The Volokh Conspiracy

The Providence Journal reports:

The attorney general's office yesterday dropped a case against a 48-year-old Narragansett man who had been charged with raping a woman 32 years ago when both he and the alleged victim were 16 years old.... The case against [the man] was based on memories that the alleged victim had repressed until recently, and a spokesman for [Attorney General] Lynch’s office said state prosecutors did not believe that her testimony would be allowed in court....

The dismissal form cites a 1996 Rhode Island Supreme Court case, State v. Quattrocchi, which requires any case that relies on repressed memory to have a pre-trial hearing on the evidence. "The State dismisses despite its belief that the allegation made by the victim and corroborated by independent evidence established probable cause. However, the high burden for admissibility, at trial, of testimony based on repressed memory as set forth by the court in Quattrocchi provides a legal impediment that the state is unlikely to overcome." ...

Although the attorney general’s office was familiar with the requirements under Quattrocchi before filing charges against Allen, prosecutors did not consider them until after the indictment against him was returned, said [a spokesman for the Attorney General's office].

Thanks to Brian Bishop for the pointer.

The Second Circuit just handed down Husain v. Springer, which strikes me as quite odd. The case is complex, but the short version is this:

A college student newspaper endorsed a slate of candidates for student government. The university president thought this was unfair and a violation of student government election rules, so she canceled the election, suggesting that she would cancel future elections if the student newspaper made similar endorsements in the future. The Second Circuit held that this cancellation of the election violated the student newspaper's First Amendment rights, because it was "designed to chill the speech contained in future editions."

What makes this a strange First Amendment case, of course, is that the newspaper wasn't ordered to stop speaking. Nor was it threatened with loss of funding or any other tangible loss for not speaking. Rather, it was threatened with frustration of its purpose -- "if you keep endorsing candidates, we'll make sure that your endorsed candidates don't get elected."

I'm unaware of any First Amendment case that remotely reaches this sort of "chill[ing of] speech"; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment. This alone, it seems to me, should have led to the conclusion that the president enjoyed qualified immunity (something the Second Circuit did not conclude).

But let's turn to the merits: Does your right to urge result X really include the right to prevent the government from making result X impossible (even when the government is retaliating against your speech)?

Say, for instance, that a newspaper -- not even a student newspaper -- urges the government to do something. A government official doesn't like what it sees as improper meddling (perhaps the government thinks the newspaper's justification interferes with government decisionmaking, or is based on some improper reason, such as someone's race, religion, sexual orientation, or what have you). The official then says "You want us to hire [or not hire] a gay candidate because he's gay. [Assume, just for the sake of simplicity, that there's no legal prohibition on sexual orientation discrimination.] I disapprove of this argument, and I feel it taints the entire selection process. Instead, we will just start the hiring process over in six months."

Or "You want us to hold a State History Appreciation Day event -- we were planning to, but now that you've started a campaign aimed at characterizing the event as partly a commemoration of our state's Confederate history, we feel that the event would be tainted in people's minds, so we'll cancel it." Or "You threatened to use our Veteran Appreciation Day event as a vehicle for your 'God Hates Fags' / 'Thank God for Dead Soldiers' demonstration, so we'll cancel the event altogether and deprive you of your excuse."

Does that really violate the First Amendment rights of the speakers whom the government disapproves of? It seems to me the answer is no, but the Second Circuit's decision would suggest that the answer would be yes.

Nor is there something special here about canceling the student election. As far as the opinion is concerned, there was nothing otherwise illegal about the president's decision to cancel the election -- the decision was within the president's power.

If the cancellation decision was illegal, then it would have had to be challenged under whatever state law made the decision illegal, not as a violation of the newspaper's First Amendment rights. For instance, if a governor canceled a statewide election because he disapproved of some newspaper endorsements, I'm sure this would be illegal, because governors generally aren't allowed to cancel elections at their own discretion. But the illegality would be a violation of state law, not of the newspaper's First Amendment rights.

The Second Circuit decision basically reasons that the government may not "engag[e] in conduct designed to chill the speech contained in future editions" of the speaker's speech, even when the "conduct" is simply the government's decision not to allow its government processes to be used to accomplish the results the speaker urges. Doesn't seem quite right to me, but I'd love to hear what others think.

because "this is not a case that should occupy the mind of a person who has anything consequential to do."

I kid you not; the opinion, dissenting from a 44-page majority opinion that finds a university president's actions violated the First Amendment rights of a student newspaper, is here.

It's too bad that the dissenting judge didn't take the case more seriously: I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny. Even if the dissenter thinks the case should be unimportant ("this silly thing," he calls it), and that the plaintiffs are suffering from a "fantasy of oppression" and engaging in a "slow-motion tantrum," the case now is indeed important. It seems to me that the matter deserved his time and attention.

Thanks to How Appealing for the pointer.

Responding to a commenter who used the phrase "this data," another commenter writes:

Not to be pedantic or anything, but I'm sure you meant these data. Perhaps it's old-fashioned, but I feel anyone with a PhD should be able to use "data" correctly. Anyone else, and I don't particularly care.

What puzzles me is what exactly the word "correctly" means here. My Merriam-Webster Webster's Dictionary of English Usage, for instance, reports that both the plural noun version of data (for which the dictionary offers the analogy earnings, and which takes plural verbs) and the abstract mass noun version (for which the dictionary offers the analogy information, and which takes singular verbs) "are standard" in English. In Latin, "data" might be exclusively plural. But we're speaking English, and in English both the singular and the plural are, according to this dictionary, fine.

My New Shorter Oxford likewise describes "data" as "pl. & collect. sing." The big online Oxford lists both. The American Heritage lists it as "pl. n. (used with a sing. or pl. verb)"; it does provide a usage note, but reports that "Sixty percent of the Usage Pannel accepts the use of data with a singular verb" as in "the data is in."

Garner's Dictionary of Modern American Usage is the most pro-plural modern source of the ones I've checked, but even it reports only that "in more or less formal contexts [data] is preferably treated as a plural." The original 1926 Fowler does insist that "data is plural only"; the 1996 New Fowler's Modern English Usage begins by giving as an example that "The data are (not is) insufficient," but reports that "In modern times usage varies," and notes that "In computing and allied disciplines [data] is treated as a singular noun."

Now let's set aside whether one views the singular data as elegant or grating; let's also set aside whether one would counsel one's students to take the course that will annoy, rightly or wrongly, the fewest readers. (Note that here both the singular and the plural versions may annoy some.) The claim was that the singular is not "correct[]." And I don't quite see for what sensible meaning of "correct" that claim is correct.

This question comes up every so often, so I thought I'd pass along what seems to be the best data out there -- from Laumann et al., The Social Organization of Sexuality 311 (1994). All numbers are percentages.

1. Sexual partners:

2. Sexual identity ("Do you think of yourself as heterosexual, homosexual, bisexual, or something else?"):

3. Sexual attraction ("In general are you sexually attracted to only men, mostly men, both men and women, mostly women, only women?"):

Naturally one has to be cautious about even well-conducted random studies of small sexual minorities, especially when some respondents might lie. Also, note that even though the study tried to be precise in the questions it asked, other studies might not, or might focus on different questions -- whether someone is "gay" or "lesbian" is not unambiguously defined, and the definitions may vary from survey to survey and respondent to respondent. Still, this seems to be the best approximation I've seen.

I'd often heard of "the unwritten law," under which a husband who caught his wife and another man having sex would be acquitted for killing the other man -- not just found guilty of mere manslaughter rather than murder (which tends to be still the law today, under the right circumstances), but entirely acquitted. I had assumed that it was a matter of custom and jury and prosecutor discretion ("no jury in the land would convict me").

But, as I just learned (entirely from reading cases, mind you), this was actually the written law -- either statutory or common law -- in several U.S. states until the 1970s. Here's a summary from Jeremy D. Weinstein, Adultery, Law, and the State: A History (1986), though I've read some of the cited cases myself:

Some American states, either by statute or judicial decision, made it legal for a husband to kill an interloper caught in the act of adultery with his wife. [Footnote: The civil law provides an interesting comparison. Its primary difference from the common law is that since ancient times the cuckold was allowed to kill the wife as well as the marital interloper.] ...

Until 1974, when it was repealed, [a] Texas statute provided:

Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection.

... Although an early case established that the statute permitted the husband to kill his wife as well as her paramour, Texas courts criticized this interpretation and reversed it the following decade [in 1925]. Furthermore, Texas judges refused to extend the statute to permit a wife to kill her husband's paramour. Under the Texas statute, the injury to the paramour was only justifiable when inflicted with the intent to kill [as opposed to, in one case, castrate]....

Until 1977, Georgia [common law] also permitted a husband or father to kill the paramour of his spouse or child under limited circumstances.... The Georgia courts interpreted the justifiable homicide law as a class of self-defense, while the Texas statute was in effect a law allowing revenge. The most significant distinction between the Georgia and Texas rules was that the killing under the Georgia rule was defensive in nature and had to be necessary to prevent and defend against the adultery. A killing after the adultery was vengeance, and therefore was murder or manslaughter depending on whether it was committed in the sudden heat of passion. The defensive nature of the justification allowed killing to stop an adulterous relationship of which the husband or father was aware if it seemed to the husband or father to be the only way to do so. In contrast, under the Texas statute a husband was only permitted to act if he was surprised with a present adultery.... [The law] extended to the protection of daughters and fiancees, although evidence of the woman's chastity was admissible on the question of whether it was necessary to kill to protect it, which was a question for the jury.

In contrast to the situation in Texas, in Georgia the wife could kill her husband's paramour, but just as in Texas, the spouse was not permitted to kill the other spouse. Another difference between the Georgia and Texas justifiable homicide rules was that, in Georgia, the paramour [generally was not allowed to use lethal force to defend himself against the spouse's lethal attack]....

[Until 1973], two other American jurisdictions, New Mexico and Utah, had statutes justifying the killing by a husband of his wife's paramour if he found them together in adultery. [Unlike the rationale given by Georgia courts, the New Mexico courts framed the matter as one of excuse rather than justification]: "[t]he purpose of the law is not vindictive. It is humane. It recognizes the ungovernable passion which possesses a man when immediately confronted with his wife's dishonor. It merely says the man who takes life under those circumstances is not to be punished; not because he has performed a meritorious deed; but because he has acted naturally and humanly."

Incidentally, a 1975 Georgia appellate case that began the abrogation of the Georgia rule drew a three-judge opinion that began (in relevant part), "I violently dissent." "What were the rights of the common law wife [who caught her common law husband in adultery with another woman] -- to walk away, taking no action whatever to prevent the act of adultery, or its completion? That is directly at variance with the law of Georgia!" (Note that the dissent wasn't just arguing that the defendant should have had the benefit of the old rule, however wrong, but seemed to be defending the rule itself, and arguing that the rule justified killing of the spouse as well as of the spouse's paramour.)

A pretty appalling state of affairs, and shocking that it persisted until 30 years ago.

(except, of course, when God forbid that people should ignore demographic data): The Feminist Law Professors blog writes:

[TITLE:] Oh for the love of...

Exactly what possessed Eugene Volokh to look into the sexual orientation of female law profs whose scholarship gets cited a lot? See his "update" at end of this post and try to avoid banging your head on the computer monitor.

Hmm — what would possess an academic to look into disproportionate representation by sexual orientation when one is looking at data showing disproportionate representation by sex and ethnicity? Could it be academic curiosity? A desire to find — and then to call attention to — interesting data points that might help shed light on the degree to which personal attributes correlate with professional success, and potentially influence professional success?

Look, let's say the data I give did generalize beyond its very small sample. I stressed that it was quite limited, since it revealed only that 2 of the 6 women law professors on the list of the 50 most cited professors who entered law teaching since 1992 were lesbian or bisexual; at this point, it is at most very tentatively suggestive. But let's say it did lead some readers to look more closely, and find that indeed lesbians and bisexual women are substantially overrepresented among successful women in certain fields.

Wouldn't that be a matter of some scholarly interest? It doesn't matter what one thinks the cause for this disproportion might be: different patterns of discrimination by outsiders, different internal cultural norms within the group, different social and familial structures, biological differences, or whatever else. It doesn't even matter if one is unsure of the cause at the outset, but is just trying to find data that may eventually help identify the cause. Wouldn't the data be pretty interesting to people who are seriously interested in sociology, biology, demography, the legal profession, and a wide range of other fields?

To me, the glory of the academic life is that you're supposed to look for interesting data, bring it up to colleagues, investigate it, speculate about it, and the like. All people should be entitled to do this, but for us this sort of inquisitiveness is part of our jobs. It's too bad that identifying such data leads some to want to bang their heads against their monitors.

More broadly, if you're curious about human behavior — as a scholar or just as a fellow human — isn't there something striking and intriguing about the marked correlations between sexual orientation and participation in various professions? Male homosexuals are notoriously overrepresented in some fields, and while some such claims might at times be spurious, my sense is that on balance conventional wisdom reflects reality. Lesbians are also often said to be overrepresented in other fields (chiefly athletic, in my experience, though not only that); again, some of this may be myth, but I see no reason to assume that it's all myth.

Why is this? Is it culture? The effects of discrimination? Biology? Some mix of these factors? Does it relate only to different rates of interest in the fields, or also to different rates of success? Fascinating questions, it seems to me, and ones that get more fascinating as one acquires more data. So that's what possessed me, and I don't see what's wrong with such possession.

The Washington Legal Foundation> just put up a Web Seminar this morning on "The Ongoing Saga of Marshall v. Marshall: Beyond the Anna Nicole Headlines, Critical Legal Issues Lurk in Federal Court"; it should now be available at the WLF Web site. Some interesting procedural issues there, plus stuff on bankruptcy and probate — the things one instantly thinks about, of course, when one hears "Anna Nicole Smith."

The Atlanta Journal-Constitution reports (thanks to How Appealing for the pointer):

Douglas County District Attorney David McDade violated federal law when he distributed a videotape from a rape and child molestation case to legislators and journalists, the U.S. attorney's office said Wednesday.

U.S. Attorney David Nahmias said federal law prohibited distributing the videotape because it depicted minors engaged in sexually explicit conduct and warned that people who had received it would be in violation of federal child pornography laws.

The videotape was of the raunchy party in a Douglasville hotel room that led to the conviction of Genarlow Wilson on aggravated child molestation charges. Wilson was 17 at the time and the tape showed him receiving consensual oral sex from a 15-year-old girl. The video has been given to both reporters and legislators....

McDade told The Associated Press he was required to release the tape under the state's Open Records Act because it was introduced as evidence at the trial.

The distribution of such material would indeed normally be child pornography; and the federal child pornography ban would preempt any state law to the contrary. The questions, I take it, would be:

(1) Is there some implicit exception to the federal law as to videos such as this one, and what is its scope? I take it that there must be some such exception, or else the video couldn't even be handed from the police to the prosecutor in federal enclaves, such as D.C., but the question is whether the exception extends to distribution to the media and to legislators.

(2) Should the First Amendment be read as mandating an exception for videos and photographs that are evidence in a criminal trial, and seeing which may be helpful to understanding whether justice was done in the criminal process (which is to say whether the sentence was substantively sound, not just whether the procedures were followed) -- and, again, what should the scope of the exception be?

(3) Is there some state sovereign power limit on federal law, where the distribution or possession of the material is part of the state government's law enforcement process (this would apply to, for instance, e-mailing or mailing material within the prosecutor's or police department's office) or as part of the state government's compliance with its own public records laws?

I don't know what the answers to these questions are, but the issue struck me as worth flagging.

By the way, "Nahmias said his office issued the statement to end further distribution of the videotape and advised those who possessed it to destroy or return it." That is certainly very good advice for anyone who has the tape in his hands, and who is rationally risk-averse.

Reason's Hit & Run reports on a new Arizona statute (Ariz. Rev. Stat. § 13-3726) that would limit the use of names and pictures of dead soldiers. The law, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, reads:

A. A person shall not knowingly use the name, portrait or picture of a deceased soldier [defined as referring to any member of the U.S. armed forces] for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative....

C. This section does not apply to the following:

1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

6. A soldier's picture or portrait that is not facially identifiable.

7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise....

The law, it seems to me, is unconstitutional, for two reasons:

1. a. The T-shirts don't fit within the "commercial speech" doctrine, under which commercial advertising gets reduced First Amendment protection — the T-shirts aren't advertising (except insofar as the cover of any work, such as a book or a magazine, advertises itself), but rather speech sold for money. And the fact that speech is sold for money doesn't strip it of protection (whether it's a book, a movie, or a T-shirt).

b. The T-shirts also don't fit within any "right of publicity" exception that is likely to be recognized by the courts. The Supreme Court has held that state law may make actionable the taking of another's entire act (for instance, when a TV station rebroadcasts a "human cannonball" act); but that narrow exception doesn't apply here.

Some lower courts, most notably the California Supreme Court, have held that "nontransformative" use of another's name or likeness, such as a T-shirt or a coffee mug that merely contains a celebrity's picture, may also be restrictable. But the speech here is clearly transformative, in that it "add[s] something new, with a further purpose or different character, altering the first with new expression, meaning or message," "add[s] significant expression beyond" the "literal depiction or imitation of a [person] for commercial gain," and uses the person's name as "one of the 'raw materials' from which an original work is synthesized," as opposed to having "the depiction or imitation of the celebrity [be] the very sum and substance of the work in question." I have argued that the "transformative" test isn't clear or speech-protective enough; but even under this test, the T-shirts would be protected, and the statute would be unconstitutionally overbroad.

Even under the awful Missouri Supreme Court "Tony Twist" decision (which I have criticized here), it seems likely that the T-shirts would be protected. A court would have to engage in the mushy inquiry of whether the T-shirt "predominantly exploits the commercial value of an individual's identity" as opposed to having as its "predominant purpose" be "[the making of] an expressive comment on or about a [person]," but my guess is that for an overtly political T-shirt like this, in which the people's names are part of the political message, the inquiry would come out in the speaker's favor — and the Tony Twist case is an outlier among lower courts, which are generally more protective of speakers' rights in this context.

2. Moreover, even if a categorical restriction on the use of others' names and likenesses on T-shirts would be constitutional, a selective ban on the use of deceased soldiers' names seems to violate R.A.V. v. City of St. Paul, which held that even if a broad category of speech (there, fighting words) can be restricted, the First Amendment bars the selective restriction of content-based subcategories of the speech (there, fighting words that "arouses anger, alarm or resentment ... on the basis of race, color, creed, religion or gender").

The R.A.V. test is complicated and in many ways vague, but it does seem pretty clearly applicable here:

1. It's not the case that "the basis for the content discrimination [deceased soldiers' names vs. others' names] consists entirely of the very reason the entire class of speech at issue [speech that uses others' names without permission] is proscribable."
2. It's not the case that "the subclass happens to be associated with particular 'secondary effects' of the speech, so that the regulation is 'justified without reference to the content of the ... speech.'" (Recall that the offensiveness or persuasiveness of the speech, and the effects that flow from them, are not counted as secondary effects. "The emotive impact of speech on its audience is not a 'secondary effect.'")
3. This is not a generally applicable law that applies both to speech and conduct and that covers a particular subcategory "incidentally."
4. It is not the case that "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."

So, the bottom line: The Arizona statute is unconstitutional. So is a similar law in Louisiana, which is possibly narrower, but still unconstitutional for reason #2 and a version of reason #1. And so is a similar law in Oklahoma (21 Okla. Stat. Ann. § 839.1A), though reason #2 wouldn't apply because a nearly identical Oklahoma law equally covers the use of people's names and likenesses more broadly, without limitation to fallen soldiers.

Thanks to Nick Sarwark for the pointer.