Saturday, March 25, 2006

Bleg for Help Finding Sixth Circuit Fourth Amendment Case:

I've been looking for, but can't seem to find, a Sixth Circuit en banc case from approximately 1991 upholding a search and seizure under the Fourth Amendment. I'm specifically interested in the dissenting opinion, which, as I recall, went through a devastating list of contradictory testimony given by federal officers in various cases as to why they suspected a particular passenger (first to get off the train, last to get off the train, middle to get off the train; had no luggage, had too much luggage; meandered his way out of the airport, went directly out of the airport without stopping; etc.) If anyone knows this case, or one like it, please let me know.

An Excellent One-Liner Criticizing The Bush Administration's View of Executive Power:

Via Mark Kleiman: "The founding fathers didn't trust George Washington with unlimited power. Why should we trust George Bush?"

Whatever you think of the underlying sentiment, that's an excellent one-liner!


Friday, March 24, 2006

The Forward on "The Israel Lobby":

My sentiments exactly:

Even more startling, given who they are, is the flimsiness of their work. Countless facts are simply wrong. Long stretches of argument are implausible, at times almost comically so. Much of their research is oddly amateurish, drawn not from credible documents or primary source interviews but from newspaper clippings, including dozens from this newspaper, seemingly dug up in quick Internet word searches aimed at proving a point, not exploring the truth. Some are wildly misquoted. An undergraduate submitting work like this would be laughed out of class. A dean apparently gets to see it posted on Harvard's Web site.

[See links in previous "related posts" listed below for specific criticisms.]

And here's a charming quote from Mearsheimer, in the Asia Times:"We fully recognized that the lobby would retaliate against us. We expected the story we told in the piece would apply to us after it was published. We are not surprised that we've come under attack by the lobby." What retaliation? Last I noticed, Mearsheimer and Walt still had their respective cushy tenured jobs as Harvard and Chicago. What they have faced in not retaliation, but criticism, criticism that Drezner reports they refuse to respond to. And exactly who is "the lobby"? Just in the blogosphere, Mearsheimer and Walt have been criticized by a huge range of bloggers who have no connection with any organized pro-Israel lobbying group, or each other. Is every individual who finds the Mearsheimer and Walt paper to be shoddy scholarship (Mearsheimer has acknowledged, by the way, that none of the evidence represents original documentation or is derived from independent interviews; in other words, it's a rehashing and compilation of material published elsewhere) to be dismissed as a tool of "the Lobby"?

It's bad enough for these professors to write a (as Drezner put it) piss-poor paper endorsing ridiculous conspiracy theories(e.g., that the "Israel lobby" is responsible for the War in Iraq). It's worse when they attribute legitimate criticism to that same conspiracy "retaliating" against them. Come on, Professors Mearsheimer and Walt, you have all of the resources of Harvard and Chicago at your disposal. Explain why your critics are wrong! (If you can!)

Assault Against Islam?

The New York Times reports on the Afghan reaction to Western objections to the Abdul Rahman prosecution. Rahman, you may recall, faces death for converting from Islam to Christianity:

The case had fueled feelings among many here of a sense of assault against Islam worldwide, coming after widely publicized cases involving the desecration of the Koran in Guantánamo Bay in 2004 by American soldiers interrogating prisoners and, more recently, cartoons published in Europe of the Prophet Muhammad.

Dr. Mohammad Ayaz Niyazi, an Egyptian educated in Islamic law, who attended one of the gatherings today, said, "There have been serial attacks on the Islamic world recently, starting with insulting the Holy Koran Quran, insulting the prophet of Islam, and now converting to Christianity by an Afghan."

Trying to prevent people from being killed for their religious beliefs is not an "assault against Islam." It's defense against Islam, or to be precise against a certain strand of Islam that regrettably cannot be dismissed as just some unimportant lunatic fringe.

Leading Danish Imam Apparently Complicit in Suicide Bombing:

This is the imam who was involved in publicizing the Danish cartoons in Muslim countries: Agora reports, translating Danish news sources:

Quoting from my transcript of previously unreleas footage from Mohammed Sifaoui, the journalist who broke the news of Imam Ahmed Akkari’s death threats against Naser Khader. Imam Abu Laban is speaking of a man who plans to execute a martyr operation in connection with the Battle of Khartoon:

{He’s doing everything to get contacts.}
{He’s contacted Amr Moussa and he means to wreak absolute havoc.}
{He wants to join the fray and turn it into a Martyr operation right now.} ...

Danish Politicians are shocked....

Helge Adam Møller of the Conservatives:

With 99 percent certainty it’s an act of terrorism to which we are referring. Because a martyr operation is to blow oneself and innocents sky high. Whether it’s in Denmark or someplace else, it’s equally serious. It’s innocents who are killed. He apparently knows something about that. If he hasn’t himself gone to the police, he incurs a colossal responsibility and he is in direct breach of Danish law.

Click here to read more.

I have no further details beyond what I read in Agora, and I realize that much — especially as a legal matter — would turn on just how involved Abu Laban was: Did he in fact know about the planned suicide bombing? Did he merely know about it, or did he also help those who were doing the planning? If readers know more about this, or learn about it shortly, please do post it in the comments. But at this point the matter seems very troubling.

Your Vile Language Makes Me Want To Urinate:

The Times reports:

President Chirac stormed out of the first session of a European Union summit dominated by a row over French nationalism because a fellow Frenchman insisted on speaking English....

When [Ernest-Antoine Seillière, the leader of the European business lobby UNICE], who is an English-educated steel baron, started a presentation to all 25 EU leaders, President Chirac interrupted to ask why he was speaking in English. M Seillière explained: “I’m going to speak in English because that is the language of business.”

Without saying another word, President Chirac, who lived in the US as a student and speaks fluent English, walked out, followed by his Foreign, Finance and Europe ministers, leaving the 24 other European leaders stunned....

The meeting was furnished with full interpretation services, and anyone in the room could speak or listen in any of the 20 official EU languages. Embarrassed French diplomats tried to explain away the walk-out, saying that their ministers all needed a toilet break at the same time.

"President Chirac, who recently denounced British food as the worst in the world after Finnish, has led an increasingly eccentric campaign to try to turn back the growing dominance of English in the EU and across the world." For even more amusing examples, see the whole article.

Thanks to InstaPundit for the pointer.

Domenech Resigns: Ben Domenech, a founder of Red State who started a strident conservative blog at on Tuesday, resigned today amidst plagiarism allegations. Meanwhile, over at Red State, Domenech (posting as "Augustine") challenges several of the allegations and claims that he has been the victim of "the liberal attack machine."

  Notably, however, Domenech does not directly state that all of the allegations are baseless. After discussing a few examples, he writes:
  But all these specifics are beside the point. Considering that all of this happened almost eight years ago, and that there are no files or notes that I've kept from that brief stint, it is simply my word against the liberal blogosphere on these examples. It becomes a matter of who you believe.
  The truth is, a more responsible teenager would've nipped this sort of thing in the bud. A less sloppy writer would have made sure that material copied from other places never made it into a published piece, and never necessitated apologies or explanations that will do nothing to stop the critics. I was wrong not to do so.
  I confess I'm not exactly sure what that means. Anyone?
It's Not Islamophobia When There Really Is Something To Fear:

The striking thing about the Abdul Rahman prosecution — in which an Afghanistan court is considering whether to execute Rahman because he converted from Islam to Christianity — is how Establishment the prosecution is. The case is before an official Afghani court. The death sentence is, to my knowlege, authorized by official Afghani law. The New York Times reports that the prosecutor, an Afghan government official, "called Mr. Rahman 'a microbe' who 'should be killed.'" The case is in a country which is close to the West, and is presumably under at least some special influence from Western principles (whether as a matter of conviction or of governmental self-interest).

We're not talking about some rogue terrorist group, or even the government of Iran, which is deliberately and strongly oppositional to the West. We're talking about a country that we're trying to set up as something of a model of democracy and liberty for the Islamic world. And yet the legal system is apparently seriously considering executing someone for nothing more than changing his religion.

This is telling evidence, it seems to me, that there is something very wrong in Islam today, and not just in some lunatic terrorist fringe. Doubtless many, I would hope most, Muslims would not endorse executing converts. But a strand of the religion, and a strand that is not far from the levers of political power in at least some countries, does seem to endorse such a position. This is deeply dangerous, most obviously to residents of countries in which radical Islamism has broad support, but also to residents of Western countries as well.

Nor can this easily be dismissed as an aberration that's not reflective of Real Islam. Real Islam, as I've argued before, is not a coherent whole, but a collection of many strands. Yet some of those strands, and not unimportant strands, represent an ideology that is deeply antithetical to freedom.

Given this, what should the West do? Believing as I do in religious freedom, I emphatically do not think that the bad views of some Muslim movements should lead us to restrict the ideas that Muslims generally — whether moderate Muslims or Islamists — teach in the West.

But neither can we ignore such teachings, when they aim at spreading fundamentally illiberal ideas. We need to criticize those teachings, both ourselves and, when effective, through our own influential institutions. We need to defend those who are getting into trouble for criticizing those teachings (consider the cartoons affair).

We need to call on moderate Muslims to criticize those teachings (just as I have called and would call on moderate Christians to criticize the harmful teachings of Christian radicals). If there's reason to think that some of the extremist Muslim organizations are going beyond teaching to criminal action, we need to keep those organizations under close lawful surveillance. And of course we need to do what we can to protect those outside the West, as well as ourselves, from the sometimes lethal excesses of those teachings.

I was particularly put in mind of this point by the juxtaposition of the Rahman trial and the report by UN special rapporteur [on racism and xenophobia] Doudou Diéne criticizing the publishers of the Mohammed cartoons, and the Danish government for allowing the cartoons' publication. The report says, among other things (some paragraph breaks added):

[T]hree of [the Mohammed] caricatures show: the head of the Prophet wearing a turban in the shape of a bomb with a lit wick, the Prophet in the likeness of a devil holding in his hand a grenade, and the Prophet offering virgin girls to committers of suicide bombings. This constitutes an illustration of three significant tendencies at the heart of the recrudescence of islamophobia.

The publication of the caricatures is, in its chronology, its initial motivation and with regards to the public concerned, revealing of the vulgarizing of defamation of religions. The caricatures published are the result of a contest launched by the newspaper in answer to allegations according to which the Danish cartoonists were so frightened by fundamentalist Moslems that they wouldn’t illustrate a biographical work on Muhammed. Thus the original motivation of the contest is the expression of a challenge and of an opposition to a group, the fundamentalist Moslems, suspected of causing an atmosphere of self-censorship. The identity of the public aimed at by the biographical work, children, reveals a concern for influencing the perception of a religion by a particularly significant and vulnerable age group. The object of the publication, a biography, showed the intention to present not a fiction but the life of the Prophet.

The dominating message of the caricatures was therefore to associate Islam with terrorism. The caricature relating to the sexual gratification of suicide bombers with virgin women suggests the return of a age-old historical islamophobic Western imagery: the association of Islam and its prophet with sexual depravity. The way in which these caricatures defames Islam has now been defined....

On the political level and with regards to the ethics of international relations, the Danish Government has not shown in this question, in the alarming context of the recrudescence of the defamation of religions, in particular of islamophobia as well as anti-semitism and christianophobie, the engagement and vigilance which it usually shows with regards to counter-acting religious intolerance, counter-acting religious hatred and promoting religious harmony. These values are precisely those which give direction, legitimacy and opportunity to the recent launching by the Secretary General of the initiative for an “Alliance of civilizations”.

The accusations of "islamophobia," "defam[ation]," "religious intolerance," and promotion of "religious hatred" strike me as quite damaging to serious, sensible Western consideration of the threat that some strands of Islam in fact pose. There really is something to be afraid of. There are true, not false, criticisms being made of important strands of Islam. Religious tolerance and a desire for religious harmony does not require silence about the dangers that those strands pose. And substantive criticism of an ideology (even criticism that I have argued is in some instances unfair, albeit in a way that is probably inevitable in heated public debate) shouldn't be tarred with the charge of "religious hatred."

I would say exactly the same, of course, about the need to criticize and be wary of radical Christian/Jewish/Hindu/etc. groups that preach death to infidels. And of course some centuries ago Christian religious extremism of the sort that we see among some Muslims today was regrettably commonplace. Fortunately, though, it has been some time since Christian governments have threatened to execute apostates. Unfortunately, one cannot say the same about modern Islam.

UPDATE: The New York Times reports:

Afghan clerics used Friday Prayers at mosques across the capital to call for death for an Afghan man who converted to Christianity, despite widespread protest in the West.
Thanks to Michelle Malkin for the pointer.


I had never heard of the website until I read about it in Sports Illustrated this week in the story about how the web is changing sports reporting. It is described as "If The Onion were to go all-sports it would look like this." (Or perhaps Scrappleface). Quite funny.

Recent Developments in the Wine Wars:

Some recent developments for those continuing to follow the wine wars: Aaron Nielson has a new piece in the Harvard Journal of Law & Public Policy commenting on the Supreme Court's decision in Granholm v. Heald.

The FTC's Office of Policy Planning (my old office) just released a new advocacy comment yesterday analyzing proposed legislation in Ohio that has been introduced in response to Granholm:

Staff of the Federal Trade Commission’s three bureaus – Competition, Consumer Protection, and Economics – together with the FTC’s Office of Policy Planning yesterday filed a comment with Ohio State Senator Eric Fingerhut, stating its support for Senate Bill (SB) 179, which would allow the direct shipment of wine to Ohio consumers from manufacturers either inside or outside the state, provided certain requirements are met. According to the comment, Ohio’s consumers would benefit from the increased competition the bill would provide, through access both to a greater variety of wines and many wines at lower prices.


In addition to promoting competition, which results in access to a greater variety of wine and lower prices for Ohio consumers, the comment states that the bill contains language that will ensure it does not result in the shipment of wine to underage consumers. Specifically, the consumer who orders the wine must be at least 21 years old and personally sign for the wine when it is delivered. The comment also reiterates the FTC staff’s finding that states that permit interstate direct wine shipments report few or no problems with tax collection. The bill contains language to ensure this is the case in Ohio by requiring the manufacturer either to collect all applicable taxes from the consumer and pay them, or notify consumers that they are liable for such taxes.


Concluding its comment, the staff wrote, “[b]ased on our review, [we believe] that, if enacted, SB 179 would enhance consumer welfare and allow Ohio to meet its other public policy goals. By allowing interstate direct shipping, SB 179 likely would allow Ohio residents to purchase both a greater variety of wines and many wines at lower prices. In addition, by requiring manufacturers to comply with certain regulatory requirements, SB 179 would allow Ohio to prevent shipments to minors and to collect taxes on direct shipments.”

For those who may be interested, the original Wine Wars document has now

been substantially revised and published as an article in the NYU Journal of Law & Liberty, available here.

Is Judge Enjoining Sales of a Book?

The Boston Herald reports:

A judge who figures prominently in a Methuen father’s new book about losing custody of his child issued an order yesterday on whether sales of Kevin Thompson’s tell-all should be banned.

But you won’t read all about it here because Essex Probate and Family Court Justice Mary McCauley Manzi impounded her decision in Lawrence....

While Thompson dedicated one chapter to Manzi -- the same judge who awarded custody of his son Patrick, 4, to the child’s mother, Methuen teacher Kathleen Moran -- he put the boy’s picture on the back cover.

That goaded Moran to ask Manzi to restrain Thompson from disseminating any more copies....

Even Thompson does not know what the judge decided: Her ruling is being sent to him in the mail....

If the judge has indeed enjoined distribution of the book, that seems like a clear First Amendment violation to me. Regardless of when and whether a judge may limit parents' custody rights based on their speech, the judge may not enjoin parents from publishing books; and that the book uses the child's name and picture is surely not reason enough to enjoin speech this way, either -- there is no First Amendment exception for speech about children.

Thanks to reader Rob Latimer for the pointer. If any of you hear more about the case, and about what the order says, please let me know.


Thursday, March 23, 2006

Update on the Berkeley Nursery School Study.--

[See the two UPDATES below and a newer post for information on which nursery schools were studied. These resolve some of the ambiguities discussed in this post, which I have left unedited except for the UPDATES below.]

In a long earlier post, I pointed out some problems with the Berkeley nursery school study. The more I read, the more persuaded I am that the study didn’t distinguish liberals from conservatives, but rather liberals from moderates. We have to take seriously the study’s admission that there were “relatively few participants tilting toward conservatism.” Indeed, many of the characteristics that were attributed to the relatively conservative subjects in the study generally fit nonliberal Democrats better: e.g., the subjects were described as distrustful, worrying, anxious, and fearful, with lower intellectual capacity (and lower IQ scores), lower verbal fluency, and lower confidence. From the data and the measures used, the study probably is mostly separating liberal Democrats from nonliberal Democrats.

Support for this idea may come indirectly from a post by Michelle Malkin, who reports that it is almost certain that the nursery school that was used in the study was one run by the Berkeley Child Study Center, a school that appears to be restricted to children of Berkeley faculty and staff.

But the Block nursery school study reports:

Subjects initially (about 1969-71) were attending two different nursery schools and resided primarily in the urban areas of Berkeley and Oakland, California; they were heterogeneous with respect to social class and parents' educational level.

Perhaps I was naive, but I had assumed from this sentence in the article that two completely “different” schools were involved, perhaps one in Berkeley and one in Oakland. Now I see that in another section of the paper, the Blocks wrote:

Each child at age three was assessed by three experienced, independently functioning nursery school teachers each of whom had seen the child daily for seven months before offering their separate, well-versed evaluations. At age 4, and when in a second nursery school for seven months, each child was independently assessed again by an entirely different set of three experienced nursery school teachers functioning independently. The nursery school teachers had been selected by the nursery school head and tended to be graduate students from the University of California School of Education.

So on closer reading it appears that all of the students went from the first school to the second, which suggests (but does not establish) that both schools were part of the same organization, apparently (from Malkin's post) Berkeley's Child Study Center--which brings me to another point.

I quote the Blocks above as writing about the backgrounds of the students: "they were heterogeneous with respect to social class and parents' educational level." I don't know whether Malkin is correct that all the students at the Berkeley school were children of Berkeley staff and faculty. If they were, then the heterogeneity statement in the Blocks' statement may be highly misleading, though perhaps not literally untrue.

In the 1972 General Social Survey, only 3% of the general public had post-graduate or professional degrees. I find it hard to believe that a nursery school open only to Berkeley faculty and staff would be at all representative of the general public. (Judging from the University of Chicago's Laboratory School, whose towers I am gazing at this moment and whose classes my daughter attended from nursery school through high school, the students there were largely from families with one or more post-graduate degrees.) If the nursery school where data was collected was made up almost entirely of university kids (and I know nothing about this other than Malkin's post), then the Blocks should have informed readers how skewed in terms of education and social class the sample was. They should not have pointed readers in the opposite direction by calling the sample "heterogeneous with respect to social class and parents' educational level."

Last, if the data were collected in what was in effect one nursery school open only to the children of Berkeley faculty and staff, a liberal group if ever there was one, then it tends to support my earlier hypothesis that the sample may have so few conservatives or Republicans that the study mostly distinguishes the political left from the political center--i.e., it distinguishes the 40% of Democrats in the general public who are liberal from the other 60% of Democrats who are not.

FURTHER UPDATE: In the comments, Chris of MM pointed me to two earlier pieces by the Blocks that might have detailed information on the social class and educational backgrounds of the parents of the nursery school students. Unfortunately, they don't, but one of them confirms which nursery schools were studied and gives some additional information on the larger sample (before at least some of the attrition over time):

The children in our study were drawn from the two nursery schools constituting the Harold E. Jones Child Study Center at Berkeley . . . . One of the participating nursery schools is a university laboratory school, administered by the University of California; the second nursery school is a parent cooperative, administered by the Berkeley Public Schools. The two schools, jointly considered, attract children from heterogeneous backgrounds with regard to education, socioeconomic level, and ethnic origin. Although the sample over-represents the middle and upper-middle class, the range of socioeconomic status (SES) is wide. Sixty-one percent of the children are white, 31% are black, and the remaining 8% represent other ethnic groups, primarily Oriental and Chicano.

J.H. Block & J. Block, The role of ego-control and ego-resiliency in the organization of behavior, in W. A. Collins (Ed.), 13 The Minnesota Symposia on Child Psychology 39, at 52 [1980].

This passage confirms that the students attended schools that comprise the Berkeley Child Study Center, but makes it even less clear than it was before which parents were allowed to send students there. Would the Berkeley Public Schools run a nursery school open only to university faculty and staff children? That seems unlikely.

FURTHER, FURTHER UPDATE (Sunday, 3/26): Block responded to Malkin by email and clarified which parents were allowed to send students to the two schools, a discussion I examine here. As I speculated in the FURTHER UPDATE in the preceding paragraph, one of the two nursery schools that made up the Berkeley Child Study Center was open to the community. Indeed, Block says that university kids were barred from it.

The Comment period expired on this post (and they are impossible to turn on again), so if you want to continue commenting on either of the first two posts on this topic, you may do so at the latest post.

Pravda's Main Web Page Closed Down by Russian Security Service:

As the English version of Pravda (a leading Russian newspaper) reports,

Russia's Federal Security Service closes down Pravda.Ru's Russian version over Danish caricatures

The visitors of Pravda.Ru website have been deprived of a possibility to access the website and its materials today. The main Russian version of the Pravda.Ru portal has been closed today. The message, which appears on the blank white page, says that the site has been closed down pursuant to the requirement from the Federal Security Service

I've checked this myself, and read the original Russian-language explanation from the editors; the English-language explanation is here.

Ostensibly, the reason for the closure seems to be Pravda's publication of the Danish caricatures — but Pravda denies ever having published them. (Note also that some of the Pravda Russian-language material remains accessible through the explanation-from-the-editors page, so I'm not sure just how much of the Pravda site has been shut down, though the blockage of the main page is indeed burden enough on the newspaper's operation.)

Thanks to reader Anton Pribysh for the pointer.

Fordham Conference and Raich Update: Tomorrow I am speaking at what looks like an excellent conference on "A New Constitutional Order?" being held on Friday and Saturday at Fordham University School of Law. You can find details of the program here. My panel (from 3:45pm-5:00pm) is entitled, "Calls for Restoration of the Lost Libertarian Constitution: Is the Constitution a Charter of Negative Liberties or a Charter of Positive Benefits?" I have not had a chance to post my paper. "Welfare and Liberty," to SSRN but will link to it when I do.

Unfortunately, I have to leave the conference early to fly to LA for the oral argument in Gonzales v. Raich, which is on remand to the Ninth Circuit. The hearing is on Monday at 1:30pm in Pasadena. Those who are interested in the briefs in the case can find them here (scroll down).

I have been wanting to post on the arguments we are making but have been too busy with all sorts of things to do so. Maybe next week after the argument. Among other claims that survive is our assertion of the fundamental rights to preserve one's life and to avoid pain and suffering that are protected by the Due Process Clause of the Fifth Amendment and the Ninth Amendment. Here is the thrust of our Due Process Clause argument from our opening brief:
It is improper for Congress to use its enumerated powers to violate fundamental rights. The Fifth Amendment’s Due Process Clause and the Ninth Amendment preclude the federal government from applying the CSA to prohibit Appellants’ activities. The Supreme Court has held “[i]n a long line of cases,” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997), the most recent of which is Lawrence v. Texas, 539 U.S. 558 (2003), that neither the rights enumerated in the Constitution nor “the specific practices” that were approved at a particular time in our nation’s history “marks the outer limits of the substantive sphere of liberty” that the Due Process Clause protects, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848 (1992) (citing U.S. Const. amend. IX); see also Richmond Newspapers v. Virginia, 448 U.S. 555, 579 (1980) (relying in part on the Ninth Amendment to protect an unenumerated right of access to public trials).

The Supreme Court’s opinions in this “long line of cases” establish that Mrs. Raich has fundamental liberty interests in making life-shaping medical decisions that are necessary to preserve the integrity of her body, avoid intolerable physical pain, and preserve her life. As applied here, these broader fundamental liberty interests protect Mrs. Raich’s decision to take the medication she needs. No longstanding historical prohibition suggests otherwise. To the contrary, the federal government and the States have historically left such decisions to seriously ill patients and their physicians. Moreover, there is an emerging awareness that “liberty” protects such decisions in cases where, as here, a seriously ill patient’s physician has determined that no other medication can save her from intolerable pain and death.

Under the “undue burden” standard set forth in Casey, prohibiting Mrs. Raich from taking cannabis – which is what the federal government threatens to do – would violate the Due Process Clause. (Prohibiting her from taking cannabis would also violate the Ninth Amendment. However, because the Supreme Court has relied primarily on the Due Process Clause when protecting unenumerated rights, for simplicity Appellants will refer only to that constitutional provision for the remainder of this brief.) Stringent regulations of medical cannabis use, however, are consistent with Mrs. Raich’s fundamental liberty interests. So long as such regulations are “not designed to strike at the right itself” and do not have the “effect” of creating “a substantial obstacle” to its exercise, Casey, 505 U.S. at 874, 877, nothing in the Constitution prevents the federal government from requiring extensive safeguards to ensure that medical cannabis is not diverted or abused.

For instance, it would not violate the Due Process Clause to require that, after a licensed physician has recommended cannabis for a seriously ill patient, she must obtain a similar recommendation from one or more other licensed physicians before she can use or cultivate the medication. Compare Health Canada, FAQ - Medical Use of Marihuana (June 13, 2005) (requiring declaration from treating physician and confirmation from specialist). The Due Process Clause would also allow a requirement that a physician cannot recommend medical cannabis for a patient unless she has tried to obtain relief from a reasonable number of mass-produced synthetic medications.

The constitutional permissibility of such regulations – and of other, more demanding regulations – shows that the federal government can exercise its powers to promote its interests in preventing abuse and diversion of medical cannabis without trampling on Mrs. Raich’s fundamental liberty interests. Recognizing those interests forecloses only laws that completely prohibit or unduly burden their exercise, unless such laws are narrowly tailored to advance a compelling government interest. That is the only line this Court must draw.
Readers should keep in mind that (believe it or not) this lawsuit is still in its pre-trial preliminary phase so there has yet to be an adjudication of the facts. At this juncture, the court is supposed to accept the uncontested facts in the complaint as true; and the government has not contested the fact that Angel Raich is likely to die of a wasting disease and will suffer great physical pain from a variety of disorders if she does not use cannabis, which is the only drug that has been effective in her particular case. If we prevail on our constitutional claims, we must then prevail on these factual claims at trial.
You Can’t Tell a Conservative Without a Score Card.--

I have written a draft op-ed analyzing Jack and Jeanne Block’s study of the correlation between the political orientation of young adults and evaluations of them made by their nursery school teachers about 20 years earlier. I have two copies of the study itself, one downloaded from the journal’s website and an earlier draft kindly sent me by Jack Block. But I didn’t ask Block’s permission to put up a copy here, so if you want a copy, you may get one from Michelle Malkin’s website. Until I figure out where to place my op-ed (or whether I even have the time to do more than a cursory job of shopping it around), I will post here only some of my observations.

Do whiny, deviant, insecure nursery school kids grow up to be conservatives? And do fluent, resourceful, self-reliant pre-schoolers grow up to be liberals? The answer to both questions would appear to be “Yes” according to a new study to appear in the Journal of Research in Personality. Its authors are the eminent psychologist Jack Block, an emeritus professor at the University of California, Berkeley, and his deceased wife and colleague, Jeanne Block.

The study claims that those who were relatively conservative at age 23 were originally evaluated by their nursery school teachers as uncertain, guilty, and rigid. The supposedly conservative boys “were especially viewed as deviant from their peers and sensitive to being different.” As youngsters, the conservative girls “tended toward indecisiveness, were easy butts of peers, and were quiet, neat, compliant, fearful and tearful.” On the other hand, the kids who later became relatively liberal were viewed by their teachers mostly in positive terms, such as “resourceful, autonomous, expressive, and self-reliant.”

So far, public responses to the Block study have been mixed.

The Toronto Star, which broke the story in the press, gave the study respectful coverage, but also included the derogative comments of Arizona State psychologist Jeff Greenberg: “I found it to be biased, shoddy work, poor science at best.” But the only criticism attributed to Greenberg and mentioned in the story is less than compelling: “He thinks insecure, defensive, rigid people can as easily gravitate to left-wing ideologies as right-wing ones. He suspects that in Communist China, those kinds of people would likely become fervid party members.”

Yet assessing conservatism and liberalism in Communist countries is not terribly meaningful because Communist dictatorships are usually considered left-wing by those on the right, and right-wing by those on the left. Even if the Blocks’ results were not generalizable to countries like China, that would mostly affect the domain over which their results would apply, not their validity in the United States. So Greenberg’s criticism does not go to the heart of the Blocks’ thesis.

Responses from bloggers to the Block study have ranged from generally accepting on liberal sites to skeptical or dismissive on most libertarian or conservative sites. Some insightfully mentioned that the new Block nursery school study reminded them of the May, 2003 article in the Psychological Bulletin by a group headed by Professor John T. Jost that reviewed and analyzed data on conservatism. The Jost study also found conservatives to be rigid, fearful, and lacking in intellectual complexity.

Just from what is in the Blocks' article, there is scant reason to think that those whom Block calls "conservatives" are really conservatives, rather than Democrats or political moderates. Those whom the Blocks think of as relatively “conservative” on many of their measures of conservatism are expressing views that would mark them as Democrats or political moderates (not conservatives) in the general public. The study itself acknowledges that the most conservative third or half of their 95 subjects from Berkeley and Oakland were not really conservatives, admitting that there were “relatively few participants tilting toward conservatism.”

That the new Berkeley study has severely mismeasured conservatives and liberals is shown by several odd findings, including the strong relationship they claim between their liberal-conservative scale and their subjects’ IQs. The Blocks report a correlation between IQ and their conservatism-liberalism scores of .36 for males and .24 for girls. Just for comparison, in the 1996-2004 General Social Surveys the correlation between political party identification (as a Republican, Independent, or Democrat on a 7-point scale) and political orientation (as a conservative, moderate, or liberal on a 7- point scale) is only about .30. And the correlation between a man or woman being a conservative and opposing abortion is only about .17-.25. So if the Blocks’ measure of conservatism were to be generalizable to the general public, then a low IQ would have to be a generally better predictor of whether a man is a conservative than whether he was a Republican or whether he opposes abortion—which is highly implausible.

What the Block study really shows is that kids who grow up to have low IQs struggled even in nursery school, while kids who grow up to have high IQs did well even as youngsters. Since in the general public (as shown by General Social Surveys and American National Election Studies), adult conservatives are consistently better educated than the average citizen and (as shown in the GSS) do better on IQ-style vocabulary and reasoning tests, the results of the Block study are generally inapplicable to typical political conservatives, liberals, and moderates in the United States.

With the thousands of studies that have been done on conservatives using representative samples of the general public over the last five decades, we actually know quite a bit about them. It is time for researchers and the editors of scholarly journals to use a little common sense and ordinary skepticism when looking at statistical relationships that are so farfetched that they are almost certainly wrong. And when they encounter such a relationship, they should take the next step and try to determine where the study went awry.

Sadly, of course, many of the questions that the Blocks used to mismeasure political orientation have been widely used by other researchers in social and political psychology—despite the tendency of self-identified conservatives in the general public to be more likely than nonconservatives to give supposedly “liberal,” tolerant answers to many of these sorts of questions. Researchers often admit that some of the most widely used indices and scales were developed by first writing down sets of (mostly negative) stereotypes of conservatives. The last prominent study of conservatives that had similar measurement problems was a 2003 Psychological Bulletin article by a group of academics led by Professor John T. Jost (now of NYU). Andrea Irvin, a student at Berkeley, offered an amusing, if somewhat unfair assessment of the Jost study: it was “about as scientific as phrenology.”

UPDATE: I updated this post in a new one.

Whiny Conservatives Study: As many readers have pointed out to me, Michelle Malkin has posted a copy of it here.
Harsh Critique of Diversity Hiring in Law Schools:

Professor Michael Livingston has published a harsh critique of diversity hiring of faculty. Agree or disagree with Livingston, my experience is that he is expressing views that many professors, including many liberals, agree with, but rarely express publicly for fear of career-related repercussions (as Livingston discusses). For example, I remember once having lunch with a group of otherwise liberal professors and the dean(!) at one of the top law schools in the country, and was amazed how anti-affirmative action (or more precisely racial preferences) they were in private conversation. None of them had, or has since to my knowledge, publicly expressed any such views. I think there is some (though not necessarily equal) merit on all sides of the AA debate, and the issue should be debated openly and honestly.

Funeral Picketing:

Fred Phelps, a cruel parody of a Christian, has pioneered the practice of protesting people's funerals. Starting with the 1980s, he and his people picketed funerals of gays while carrying signs saying things like "God Hates Fags." Now, they picket funerals of soldiers with signs saying things like "Thank God for 9/11" and "Thank God for Dead Soldiers" (the theory being that God is punishing America for its toleration of homosexuality).

Delightful. But is it constitutionally protected? A bunch of readers asked me to blog about this, so I composed this piece for National Review Online to answer that question.

Alfonso Soriano:

Some of you may have been following the showdown between the Washington Nationals and Alfonso Soriano on whether Soriano would move from second base to left field this year. Earlier this week Soriano refused to take the field in an exhibition game. A showdown over whether the Nationals could force Soriano to play the outfield or put him on the "Disqualified List" (suspended without pay) was averted yesterday when Soriano agreed to play where he was told to play. Fielding percentage statistics indicate that Soriano is one of the worst-fielding second basemen in the league.

Michael McCann on the Sports Law Blog has a brief comment on the Soriano fall out and whether there is any precedent here. Aside from the obvious question about whether the Nats could tell Soriano where to play, and suspend him if he wouldn't move, was the question of whether Soriano would have accrued service time for purposes of free agent eligibility during his period on the disqualified list. Accroding to an article in yesterday's Wa PoSoriano has 5-1/2 years of service, and 6 is required to be eligible for free agency (his individual contract expires this year).

My guess is that in this case it was precisely the promise of free agency that induced Soriano to make the move. Since he will be a free agent at the end of the season, I assume he wanted to try to protect his reputation in order to maximize his value. I would think that a team would still have to be nuts to want to take him on board (of course, I had no idea who would want to take Terrell Owens either...).

One suspects that although this showdown was averted, the issue will almost certainly arise with some player in the future. I am not an employment law expert (so please enlighten me if I'm wrong), but the basic issue would seem to be pretty straightforward--of course this seems like a reasonable request by the manager. McCann asks though, what if a team asked a player to switch to catcher, which seems like a big difference in performance obligations? McCann comments on some of the contractual provisions we might expect to see in future contracts.


Wednesday, March 22, 2006

Chef Returns for a South Park Episode.--

Ann Althouse has brief comments on the South Park episode: The Return of Chef.

I missed the first showing, but I'm hoping to catch the repeat a few hours later at Wednesday midnight ET, 11pm CT.

UPDATE: "J. Dismas Locke" emails:

To paraphrase Mark Twain: "Never pick a fight with someone who buys ink by the barrel, bandwidth by the gigabyte, or national cable airtime by the half-hour."

Opposition to gay marriage down:

The Pew Reasearch Center says that opposition to gay marriage among Americans is now down to 51% from 63% in February 2004, during the backlash over the Massachusetts marriage decision. More importantly, strong opposition to gay marriage is down from 42% in 2004 to 28% now.

I don't put a lot of stock in these polls on gay marriage, for reasons I detailed in a column in October 2003. The results depend very much on the way the question is asked, including the choices offered to the respondent. Polls also rarely measure intensity, which seems higher on the side of those who oppose gay marriage, if the results in state constitutional amendments are any guide. Pre-election polls in the state constitutional ballot fights have systematically undercounted opposition to gay marriage among those who actually bother to vote.

The drop in opposition since early 2004 may also reflect nothing more than the fact that Americans are concentrating on other things right now (like Iraq and Medicare), and that opposition to gay marriage will return to its post-Goodridge ceiling if another significant court decision draws unfavorable attention to the issue.

But as a supporter of gay marriage, I'd rather have public opinion appearing to move in my direction than against it. In the past year we've seen two significant legislative victories for the recognition and protection of gay families, one in Connecticut (civil unions) and one in California, whose legislature became the first representative body in the country to approve full-fledged marriage for gay couples. Very soon, we are likely to have legislative majorities for gay marriage in a handful of states, backed by the public itself in those states.

"The Israel Lobby" Update:

Crossing the Rubicon2 has gathered blogospheric reaction to the Walt-Mearsheimer paper I briefly criticized last week. Various commentators, especially James Taranto at OpinionJournal (see posts Monday and Tuesday, and a related one today) and Richard Baehr and Ed Lasky at The American Thinker, have really eviscerated this paper. In times past, a paper like this by a prominent Chicago professor and a Kennedy School dean would have gotten tremendous and largely uncritical play before other academics got around to refuting it, if ever. Today, anyone who cares can Google the authors' names (or Technorati "AIPAC") and finds tons of valid criticism, along with some rather lame defenses. You could also learn today, for example, via OpinionJournal and The American Thinker that Mearsheimer, rather than being some objective observer of American politics vis a vis Israel, is a long-time Israel-hater, having signed a letter in 2003 suggesting that Israel was prepared to use the distraction of the Iraq War to forcibly evict all Palestinians from the West Bank and Gaza. Score one for An Army of Davids.

UPDATE: And here's Harvard's Marvin Kalb as quoted in the New York Sun:

"I do not regard this as a Kennedy School Research Paper, because it clearly does not meet the academic standards of a Kennedy School research paper," Mr. Kalb, who is also the faculty chair for the Kennedy School's Washington programs, told The New York Sun in an e-mail yesterday after reading the paper. "It is a rather sensational example of 'realist' journalism," he continued. "My sense is that Dean Walt would be better advised to stick to scholarship and leave journalism to journalists, who generally check their 'facts' before publishing them."


See also Ruth Wisse in the Wall Street Journal and this letter by Professors Jeffrey Herf and Andrei S. Markovits. And Drezner: It's "piss-poor, monocausal social science."

Ken Livingstone--"What a Load of Crap!"

Mayor Ken Livingstone is in trouble again, this time for saying of two Londoners (the Reuben brothers), who have lived in London since the 1950s when they immigrated as teenagers, "if they're not happy, perhaps they could always go back to Iran and see if they do better under the Ayatollahs." The Reubens are not, in fact, Iranian, but Bagdadi (Iraqi) Jews born in Bombay, India. Livingstone has been sparring with the Reubens over some development issues. It's not clear why he thought they were Iranian, or whether he realized they were Jewish, but regardless, it's hardly becoming of London's mayor to tell immigrants to "go back where they came from."

Meanwhile, I ran across the following quote from Livingstone: "But I was amazed to discover for example only a couple of months ago that in Israel a Jew can’t marry an Arab. What a load of crap!" A load of crap indeed, for this isn't quite accurate. To avoid religious conflict, when the British controlled Palestine they left family law in the hands of each community's religious authorities. When Israel was established, they kept the British system, probably for the same reason. Thus, the issue isn't whether a Jew can marry an Arab, which implies racism, but whether a Jew can marry a Muslim. Since neither the Muslim nor the Jewish religious authorities allow such a marriage, such a marriage is not recognized by the state if performed in Israel. Indeed, an immigrant from the CIS who has a Jewish father but not a Jewish mother can't marry a Jew in Israel, because this individual is not Jewish under Jewish religious law. And as far as I know, a Druze Arab can't marry a Sunni Arab in Israel. On the other hand, an Arab Muslim who converts to Judaism can get married by a rabbi to a Jew in Israel, and an Israeli Jew who converts to Islam can get married by an Imam to an Arab in Israel. So, there is no "racial" aspect to the law.

Of course, I am against these laws, and there is a strong movement in Israel to permit civil marriage. In the meantime, couples who can't get religious approval to marry in Israel take a short plane ride to Cyprus and get married there; such marriages abroad are fully recognized by Israeli authorities.

In short, Israel should get rid of the religious monopoly on marriage in Israel, but Livingstone, known as a strong critic of Israel, should get his facts straight.

UPDATE: Some commentators below suggest that a Muslim man is permitted to marry a non-Muslim women under Islamic law, though Muslim women are not permitted to marry non-Muslim men. I'm not sure how, if at all, this affects the ability of Jewish women to get married to Muslim men in Israel.

Robert Taft's 1946 Civil Rights Proposal:

Very interesting (but mercifully brief) piece by David Engstrom in the Winter 2006 Green Bag (not yet internet accessible but available on Westlaw at 9 Green Bag 2d 181):

few know that the history of American fair employment law reached an equally critical juncture more than 20 years earlier, in 1946. It was in May of that year that Republican Senator Robert Taft of Ohio, perhaps the leading conservative voice in Congress at the time, privately approached an emerging coalition of civil rights, labor, religious, and civic groups with a draft bill — reproduced in its entirety at the end of this essay — that broadly prohibited job discrimination on the basis of race, creed, color, or national origin and empowered federal courts to oversee sweeping injunctive remedies, including the requirement that employers hire a particular quota of protected workers. The stunning details of that proposal, and its quiet rejection by the nascent liberal coalition, offer a window onto the early, pre-Brown politics of civil rights in the United States. What makes the Taft episode so intriguing, however, are the rich counterfactual possibilities it presents. Though the liberal coalition's rejection of the Taft bill prevented its formal introduction in Congress, a contrary response would have fundamentally altered the course of American fair employment law and the American civil rights movement along with it. More sweeping still, it is not at all implausible that enactment of the Taft measure would have transformed the post-war American party system, making Republicans, not the sectionally challenged Democrats, the party of civil rights going forward. It is therefore surprising that Taft's offer has entirely escaped popular or scholarly treatment until now.

Another Reason to Like the Danish Government:

Agora reports:

Danish politicians have shown a remarkable amount of backbone in the case of Abdul Rahman who is on trial in Afghanistan for having converted from Islam to Christianity.

Read the post for the details; some of the statements seem somewhat undiplomatic, and there's always the danger that they'll therefore be counterproductive -- but sometimes being too diplomatic can be counterproductive, too.

More from the UN Report Criticizing the Danish Government:

Agora translates the report from the French; very much worth reading — here are two more excerpts beyond what I blogged about before (if any readers have corrections to relevant parts of the translation, please post them in the comments):

The caricature relating to the sexual gratification of suicide bombers with virgin women suggests the return of a age-old historical islamophobic Western imagery: the association of Islam and its prophet with sexual depravity. The way in which these caricatures defames Islam has now been defined....

So actual beliefs of some Muslims about Islamic theology may not be alluded to (see, e.g., the CBS News interview with a Palestinian would-be suicide bomber, Aug. 19, 2001, in which the bomber reports that "I described to him how God would compensate the martyr for sacrificing his life for his land. If you become a martyr, God will give you 70 virgins, 70 wives and everlasting happiness."), lest this somehow "defame" Islam by "associating [it] and its prophet with sexual depravity." (Incidentally, I doubt that many people would find it depraved to want to have 70 wives serving you in heaven; the depravity lies in the attacks on innocents that some believe earn you this reward.)

The Special Rapporteur notes with satisfaction the reactions of the leaders of various religions, illustrated also by the statement made by the European Council of Religious Leaders. This declaration invites all religious leaders to do their utmost to reject and stop the acts of violence and terror which are carried out in the name of God, and condemns the use of the Freedom of Expression for blasphemous ends, which is seen as a violation of this freedom when it is exerted without taking into account the detrimental effects on individuals and groups.

So, according to the UN, the age-old crime of blasphemy — which I had assumed Enlightenment free speech principles had successfully interred, at least in the West — needs to be revived as a "violation" of the "freedom of expression." In this respect, the UN official wants to drag the West back into the 17th century. Will the West obediently go?

Teaching the Bible as History or Literature in High School:

AP reports that "A bill that allows public high schools to offer classes on the Bible sped through the Georgia House today, passing overwhelmingly with no debate. The legislation, which passed 151-to-7, would allow high schools to form elective courses on the history and literature of the Old Testament and New Testament eras. The classes would focus on the law, morals, values and culture of the eras."

In principle, such classes are constitutionally permissible, which is only right: The Bible is indeed an important work of literature, and important to understanding history (both the history of the Biblical era and later history).

The trouble is that for the classes to be thoughtful, intellectually rigorous, and educationally valuable, they'd have to deal with lots of things that many students (and others) might find quite troubling. If you teach the Merchant of Venice as literature, you probably ought to discuss criticisms of the moral view that the Merchant of Venice seems to express. If you teach classic-era histories (e.g., Livy) in a class on Roman history, you certainly ought to discuss whether the historians are reliable, and whether they might be repeating myth as truth. If you teach historical legal systems in a class on ancient law and culture, you need to discuss ways in which those legal systems may have been unjust by today's standards, or inconsistent even by their own standards.

Are Georgia voters and legislators prepared to have Georgia high school teachers raise these hard questions about the Bible? If so, great. But if the hope is that the teachers will teach the Bible without the same willingness to critique the work -- and to encourage students to think critically about the work -- that we'd expect in serious classes on other works, then that would be a pretty bad step for the Georgia school system to take: It would suggest that the school system is just trying to reinforce students' existing beliefs, rather than teaching them to analyze historical sources carefully and thoughtfully.

"Afghan Man Faces Execution After Converting to Christianity":

Pretty appalling. I'm glad that the U.S. government is pressuring the Afghan government to rescind this, and I hope that the behind-the-scenes pressure is more serious than the public pressure; according to the Chicago Tribune, "The Bush administration issued a subdued appeal Tuesday to Afghanistan to permit a Christian convert on trial for his life to practice his faith in the predominantly Muslim country. The State Department, however, did not urge the U.S. ally in the war on terrorism to terminate the trial. Officials said the Bush administration did not want to interfere with Afghanistan's sovereignty." It seems from my LEXIS search that the Voice of America News was the first to break the story, which I'm glad about; let's hope the drumbeat goes on, and influences the Afghan government.

Here, by the way, is an excerpt from the State Department press briefing on the subject; I can understand why the diplomats at State want to be circumspect about their statements, but I'm also pleased that the media is pressing them on it.

Whiny Conservatives: Does anyone have a copy of this study? GW's library hasn't received it yet, and I'm interested in reading the study itself (in contrast to the media account of it). If you have an electronic copy, please e-mail it to okerr (at) Thanks.

Tuesday, March 21, 2006

Another U.N. Official Demanding Speech Restrictions, and Faulting Denmark for Protecting Free Speech Too Much:

Agora reports, with translations from Danish sources:

Saturday, March 18th Jyllands-Posten broke the story about an attack by UN special rapporteur [on racism and xenophobia] Doudou Diéne on Denmark. The report has yet to be released to the public in full, but it was leaked by the UN to press sources in Denmark....

Jyllands-Posten’s Excerpts (not available online):

Their [the Danish government's][the cartoon-reprinting newspapers'] uncompromising defense of a Freedom of Speech without limits or restrictions is not in accordance with the international rules which are based on a necessary balance between Freedom of Speech and Freedom of Religion, especially to combat calls for racial and religious hatred, and which all the member countries of UN have decided are the basic rules for Human Rights. This attitude shows an alarming lack of sensitivity and understanding of the religious conviction and deep emotions of the groups of society in question. Thus the newspapers strengthen the connection between Islam and Terrorism which arose after September 11th and which is the most important reason for Islamophobia being on the rise in the world at large and in their own countries.

From Jyllands-Posten’s article on the case, we learn that the government is accused of breaking its international obligations by not conforming with the following three articles in the UN Covenant on Civil and Political Rights:

Article 18, paragraph three:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Article 19, paragraph three:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
1. For respect of the rights or reputations of others;
2. For the protection of national security or of public order (ordre public), or of public health or morals.
Which limits certain rights in paragraph two:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Article 20, paragraph two:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Of course, last Fall the UN High Commissioner for Human Rights, Louise Arbour, said something similar: 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?'" And the backdrop of earlier UN agency resolutions urging governments to legally suppress "xenophobic ideas and material aimed at any religion or its followers that constitute incitement to ... hostility" makes matters still worse.

It also reminds me of the danger posed by the recent movement supporting the use of international law to influence U.S. constitutional norms. As Prof. Peter Spiro, a supporter of the movement (and one of the leading U.S. international law scholars) has written, treaties can, in the long run, "insinuat[e] international law" that would create "a partial displacement of [U.S.] 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," he argued, international norms would and should be "relevan[t] ... in domestic constitutional interpretation." And "[i]n the long run, [this tendency] may point to the Constitution's more complete subordination."

Spiro's 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. Not a pretty prospect, it seems to me.

UPDATE: My post originally erroneously interpreted the "Their" in "Their uncompromising defense" as referring to Danish government officials; after looking at the full translation, I now realize that "Their" referred to the newspapers that reprinted the cartoons. I have corrected the post accordingly, striking out my original version and underlying the replacement. Nonetheless, the report does also criticize the Danish government — see the paragraphs following the one that contains the correction — so the overall tenor of my post is correct: It's just that the report criticizes not only the Danish government, but also the newspapers that reprinted the cartoons after the controversy erupted (when, in my view, the cartoons became even more newsworthy).

Related Posts (on one page):

  1. More from the UN Report Criticizing the Danish Government:
  2. Another U.N. Official Demanding Speech Restrictions, and Faulting Denmark for Protecting Free Speech Too Much:

A pressing issue in the developing world is access to clean and safe drinking water. The Copenhagen Consensus points to several water issues as among the "good projects" it identifies.

I came across this interesting article on efforts by private entrepreneurs to deliver safe drinking water in the developing world and the failures of the private sector to do so. As with many other scarce commodities, it is being argued that the problem here is a lack of well-defined property rights. An interesting, and important, challenge.

Why I'm not Here this Week:

Because I'm guest-blogging at, filling in for Walter Olson. Comments are welcome over there, although the site is set up so that each comment needs to be reviewed by the post's author, so the comments don't appear instantaneously.

Interesting Press Conference: President Bush gave a press conference today that I thought was unusually interesting. Members of the press asked more directly critical questions than I remember them asking in the past, and the President spent more time responding to criticism than he usually does. The transcript is here, and the video is here.
The Magazines Clause:

If you're ever talking about press and the law, just throw into the conversation, "Oh, that's covered by the Magazines Clause of the Constitution." Then watch them squirm until you admit that this Clause doesn't quite mean what you at first suggested it did. It's also a nifty example to illustrate noscitur a sociis.

Thanks to Stanford lawprof Pam Karlan for the pointer.

Swedish Foreign Minister Resigns Over Role in Shutting Down Cartoon-Hosting Site:

Reuters reports:

Swedish Foreign Minister Laila Freivalds quit on Tuesday after a row over the closure of a Web site with cartoons of the Prophet Mohammad .... [S]he was forced to resign when it was revealed this week that she had not given full information about her role in the closure of a site belonging to a far-right political party which published cartoons of the Prophet Mohammad offensive to Muslims.

"It was her own decision," said [Prime Minister Goran] Persson, who had criticised a junior foreign ministry official for putting pressure on a private internet hosting company to close the Web site belonging to an anti-immigrant Swedish political party.

Such pressure violates constitutional guarantees of free speech. Freivalds originally said she did not know her ministry had contacted the company, but documents published this week in the Swedish media proved that she had been informed....

Why Would Blacks Become Republican?,

some ask in response to my post about the "I don't support conservatism ..., and I support black conservatives even less" article -- and especially to my cross-post at Huffington Post. They really do seem genuinely shocked at the prospect that any decent, intelligent black person would take such a ridiculous position.

How about the same reasons that anyone might become Republican? Imagine a black person who's pro-life, and who feels pretty alienated by the Democratic party as a result. Imagine that he's conservative on various other social issues, perhaps because he's deeply religious, and belongs to a denomination that takes such views. Imagine that he thinks we're doing the right thing in Iraq, even if he thinks we may have made many missteps there.

Imagine that he thinks government social programs tend to do more harm than good. Imagine that he believes in low taxes and low government spending, and thinks such an approach is ultimately better for the poor as well as for the rich (though he might be one of those Republicans who's not wild about the Bush Administration's spending record). Imagine that he thinks school choice programs, including those that would support parents who want to send their children to religious schools, are better than maintaining the government near-monopoly in education.

I'm not saying observers need to think this person is right. But is he really so implausible? And if those are his views, then even if he thinks that Republicans are wrong on some racial issues, it is really so implausible that his affinity with Republicans on the other matters (such as, for instance, abortion, which to many conservatives is a pretty important issue) would overcome his disapproval of the Republicans on racial ones?

Caring about moral or patriotic matters that go beyond one's own selfish interests, or one's identity group affiliations, is usually seen as a mark of nobility, not of folly, self-deception, or betrayal. Even if a black person supports a position or party that you think is bad for blacks, why not show him the same respect that you'd show anyone else? Why not assume that he must think that on balance some important consideration, perhaps an important moral principle that even rises to the level of life or death -- even if it's a consideration that you disagree with -- might outweigh what he sees as more parochial concerns?

Civil War in Iraq?--

In the last two days, former Prime Minister Allawi's claim that Iraq was experiencing a Civil War was reported relatively uncritically by the local and national TV news reporters that I happened to see.

Wretchard at the Belmont Club has an analysis:

So what's the truth? The principle in determining truth should be to apply the factual indicator test. A civil war is a visible event whose indicators includes the insubordination of armed units, mass refugee flows, the rise of rival governments, etc. The test is whether those events are being observed. What famous individuals say about a situation is a shortcut for encapsulating a factual assessment; it describes reality as public figures see it but is not the reality itself. That remains a mystery until developments unfold.

One interesting indicator of how the US military sees the situation are its plans to turn over large parts of the country to Iraqi forces. Bloomberg reports:

March 17 (Bloomberg) — The U.S. hopes to hand over 75 percent of Iraq to Iraqi Security Forces by the end of the summer, the second-ranking U.S. commander in Baghdad said. ``All indications are that we will make that,'' Lieutenant General Peter Chiarelli, commander of Multinational Corps Iraq, said from Baghdad during a briefing televised at the Pentagon today, adding that he didn't ``want to be so precise as to put myself in a box.'' ...

This apparently innocuous statement [shortened here at VC] contains a wealth of implication. It primarily suggests confidence, but it also admits that while Iraqi forces are coming along, they are not yet decisive without the assistance of US forces. The insurgency in Anbar, though contained, has not yet been stamped out, though sometime between now and the end of summer more inroads will be made upon it if Chiarelli's statements are any guide to events.

Politically what's interesting is how the narrative has changed. Nobody is talking about the Sunni insurgency succeeding any more. Even the press hardly makes the claim of an insurgency on the brink of success. . . .

After quoting Juan Cole saying that the "guerrillas are really no more than mosquitoes to US forces," Wretchard continues:

Cole forgets to remind the reader [w]hat mosquitoes did for the French in Algeria, the Russians in Afghanistan and even pushed the Israelis out of Lebanon. The enormity of the victory against the insurgency was never a given. In some respects the US achievement was historical. Whatever else happens, this should be remembered.

Cole also rejected assertions that Iraq was in Civil War.

[Myth:] Iraq is already in a civil war, so it does not matter if the US simply withdraws precipitately, since the situation is as bad as it can get.

No, it isn't. During the course of the guerrilla war, the daily number of dead has fluctuated, between about 20 and about 60. But in a real civil war, it could easily be 10 times that. Some estimates of the number of Afghans killed during their long set of civil wars put the number at 2.5 million, along with 5 million displaced abroad and more millions displaced internally. Iraq is Malibu Beach compared to Afghanistan in its darkest hours. . . .

In my view, the shift of meme from the "insurgency" to a "civil war" is a backhanded way of admitting the military defeat of the insurgency without abandoning the characterization of Iraq [a]s an American fiasco. It was Zarqawi and his cohorts themselves who changed the terms of reference from fighting US forces to sparking a 'civil war'. With any luck, they'll lose that campaign too.

Read the whole thing.


Monday, March 20, 2006

I've Been Suckered!

Orin is right, as is commenter Huh?, and I'm wrong. I let myself get suckered by the plaintiff's complaint in DiMemo v. Max, which asserts that the anonymous annoying speech ban is enforceable in civil lawsuits by private parties.

In fact, as Orin points out, the ban is an amendment to a criminal statute (47 U.S.C. § 223), and can only be enforced by the government. D'oh! I just glossed over this issue, because some other recent telecommunications legislation (e.g., the junk fax statute, 47 U.S.C. § 227) provides a private right of action, and I assumed that plaintiff's lawyer wouldn't just make up a civil claim where none exists. Silly me, and damn you, Matthew B. Weisberg, Esq., Attorney for Plaintiff.

In any case, thanks to Orin and Huh? for the corrections; my concern about the criminal statute stands, but this of course makes this incident a much less direct example of the statute's mischief.

Dispelling Ignorance About African American Conservatives.--

In reading Erin Aubry Kaplan's op-ed on black conservatives, which Eugene Volokh dissected, I was struck not only by the argumentation that so disgusted Eugene, but also by the level of ignorance about just how common African American conservatives are.

Last year I was working on an article or chapter on the subject. While in the last decade black conservatives are very common, roughly as common as black liberals, black Republicans are relatively few in number. My discussion started with an analysis of General Social Survey data:

Except for a brief period in the early and mid-1980s, from 1974 through 1994, more African-Americans identified as liberal (35.1%) than identified as conservative (23.0%). Then in the last five GSSs (from 1996 through 2004), there has been no significant difference in self-identification: 27.6% of African-Americans identified as conservative, compared to a virtually identical 27.7% identifying as liberals. In the most recent 2004 GSS, there was also no significant difference (30.0% conservative v. 26.8% liberal). Thus, for about two decades there were more black liberals than conservatives, but according to the GSS, for about the last decade there were roughly as many of each.

(click to enlarge}

Lest one think that the level of black conservatives in the GSS data is so high that it is an artifact of the database used, I examined data from six surveys from Pew Research Center, one from each year 2000-2005 (Chart 2). Overall in these six Pew Surveys, 28.8% of African-Americans identified as conservative, while only 23.4% of African-Americans identified as liberal. In none of these six individual surveys are the differences between black liberals and black conservatives significant. Yet combining the data from all six Pew surveys together, significantly more African-Americans identify as conservatives (28.8%) than identify as liberals (23.4%). In the most recent Pew Survey with released data [at the time I did this analysis] (the January 13, 2005 survey), however, the numbers of black conservatives (24.74%) and black liberals (24.70%) are virtually identical.

(click to enlarge}

In one last check, I examined the 2002 and 2004 American National Election Studies (pre-election surveys), the most recently released years of ANES data. The ANES initially asks an ideology question in a way to encourage nonresponse: in 2002 of the 93 African-Americans placing themselves on a 7-point liberal/moderate/conservative scale, 42.4% identified as liberals and 33.0% identified as conservatives, a statistically insignificant difference. When asked if they had to choose would they choose liberal or conservative, again the differences in ideology were insignificant. Of the 146 African-Americans answering the question, there were no significant differences: 48.4% identified as liberal and 44.0% identified as conservative.

The 2004 ANES also shows no significant differences, but reverses the pattern in point estimates: in 2004 of the 106 African-Americans initially indicating their ideology, 20.9%% identify as liberals and 27.2% identify as conservatives, a statistically insignificant difference. When asked if they had to choose would they choose liberal or conservative, of the 184 African-Americans answering the question, there were no significant differences: 37.9% identified as liberal and 47.6% identified as conservative.

Thus in recent years, roughly equal numbers of African-Americans have identified as conservative as liberal. Of the five most recent General Social Surveys (1996-2004), six Pew Research Center studies (2000-2005), and the two most recent National Election Studies (2002 and 2004), none by itself reported statistically significant differences in the proportions of African-American conservatives and liberals. In these thirteen studies, ten reported insignificantly more black conservatives and three reported insignificantly more black liberals. If one combines these GSS studies together and these ANES studies together, still neither group is statistically significant. If one combines the Pew studies together, however, the differences are statistically significant and the direction of the effect is contrary to the stereotype: there are significantly more black conservatives than black liberals in the six Pew studies. One might also note that in the most recent studies released by the GSS (2004), ANES (2004), and Pew (January 13, 2005), there is not the slightest hint that black liberals are more numerous because all very slightly and insignificantly find more black conservatives.

I omit my discussion of unmeasured sources of likely error, but chiefly they are: (1) conservatives are more likely to be home to be surveyed, and (2) there are strong disincentives for black conservatives to self-report as conservatives (as the LA Times op-ed unintentionally illustrates).

Returning to the Erin Aubrey Kaplan's op-ed, it would be hard to be as wrong as the author is about the facts. Kaplan depicts black conservatives as both rare and exceptionally loyal, when the opposite is true: black conservatives are very common, but are far from loyal to the Republican Party; indeed, most self-identified black conservatives are Democrats.

UPDATE: In response to a comment about the views of black conservatives on particular issues, here is a link to a simple table I prepared reporting 1996-2004 General Social Survey data. The table details black conservative views on several issues: party identification (PARTYID), two abortion questions (ABNOMORE, ABDEFECT), requiring permits to own a gun (GUNLAW), affirmative action (racial preferences in hiring and promotion, AFFRMACT), premarital sex (PREMARSX), big government (HELPNOT), availability of birth control for teenagers aged 14-16 without parental consent (PILLOK), and prayer in public schools (PRAYER).

Black conservatives tend to be social conservatives, not economic conservatives. For example, consider an issue not in the table of data: the morality of gay and lesbian sex. In the 1996-2004 surveys combined, 76% of black conservatives think that gay sex is "always wrong," compared to 72% of other blacks, 72% of nonblack conservatives, and 48% of nonblack nonconservatives.

In general, however, African American conservatives seem to be somewhat more like other African-Americans than like other conservatives, but things vary a lot depending on the issue. Indeed, 57% of African American conservatives report being Democrats, compared to only 10% who view themselves as Republicans. Another 4% of black conservatives are independents who lean Republican.

Those interested in the wording of GSS questions may search the Codebook at the ICPSR site.

Related Posts (on one page):

  1. Why Would Blacks Become Republican?,
  2. Dispelling Ignorance About African American Conservatives.--
  3. Why Did He Steal? Well, Partly Because He's Black:
Chilling Speech and Frivolous Lawsuits: Responding to the DiMeo lawsuit against Tucker Max that raises the newly amended 47 U.S.C. 223(a)(1)(c) as a claim, Eugene writes:
  I've argued before why this law is constitutionally problematic. Here I just want to point out that critics of the new law, such as Declan McCullagh, were right to predict that the law would be used in troubling ways. I hope that eventually the courts will strike down parts of the law as unconstitutional, or interpret the statute very narrowly to avoid constitutional problems. But for now plaintiffs can burden defendants with this cause of action, and perhaps deter prospective speakers and Web site operators.
  Incidentally, I think Tucker Max, as the operator of the site rather than the poster, should be immune under 47 U.S.C. § 230, both from liability under the new statute and from libel liability. But the anonymous poster, if his name is discovered in the course of the litigation, would have no such immunity, and in any event Max's immunity claim, while strong, is unfortunately not open and shut.
  Unless I'm missing something, though, DiMeo's claim is utterly frivolous. 47 U.S.C. 223(a)(1)(c) is a criminal statute, not a civil statute. It does not support a private right of action, see, e.g., Jensen v. Shrively, 2003 WL 917969 (N.D. Ca. 2003); Moore v. Principal Credit Corp., 1998 WL 378387 (N.D.Miss. 1998), regardless of whether Section 230 provides immunity.

  In light of that, I'm not sure how Eugene's argument can work. Surely a statute is not burdensome on speech simply because a lawyer read Declan's article and decided to make a completely silly legal argument. What am I missing?
"Armed Against Genocide":

A new column by Glenn Reynolds, in the Guardian (U.K.), of all places. A British newspaper's Web site entertaining the notion that "the right of people to be armed to resist genocide should perhaps be regarded as the next international human right" -- shocking.

Uncle Sam Wants You:

From yesterday’s Boston Globe, a story with interesting implications for “Don’t Ask, Don’t Tell”:

The US military allowed at least 36 gay soldiers last year to stay in uniform, despite efforts by their commanders or fellow soldiers to have them discharged under the ''don't ask, don't tell" policy, according to a review of hundreds of cases in which soldiers sought to remain in uniform without denying their homosexuality. The number of soldiers allowed to stay despite being identified as gay -- 36 of 120 contested cases -- was substantially higher than in 2004, when 22 of 125 soldiers prevailed, and three times as many as in 2003, when only 12 of 107 were able to persuade their commanders or a military review board to keep them in uniform, the data show.

Thirty-six soldiers may not seem like a lot, but it’s now almost a third of the contested discharges for homosexuality -- and it’s rising. (Most don’t contest their discharges.) Moreover, these numbers mirror a larger recent trend in discharges for homosexuality. Consider the military discharges for homosexuality for each year since 1982:

1982 – 1,998

1983 – 1,815

1984 – 1,822

1985 – 1,660

1986 – 1,644

1987 – 1,380

1988 – 1,100

1989 – 997

1990 – 941

1991 – 949

1992 – 708

1993 – 682

1994 – 597

1995 – 722

1996 – 850

1997 – 997

1998 – 1,145

1999 – 1,034

2000 – 1,212

2001 – 1,273

2002 – 906

2003 – 787

Notice two key pivot points in these numbers. From 1982 until 1994, discharges from the military for homosexuality declined almost every year (going from 1,998 in 1982 down to 597 in 1994). Starting in 1994, however, such discharges began to rise and did so almost every year until 2001 (from 597 in 1994 to 1,273 in 2001). Then, in 2001, discharges began to decline again (from 1,273 in 2001 to 787 in 2003).

The pivot dates – 1994 and 2001 – are themselves remarkable. The year 1994 was the first full year of the “compromise” DADT policy, which was said to allow homosexuals to serve as long as they kept their sexual orientation secret (though that’s not what the federal law actually says). Yet discharges rose every year under DADT until 2001. Part of the rise immediately after DADT could be explained by the fact that some gay service members “came out” in 1993, believing that President Clinton would carry through on his election-year promise to end the ban by executive order. But that does not explain the continuing rise after the first couple of years. It’s hard to make the case that DADT was a softening of military policy on homosexuals. Things got worse for gay soldiers, not better.

Things got worse until 2001, that is. That year saw the attacks on the World Trade Center and the Pentagon, leading to the war in Afghanistan and the larger war on terror. Discharges for homosexuality during this time of great military need (including now, Iraq) have declined.

The question is, why the decline? The Globe story offers a couple of theories that might explain it:

The Pentagon declined to explain why more gay soldiers were being retained, but the lawyers who represent soldiers challenging cases under the policy say the Pentagon seems to have softened its stance on homosexuality. The lawyers attributed the change both to a growing acceptance of gays within the ranks and to the military's need to keep more highly trained soldiers in the Iraq War. ''As the country has changed, so have the people in the military," said Sharra Greer, director of law and policy at the nonprofit Service Members' Legal Defense Network, which represents gay soldiers challenging their dismissals. ''More commanders are not enforcing [don't ask, don't tell] strictly."


''The equations for commands have shifted," Greer said. ''They are under enormous pressure to retain people. They do a cost-benefit analysis and we are hearing the same thing: 'I really don't care if you are gay and I am not going to kick you out.' "' Recent studies have shown that many soldiers dismissed in past years under ''don't ask, don't tell" tended to be in highly trained specialties now in demand, including linguists and medical technicians. ... Meanwhile, there is a growing body of evidence that attitudes have changed within the ranks. A recent study by the Naval Postgraduate School found that a majority of military personnel felt comfortable around openly gay colleagues.

The two explanations – softening attitudes toward homosexuals in the military ranks and wartime needs – probably feed each other. The need to defeat a common enemy causes people to subordinate other interests and concerns that might predominate in peacetime. War is not a time for obsessing about abstractions or ideological purity; it’s intensely practical. Indeed, the recent declines in discharges for homosexuality follow a historical pattern: such discharges typically decline during active military conflict. It happened during both the Korean and Vietnam Wars. Yet when those wars ended, discharges for homosexuality began to rise once again.

What does this leniency toward homosexuality during wartime say about DADT? It may simply say that in wartime the need for bodies overrides almost all other interests. But it's interesting to examine these numbers in light of the particular way in which DADT has been justified. While a number of justifications for the policy have been offered, by far the most prominent one is recited in the federal law setting up DADT: “The presence in the armed forces of [homosexuals] would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”

In theory, the unit-morale and cohesion justifications are perfectly reasonable and could be accepted as the necessary, though distasteful, price we must pay to have an effective military. And it is during times of active military conflict – like the present – that the needs of unit morale and cohesiveness are surely the greatest. If homosexuals were truly a threat to martial values, you’d expect intense pressure to remove them during war since their presence in the services would be at best a distraction and at worst a hindrance -- which could be deadly.

But it is in times such as these that the opposite occurs: more homosexuals are retained. War concentrates the mind on what really matters, and what really matters is not the sexual orientation of the Arab linguist, or the fighter pilot, or the nurse, or the person helping you defuse the IED on the road to the Baghdad airport. What matters is his training, his dedication, and his willingness to put himself at risk for the good of the group. If he does not have these qualities, it should not matter that he’s straight. If he does have these qualities, it should not matter that he’s gay. The numbers suggest that military professionals are quietly coming to the same conclusion.

New Law Prohibiting Annoying Anonymous Speech Online:

[HUGE error in this post, see here, has been corrected; my apologies.]

The newly enacted federal statute that bans annoying anonymous online speech is now part of the basis for a lawsuit against a Web site operator. Anthony DiMeo, III, a Philadelphia businessman, actor, and heir is suing Tucker Max, a Web site operator, blogger, and bulletin board proprietor over some anonymous posts on Max's bulletin board. The first count of the Complaint alleges libel, but the second count alleges a violation of the just-enacted statute that outlaws anonymous online speech that's intended to annoy.

As I at first quite missed, but as Orin and commenter Huh? on this post graciously pointed out, this second count is basically frivolous -- the statute is a criminal statute, which doesn't give rise to a civil cause of action by private litigants. And perhaps federal prosecutors would have been solicitious enough of free speech (or uninterested enough in online insults) that they would never bring such a protection.

Nonetheless, on its face, the new federal statute would indeed cover such anonymous insults. The statute applies not just to constitutionally unprotected false statements of fact (as does libel law), but to any statements, whether fact or opinion, false or true, that are made "without disclosing [the speaker's] identity and with intent to annoy, abuse, threaten, or harass any person ... who receives the communications." At least some of the allegedly libelous statements that DiMeo points to indeed seem to be statements of opinion rather than false statements of fact, so the annoying anonymous communication statute potentially provides a remedy beyond what libel law could provide.

I've argued before why this law is constitutionally problematic. I hope that eventually the courts will strike down parts of the law as unconstitutional, or interpret the statute very narrowly to avoid constitutional problems. But for now the law does on its face ban speech that ought to remain protected.

Incidentally, I think Tucker Max, as the operator of the site rather than the poster, should be immune under 47 U.S.C. § 230 from libel liability.

Thanks to My Election Analysis for the pointer.

Why Did He Steal? Well, Partly Because He's Black:

That, I kid you not, is precisely what an L.A. Times op-ed from last week says. Black conservatives are bad, the theory goes; also, being conservative is spiritually bad for blacks; and that helps explain why White House adviser Claude Allen committed fraud: "It's hard to imagine that such compromises and cognitive dissonance don't exact a psychological toll at some point, and Allen's alleged dabbling in crime might have been that point for him."

Oh, and quite a charming little reference to "house Negro[es]" a couple of paragraphs before, as well — plus the old traitor-to-his-race line of "I don't support conservatism in its current iteration, and I support black conservatives even less." (I take this to mean "traitor to his race," since otherwise it makes no sense: Why would holding any view be worse if you're black, unless the theory is that somehow blacks ought not hold that view because it's supposedly bad for blacks?) When whites are called traitors to their race for supporting policies that are supposedly bad for whites, that's pretty roundly condemned as racism, and rightly so. Yet somehow condemning blacks as traitors to their race is seen by many as just fine.

Read the whole piece, if you have a high tolerance for bile and schadenfreude. And ask yourself how "progressive" it is to condemn people differently for the same views based on their race, and how progressive or factually plausible it is to argue that someone has committed fraud partly because he's black.

Thanks to Paul Geary (The New Editor) for the pointer.

That's Why It's Poetry:

My judgment that you need to see the Mohammed cartoons to really understand the controversy — and that verbal descriptions of the cartoons can't explain the matter well enough — reminds me of this similar tidbit about poetry (see Edward de Grazia, Girls Lean Back Everywhere 335-36 (1992)).

In the late 1950s, California prosecutors brought obscenity charges against the publisher of Allen Ginsberg's poem Howl. One difficulty, of course, was figuring out what exactly this poem meant, but fortunately — as often happens in obscenity cases — the defense produced an expert witness, literary critic Mark Schorer, to testify about the subject. Here's an exchange between him and the prosecutor:

Prosecutor: I presume you understand the whole thing, is that right?

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

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

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

The Value of the Internet:

"Possibly the Most Newsworthy Cartoons in History", Greg Lukianoff (Foundation for Individual Rights in Education) correctly calls the twelve Danish Mohammed cartoons. Without seeing the cartoons, one can't really understand the controversy, partly because a good editorial cartoon is the sort of thing to which words don't really do justice. Fortunately, even though very few prominent American newspapers have printed the cartoons, interested Americans can pretty easily find them on the Internet.

But imagine what things would have been like if the Internet hadn't been invented, or hadn't become as pervasive. If you wanted to know just what people were finding so offensive, how would you be able to do that? I suppose some newspapers might have concluded that they had to run the cartoons precisely because the cartoons weren't available online -- but would most have done that? And if you lived in a city in which the newspapers and TV stations chose not to run the cartoons, what could you do (since without the Internet, you couldn't even easily access most out-of-town newspapers, much less amateur media)?

This whole controversy makes me glad that we're no longer quite as captive to professional news judgment as we once were.


I must admit that I am still stunned about George Mason advancing to the Sweet Sixteen. And beating two teams from last year's Final Four in the process. And playing Wichita State--who we beat just a few weeks ago on Bracket Buster Saturday in Wichita. GMU did a pretty good job holding Paul Miller in check in that game, which turned out to be a good preview of what GMU did against Davis and Hansbrough this weekend.

On a related subject, Trent McBride has another great post with more data on the performance of mid-majors in the tournament. (I linked his earlier post this weekend here).


ArmchairGM is a new sports wiki and is inviting contributors. I just recently learned about it, so it looks like it is just getting going if you want to join in.

Court Accepting a Slippery Slope Argument:

There's an interesting example in the recent Google subpoena ruling. The issue in this part of the opinion was whether the subpoena was likely to jeopardize Google's trade secrets; the government said it wouldn't, because the government would agree to keep the revealed information confidential; Google argued otherwise, especially because there'd also be follow-up subpoenas, so the chances of some unauthorized disclosure would become even greater.

The court generally accepted Google's argument, expressly using a slippery-slope-related metaphor (the "thin end of the wedge"):

Google's remaining trade secret argument is that despite the narrowness of the sample provided, it would become entangled in the underlying litigation where further discovery would risk trade secret disclosure.... On the one hand, a determination of the propriety of further discovery is for another set of motions, and not the one presently before the Court. On the other hand, further discovery in this case that would require disclosure of Google's trade secrets is not merely a remote possibility....

In light of the comments of Plaintiffs' counsel at the hearing, the Court can foresee further entanglement based on Plaintiffs' challenge to the Government's ultimate study. In litigation where the ultimate question is ... fundamentally about limiting the access by minors to [Internet] adult material, it is quite likely that Plaintiffs will challenge the sample produced by Google as not representative of what minors search for or encounter on the Internet. Such an inquiry would require additional discovery, some of which may implicate Google's confidential commercial information.... [T]his Court is concerned that a narrow sample of Google's proprietary index and query log, while in itself not likely to lead to the disclosure of confidential information, may act as the thin blade of the wedge in exposing Google to potential disclosure of its confidential information.

This is an example, I think, of what I called a multi-peaked preferences slippery slope, but perhaps should have called an "unstable compromise slippery slope." Right now (at the position I call 0), the bottom of the slope (which I call B) — broad discovery of Google's data by a wide range of litigants, not just the government but the plaintiffs in the underlying cyberporn law case — is unlikely. But if the court allows the first step (which I call A), namely discovery by the government, then for various legal reasons (such as the felt need for both sides to be able to impeach each other's evidence) step B would become much likelier. Therefore, in evaluating whether the 0->A move is sound, the court shouldn't just focus on the costs and benefits of A, but should also include the possibility that 0->A would lead to A->B.

Camel (A) sticks his nose under the tent (B), which collapses, driving the thin end of the wedge (C) to cause monkey to open floodgates (D), letting water flow down the slippery slope (E) to irrigate acorn (F) which grows into oak (G). [Illustration by Eric Kim, from Eugene Volokh's idea.]

"The Mobility Myth":

That's the title of an article in the April 2006 Reason (not online yet, apparently), and its premise is that, despite claims to the contrary, "Americans are more likely than ever to stay put." I looked up the census data that the article points to, and it seems to support the article's assertion: In 1947-48, the first year for which data was systematically gathered, 20.2% of all Americans had moved; in 2002-03, that percentage was 14.2%, the lowest it had been since 1947-48 (except for 2000-01, when it was also 14.2%).

My one concern is that the Census data shows an oddly large and sustained dip from 1999-2000 to 2000-01, which makes me wonder whether there that dip reflects a change in data gathering rather than in the underlying reality. Nonetheless, even if we set aside that 2% decline, the mobility rate would still be lower today than in the past.

If anyone has more data on this, or more information on the 1999-2000/2000-2001 dip, please post it in the comments.


Sunday, March 19, 2006

NOW SHOWING (on the web): The South Park Episode That Comedy Central Didn't Reshow.--

Prominent Scientologist, Tom Cruise, stands accused in the press of inducing Comedy Central to suppress the reshowing of an episode mocking both him and Scientology. For those who want to see the offensive episode and make up their own minds, fortunately South Park creators Matt Stone and Trey Parker have been quite open toward private downloads of their material.

Accordingly, here is the Scientology episode in its entirety. It lasts just under 22 minutes.

If you would rather read the script, you may do so here.

Jack Myers has had a long description of the episode on his site since last fall.

In South Park's Scientology episode, Stan, one of the kids who lives in South Park, Colorado, is tested with something called an "E-meter" and scores so highly that he is believed to be the reincarnation of L. Ron Hubbard, the founder of Scientology.

Here are some of the highlights of the last half of the episode, as described by Jack Myers:

First, the president of the Church of Scientology revealed the "safely guarded Scientology doctrine" to Stan. "It all began 75 million years ago with a galactic federation of planets ruled by the evil Lord Xenu," he started, reciting a story that is posted all over the Web. "Fearing overcrowding, Xenu rounded up countless aliens from all those planets and had those aliens frozen. The frozen alien bodies were loaded onto Xenu's galactic cruisers, which looked like DC-8s, except with rocket engines. They were sent to earth and dumped into the volcanoes of Hawaii [and other volcanoes, see Wikipedia]. They were no longer frozen. They were dead.

"The souls of the aliens floated toward the sky," the president continued, explaining that Xenu had built giant "soul catchers" to collect them all and unload them into a brainwashing facility he had built on earth. "The souls were forced to watch days of brainwashing material that tricked them into believing a false reality," the president revealed. "Xenu then released the alien souls that roamed the earth aimlessly in a fog of confusion. At the dawn of man the aliens found bodies they could grab onto. They attached themselves to all mankind, which still to this day causes all our fears, confusions and problems."

As the president spoke this story was presented in colorful animated detail — with the words "This is What Scientologists Actually Believe" superimposed on the screen.

Meanwhile, back in Stan's bedroom, Nicole Kidman was recruited to help in the effort to convince Tom Cruise come out of hiding. "Don't you think this has gone on long enough?" she asked her ex-husband. "It's time for you to come out of the closet."

"I'm not in the closet," Cruise replied.

"Yes you are, Tom," said a patient Kidman. "And you need to just end this and come out. I'm not going to think any differently of you. Katie's not going to think any differently of you. You don't need to be in that closet anymore, Tom. Come out. You're not fooling anyone."

Eventually, fellow Scientologist John Travolta joined Cruise in the closet. He also refused to come out, sparking additional interest from the media. Stan, meantime, was busily writing a new sacred doctrine for the Church. But when he suggested that Scientologists should no longer have to pay money to belong to the Church, its president had a meltdown.

"What are you, stupid?" he raged. "What's better than telling people a stupid story and having them believe you? Having them pay you for it!" Stan's continued gentle protests further agitated him. "This is a scam on a global scale!" the man cried. "Do you f---ing get me now?"

Stan later addressed a huge crowd of Scientologists in front of his home that had assembled to meet their new profit [sic, a Freudian slip?--JL]. But he further defied the head of the Church, telling the masses, "Scientology is just a big fat global scam." "We're going to sue you!" screamed several outraged Scientologists, including Cruise, who had finally come out of Stan's closet.

"We're going to sue your ass and your balls!" cried one.

"You are so sued, kid," said another.

"Well go on then. Sue me!" Stan shot back. "Do it! I'm not scared of you! Sue me!"

At that, the episode ended, and in a final tweak from Parker and Stone, all of the names in the show's closing credits read John Smith or Jane Smith [presumably to make them harder to identify and thus sue--JL].

Now I can better understand Stone and Parker's response to Comedy Central's suppressing the episode:

" So, Scientology, you may have won THIS battle, but the million-year war for earth has just begun! Temporarily anozinizing our episode will NOT stop us from keeping Thetans forever trapped in your pitiful man-bodies. Curses and drat! You have obstructed us for now, but your feeble bid to save humanity will fail! Hail Xenu!!!

- Trey Parker and Matt Stone, servants of the dark lord Xenu."

One thing that struck me while watching the Scientology episode is that some of the creation stories in mainstream religions are a bit hard to swallow as well, though I take it that Scientology's creation story is in some respects even stranger than the episode makes it out to be, which is pretty farfetched.

UPDATE: According to FOXNEWS, Comedy Central is going to show the bumped Scientology episode on Wednesday at 10pm ET (tip to Although one can't be certain, it appears as if the uproar made Comedy Central rethink their position on reshowing the episode.

Related Posts (on one page):

  1. Chef Returns for a South Park Episode.--
  2. NOW SHOWING (on the web): The South Park Episode That Comedy Central Didn't Reshow.--
  3. More Cartoons Insulting Religion.--
Sticking it to the man:

Italy, as you may know, is in the midst of a general election (voting is on April 9th), and it's a pretty interesting campaign. I can't say that I always understand what's going on -- my Italian's getting better, but I'm a bit like a 2d grader reading the New York Times: a lot gets by me. Berlusconi ("Il Cavaliere," as some in the press call him) is an odd figure, by anyone's measure; I tried to explain to my fellow students in italian class the other day that, whatever else our political system might tolerate, it would never tolerate a President who was actively managing major media enterprises while serving as President. Which is precisely what Berlusconi does -- he owns or controls the largest TV networks, the largest music and movie distribution company, and the largest print publishing house in Italy, and he has continued to wheel and deal while leading the country. It's pretty strange. He is, the smart money seems to be saying, behind in the race with Romano Prodi ("Il Professore") -- we watched the first of two scheduled debates the other night, and even catching maybe 5% of what they were saying, you could see that Berlusconi looked uncomfortable and was constantly on the defensive.

He's also, it appears, about to be indicted for corruption and obstruction of justice, in a case involving an alleged $600,000 paid to British lawyer David Mills in exchange for perjured testimony in one of the other cases against Berlusconi. It's unlikely that this news, which just broke in the last week, will hurt him much, however -- he's got the John Street Effect working in his favor. The John Street Effect is named after Philadelphia mayor John Street who was running for re-election last year and was trailing opponent Sam Katz badly until news leaked out that Street's office was being wiretapped by federal agents as part of a wide-ranging corruption investigation (that has, subsequently, netted several high-profile political figures in its net). That news, it turned out, was the best thing that ever happened to Street's campaign, which, bizarrely, immediately picked up steam when the story broke. The news that he was quite possibly about to be arrested for corruption was somehow seen by many in Philadelphia as evidence that Street was really 'sticking it to the man.' Berlusconi has some of this same political mojo. It's most peculiar that John Street and Silvio Berlusconi -- each of whom, basically, IS the man already -- can get away with this sort of nonsense, but they can and do.


Over the past week or so we have heard much from two outspoken critics of the college basketball mid-majors--namely Billy Packer and Gary Williams.

A few years ago Packer famously blew a gasket a few years ago when St. Joseph's was named a 1 seed, only to see them fall one buzzer-beater shy of advancing to the Final Four (and substantially further than two other number 1 seeds that year which were knocked out in the first weekend). This year he complained about the inclusion of "too many" mid-major at-large teams instead of more teams from power conferences, noting the general success of the power conferences in recent years. The relevant comparison, it would seem, would be team to team--e.g., the 5th, 6th, or 7th place teams in the power conferences versus the 2d in the CAA or 4th in the MVC. Duke's success seems largely irrelevant as to whether Bradley or Maryland deserves an at-large berth.

As John Feinstein notes in his excellent column in today's Washington Post, the mid-majors have more than held their own through the first weekend of the tournament. In fact, he observes that the mid-major at-large teams were 4-4 in the first round, notwithstanding the fact that only two of them were higher seeded than their opponents.

As for Gary Williams, thet other outspoken critic of the inclusion of mid-majors in the tournament, Maryland went down last night in the NIT to--wait for it--mid-major Manhattan. At home. Moreover, Old Dominion and Hofstra, two CAA teams that didn't make the NCAA, both knocked out Big 12 teams in the opening rounds of the NIT as well.

As a George Mason fan, I obviously have my personal bias in favor of the mid-majors here. But it seems to me that there may be some lessons here for critics of the selection committee and the continued rise of the mid-majors in college hoops.


I missed this excellent post which looks at some of the numbers on the relevant comparisons between the mid-majors and power conferences.

More Cartoons Insulting Religion.--

South Park, fresh from surviving a Catholic-inspired boycott of an episode showing a bleeding Virgin Mary, is now in trouble with Scientology.

First, Isaac Hayes, Scientologist and longtime voice of the character Chef, quit the show:

Hayes said the show's parody of religion in general was part of what he saw as a "growing insensitivity toward personal spiritual beliefs" in the media, including the recent controversy over cartoons depicting the Prophet Mohammad.

"There is a place in this world for satire, but there is a time when satire ends and intolerance and bigotry toward religious beliefs ... begins," Hayes said.

Matt Stone responded with a public statement:

This has nothing to do with intolerance and bigotry and everything to do with the fact that Isaac Hayes is a Scientologist and that we recently featured Scientology in an episode of 'South Park.' In ten years and over 150 episodes of 'South Park,' Isaac never had a problem with the show making fun of Christians, Muslims, Mormons and Jews. He got a sudden case of religious sensitivity when it was his religion featured on the show. To bring the civil rights struggle into this is just a non-sequiter. Of course we will release Isaac from his contract and we wish him well.

Stone then went even further:

“This is 100 percent having to do with his faith of Scientology. . . . He has no problem — and he’s cashed plenty of checks — with our show making fun of Christians.”

Now some in the press are accusing the prominent Scientologist, Tom Cruise, of getting Comedy Central to suppress the showing of an episode mocking him. But Cruise's representative denies the charge, and a Paramount spokeswoman denied knowledge of any threats:

Actor Tom Cruise threatened to boycott promotion of his upcoming Paramount Pictures film unless a sister cable TV network pulled a South Park rerun lampooning the Church of Scientology, industry sources said today.

Representatives for Paramount and Cruise, a prominent Scientologist, denied he made any such threats or had anything to do with the Comedy Central network cancelling plans to air a repeat of the South Park episode titled Trapped in the Closet on Wednesday.

Trey Parker and Matt Stone, creators of the crudely animated cartoon hit, issued a quirky statement, filled with references to Scientology and the science-fiction writings of church founder L. Ron Hubbard, suggesting Scientology was behind the scheduling change. . . .

Instead of the Tom Cruise episode, the network aired reruns of two South Park episodes featuring the character Chef, voiced by veteran soul singer Isaac Hayes, also a Scientologist, who quit the show earlier this week.

Comedy Central, which like Paramount is owned by Viacom Inc, declined comment on the rerun switch, other than to say: "In light of the events of earlier this week, we wanted to give Chef an appropriate tribute by airing two episodes he is most known for."

Two industry sources familiar with the situation said Comedy Central pulled the "Trapped in the Closet" episode from its South Park rerun rotation after Cruise threatened to cease promotion of his upcoming Paramount film, Mission: Impossible III.

Cruise spokesman Paul Bloch said neither the actor nor his representatives "had anything to do" with the scheduling of South Park reruns and that Cruise had never said to anyone he would refuse to promote his film. Paramount spokeswoman Janet Hill denied any knowledge of such a threat.

Apparently invoking Scientology terminology, Stone and Parker responded to the latest move by Comedy Central:

" So, Scientology, you may have won THIS battle, but the million-year war for earth has just begun! Temporarily anozinizing our episode will NOT stop us from keeping Thetans forever trapped in your pitiful man-bodies. Curses and drat! You have obstructed us for now, but your feeble bid to save humanity will fail! Hail Xenu!!!

- Trey Parker and Matt Stone, servants of the dark lord Xenu."

What is it about cartoons and religion?

UPDATE: If you want to see the episode that started all the fuss (or read a transcript), the links are here.