remain undeterred" paragraph omitted -EV].

Precisely. And so I say to my colleagues: Welcome to the 21st Century. It's going to be a very bumpy ride.

Some people have faulted the ACLU for failing to file friend-of-the-court briefs (also known as "amicus briefs") in certain free speech cases -- this, they've argued, shows that the ACLU doesn't really support free speech, at least of the sort involved in those lawsuits (for instance, religious speech). I've blogged before about why this is wrong, but I'd like to elaborate on this further, because it might help people understand the proper role of amicus briefs.

When are groups supposed to file amicus briefs? Not just when the case involves something that the group cares about; rather, they're generally supposed to do it only if they have something valuable to add that the parties and that other amici aren't already saying. This is what my two favorite public interest law firms, the libertarian Institute for Justice and the conservative-libertarian Center for Individual Rights (which in turn credits IJ), call the "Mr. Ed rule." Here's Scott Bullock from IJ:

We have long followed what we call the "Mr. Ed" rule on amicus briefs. . . . Mr. Ed (the talking horse) only spoke "when he had something to say." And that is our approach. We don't do amicus briefs unless we feel like we can bring a unique perspective, voice, or insight into the case. . . .

And here's Michael Rosman of CIR:

[W]e prefer to be involved in a case by representing parties. Accordingly, our official policy is that we file amicus briefs infrequently, and only if we believe that we have something to say that is of interest and that will not be said by the parties to the litigation. . . .

That's (1) a sensible allocation of the group's resources; amicus briefs take time and effort to produce, and most public interest organizations are already stretched pretty thin. But (2) it's also how courts ask groups to behave.

That's made explicit in Rule 37.1 of the U.S. Supreme Court Rules:

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

Rule 29 of the federal Rules of Appellate Procedure, which applies to the federal courts of appeals, likewise states:

The motion [for leave to file an amicus brief] must be accompanied by the proposed brief and state . . . the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.

The Advisory Committee notes accompanying the rule make clear that "relevance" refers to the same standard as that given in Supreme Court Rule 37.1. ("The former rule only required the motion to identify the applicant's interest and to generally state the reasons why an amicus brief is desirable. The amended rule additionally requires that the motion state the relevance of the matters asserted to the disposition of the case. As Sup. Ct. R. 37.1 states: 'An amicus curiae brief which brings relevant matter to the attention of the Court that has not already been brought to its attention by the parties is of considerable help to the Court. An amicus curiae brief which does not serve this purpose simply burdens the staff and facilities of the Court and its filing is not favored.' . . .")

Now sometimes groups do file briefs just because they feel a burning need to participate in a case -- perhaps because they want to impress donors, or because they think their very name might help influence the judges. But that's not what courts really want them to do, and it's both expensive and possibly counterproductive (since judges might get annoyed when they feel that a group is wasting the judge's time by filing briefs that add nothing really new). It also wastes the time of lawyers on the other side, who have to read the briefs closely and figure out whether they indeed have anything to say.

So keep that in mind when you're criticizing a group for not filing an amicus brief. If you can find evidence that, for instance, the ACLU failed to file an amicus brief in a religious speech case because it thought religious speech shouldn't be protected, you can certainly fault the ACLU for having such a mistaken view. But the ACLU's failure to file an amicus brief does not by itself reveal the ACLU's substantive views: It may well be that Mr. Ed just didn't think he had anything really helpful to say.

The AP reports (thanks to reader Dan Schmutter for the pointer):

Mayor Ray Nagin apologized Tuesday for a Martin Luther King Day speech in which he predicted that New Orleans would be a "chocolate" city once more and asserted that "God was mad at America."

"I said some things that were totally inappropriate.... It shouldn't have happened," Nagin said, explaining he was caught up in the moment as he spoke to mostly black spectators, many of them fearful of being shut out of the city's rebuilding.

During the speech Monday, Nagin, who is black, said that the hurricanes that hit the nation in quick succession were a sign of God's anger toward the United States and toward black communities, too, for their violence and infighting. He also said New Orleans has to be a mostly black city again because "it's the way God wants it to be."

On Tuesday, Nagin said his comments about God were inappropriate and stemmed from a private conversation he had with a minister earlier. "I need to be more sensitive and more aware of what I'm saying," he said.

The mayor said his speech was really meant to convey that blacks were a vital part of New Orleans' history and culture and should be encouraged to return. "I want everyone to be welcome in New Orleans -- black, white, Asian, everybody," he said.

Nagin said the other main point he had hoped to make Monday was that when blacks do return, they must work to stamp out the crime and political infighting that have held them back....

[Ed Renwick, the director of Loyola University's Institute of Politics said of the remarks,] "It seemed to be another Nagin-being-Nagin. He has a penchant for just speaking off the cuff and not thinking it through.... He also tends to speak to the literal audience he's with at the time instead of the whole world he reaches through the TV, radio and print media."

Very glad to hear about -- and to report -- the Mayor's apology.

I think it's too bad that the ACLU takes a collective rights view of the Second Amendment, and generally doesn't do much to defend state constitutional rights to bear arms. (As readers of this blog might realize, I don't think they're evil or even hypocritical for disagreeing with my interpretation of the Second Amendment, or even for declining to defend the clearly individual state constitutional rights. They're entitled to pick and choose what rights they think are most important to defend, just as the NRA and my two favorite conservative/libertarian public interest law firms, the Institute for Justice and the Center for Individual Rights, are entitled to do the same. I just think the ACLU is mistaken in its views.)

In any case, though, I'm pleased that the ACLU of Texas is taking a pro-right-to-self-defense view; Scott Henson, director of the police accountability project for the ACLU of Texas, testified this Spring -- on the ACLU of Texas's behalf -- in favor of a proposal to let law-abiding citizens carry guns in their cars. The law ultimately passed, and Mr. Henson is now trying to check how well it's being implemented, by filing state open records act requests for any instructions that government agencies are giving police officers about the new law. Sounds like good work to me.

The Workplace Prof Blog quotes a Chronicle of Higher Education story:

Last March, Jacques Pluss was fired from his job as an adjunct professor at Fairleigh Dickinson University soon after it came to light that he was a prominent member of the National Socialist Movement of the United States. This weekend, in an online essay titled "Now It Can Be Told: Why I Pretended to Be a Neo-Nazi," Mr. Pluss purports to reveal his true intentions in joining the white supremacist group: He did it all for scholarship. . . .

Citing Jacques Derrida, Michel Foucault, the medievalist Ernst Kantorowicz, and the English Romantic poets, Mr. Pluss says he developed a highly participatory theory of historical investigation. "It slowly yet surely dawned on me," he writes, "that any attempt to understand a group, a movement, or an individual psyche, would have to include becoming, as much as an individual can, the subject under study."

To that end, Mr. Pluss joined the National Socialist Movement in February 2005 and soon began serving as host for a weekly Internet radio show called White Viewpoint, on which he railed against the "browning of America" and described Fairleigh Dickinson's treatment of him as "Hebrew" and "lawyerly." Within a few weeks of joining, he became a national officer of the group. He continued as a member until October. . . .

Perhaps the strangest part of Mr. Pluss's account is his claim that he engineered his own dismissal from Fairleigh Dickinson in order to suffer the kind of public marginalization often experienced by neo-Nazis. . . .

Huh.

Phil Carter (a prominent military blogger -- and former law student of mine -- who's now back on active duty in Iraq) comments on the downside of heavy body armor in the UPDATE to this post; the post itself, by Noah Shachtman, is generally pro-armor. I know nothing about the subject myself, but it sounds like Phil and Noah do, so I thought I'd pass along the link.

[NOTE: See UPDATE below, which discussed Mayor Nagin's follow-up statement. FURTHER UPDATE:

Here's an item about Mayor Nagin's apology for this statement.]

If only it were just the name of a new dessert (a la Baked Alaska) — but unfortunately it's not. Rather, it's New Orleans Mayor Ray Nagin's aspiration:

It's time for us to come together. It's time for us to rebuild a New Orleans, the one that should be, a chocolate New Orleans. And I don't care what people are saying uptown or wherever they are. This city will be chocolate at the end of the day.

I don't think this is quite identical to a white politician talking about wanting a "lily Savannah" or some such, but closer to a Chinese-American politician or an Italian-American politician making similar statements about his own ethnicity. While black Americans, Chinese-Americans, and Italian-Americans are hardly entirely culturally homogeneous, there's enough of a shared black American/Chinese-American/Italian-American culture that such references may be seen chiefly as a form of mild cultural chauvinism, rather than outright hostility to other groups. Whites in America, on the other hand, are so immensely culturally varied that aspirations to making some place white or whiter are almost invariably aimed chiefly at derogating other groups, and not at affirming a nonexistent shared white culture. That's why, I think, we'd be somewhat less suspicious about an Irish-American who would like his daughter to marry an Irishman than about a white who would like his daughter to marry another white — I wouldn't be wild about either, but the former seems more animated by excessive love of the Irish, while the latter seems likely to be more animated by dislike of nonwhites.

Nonetheless, Mayor Nagin's sentiments surely aren't very good, either. Cultural chauvinism of this sort may not be the same as outright racism, but neither is admirable, especially when a government official engages in it. (Note that this isn't just a broadly applicable "what a wonderful group you folks are!," which is pretty normal in American politics and mostly unobjectionable because it can be said equally to a wide range of groups, but rather a statement ascribing one color to a city, state, or nation.)

What's more, this isn't just a moral or symbolic concern; it's also a serious practical matter: To thrive, New Orleans has to have investment of time, money, effort, and commitment from nonblacks as well as blacks; the sad fact is that for various reasons black areas already tend to draw less outside investment than they need to thrive. Would expressly stressing — not just as a descriptive matter but as a matter of the local government's aspirations — that those areas are and should be "chocolate" mitigate or exacerbate that condition?

Thanks again to InstaPundit for the pointer to this story.

UPDATE: Thanks to Bob Bobstein for the correction — I originally wrote "more suspicious about an Irish-American" when I of course meant "less." Whoops!

UPDATE: Reader DNL points to a CNN story in which Mayor Nagin elaborates on his comments:

Pressed later to explain his comments, Nagin, who is black, told CNN affiliate WDSU-TV that he was referring to creation of a racially diverse city in the wake of Hurricane Katrina, insisting that his remarks were not divisive.

"How do you make chocolate? You take dark chocolate, you mix it with white milk, and it becomes a delicious drink. That is the chocolate I am talking about," he said.

Well, I appreciate Mayor Nagin's clarification; his second statement suggests that his intentions were far better than those I inferred from the first statement.

Yet whatever his intentions, it seems to me that the meaning that most people would have drawn from the original statement would have been quite different; it just seems to me that that this isn't really how most people would understand references to "chocolate." There are lots of phrases that are generally understood as referring to racial or ethnic diversity or mixing (melting pot, rainbow, salad bowl, and more). "Chocolate," as best I can tell, isn't usually one of them. Still, as I said, at least I'm happy to hear that Mayor Nagin's intentions were good, even if his expression was somewhat inapt.

[UPDATE: Here's an item about Mayor Nagin's apology for this statement.]

Rev. Shanks, Pat Robertson (albeit in a different context), and now New Orleans Mayor Ray Nagin:

Surely God is mad at America. He's sending hurricane after hurricane after hurricane. Surely he's not approval of us being in Iraq under false pretenses.

But surely he's upset at black America also. We as black people, it's time. It's time for us to come together. It's time for us to rebuild a New Orleans, the one that should be, a chocolate New Orleans. And I don't care what people are saying uptown or wherever they are. This city will be chocolate at the end of the day.

(Source: Transcript of video clip aired on MSNBC's The Situation, Jan. 16, 2006; there might have been some editing, but I presume that it didn't change the substance; CNN and also MSNBC's Scarborough Country reports this as "Surely God is mad at America. He's sending hurricane after hurricane after hurricane. And it's destroying and putting stress on this country. Surely he's not approval of us being in Iraq under false pretenses. But surely he is upset at black America also.")

But if God is mad at America, why exactly did he decide to kill, injure, and make homeless this particular chunk of America? Are poor people, who generally suffer the most from natural disasters, particularly likely to be guilty in God's eyes? (Though the dead in Katrina weren't disproportionately poor by New Orleans standards, the dislocation caused by natural disasters generally disproportionately hurts poor people, who are least likely to have savings to fall back on, least likely to have educations and other credentials that would make it easy to start over, and least likely to be adequately insured. Surely God knows that.)

Were those hurt by Katrina particularly able to control America's Iraq policy? Were they particularly able to prevent whatever problems of black America Mayor Nagin is pointing to? Actually, wouldn't Mayor Nagin and his fellow politicians have had more influence (though of course surely not unlimited influence) that could have helped "black America" "come together"? And, if so, why didn't God target them especially? (Or is it that Mayor Nagin was spared because of his righteousness, and others were punished because they were especially sinful? You can't have it both ways — it's either that, or it's that God was punishing people without regard to their own deserts.)

Of course, one possible response is that God works in mysterious ways, and either chooses not to control natural disasters, or sends them for reasons and in manners that are beyond human understanding. But if that's so, then why is Mayor Nagin so confident that God is mad at America, and that the reason is God's disapproval of America's actions in Iraq, or of the actions of black America? And how, if at all, is Mayor Nagin different from Rev. Shanks and Rev. Robertson in this respect?

Thanks to InstaPundit for the pointer.