The Volokh Conspiracy

Organizations to which donations are tax-deductible (so-called 501(c)(3)s) — including religious organizations — aren't allowed to expressly support or oppose the election of candidates, and are limited in their lobbying for the enactment of legislation. General public education, including advocacy, is fine, but not electioneering or (too much) lobbying; if they want to do that, they need to set up arms that collect non-tax-deductible donations (so-called 501(c)(4)s, as opposed to the 501(c)(3)s).

The Court has upheld this scheme against First Amendment challenge, reasoning that tax exemptions for contributions are a form of subsidy, and the government can impose restrictions on what this subsidy is used for, so long as they are viewpoint-neutral (i.e., no electioneering would be fine, no electioneering in favor of racist candidates would not be). Of course, there are often difficulties in deciding what's forbidden express support or opposition and what's permitted education and advocacy; the IRS has new guidance on the electioneering side of the question.

In any case, Paul Caron (taxprof) passes along an interesting new controversy on this, not terribly novel legally but striking because of the speech involved: An Internet message from an evangelist that "If You Vote for Mitt Romney, You Are Voting for Satan." Talk about demonizing your opposition. In any event, an excerpt from Paul's post,

[T]oday's Washington Post item Separation of Church and State and Tax Exemptions:

Florida evangelist Bill Keller says he was making a spiritual — not political — statement when he warned the 2.4 million subscribers to his Internet prayer ministry that "if you vote for Mitt Romney, you are voting for Satan!"

But the Washington-based advocacy group Americans United for Separation of Church and State says the IRS should revoke the 501(c)(3) tax-exempt status of Bill Keller Ministries, nonetheless.

Paul points out that the evangelist's statement was indeed likely illegal (again, for a 501(c)(3) that's using tax-exempt funds).

I've just come up with some estimates of this, based on samples from the first five months in 2007, and searches in MEGA;MEGA on Lexis. The estimates are only estimates, for a variety of reasons, but I think they're good ballpark judgments.

So my riddles to you:

(1) How many times per month do U.S. courts — in Lexis-accessible opinions — cite student-written law review articles (denominated Note, Comment, Case Note, and Casenote, though excluding faculty-written works denominated Comment)?

(2) How many times per month do U.S. courts cite non-student-written law review articles?

Let's see who can get closest to right, or at least closest to my estimates of what's right. (By the way, there are a total of about 25,000 Lexis-accessible cases put out per month.) [UPDATE: I should also note that there seem to be about 2500 student articles published per year, and about 9000 non-student articles.]

The Ninth Circuit just released a very interesting opinion on this subject (thanks to How Appealing for the pointer). The opening paragraph strikes me as a good model of how to provide an effective frame for a persuasive argument, a frame that will guide the reader's thinking as the rest of the work is read:

We are called upon to decide whether the University of Montana may impose a dollar limit on what a student may spend on his campaign for student office. The University’s limit did not affect how the money could be spent; rather, it directly told a student how much he could spend to get elected. The Federal Election Campaign Act of 1971 could not tell James Buckley how much of his money he could spend to be elected a United States Senator. Buckley v. Valeo, 424 U.S. 1, 51-54 (1976) (per curiam). Why, then, may a state university tell students how much they may spend to be elected to student office? Because, unlike the exercise of state-wide political self-determination at a national level at issue in Buckley, the student election at issue here occurred in a limited public forum, that is, a forum opened by the University to serve viewpoint neutral educational interests but closed to all save enrolled students who carried a minimum course load and maintained a minimum grade-point average. These educational interests outweigh the free speech interests of the students who campaigned within that limited public forum.

The court, I think, is quite right to conclude that because student government and student elections are university functions, they should be treated as limited fora, and that the test is therefore viewpoint-neutrality (clear here) plus reasonableness. Here's the court's reasonableness analysis, which also strikes me as persuasive:

The evidence before us clearly shows that the University views the spending limitation as vital to maintain the character of ASUM and its election process as an educational tool, rather than an ordinary political exercise....

We find that the spending limits reasonably serve this pedagogical aim. ASUM exists to teach students responsible leadership and behavior. Imposing limits on candidate spending requires student candidates to focus on desirable qualities such as the art of persuasion, public speaking, and answering questions face-to-face with one’s potential constituents. Students are forced to campaign personally, wearing out their [shoe]-leather rather than wearing out a parent’s -- or an activist organization’s -- pocketbook. Our conclusion is supported by the declaration of Gale Price, former ASUM President:

Unlimited spending in ASUM elections also would change the nature of the election process as a learning experience. The spending limits mean that students have to figure out no-cost or low-cost ways of campaigning. They have to plan ahead to figure out their strategy, rather than just dumping a lot of money into advertising materials at the last minute. They have to make decisions about allocating their resources effectively. Without spending limits, the well-off students would not have to face these constraints or make these kinds of decisions in the course of running for ASUM.

In any case, if you're interested in the issue, read the whole First Amendment analysis -- it's quite accessible even to laypeople. (You can skip the standing and sovereign immunity sections, though, unless you're interested in those topics.)

As I mention below, lots of people ask me this question. Please post your answers here, but for now let me mention mine: A good English usage dictionary — my favorite is Webster's Dictionary of English Usage, but Garner's A Dictionary of Modern American Usage is good, too. (Garner also has A Dictionary of Modern Legal Usage, which may be worth reading as well, but it covers a different set of matters.)

Of course, this is also good advice for anyone who wants to go into a profession that requires writing English prose for a living. When words are your tools, you need to know them well, (1) so you can convey the right meaning, (2) so you can convey the right meaning without needlessly distracting or annoying the reader, and (3) so you can convey the right meaning without the reader's concluding, fairly or unfairly, that you're ill-educated.

And the trouble is that many people misuse words without knowing they're misusing them, or use words that some dislike (again, whether or not the dislike is well-founded) without knowing that they're risking condemnation. The dictionary is a good way of knowing where the linguistic land mines are.

Plus, at least to me, these dictionaries are fun reads, especially when you read a few pages at a time. Each page has some interesting and surprising tidbits, and the usage dictionaries are also pretty well-written; I'm particularly fond of the style of Webster's.

Of course, knowing other things about writing — how to craft, organize, and edit sentences, paragraphs, and documents — is more important. But most of the people who ask me have already heard "read Strunk & White" (though I should note that not everyone is wild about it). They'll have read it or something like it, though they probably will have a hard time putting it into practice; that's just the nature of writing advice. In my experience, though, knowledge about usage rules is much easier to put into practice, even if it means just remembering that there's a problem with some word (so that you can look up the word again). So that's my tip; use it if you can, and suggest your own in this separate thread if you'd like.

Lots of people ask me this question, and I don't have many good answers. (I have one, but I'll post it separately.) Can any of you suggest something that you think helped you, or helped friends or students of yours?

American Jews naturally worry about anti-Semitic speech, for the obvious reason that it could lead to anti-Semitic murder, other crimes, job discrimination, and more. They also worry about unfair criticism of Israel, because it could undermine American help for Israel, American trade and professional exchanges with Israel, and the like.

But it seems to me there are also contrary effects. American help for Israel -- especially private help -- is also undermined by any decline in American Jews' emotional connection to Israel, a decline that can stem from (1) growing assimilation, (2) a declining sense that Israel is unfairly embattled, and (3) a declining sense that Jews are unfairly embattled and need Israel as a defender and retreat of last resort. Likewise, what most undermines these days the welfare of the American Jewish community as an independent community (rather than just as individual people)? My sense is that the answer is assimilation and declining sense of common fate, rather than an unwillingness to identify as Jews for fear of ostracism or violent reprisal (a fear that was more serious some decades ago).

Modest amounts of anti-Semitic speech and unfair criticism of Israel, it seems to me, can strengthen American Jews' self-identity as Jews, and thus indirectly support both the preservation of the American Jewish community as a community, and strengthen support for Israel. Feeling embattled as a group tends to strengthen group solidarity. Hearing unfair criticisms for Israel tends to strengthen the sense that Israel is unfairly embattled and deserves more support. Feeling some fear of anti-Semitism reminds American Jews of the value of preserving American Jewish institutions. And it reminds American Jews of the value of protecting Israel, in case one day American Jews may need refuge somewhere just like European Jews once did. ("Home is the place where, when you have to go there, They have to take you in.")

If anti-Semitic speech became too common, these community-strengthening effects may be decreased (for instance, if American Jews became afraid to be publicly identified as Jews) or might be swamped by harmful effects (again, such as violence, ostracism, discrimination, or fear suffered by individual Jews). But my sense is that at modest levels, the existence of this speech in America is a net positive (not an unalloyed positive, but a net positive) both for Israel and for the American Jewish community. And we are talking these days about such modest levels, if one looks at the big picture of Jewish existence in America today.

So far I have tried to be purely descriptive: I have tried to describe what I think is an existing phenomenon, a phenomenon that is positive for Israel and for the American Jewish community as a community. (I should say that I'm a relatively assimilated Jew who doesn't care as much about the American Jewish community as a community as some do; I'm much more concerned with the welfare of individuals, Jewish or not, than with the welfare of the community. Still, even I see some value, so long as anti-Semitism does exist, in America and elsewhere, in protecting Israel and preserving American Jewish institutions.)

Now, though, let me shift to the prescriptive: I think that this phenomenon ought to further strengthen American Jews' support for free speech, including for free speech by anti-Semites and unfair, bigoted critics of Israel. (I think we should support such free speech even without this phenomenon, but I hope this phenomenon strengthens such supprot in others.)

Anti-Semitism, whether Muslim, white nationalist, or otherwise, is out there. Suppressing such speech might diminish anti-Semitism in some ways (for instance, if the suppression is effective and stops the persuasive or attitude-reinforcing effect of such speech), or it might increase anti-Semitism in some ways (for instance, for making the anti-Semites look sympathetic in some people's eyes, or making people who are from the same community as anti-Semites feel embattled and hostile to those who are seen as persecuting them). But on balance, the main effect of such suppression, if it is effective, will be to make American Jews feel more complacent. And publicly identifying and condemning such speech will remind American Jews that there is anti-Semitism out there, that it must be fought -- and that fighting such anti-Semitism and protecting against its most harmful effects is one reason that both Israel and American Jewish institutions need support.

Naturally, there are limits to this. Certainly no-one should foment anti-Semitic speech or conduct, or blow it out of proportion, or tolerate leaving actual anti-Semitic violence unpunished. Increasing group solidarity is not the most important thing.

But if you think that increasing group solidarity is on balance one important thing (either as an end or as a means), the First Amendment rights of American anti-Semites help you rather than hurt you. You shouldn't be demanding speech codes; you should be shipping in more video cameras (and of course demanding protection from violence for those who use them), and publicizing the bad speech that you find.

Free speech is valuable because it informs people -- and it informs people not just when the listener hears and believes the facts the speaker says, but also when the public learns more about the speakers. Publicly visible anti-Semitic advocacy is, at least in America today, an important informational tool: It informs American Jews of the value of Jewish institutions, and it presents this information in an especially emotionally effective way. Again, not in my view the best reason to support free speech, or even close to it. But those who don't share my views about the broader moral and instrumental value of free speech should, I think, consider this more immediate instrumental value.

because China denies its students academic freedom. Oh, no, that's not right — it voted for a boycott of Saudi universities and academics, because of Saudi Arabia's second-class treatment of women. Whoops, I got that wrong — it voted for a boycott of Iranian universities and academics, because of Iran's oppressive government.

D'oh! Wrong again. As best I can tell it hasn't voted for a boycott of any of them; it only voted for "a boycott of Israeli universities and academics yesterday, in protest over Israel's treatment of the Palestinians." Of course.

Thanks to Aeon Skoble for the pointer.

In late March, the Ninth Circuit handed down an important holding about 47 U.S.C. § 230. This statute immunizes Internet Service Providers, Web site operators, and others from being held liable for what their users post. Thus, for instance, if you post something defamatory in the comments, we won't be liable for it to the defamed party, though you would be liable, and though we would be liable for content we ourselves originate.

The statute, though, exempts "intellectual property." That clearly means the provider or operator could be liable for copyright infringement by its users (subject to the separate rules provided by the Digital Milennium Copyright Act, 17 U.S.C. § 512), and likely for federal trademark infringement. But it's not clear whether it covers state law rules that are sometimes characterized as intellectual property laws, for instance the state law right of publicity. The Ninth Circuit held that the § 230 exemption covers only federal intellectual property laws, not state ones.

Bruce Wessel reports that yesterday the Ninth Circuit amended the opinion to justify its conclusion further:

In its petition for rehearing, Perfect 10 claims that our decision on this point conflicts with Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir.2007). But neither party in that case raised the question of whether state law counts as “intellectual property” for purposes of § 230 and the court seems to simply have assumed that it does. We thus create no conflict with Universal Communication.

We note that Universal Communication demonstrates the difficulties inherent in allowing state laws to count as intellectual property for CDA purposes. In that case, the district court struggled with the question of whether the “trademark dilution” claim brought under Florida Law counted as intellectual property for purposes of the CDA, and concluded that it was more like a defamation claim than a trademark claim. Id. at 423 n. 7. Rather than decide how to draw the line between defamation and trademark, the First Circuit held that “because of the serious First Amendment issues that would be raised” if Lycos were found liable, defendant had not violated the Florida statute. Id. at 423.

The First Circuit was able to sidestep the question of what counted as intellectual property on First Amendment grounds. But we cannot do so here. States have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a few. Because such laws vary widely from state to state, no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue. And, of course, defendants that are otherwise entitled to CDA immunity will usually be subject to the law of numerous states. An entity otherwise entitled to § 230 immunity would thus be forced to bear the costs of litigation under a wide variety of state statutes that could arguably be classified as “intellectual property.” As a practical matter, inclusion of rights protected by state law within the “intellectual property” exemption would fatally undermine the broad grant of immunity provided by the CDA.

Commenter Pete writes, on the UC Irvine thread:

There have been incidents of violence by muslims against non muslims at UCI including throwing a cinderblock at an FBI agent's car, muslim students disrupted Daniels Pipes speech, student housing was defaced with swastikas, and here is a rather hateful speech called "Israel the 4th Reich" by Amir Abdel Malik Ali sponsored by the campus Muslim Student Union.

For those interested in what the chancellor is defending, here is a video of one of the events where the speaker blames Jews for 9/11 and where the blogger doing the videotaping is thrown out when discovered. The blogger was also followed by and assaulted by Muslims after they found out he was video taping the event.

I've heard similar catalogs from others who are faulting UCI, and seemingly calling for more speech restrictions.

The trouble is that this mixes together a great deal of behavior, some of which should clearly be punished -- though by punishment of the attackers, not restrictions on the speech of coreligionists -- and some of which is constitutionally protected.

Thus of course students who throw cinderblocks at cars, vandalize student housing, and assault people should be criminally punished, and punished by the university as well. If the police or UCI knew who the criminals were, had proof that they committed the crimes, and failed to punish them, that should be strongly faulted; likewise if the police or UCI didn't investigate the crimes adequately. But if the swastika drawers were simply never found, despite a reasonable investigation, then there's little to fault the police and UCI for. Certainly UCI can't punish Muslim student groups generally for the acts of individual Muslim students (unless there's some evidence that the group was actively involved in the act), much less for acts in which the actor is unknown.

Likewise, people who disrupt speakers (assuming we're talking about noise, rushing the stage, and the like, and not just holding a peaceful but offensive protest outside) should be disciplined. If you have evidence that UCI had the goods on them but didn't properly discipline them -- or refused to get the goods on them -- then pass them along, and we can decide to fault UCI for that. But again the penalties would have been punishing the students, not shutting down extremist Muslim events organized by other students.

But a "rather hateful speech called 'Israel the 4th Reich'" is, well, speech. The freedom of speech surely extends to expressions of hatred and hostility to foreign governments (or for that matter one's own government), however unfair or bigoted those expressions might be. Likewise, a "speaker [who] blames Jews for 9/11" is a speaker, engaged in speech. The freedom of speech likewise extends to arguing that there are government coverups and malign conspiracies, even when we think such theories are foolish and hateful.

University chancellors should defend the right to engage in such speech. And certainly the fact that some Muslim students have engaged in vandalism and assault doesn't warrant a university's stopping other Muslim students from inviting other Muslim speakers who want to engage in constitutionally protected speech.

[NOTE IMPORTANT UPDATE BELOW.]

Mickey Kaus writes:

On page 93 of the new Gerth-Van Natta Hillary Clinton book, a sentence describes how, during the '92 campaign, Hillary herself

"listened to a secretly recorded audiotape of a phone conversation of Clinton critics plotting their next attack. The tape contained disucssions of another woman who might surface with allegations about an affair with Bill. Bill's supporters monitored frequencies used by cell phones, and the tape was made during one of those monitoring sessions."

...

Isn't [this] not so legal? ... See also this exegesis of the elements of a violation of 18 U.S.C. 2511(1)(a)....

To answer Mickey's question, 18 U.S.C. § 2511(1) does provide (and as best I can tell did provide in 1992) that

Except as otherwise specifically provided in this chapter any person who--

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

[is guilty of a felony, and subject to civil suit].

Thus, if Hillary conspired with those who intercepted the phone conversations, solicited such interception, or aided that interception, that would be a crime.

What if the tapes just anonymously landed on her desk, so that there is no conspiracy, solicitation, or aiding, and she just listened to them and used them in her campaign? That too would be prohibited, by section (d), which equally covers any person who

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.

Her only defense (assuming the tapes were pretty clearly a result of an intercepted communication) would be, I think, that the First Amendment allows her to use information that she indirectly got from someone else's intercept in crafting the campaign's own First Amendment activity. See the narrow and mysterious Bartnicki v. Vopper (2001), which makes most First Amendment calculations in this area hard to make, and ignore the temptation to make much out of Boehner v. McDermott (D.C. Cir. 2007) (en banc) (4-1-4), in which the swing vote turned on a special factor not present here (the fact that the defendant was a Representative whose conduct was also barred by a House Rule).

UPDATE: Orin, in the comments, points out that as of 1992 the law barred interception only of cell phone calls, not cordless calls. I had assumed the book passage was correct in saying they were cell phone calls, but if they were cordless calls, the materials that Orin cites (and Orin knows about such matters) would mean the behavior was legal. It's also possible that if Hillary used the material reasonably assuming that it was cordless calls rather than cell phone calls, she would be off the hook even if the calls proved to be cell phone calls after all.

The L.A. Times reports:

UC Irvine Chancellor Michael V. Drake ... tried to explain [Wednesday] that campus events seen by some as anti-Semitic are actually expressions of constitutionally protected free speech.

Drake met with more than 600 members of the county's Jewish community who expressed concern about what they perceived as anti-Semitic activity on campus, much of it involving Muslim students....

UCI has become a flashpoint in the national Israeli-Arab debate that has created hard feelings between Muslims and Jews. This month, Muslim students on campus sponsored a presentation, "Israel: Apartheid Resurrected," protesting that country's policies toward Palestinians.

It was the latest in a series of events that have sparked tension between the groups on campus, with some Jewish students complaining that the exhibit relayed a message of anti-Semitism and hatred of Jews.

On Wednesday, Drake heard complaints that Jewish students were afraid to be on campus and was challenged repeatedly to draw a line between free speech and hate speech. But he said it was an impractical and impossible assignment.

"Free speech means simply that: free speech," he told one questioner.

To another, he said: "Speech is protected. It can be hateful. It can be wrong. It can be vile." Unlike speech, he added, violent acts are not protected.

The chancellor repeatedly said he found anti-Semitism abhorrent, calling it "the utterance of fools." But he also said the right of free speech allows Muslim students to sponsor speakers with whom he disagrees....

Sounds exactly right to me. If Jewish students are assaulted or threatened for being Jewish or pro-Israel (or anything else), that should be punished -- and if UCI isn't using adequate efforts to do this, then it should be faulted for that. But expression of anti-Semitic views should remain protected, just as expression of other views should remain protected.

As to the quote from "community member Richard Meyers" -- "[The Chancellor] keeps saying that he abhors hate speech, but he's unwilling to take a position on the issue of what to do about anti-Semitic activity" -- it sounds to me like the Chancellor (1) does abhor hate speech, (2) does take a position for punishing anti-Semitic violence, and (3) does take a position against punishing anti-Semitic speech. And these items are perfectly consistent: University chancellors may (and should) protect even speech they abhor, and distinguish protected speech from unprotected violence.

Jonathan links to Sen. Brownback's explanation of his views, which do indeed seem to reject the proposition that man evolved through a natural process from lower life forms. Nor, as best I can tell, does he take the view that evolution took place but that the mechanism for evolution was set up by God. Perhaps I'm wrong on this -- his argument isn't crystal clear -- but it seems that he is viewing man as a product of separate creation:

While no stone should be left unturned in seeking to discover the nature of man’s origins, we can say with conviction that we know with certainty at least part of the outcome. Man was not an accident and reflects an image and likeness unique in the created order. Those aspects of evolutionary theory compatible with this truth are a welcome addition to human knowledge. Aspects of these theories that undermine this truth, however, should be firmly rejected as an atheistic theology posing as science.

How should this affect a person's judgment about whether he supports Sen. Brownback? I'm not sure I know the answer, but I thought I'd raise the question, and mention a few thoughts of my own. (Note that I am by no means a supporter of Brownback's, though I have no implacable hostility to him, either.)

1. We might argue that this shows Brownback believes things that are provably false, and that this reflects badly on his judgment. But while I myself believe in evolution, I can hardly say that divine creation is provably false, at least under any familiar standard of "proof." If God exists, and he can work miracles, he might have created man in a way that makes evolution look plausible. I don't see any evidence for this proposition, but I can't say I can disprove it. For that matter, I can't say that a theory that man was created by super-intelligent aliens -- either created from scratch or "uplifted," to borrow David Brin's science fiction term, from apes -- is provably false.

2. We might argue that this shows Brownback believes things about the physical world that are not based chiefly on reason and evidence, and that this reflects badly on his judgment. This is a classic burden-is-on-believers-to-show-it argument against belief in God: As a friend of mine put it, there is the same evidence for the existence of God (at least once evolution is available to explain the development of complex systems) as for the existence of werewolves. Yet we would comfortably say that "werewolves don't exist," and look askance at someone who says "wait, maybe they do exist, you can't prove that they don't." We usually put the burden on people who are claiming the existence of things to provide some evidence that they exist; a contrary view is seen by us as superstitious or unscientific (again, consider claims about werewolves, vampires, or ghosts).

Likewise, the argument would go, we should fault those who assume the existence of a God, and a miracle-working God at that, without real evidence or logical deduction. Of course, this assumes that we've rejected the logical arguments for the existence of God, but I've never found any of those to be particularly persuasive, and in my experience even many religious people don't rely on those arguments.

Note, though, that this argument would equally apply to candidates who sincerely believe in the Virgin Birth, in the Resurrection, in the parting of the Red Sea, and in any other miracle. Perhaps it should apply to them; but I do want to flag that this argument isn't peculiar to evolution.

3. We might argue that this shows Brownback, if elected President, will have a lousy science policy.

Evolution is not in some abstract sense the "simplest" or "most plausible" theory of the development of mankind or of other species. Divine creation is in some ways simpler, and to some more plausible. Evolution is the simplest or most plausible theory that doesn't require the existence of some external intelligence (whether God or aliens); in that respect, there is some truth to the argument that belief in evolution rests on a sort of judgment about the relevance of God just as creationism does.

But what makes evolution better is that this naturalistic assumption is much more productive of potentially useful predictions about the world. Compare, by analogy, the theories that the planets appear to move around the sky because of gravity, that the planets appear to move around the sky because divine beings push them, and that the planets appear to move around the sky because all reality is just a dream. The good thing about the gravity theory isn't that it's provably true and the others are provably false; they definitionally resist disproof. Rather, the gravity theory is the most useful theory -- most useful at predicting the location of planets, at developing machines, and more -- and the other theories aren't useful at all.

If this is right, then rejecting the theory of evolution would lead a Brownback Administration to misinvest science research resources, and to underinvest in research that assumes the theory of evolution. This might distinguish most beliefs about one-off miracles in the past; it's unlikely, for instance, that a government leader's belief in the Virgin Birth would lead to poor governmental judgments about funding of gynecology and obstetrics.

4. We might argue that electing Brownback would make America look foolish to world elites that accept the theory of evolution. On the other hand, note that this, too, is potentially true of electing people with various other religious beliefs; and query more generally how much we should guide our judgment by such concerns.

In any case, these are just some tentative thoughts. I offer them not because I'm sure about them, or because I feel I've settled on an answer, but just because I think this is an important intellectual and practical question, and I wanted to stoke the conversation a little.