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Saturday, September 20, 2008

More on the Financial Meltdown and the Legal Response.

1. Why do people like me and Sandy Levinson keep talking about the Nazi philosopher Carl Schmitt? Schmitt was skeptical that a parliamentary democracy can handle crises: it can only role over and let the executive act. You can read Levinson here (marred only by the pervasive tone of indignation: what exactly does he (realistically) expect?), or for a scarily timely scholarly treatment of Schmitt and our administrative state, see this paper by Adrian Vermeule.

2. The legalists in American law schools rage at the Bush administration for claiming constitutional authority to wage the war on terrorism rather than going to Congress but are indifferent when the Bush administration cites, as authority to address the current financial crisis, a statute enacted by Congress seventy years ago and a judge-made doctrine that permits agencies to interpret ambiguous statutes expansively. Is it really so difficult to see that these two cases are the same from the perspective of the rule-of-law values that the rule of law is supposed to advance: public debate and authorization of policy by a representative body for the purpose of addressing events that it is actually aware of? I say that you have to approve of both or neither.

3. Speaking of which, see the bill the Bush administration is pushing on Congress, and this analysis by David Zaring. Note the "without limitation" language and the stripping of judicial review. Whatever you think of Bush administration lawyers, one cannot deny that they've learned some lessons from the Supreme Court's reaction to their war-on-terror policies.

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Peltzman Effect Bleg:

I recall seeing a paper at some point that found a Peltzman effect for higher automobile gas mileage--i.e., when automobile gas mileage rises, people live further from work and have longer commutes, thereby dampening some of the reduction in fuel consumption that might otherwise occur. I also seem recall a finding that this increase in commute time also leads to more accidents as a result of greater driver fatigue.

Note that I am not looking for the classic Peltzman effect example about car safety and more accidents, but rather any countervailing effect related to gas mileage and the effect on fuel consumption.

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Just Like Mother Used To Make:

The Telegraph (UK) reports:

The owner of the Storchen restaurant in the exclusive Winterthur resort [in Switzerland] will improve his menu with local specialities such as meat stew and various soups and sauces containing at least 75 per cent of mother's milk.

The owner is advertising for suppliers, "who will receive just over three pounds for 14 ounces of their milk." Note that the milk "always needs to be mixed with a bit of whipped cream, in order to keep the consistency," says the owner.

Legal or not?, you might ask. The answer:

"Humans as producers of milk are simply not envisaged in the legislation.

"They are not on the list of approved species such as cows and sheep, but they are also not on the list of the banned species such as apes and primates," Rolf Etter of the Zurich food control laboratory said.

Thanks to my sister-in-law Hanah for the pointer.

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Friday, September 19, 2008

Poorly Written Headline of the Day:

Washington Post: "Investors Confident Rescue Plan May Help"

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Using Property Rights to Prevent Overfishing:

Both the Economist and the BBC have just published interesting articles on the use of property rights to prevent overfishing in various places around the world.

Coincidentally, I covered this very topic in my Property class at Penn just a few days ago. I love it when education is "relevant!"

HT: Penn Property students Ramsey Younis and Michael Bolos.

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Second-Generation Nigerian Spam:

A message I just found when clearing out my spam folder:

I am Mrs. Susan Walter, I am a US citizen, 39 years Old. I reside here in Houston Texas. My residential address is as follows. 503 Madison Ave. Apt York, Houston Texas, United State.

I am one of those that executed a contract in Nigeria years ago and they refused to pay me, I had paid over $20,000 trying to get my payment all to no avail.

So I decided to travel down to Nigeria with all my contract documents, And I was directed to meet Barrister Afam Morgan Esq, who is the member of CONTRACT AWARD COMMITTEE, and I contacted him and he explained everything to me.

He said that those contacting us through emails are fake. Then he took me to the paying bank, which is Oceanic Bank of Nigeria Plc, and I am the happiest woman on this earth because I have received my contract funds of $1.Million USD. Moreover, Barrister Afam M Esq, showed me the full information of those that have not received their payment, and I saw your name as the beneficiary, and your email address/Telephone number and your contract amount,This is what you have to do now.

You have to contact him direct on this information below....

You really have to stop your dealing with those contacting you okay, because they will dry you up until you have nothing to eat. The only money I paid was just $420 for IRS permit, which you know, So you have to take note of that.

Thank You and Be Blessed.
Mrs. Susan Walter

Well, now that that's all cleared up, my check is in the mail.

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"Teen Cited for Destroying U.S. Flag":

The Winona Daily News reports:

Police have issued a ticket this week to a 14-year-old Winona Senior High School student for desecrating a U.S. flag.

The teen, whose name is withheld because he is a juvenile, admitted he planned to desecrate it when he bought it and knew that was illegal, police said. The misdemeanor ticket carries a maximum penalty of 90 days in jail and a $1,000 fine....

[The teen told the police he] bought the flag, wrote song lyrics on it, tore it to pieces and burned it with cigarettes....

According to the Minnesota statute, it is illegal for anyone to intentionally or publicly mutilate, defile or cast contempt on the flag or to place words, marks or designs on the flag that don’t belong there....

Naturally, the student can be punished for skipping class (something he did, apparently to attend "the Rage Against the Machine concert Sept. 3 in Minneapolis during the Republican National Convention"), and if he burnt the flag with cigarettes at school, and possession of cigarettes at school is prohibited (and the prohibition would normally be enforced even against a non-flag-burner), he could be punished for that, too. But given the Supreme Court's well-known holdings striking down flag desecration laws such as this one, the prosecution of the teen appears to be legally frivolous.

Thanks to W. Edward Howard, Jr. for the pointer.

Related Posts (on one page):

  1. Prosecutors Decline To Press Charges Against Flagburner:
  2. "Teen Cited for Destroying U.S. Flag":
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Canada Ranked Ahead of the United States in Protection for Property Rights:

Various libertarian and libertarian-leaning bloggers are disappointed that Canada (7th) ranks ahead of the United States (8th) in the latest Cato/Fraser Institute economic freedom rankings. In reality, the difference between Canada's score (8.05 on a 10 point scale) and ours (8.04) is statistically insignificant. However, it probably is the case that Canada - as well as several other nations that rank ahead of us in the Cato/Fraser study - really has equalled or surpassed the United States in economic freedom, thanks to the massive expansion of government in the Bush era of "big government conservatism." As the individual country data sets in the Cato/Fraser study reveal (the US data is on pg. 177), the United States ranked 2nd in 2000 and 4th in 1995, the last two pre-Bush era rankings.

Also interesting are America's scores in specific categories of economic freedom that the Cato/Fraser study aggregates into the overall ranking. One important category where the United States (7.58) trails Canada (8.47) by a large margin is "protection of property rights." I haven't closely analyzed the methodology Cato and Fraser used to compile these numbers; so it is possible that they are the result of some sort of methodological error. However, I suspect that the two rankings are roughly accurate. Compared to the United States, Canadian authorities pay higher compensation to property owners whose land has been taken by eminent domain. In theory, the United States Constitution provides more extensive protection for property rights than Canada's does; in practice, however, property rights continue to the be the "poor relation" of constitutional law and rarely get more than a bare minimum of protection from the Supreme Court. Finally, I suspect that Canadian provincial and local governments don't condemn property for "economic development" and "blight" alleviation as often as their American equivalents. Certainly, there are few if any Canadian takings comparable in scope to cases like Poletown.

I have not studied Canadian property rights law and policy in detail, so these tentative conclusions are based on limited knowledge. I welcome correction from Canadian property scholars and others with relevant expertise. Also, it's worth noting that there is wide variation between American states in the degree to which they protect property owners; the best American states are probably well ahead of the Canadian average. Subject to these important caveats, however, I fear that our oft-maligned neighbor to the North really does do a better job of protecting property rights than we in the US of A. The True North isn't always "strong and free." But its property owners may enjoy stronger legal protection and greater freedom than ours do.

CONFLICT OF INTEREST WATCH: I suppose I should mention that I am a Cato Institute adjunct scholar (an unpaid, purely honorary, position). I didn't have any role in writing Economic Freedom in the World.

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An Odd Definition of "Partisan":

Let me get this straight: if the only prominent American politician to attend a rally against Iran is Hillary Clinton, the rally is a neutral, nonpartisan event. If Hillary Clinton AND Sarah Palin attend, then the rally becomes a partisan political event, and Clinton couldn't possibly agree to appear. Very, very strange.

UPDATE: A reader comments: What's the difference between [Malcolm] Hoenlein [who invited Palin, and then disinvited her under pressure from Democratic activists] and Ahmadinejad?

Ahmadinejad isn't intimidated by the Democrats.

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An Important Announcement: Over at Concurring Opinions, Dave Hoffman announces:
Concurring Opinions, like A.I.G. and Fannie Mae/Freddie Mac before it, is now too big too fail. We expect that should our blogging rate slow, or the general market conditions to lead to a run on our host, the Feds will step in ensure market stability.
  Ditto for the Volokh Conspiracy: So many blogs rely on this blog that our problems are really everyone's problems. So yeah, looking back on it, maybe all those crazy parties and trips to Vegas to blow our advertising revenue weren't a good idea. But hey, it's too late for that: We need to think about the public interest now, and the public interest is obviously in government-backed law blogs.
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Why Candidates and the Media Exploit Political Ignorance:

Widely respected columnist Stuart Taylor writes:

[O]ne reason that candidates get away with dishonest campaign ads and speeches may be that it is so hard for undecided voters like me to discern which charges are true, which are exaggerated, and which are false. Most people can't spend hours every day cross-checking diverse sources of information to verify the accuracy of slanted stories and broadcasts.

In other words, political candidates and media outlets often get away with deceptive campaign tactics and inaccurate charges because voters don't know the truth and don't have sufficient incentive to rectify that ignorance through investigation. Taylor goes on to blame the media for this state of affairs, suggesting that more accurate reporting would increase our knowledge. Here, I partly disagree with Taylor. The media is indeed flawed in many ways. But its failures are not the only, or even the principal, cause of widespread political ignorance. Surveys show that most citizens are ignorant of many very basic facts about politics - such as the very existence of major programs (e.g. - Bush's massive prescription drug benefit, the largest new government program since the 1960s, which 70% of the public was not aware of). These basic facts are widely and accurately reported in the media, yet most people still don't know them.

Moreover, the media are not completely autonomous; if they want to stay in business, they have to give viewers and readers what they want. If the public wanted unbiased and accurate coverage and was willing to reject outlets that turned out to be biased and inaccurate, the media would have strong incentives to comply. Newspapers and TV news stations that continued to be biased or inaccurate would lose market share.

In reality, of course, most people either don't follow political news at all, or prefer outlets that are biased in favor of their own preferred party or ideology. Thus, the demand for Fox News, the New York Times, and many other media outlets that are strongly biased towards one party or the other. Social science research going back to the 1940s shows that Republicans tend to prefer Republican-leaning media and Democrats the opposite.

Ultimately, the root of the problem is the insignificance of the individual vote to electoral outcomes. For people whose only motive for acquiring political information is to be a better voter, it turns out that there is little incentive to acquire political knowledge at all. They are "rationally ignorant." Some people, of course, seek out political knowledge for reasons unrelated to voting. For example, they find politics entertaining or they enjoy rooting for their preferred party or ideology - much as sports fans enjoy rooting for their favorite team, even though they know they have little chance of affecting the outcome of games. For this latter group, however, there is little incentive to analyze the information they acquire in an unbiased way or even to check up on its accuracy. To the contrary, listening to pundits and reporters who have the same biases as you do while heaping abuse on the opposition, is part of the fun of being a fan. Political fans often avoid opposing points of view for much the same reasons that most of my fellow Red Sox fans prefer to listen to pro-Red Sox sports radio rather than pro-Yankees shows. That's the main reason why left and right-leaning blogs usually have similarly inclined readers. People also tend to discount political information that goes against their prior views and overvalue anything that seems to reinforce them. Economist Bryan Caplan calls this phenomenon "rational irrationality."

I discuss both rational ignorance and rational irrationality in more detail in this article, as well as provide citations to some of the social science literature documenting the finding that most people evaluate political information in a highly biased way and prefer media outlets that favor their preexisting views.

Knowing that most of the public is rationally ignorant, highly biased in its evaluation of political information or both, candidates take these realities into account. They can see that lies, deception, and unfair charges will often increase their chances of winning, and act accordingly. Indeed, even an altruistic, public-spirited candidate might adopt such tactics, so long as he genuinely believes that his victory will benefit the nation. After all, abjuring them would likely ensure the victory of his more unscrupulous opponents whose policies - the principled candidate believes - would be worse for the country than his own. Media outlets face similar incentives. Those who don't cater to the prejudices of one or another side of the political spectrum are at a competitive disadvantage relative to their rivals. The same goes for those who emphasize in-depth news analysis at the expense of entertainment value.

It's easy to blame unscrupulous politicians and reporters for the flaws in our political discourse. But the root of the problem lies elsewhere - in the structural weaknesses of democracy itself.

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"Legalized same-sex marriage almost certainly benefits those same-sex couples who choose to marry, as well as the children being raised in those homes":

That's the claim made today by Andrew Sullivan Jonathan Rauch David Blankenhorn in an op-ed in the L.A. Times.

It's not a new claim, of course. Same-sex marriage advocates have been making it for years. Nor should it be a controversial one since it's very hard to see how gay marriage would have no effect on gay families and even harder to see how it would hurt them.

What's significant about it is that Blankenhorn is one of the leading public intellectuals opposed to same-sex marriage in this country (and in fact his op-ed goes on to explain why he still opposes it despite the good it will do). While supporters of gay marriage must constantly parry claims of harm, opponents of gay marriage almost never acknowledge the existence of gay families, much less their needs and the ways marriage might help them. The focus has been entirely on the potential cost to heterosexual families, an understandably important -- though not exclusive --consideration in the debate. Blankenhorn here accepts that forbidding gay marriage itself entails some cost. (In fact, Blankenhorn has previously endorsed civil unions for gay couples, minus marital rights to child-raising.) It's a small breath of fresh air in a debate that has become pretty stale.

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Stuart Taylor on the Media and the Campaign:

Taylor, who has always struck me as eminently fair and nonpartisan, writes: "We still have many great journalists, but I no longer trust the major newspapers or television networks to provide consistently accurate and fair reporting and analysis of all the charges and countercharges." For the rest of the column, which provides many details in support (and criticizies McCain as well as Obama and the media), see here.

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Cleveland Municipal Code Doesn't Authorize Civil Forfeitures of Unregistered Guns:

A mildly interesting opinion from the Ohio Court of Appeals, in City of Cleveland v. Fulton (handed down yesterday).

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A Modest Proposal to Deal With the Financial Crisis:

Underlying the financial crisis is bad mortgages. There are bad mortgages because housing prices have plunged, especially in South Florida, California, Arizona, and Nevada, and Rust Belt cities.

My thinking is that instead of simply spending taxpayer resources to bail out the financial industry, let's find a way to move a long-term liability off the books at the same time.

One major federal liability is having to pay for damage from floods. The government is spending billions to reconstruct New Orleans and other Gulf areas, and the money will just have to spent again when a Category 5 storm hits, as it will eventually. And it seems like every decade or so, the Mississippi floods and the government winds up paying for that, too. Not to mention the homeowners with beach houses all along the hurricane-prone East Coast.

So the government could use the money it would otherwise use to bail out the financial industry instead to pay people to abandon their flood-prone communities. The condition would be that they have to buy a new house in one of the markets noted above. The taxpayers get off the long-term hook for New Orleans and the like, the newfound demand props up the housing market, and the government doesn't get any more involved in the financial market than writing checks to migrants from flood-prone areas.

I'm sure that Obama and McCain will jump on this proposal immediately.

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President Bush Declares War on Financial Crisis: Worried about Wall Street? No need, as it turns out: George W. Bush will solve everything through massive market intervention. Think of it as a domestic "surge."
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AIG, the War on Terror, and Executive Power.

Whether the Fed (and/or the Treasury) acted unlawfully depends on whether the transaction with AIG falls within the statute that authorizes the Fed to make loans to non-banks during emergencies. It is clear that the transaction mixes elements of debt and equity. The Fed probably will get the residual value of AIG—everything if its assets appreciate less than 8.5%, and 80% of the balance if they appreciate more than 8.5%. The Fed probably has almost complete control as well: it kicked out the old CEO and replaced it with a new CEO and although the Fed has not yet exercised its equity warrants, clearly this new CEO knows that the Fed can, whereupon its control will become de jure as well as de facto. Still, we don’t know for sure, I suppose; in particular, I can’t tell whether some condition must be met before the Fed can exercise its warrants or whether they are limited in some other way. But if, as some have argued, AIG was worth nothing at all, then it would be pretty crazy for the Fed to accept anything less than full ownership in the substantive sense, and we can reconcile ourselves to the fact that somehow the AIG shareholders were left with an ownership stake with the comforting thought that their shares have (almost) no value. (As long as AIG is on life support, there is a non-zero probability that its value will appreciate to the point that shareholders get some return.)

What is more interesting is the strong parallel—which I hinted at before—between the current situation and the situation post-9/11. No one expects Congress to act in any meaningful sense. The executive has nearly unlimited discretion, relies on mostly secret information, and therefore its actions cannot be evaluated by outsiders. We can only trust that executive officials know what they are doing. People say, at least, we can trust Henry Paulson and Ben Bernanke. They seem competent and have the country’s interests at heart. But that’s what people used to say about Dick Cheney and Donald Rumsfeld. We really have no idea whether Paulson and Bernanke are making wise decisions, dumb decisions, or even politically motivated decisions—say, bailing out firms in which political allies have interests and not otherwise, or firms with lots of workers in politically important swing states. Sometime in the future, we may be able to evaluate their decisions, at which point our sole means of expressing our displeasure if those decisions were bad ones would be by voting against the person chiefly responsible for their appointments, George Bush—um, never mind.

Meanwhile, right now niceties of statutory construction must be ignored because the people who drafted the statutes did not anticipate the nature of this emergency though of course they knew that emergencies could happen. Back in 1932 (the most recent amendment was in 1991), Congress apparently believed that the Fed could respond to a financial crises solely by making loans so there was no need to give it the power to purchase businesses, a power that could be abused. Turns out this belief might have been wrong. Some loans may not be wise unless the lender can more or less control the borrower and can earn a portion of the upside, which just means that the Fed should have the power to purchase equity as well as debt. Going forward, all that Congress can do is provide even greater statutory discretion by expanding old authorities, so that next time round there will be no doubts about legality, and hope that the Fed does not abuse this discretion. There is, and can be, no serious debate about the best way to respond to the emergency in advance of it, and no time to have a debate during it. So Congress proves itself again an utterly helpless institution. It can whine today, hold oversight hearings tomorrow, and dutifully hand over more authority to the Fed on the next day. In the meantime, bad decisions by our government during this financial crisis, and future ones as well, will harm Americans and people around the world just as much as bad war-on-terror decisions do. Sorry, my libertarian friends; this is the world we live in. And there is no conceivable alternative.

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Updated Article on Subprime Lending:

I've posted an updated version of my article on the "Law and Economics of Subprime Lending" which is forthcoming in the University of Colorado Law Review. The way things are going, I'll probably have to update it again this weekend. Then next weekend. Then...

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Thursday, September 18, 2008

Keith Olbermann:

I happend to catch the very beginning of "Countdown" with Keith Olbermann. His lead story was on John McCain's statement that if he were President he would "fire" Chris Cox as Chairman of the SEC, explaining that the Chairman of the SEC is appointed by and serves at the will of the President.

Olbermann sarcastically commented that McCain needs to learn about constitutional law and that it would be "unconstitutional" to try to fire the head of the SEC. He says that MSNBC's legal advisor (I missed his first name and I don't really watch NBC or MSNBC but I think it is somebody named Williams) told him this, referring to a "1935 case where the Supreme Court held that it would be unconstitutional to fire a member of an independent agency."

Well, no. Actually, he's not even close.

First, of course, the case he is referring to is Humphrey's Executor v. United States, which was triggered when FDR tried to remove a sitting member of the FTC. The Supreme Court did not hold that removing a Commissioner was unconstitutional; it held that Congress could provide for limitations on the President's removal power over members of independent agencies. So this is just intellectual confusion on Olbermann's part. I had a quote from Humphrey's Executor as my screensaver when I was at the FTC (how's that for nerdy?).

Second, there is a more practical confusion. Olbermann, and perhaps Williams too, are confused as to what McCain said and what the President can do. True, the President cannot fire a member of an independent agency. But the Chairman does serve as Chairman at the discretion of the President. The President can designate any of the 5 members of the Commission as Chairman. Or change the designation. Confirmation to be a Commissioner requires Senate confirmation; confirmation to be Chair does not. The Chairmanship of independent agencies does not operate the same way as the Supreme Court. For the Supreme Court, a sitting Justice who is elevated to Chief must be reconfirmed for the new post. But a sitting Commissioner who is designated Chair does not need a separate confirmation. Thus, the President can "fire" Cox by removing him as Chair but cannot fire him as a Commissioner.

So, for instance, when Bill Kovacic was elevated to Chairman of the FTC this spring, he became Chairman, not Acting Chairman. Because he was already confirmed as a Commissioner. Similarly, Janet Steiger was Chairman of the FTC under Bush I. When Clinton was elected, he appointed Bob Pitofsky to the Commission and made him Chair. Steiger stayed on as a non-Chairman Commissioner.

A quick search of the history of the SEC rules and regs indicates that the President was given the power to name the Chairman from the group of confirmed Commissioners in a set of regulations adopted during the Truman Administration.

As to the first point, my guess is that the error is probably Olbermann's in misunderstanding what the network legal correspondent was saying. As for the second, it seems quite plausible that the legal correspondent was simply unaware of how a Chairman of an independent agency is appointed. But then again, that's a good reason to be a little more humble and a bit less sarcastic in challenging someone else's knowledge. Regardless, both of these errors are pretty inexcusable, it seems to me.

Update:

Here's McCain's comment:

The chairman of the SEC serves at the appointment of the president and, in my view, has betrayed the public's trust," McCain told a rally in this battleground state. "If I were president today, I would fire him."

Update:

The clip from Countdown is here (it is #5 on the Countdown). "Maybe you can brief the Senator on constitutional law while you are at it." Olbermann says that the person he talked to is Pete Williams and he is a political correspondent, not a legal correspondent.

Update:

Steve Bainbridge has more, including some of the caselaw and commentary.

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Why Laws Treating Public Property Differently from Private Property are Not Irrational, and Often Completely Justified:

Senior Conspirator Eugene Volokh has done an excellent good job of taking apart three Ohio Supreme Court justices' opinions that claim that claim that state law has no "rational basis" for allowing private owners but not government to ban the carrying of concealed firearms on their land. But, as a property professor, I can't resist the urge to pile on.

In addition to Eugene's well-taken points, there are two other important and relevant distinctions between private and public property. First, most private properties that are accessible to the general public are subject to the constraints of market competition. Privately owned stores, recreation facilities, bars, parks, and the like compete with each other to attract customers. As such, there are likely to be different stores that cater to customers with divergent preferences. If many Ohioans prefer to go to a gun-free bar, it is likely that there will be establishments that are happy to accommodate them. Those who prefer to bring their guns with them when they drink can go to other bars that cater to their preferences.

By contrast, many government buildings carry out functions over which government has a monopoly, or something close to it. Consider court buildings, the registry of motor vehicles, welfare offices, and so on. People who seek to use these public services often have no choice but to go to the government buildings in question, regardless of whether the policies there fit their preferences or not. Basic economic theory suggests that it is often necessary to regulate the policies of a monopolist more tightly than those of participants in competitive markets.

Second, and closely related, market competition gives private owners a stronger incentive to accommodate consumer preferences than government owners have. If a private business allows too many guns on its premises, rendering them unsafe, that will tend to drive customers away and reduce the business' profits. The same thing is likely to happen if the business adopts overly restrictive policies and thereby alienates gun-owners who want to be able to take their concealed firearms with them. Businesses have strong incentives to weigh these considerations against each other and come up with a policy that satisfies the most customers at the least cost. On the other hand, a government office that adopts flawed policies won't lose money as a result. Indeed, the bureaucrats in question might actually benefit from reducing the number of people who seek out their services. They will continue to collect the same pay, while having to do less work.

To be sure, really egregious errors by bureaucrats might eventually be punished at the polls; perhaps the voters will pick new state legislators who might cut the offending bureaucrats' budgets or otherwise force them to change their ways. However, the "rational ignorance" of the electorate ensures that all but the grossest and most highly visible bureaucratic mistakes are likely to pass unnoticed by the public.

Obviously, there are some exceptions to these generalizations. A few private businesses are monopolists, and a few government offices are subject to more rigorous market competition than that generally faced by public sector entities. Nevertheless, these points are valid as a general rule. And that should be more than enough to satisfy the loose standards of the "rational basis" test that, as Eugene explained in his post, applies to this case. Indeed, I think it should be enough to satisfy even significantly more exacting judicial scrutiny. Overall, there are many good reasons to regulate government officials' use of public property more strictly than private owners' use of their own land.

Related Posts (on one page):

  1. Why Laws Treating Public Property Differently from Private Property are Not Irrational, and Often Completely Justified:
  2. Arbitrary and Irrational to Distinguish Private Property from Public Property?
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Should Ladies' Nights in Bars Be Outlawed Because they Discriminate Against Men?

Columnist Steven Chapman has an interesting column arguing against claims that ladies night's in bars should be banned because they discriminate against men:

When it comes to relations between the sexes, a little common sense goes a long way. It's not sex discrimination to bar men from women's locker rooms. It's not sex discrimination to let only females audition for the role of Juliet. It's not sex discrimination to roughly balance males and females in an entering college class. And it should not be sex discrimination to offer favors to one sex in order to benefit people of both sexes.

Why, after all, would a bar offer discounts to women? Not because the owner harbors a deep-seated hostility toward men, perpetuating centuries of oppression. People who run such establishments understand that a lot of men patronize taverns partly to meet women, and that they will come more often and stay longer if women are abundant than if they are scarce.

Since females are generally less attracted to the bar scene, discounts may be needed to draw them out in respectable numbers. The owner of the Coastline Restaurant and Bar in Cherry Hill, the target of the complaint, said after the ruling came down that his male customers are unhappy "because they're wondering, 'Are the girls going to show up?'" ....

Offering a discount for women, to George Washington University law professor John Banzhaf, is no more defensible than charging whites less than blacks. "Sex discrimination is wrong, no matter whose ox is being gored," he declares.

But context is crucial, and relations between the sexes are different from relations between the races. We don't accept racially segregated restrooms, but we do accept sexually segregated restrooms. All-white colleges would be offensive, but all-female schools are not.

Charging whites less than blacks would suggest a desire to drive away black customers because of racial animus. Charging women less than men suggests nothing comparable.

I blogged about some of the legal issues involved in the ladies' night litigation in this series of posts last year. I argued that ladies' nights don't violate the 14th Amendment and that the anti-ladies' night plaintiffs should not be allowed to proceed with a class action case under which they get to be class representatives for male bar patrons as a group; quite obviously, they would be poor representatives of this class because most male bar patrons actually benefit from ladies' nights and would be harmed by the lawsuits' success. I'm far less certain that ladies' nights are legal under the public accommodations provisions of the Civil Rights Act of 1964. If they are not, however, that is a weakness in the law, not a virtue.

UPDATE: I had foolishly forgotten that Title II of the Civil Rights Act of 1964 only bans discrimination in places of public accommodation on "the ground of race, color, religion, or national origin." It doesn't forbid sex discrimination. Therefore, ladies nights in bars are perfectly legal, at least so far as Title II is concerned.

UPDATE #2: It turns out that Tim Sandefur of the libertarian Pacific Legal Foundation has recently filed an amicus brief in a California ladies' night case making arguments similar to some of those advanced in my posts on the subject. The brief is available here.

UPDATE #3: Some commenters argue that Chapman's argument can also be used to justify affirmative action. To some extent, this is true. However, my view is that private sector affirmative action programs should be legal. Therefore, there is no contradiction between my positions on the two issues.

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Making it Up:

The New York Times "clarifies" a quote:

Editors’ Note An earlier version of this article cited two sources who were said to have been briefed on a conversation in which John J. Mack, chief executive of Morgan Stanley, had told Vikrim S. Pandit, Citigroup’s chief executive, that “we need a merger partner or we’re not going to make it.” On Thursday, Morgan Stanley vigorously denied that Mr. Mack had made the comment, as did Citigroup, which had declined to comment on Wednesday.

The Times’s two sources have since clarified their comments, saying that because they were not present during the discussions, they could not confirm that Mr. Mack had in fact made the statement. The Times should have asked Morgan Stanley for comment and should not have used the quotation without doing more to verify the sources’ version of events.

This is almost as bad as when the Times quoted from a parody website and treated it as authentic.

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Congressional Irrelevance:

One interesting aspect of the recent government bailouts has been the complete irrelevance of Congress. The operation and decision-making seems to be run almost entirely by the Secretary of Treasury and Federal Reserve. Congress appears to lack the ability, the will, and the decisiveness to play any role except spectator, as a handful of senior executive branch officials have nationalized major portions of Wall Street.

What is further interesting is that Congress is not missed in the slightest. No one is clamoring for a greater role for our elected representatives in dealing with these problems. I haven't heard anyone saying, "We really need to get Congress more involved in this. They'll know what to do."

The other day, I offered my view that Congress today is fundamentally a silly place stocked with silly people. This latest situation illustrates the principle. I don't know whether Paulson and Bernanke are doing the right thing (I tend to think not). But I know for certain that I'd rather that they be making these decisions than Congress.

Moreover, this problem has become systemic. A recent Wall Street Journal article noted that the current Congress has enacted less legislation than any Congress in recent history--and that includes its many symbolic pieces of legislation such as renaming Post Offices. The output of administrative agencies dwarfs that of Congress. The Senate's behavior on judicial nominations is preposterous.

I sense a vicious cycle at work here. As Congress has become more dysfunctional and unable to address matters of public importance, the Executive Branch has stepped in to fill the gap. In turn, this allows Congress to behave in an even less-serious manner, which in turn necessitates further action by the Executive Branch. If the Executive waited for Congress to do anything, nothing would get done. So Congress essentially spends its time bloviating and posturing, while the unelected beavers in the bowels of the bureaucracy crank out federal regulations.

Put more generally, Congress's ridiculousness has increasingly caused it to forfeit its status a co-equal branch of government. 40 or 50 years ago it might have been plausible to imagine Congress addressing important public policy issues like entitlement reform or health care reform (I'm not saying they would have done it, but it seems like it was more plausible then). Serious people were in the Senate then--Taft, Johnson, etc. Today, however, the idea that serious solutions to pressing social problems might originate in Congress is hard to suggest with a straight face.

In the abstract, I am no fan of the administrative state and see the theoretical value of political accountability. But if I have to choose who I'd trust to deal with the big decisions, it is hard to make the case that Congress as it actually exists is who we want in charge. Over the past few years, the Executive and Courts have increasingly filled the gap that they perceive as existing because of Congress's incompetence. One would like to say that if the Executive or Judiciary won't step in Congress will step up. But that doesn't seem like a realistic scenario to me. It is a vicious cycle and it is hard to see how that cycle can be broken.

But I'm sure that there will be much ballyhooed Congressional hearings in a few months to "get to the bottom of this." Congress's last effort on this was Sarbanes-Oxley, and a lot of good that seemed to do (see Larry Ribstein).

As I said last week, John McCain has seemed to remain a serious person despite his service in the Senate, not because of it. And that it is not clear on Barack Obama. On Joe Biden it seems reasonably obvious that he long ago succumbed to Senator-itis. I think that this latest episode, and Congress's irrelevance in it, nicely illustrates my points.

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Did Eliot Spitzer Contribute to AIG's Demise?

The New York Sun thinks so in "Bring Back Greenberg":

As America was racing toward the nationalization of what is left of American International Group, we couldn't help think of Eliot Spitzer. Among all his mistakes, it's hard to think of one more catastrophic than his decision to force Maurice "Hank" Greenberg out of the leadership of AIG. The picture since then has not been a pretty one. As Mr. Greenberg put it yesterday in a letter, "In a little over a year, I, and other shareholders, have watched the company that I helped build over 35 years into the largest and most successful insurance company in history and one of the strongest and one of the most profitable companies in the world lose over 90% of its value."

It would have been another matter had Mr. Spitzer — or anyone else — found any wrong-doing by Mr. Greenberg. But they didn't. Instead, Mr. Spitzer's raid on AIG resulted in the installation of new management that, one can say at this point, just wasn't up to the job. As Mr. Greenberg put it in his letter yesterday to AIG's chief executive, Robert Willumstad: "Despite repeated assurances from management and the company that everything was under control, it is now clear that nothing was under control."

Client Number 9 seems to be weathering the financial storm much better than AIG's shareholders:

"When he was attorney general he was on a witch hunt, he'd go after anyone he could to get headlines," said Senate Majority Leader Dean Skelos. "I look at the pattern form when Hank Greenberg went out, not just the crisis now, and the stock plummeted. It cost taxpayers hundreds of millions of dollars in our pension system."

Spitzer, silent since his resignation March 17 after being implicated in a federal prostitution investigation, has also been blamed for contributing to a state budget crisis this year. Now, Spitzer is working for his millionaire father in Manhattan real estate while the prostitution probe continues. It was just two years ago he carried a historic margin of victory over Republican John Faso.

As news commentators have noted, maybe AIG would have capsized even with Greenberg at the helm. Some former employees have said that AIG was doing credit swaps while Greenberg was still around. But his removal certainly doesn't seem to have helped. In retrospect it seems like a major mistake to have driven Greenberg from AIG. But it is not just in retrospect--Spitzer's obsession with this case at the time was roundly criticized (he went after Greenberg for issues unrelated to AIG and it has been reported that he strong-armed AIG to throw Greenberg under the bus even though he couldn't prove anything).

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Where Dennis Kucinich and I Agree:

I don't often find myself agreeing with Dennis Kucinich. But I have to commend him for his opposition the the massive state and federal subsidies for the construction of the new Yankee Stadium:

A congressional panel has taken tough swings at the New York Yankees and New York City government over a new stadium for the Yankees. But neither the team nor the city budged from their positions on the $1.3 billion structure.

Rep. Dennis Kucinich said Thursday he found "waste and abuse of public dollars" in the financing of the new stadium under construction in the South Bronx.

Kucinich is an Ohio Democrat who heads a House Oversight and Government Reform subcommittee. He charged that city officials misrepresented to the IRS the value of the property, helping them to get special tax deals from the federal government and in effect dumping the cost of construction onto taxpayers.....

"In the case of the new Yankee Stadium, not only have we found waste and abuse of public dollars subsidizing a project that is for the exclusive benefit of a private entity, the Yankees, but also we have discovered serious questions about the accuracy of certain representations made by the City of New York to the federal government," Kucinich said.

The panel's investigation found "substantial evidence of improprieties and possible fraud by the financial architects of the new Yankee Stadium," he added.

The criticism highlights tensions felt nationwide as governments increasingly support stadiums for profitable pro sports teams with multimillion dollar payrolls.

As I discussed in this post, construction of the new Yankee Stadium is being subsidized with up to $450 million in public funds, plus an additional $941 million in government-backed tax-exempt bonds. This is the largest government subsidy for stadium construction in the history of the United States, and there is no good justification for it.

I first criticized the Yankee Stadium deal in this 2006 post, where I summarized the extensive evidence that there is no public benefit justifying subsidies for sports stadium construction. In fairness, what the Yankees have done is similar to what many other pro sports teams have gotten away over the last several decades. The Yankee Stadium situation is unusual primarily because of its massive size. Hopefully, Kucinich's hearing and others like it will succeed in exposing this kind of sports stadium socialism to public scrutiny and eventually put an end to it. But I am not optimistic.

NOTE: As a Red Sox fan, I'm obviously unhappy about government subsidies to the rival Yankees. However, I would oppose similar deals for any team, including Boston teams. For example, I was against various proposals that have come up over the years to build a new government-subsidized stadium for the Red Sox. I love the Red Sox, but I could not love them half as much loved I not liberty more.

41 Comments

Foreign Courts Cite U.S. Supreme Court Less Often: Adam Liptak has the scoop in the NYT. Over at Balkinization, Michael Stokes Paulsen responds: "It is nice to read -- finally! -- some good news in the New York Times."

  If the trend continues, we may see less U.S. Supreme Court citation of foreign law, as well: If we're citing them so they'll cite us, and they're not citing us, well heck, maybe we won't cite them. So there.
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Arbitrary and Irrational to Distinguish Private Property from Public Property?

So conclude three of the seven Justices of the Ohio Supreme Court in Ohioans for Concealed Carry, Inc. v. City of Clyde, decided yesterday. Fortunately, the four-Justice majority takes a different view, but the view of the three dissenters still seems to me noteworthy, because it denies the legitimacy of what strikes me as an utterly fundamental and proper distinction.

First, some background: Ohio is one of the 40 or so states that allows pretty much any law-abiding adult to get a license to carry a concealed gun (the exact number depends on how you classify the laws in some states). Ohio law provides that a licensed person "may carry a concealed handgun anywhere in this state," with some exceptions, including (among other things) private property when the private property owner forbids such carrying. So a licensed person may carry on his own property, private property where carrying is allowed, an most government-owned property.

The City of Clyde, despite this, banned carrying concealed guns in city parks. Ohioans for Concealed Carry challenged this, on the grounds that the state law trumps the city ordinance. The Ohio Constitution does give cities considerable powers to enact "local police, sanitary and other similar regulations" but only when they "are not in conflict with general laws," so the question is whether the concealed carry law is a "general law." To be a "general law," according to Ohio precedents, "a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally." The majority concludes that the concealed carry permit law is such a general law.

Here's where the dissenters' arguments come in: Two of the dissenters (Chief Justice Moyer, joined by Justice Lanzinger) conclude that the law isn't a general law because it provides an "exception for private property owners." The dissenters of course acknowledge that a law can be general though it has exceptions (nearly all laws have exceptions of some sort), "so long as the classification is not 'arbitrary, unreasonable, or capricious.'" But the dissenters conclude that the "different treatment of public and private property is patently arbitrary and unreasonable."

This strikes me as shockingly wrong. Of course private property can be reasonably seen as quite different from government-owned property. Private property owners have historically had very broad control over their own property; they could restrict behavior on the property for any reason or no reason at all, simply because of their property rights. Such rights have been limited in various ways, but they are still the rule and the limitations the exception — and in any event, it is quite reasonable to preserve or even expand such rights.

Government property, on the other hand, is owned by the government, which bought it with other people's money, and holds it in some measure in trust for the people generally. It thus makes perfect sense for the government to be more restricted in its use of its property. The U.S. Constitution of course takes this view, since it applies the First Amendment and other constitutional provisions to government property (at least in some measure) and not to private property. The same goes for the Ohio Constitution, see, e.g., Eastwood Mall, Inc. v. Slanco, 626 N.E.2d 59 (Ohio 1994). It may well be reasonable — within the constraints of the state and federal constitutions — to give local governments property rights that are comparable in force to private property owners' property rights. But it's also reasonable to take the opposite view, and to have state law limit what the government may do as to public property.

Thus, the dissenters hypothetical that supposedly proves their case just doesn't make sense. Here's what the Moyer dissent says:

Suppose that there are two parks in Clyde on opposite sides of the street; Park A is owned by the city, and Park B is owned by a private corporation. At Park A, a person with the requisite license could carry a concealed handgun at the park, as the statute does not prohibit the carrying of a concealed handgun in public parks. The city is powerless to change this fact; concealed handguns must be allowed in the park, unless one of the limited exceptions applies .... At Park B, ... [t]he owner of the park can decide to forbid concealed handguns for any reason or no reason ....

The single fact that Park A is publicly owned and Park B is privately owned changes the rules for whether concealed handguns will be allowed in the parks. The statute completely regulates public property while having essentially no effect on most forms of private property ....

This different treatment of public and private property is patently arbitrary and unreasonable; it affects one class of land solely on the basis of ownership, which has little to do with the relative safety of allowing concealed handguns on a particular type of property.

But the different treatment between Park A and Park B merely mirrors the different treatment of the parks under the First Amendment and under other constitutional guarantees. Public Park A generally can't eject patrons because of their speech; private Park B can. The distinction is simply that the second park is private property, and subject to the private owner's private property rights. The first park is government property, and subject to the constraints imposed on the government by the U.S. Constitution, by the Ohio Constitution, and by the general laws of the state of Ohio.

The dissent goes further in footnote 2, arguing:

Although not a reason under our case law for concluding that R.C. 2923.126(A) violates the Ohio Constitution, one can only speculate about, indeed wonder, what statewide interest is served by a statute that nullifies and prohibits a reasoned conclusion by the elected representatives of local government that the presence of any number of handguns in a city park may be a threat to the security and safety of those using the park. Implementation of the state statute strikes a severe blow to the underlying principles of local self-government.

It is unfortunate that the passion of those who believe in the right of virtually any adult to carry a concealed weapon (subject to the statutory exceptions) has pushed aside the fundamental belief in Ohio that matters that directly affect the safety of a community may be determined by local government, where the voices of those citizens most directly affected may be heard and considered. No one outside the city of Clyde, or perhaps the county of Sandusky, has any legitimate interest in the regulations placed upon the use of a city park in the municipality of Clyde. We can only hope that those who believe that dogs should run unleashed in city parks or those who believe that alcohol should be consumed in city parks are not able to convince a majority of the General Assembly of the merits of their cause.

I should have thought the "statewide interest" would be clear: Many people believe that there's a human right to possess the weapons needed for self-defense, when and where such self-defense is necessary — though, like many such rights (including free speech, religious worship, and the like), the right doesn't extend to action on the private property of others.

The Ohio Bill of Rights echoes this, by saying that "The people have the right to bear arms for their defence and security"; the Ohio Supreme Court has rightly interpreted this language as securing an individual right to have guns for self-defense, though alongside other bill of rights provision it wouldn't extend onto objecting owners' private property. The provision has been interpreted as not securing a general constitutional right to carry concealed weapons, but the Ohio legislature has decided to go beyond the state constitution's mandates, and protect people's right to bear arms for their defense even more. This human right, the Ohio legislature concluded, trumps contrary judgments of local governments, just as many other human rights trump contrary judgments even when those judgments are made "by the elected representatives of local government." It's one thing to disagree with the legislature's judgment — but it strikes me as quite blindered to feel "one can only speculate about, indeed wonder, what statewide interest" the legislature think it's serving here.

Finally, Justice Pfeifer's solo dissent is even more striking: He concludes that the distinction between private property and public property — again, the same distinction correctly drawn by the caselaw interpreting the state and federal constitutions' bills of rights — itself "violates the Equal Protection Clauses of the Ohio and United States Constitutions," because

There is no rational basis to distinguish between private and public property owners in regard to their statutory ability to prevent persons from carrying firearms onto their propertyproperty. Clyde owns its municipal park. Is there any reason why the owner of this property, where families gather and children play, should be forced to allow people with guns to enter, while the private owner of a public space such as a shopping mall can bar from entry any gun-carrying citizens?

How about the notion that private individuals, as property owners, have rights that the government does not possess — is that really so irrational?

(Thanks to Dan Gifford for the pointer.)

Related Posts (on one page):

  1. Why Laws Treating Public Property Differently from Private Property are Not Irrational, and Often Completely Justified:
  2. Arbitrary and Irrational to Distinguish Private Property from Public Property?
42 Comments

Researching and Cite-Checking Pre-1900s English and American Law and Legal Commentaries:

I've had to do this for a couple of articles I've written recently, and I thought I'd pass along pointers to some useful databases. They are generally for-pay databases, but my sense is that most universities have subscriptions to them. If you're on a law review editorial board, you might want to make sure that your cite-checkers know about these, since they can save the cite-checkers a good deal of effort. All of the databases are full-text searchable and at the same time provide images of the original pages, so you can be sure that you're not falling victim to a transcription error.

1. Pre-1700 English books (not just on law): Chadwyck-Healey's Early English Books Online (EEBO).

2. 1700s English books (not just on law, plus some from outside England): Gale's Eighteenth Century Collections Online.

3. 1700s and 1800s American books and pamphlets (not just on law), plus newspapers (which sometimes reported otherwise unreported legal decisions, jury charges, and the like): Readex's Archive of Americana.

4. 1800s and early 1900s English and American legal treatises and other law books: Gale's Making of Modern Law (if you have a subscription, it should be available through your library Web site).

5. More 1800s and early 1900s American legal treatises and other law books: HeinOnline's Legal Classics database.

6. Some reports of English and American trials and other legal documents from the 1600s to the early 1900s: Galenet's Making of Modern Law - Trials.

7. English reported court cases from 1220-1865 (whether cited to Eng. Rep. or to the individual reporters): HeinOnline's English Reports database.

8. Some other pre-mid-1600s English cases (for instance, from Star Chamber): John Rushworth, Historical Collections of Private Passages of State, Weighty Matters in Law, Remarkable Proceedings in Five Parliaments 59-60 (London, Robert Boulter 1680), available on Early English Books Online (see 1 above).

9. Some early books: Google Books. [Thanks to commenter cd for reminding me about this item, which I have used in my research but neglected to include in this post at first.]

10. Of course, Westlaw and Lexis, which contain nearly all published American court cases.

11. Your library bookshelves, which likely contain a few volumes with cases that aren't on Westlaw and Lexis (such as the New York City-Hall Record, Wright's Ohio Reports, and the like.

12. Your library's online catalog, which may give you online access to many old sources, either through your own library or other cooperating libraries.

If you have other suggestions, please post them in the comments.

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The Party of the Lawyer Candidates vs. The Party of the Non-Lawyer Candidates:

John Peralta counts Democratic and Republican Presidential and Vice-Presidential candidates since 1980, and sees how many lawyers there were:

[Democratic] Attorneys (10 out of 12 total - 83%)
Obama
Biden
Kerry
Edwards
Lieberman
Clinton
Dukakis
Bentsen
Mondale
Ferarro
[Possibly Gore, who never graduated — if he's included, the percentage is 92%]
Carter was the only non-lawyer, non-law school attendee.

[Republican] Attorneys (2 out of 9 total - 22%)
Dole
Quayle

Non-lawyers - McCain, Palin, Bush 43, Cheney, Kemp, Bush 41 and Reagan

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More on the (Absence of) Legal Authority for the AIG deal --

Whether or not the Fed has the authority to buy/lend to AIG, the story does not end there. In order to lend/buy, the Fed needs to come up with $85 billion, which is conveniently being supplied by the Treasury Department, which is in turn borrowing it from whoever will lend money to the U.S. government, to be paid back by us or our descendants, unless the AIG deal miraculously turns out to be profitable. On what statutory authority does Treasury Act? Unlike the Fed, the Treasury does not bother to explain where its authority comes from in its press release and I have found no other sources with this information. Does anyone know? A U.S. Code section would be a nice place to start.

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Obama leads in 4 of 5 recent polls.

Barack Obama has a slight lead in 4 of the 5 most recent polls.

The likeliest reasons for the shift toward Obama are:

(1) The Republican convention bounce naturally expired.

(2) The press's direct attack on Sarah Palin is working.

(3) The Wall Street collapse and the bailouts are turning voters toward Obama/Biden.

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Charles Whitebread: Via ATL, I learn that Professor Charles Whitebread, a criminal procedure professor at USC School of Law, has passed away. Professor Whitebread was famous for being a highly entertaining bar review lecturer: I still remember his distinctive voice and sense of humor over a decade later. He was also the author (among other things) of a treatise in Criminal Procedure (with Christopher Slobogin). He will be missed.
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To What Extent Would Service Under Obama be Mandatory?

Ilya Somin points to a recent Wall Street Journal op-ed by Shikha Dalmia about McCain's and Obama's service proposals. The main differences appear to be their scope and the mandatory nature of some of Obama's.

I should note that the tone of Barack Obama's recent comments on service at the NYC Service Nation forum couldn't have been more different from his December and July major addresses on the subject. There are several indications in his remarks that Obama (or his staffers) had read my criticisms. And Obama sought to present his views in the least offensive terms possible (eg, two mentions of service for high school, but not a word about middle school; no promises to require all middle and high schools to adopt service programs by denying schools federal funding if they refuse).

One question that has arisen in discussions is the extent to which his "Universal Voluntary Service Plan" is nonetheless mandatory.

Because Obama calls his plan voluntary, it’s important to understand exactly what he says and doesn’t say. In the first two of his main speeches on national service – on July 2, 2008 and on December 5, 2007 – Barack Obama set his goal of 50 hours of service a year, promised that “We'll reach this goal,” and explained how he would do so for middle and high school children:

So when I'm President, I will set a goal for all American middle and high school students to perform 50 hours of service a year, and for all college students to perform 100 hours of service a year. This means that by the time you graduate college, you'll have done 17 weeks of service.

We'll reach this goal in several ways. At the middle and high school level, we'll make federal assistance conditional on school districts developing service programs, and give schools resources to offer new service opportunities.

So one hurdle that Obama’s plan must vault is the U.S. Constitution, which limits the federal government to enumerated powers. Lacking the power to mandate universal community service directly, Obama candidly discloses his strategy: making federal funds contingent on schools having service programs that meet federal standards.

If Obama hadn’t promised that “We’ll reach this goal” of 50 hours a year of service, one might read his proposal as indicating that he would require schools to have service programs, but that these programs might not require 50 hours of service. Yet the only way that almost every 11-year old public school student in the country would serve 50 hours a year – i.e., the only way that Obama could reach his goal – is by doing what he seems to indicate he’s going to do: setting a federal goal of 50 hours a year for each middle school student and reaching that goal by making federal funds contingent on middle schools requiring their students to serve those 50 hours.

Thus, it would be the public schools that would impose federal standards of coerced service on each child as part of their requirements for graduation. For students, service would be involuntary. Even for the public schools, their participation would be only nominally voluntary – for how many public schools can survive without federal assistance?

Lest there be any remaining doubt that Barack Obama’s “voluntary” universal service plan contemplates mandatory service for children, his Service Plan praises mandatory service in the sentence that immediately precedes his call for 50 hours of service: “Schools that require service as part of the educational experience create improved learning environments and serve as resources for their communities.” Moreover, in his Plan, he promises to “develop national guidelines for service-learning and community service programs,” thus not leaving the content of service programs to the states.

I suspect that Obama describes his mandatory plan as voluntary for good reasons: (1) part of his plan – i.e., participating in his many new “Corps” – is indeed voluntary, and (2) people bristle at the word “mandatory.” In the movement for national service, it is common to describe mandatory plans as voluntary. For example, Representative Charles Rangel’s National Service Act, which is languishing before Congress, provides for a universal draft with two years of service for virtually all persons ages 18-42, with no deferment for college. This explicitly mandatory service is described in the bill as “Voluntary Service” because “A person subject to induction . . . may volunteer to perform national service in lieu of being inducted.”

Nonetheless, there still remain some ambiguities in Obama’s Service Plan. Does Obama intend to force states to include private and parochial school students within his scheme? Obama does not say whether private middle and high schools would also be required to impose 50 hours a year. I assume that would depend on whether they rely on federal grants.

Also, how will students who defy their high schools or the state be punished? Will they be prosecuted, placed in re-education programs, or merely flunked? Obama’s proposal never says.

74 Comments

Wednesday, September 17, 2008

Palin's Yahoo E-mail Account Hacked, Contents Posted Online: Fox News reports:
  In the latest of a series of invasions into Sarah Palin’s personal life, hackers have broken into the Republican vice presidential candidate’s private e-mail account, and a widely read Web site has published screen grabs from it.
  An article Wednesday in Gawker.com posts family photos and snapshots of e-mail exchanges the Alaska governor had with colleagues. Gawker says the-email account has since been shut down, but it will leave the images up on its site for all to see.
  "Here are the screenshots of the emails saved before the account went dark, along with the contact list. It’s newsworthy and we will not be taking it down!" the site declares.
Gawker has posted the contents in several individual posts; here is the most recent.

  UPDATE: The FBI and Secret Service are conducting a joint investigation. The easiest crime to prove here is 18 U.S.C. 1030(a)(2)(C), accessing a protected computer without authorization to obtain information, with the possibility of felony liability under 18 U.S.C. 1030(c)(2)(B)(ii)-(iii) and also the possibility of felony liability under 18 U.S.C. 1030(a)(4). As with most computer crime cases, the real trick will be finding the bad guy rather than finding a charge.

  ANOTHER UPDATE: In the comment thread, J. Aldridge writes:
Since Gawker is fully aware this information was obtained illegally they are looking at some serious charges.
  Well, it's a free country, so anyone can look. But I don't think Gawker is criminally liable for posting the information. While it's unseemly and perhaps rather nasty to post it, it's normally not a crime to post evidence that was obtained as a fruit of crime. There is no claim that the information was obtained in violation of the Wiretap Act, 18 U.S.C. 2511, which might trigger a prohibition on disclosing illegally intercepted materials. The contents here were stored, not in transit, and thus the Wiretap Act's disclosure limitations don't apply. See, e.g., United States v. Steiger, 318 F.3d 1039 (11th Cir. 2003). Further, even if a statute did prohibit such a disclosure — and again, I don't know of such a statute — publishing it is likely protected by the First Amendment under Bartnicki v. Vopper, 532 U.S. 514 (2001), assuming that Gawker was not involved in the hack.
185 Comments

Was Tony Rezko Obama's First Donor? It Depends.

I listened to David Freddoso’s appearance on a WGN radio show hosted by U. of Chicago Sociologist Milt Rosenberg, where Freddoso debated Dan Johnson Weinberger, an Illinois lawyer supporting Obama. Both sides overstated their positions – pro and con Obama - but I didn’t hear much that would justify the Obama campaign's response.

The most heated exchange was over whether Tony Rezko was Obama’s first donor when he first ran for the Illinois Senate in 1995-96. Freddoso said he was; Weinberger said he wasn’t. Freddoso then partially backed down and said that perhaps Rezko was the second donor.

If one limits the analysis to donations, Freddoso was correct the first time: Rezko tied for Obama’s first donor. If one includes loans as well as donations, then Rezko ties for the second donor to Obama’s campaign, though even that earlier loan came from someone who has ties to Rezko.

What the early donation patterns show is that Rezko (and people Rezko has had business ties to) were the primary people launching Obama’s finances in his first campaign. By a few months later, others had donated, including prominent liberals, lawyers from his firm, real estate developers, and the ACORN-linked union, SEIU.

Obama’s fundraising started in July 1995. Before mid-September 1995, he had one loan and three donations:

7/13/1995 LOAN: $5,000 Al Johnson (a Cadillac dealer, “who was trying to get a casino license along with Tony Rezko” at some point)

7/31/1995 DONATION: $1,000 Rezko Foods

7/31/1995 DONATION: $1,000 Lakefront Refreshments (a Rezko company)

7/31/1995 DONATION: $300 Barry Mcnamara (also a Cadillac dealer)

So Barack Obama’s first three actual donations were from two Rezko companies (contributing $2,000) and an individual (contributing $300), though there was an earlier loan from a man who was seeking a casino license with Rezko.

Obama’s first donations from outside Illinois were from a New York individual (Fatema Chandoo, who shares a last name with one of Obama's college buddies) and from the SEIU Local 880 Politcal Fund, 1024 Elysian Field Av, New Orleans, LA 70117-8402, one of the many infamous ACORN-associated organizations.

More here, here, here, here, and here.

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The Power of the Federal Reserve:

Apropos of the issue of where the Federal Reserve gets the power to "take over" AIG, here's something I find disturbing. As regular readers know, I've been following the housing/credit bubbles since well before it was widely acknowledged that these bubbles existed (though, of course, I was far from the only one to notice). At the height of the bubbles, in 2004-05, there were plenty of people arguing that the Federal Reserve should crack down on the lax mortgage lending practices that led to the current troubles. The Fed's consistent response was, "most of these mortgages are initiated by non-bank mortgage companies, and we only have authority over federally regulated banks, not over mortgage companies."

I assume that that's true. But, in the wake of the current emergency, the Fed has sought and received authority to do all sorts of things it couldn't do before, and has even done things that it's not at all clear it has the statutory authority to do, as with AIG. If only the Fed had been even a fraction as aggressive when the crisis was building!

Much of the blame, of course, lies with Alan Greenspan, who, having served as Fed Chairman during one obvious bubble involving tech, continued to insist during the second obvious bubble (as measured by a comparison to historic housing prices on a variety of measures, as well as the historic laxity of credit standards) that it's impossible to know if wild, unprecedented, asset inflation is the product of a bubble--even though both bubbles had an obvious "Austrian" cause, the Fed's easy money policy, first after the LTCM/Russian bond fiasco in 1998, and then after 9/11.

Greenspan is an odd sort of free market fundamentalist: he used his awesome (government) power at the Fed to artificially lower the cost of credit, but then insisted that the untoward consequences were likely just the natural consequences of the free market at work. Apparently, government intervention in the economy via Fed manipulation of short term interest rates didn't count as "regulation" so long as Alan Greenspan was doing it!

22 Comments

Does France Get a Bum Rap on Anti-Semitism?:

Which country has the highest percentage of the population that has a favorable attitude toward Jews? According to this study, it's France! That's especially remarkable, because (a) most French Jews are relative newcomers, having emigrated from Algeria and Morrocco in the mid-1950s; and (b) France has a large immigrant Muslim population, and, anecdotally, a large percentage of these Muslims seem hostile to Jews.

The interesting question is, if the French are so tolerant of Jews, why has the French government been so unable to make French Jews feel welcome and secure in the face of hostility largely emanating from the immigrant population? Thousands of French Jews have moved to Israel, and many more have purchased an "insurance" home there.

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Ammunition as Money?

"Massachusetts also designated musket balls legal tender at four per penny [in the 1600s]."

So reports Robert G. Natelson, Paper Money and the Original Understanding of the Coinage Clause, 31 Harv. J. L. & Pub. Pol'y 1017, 1037 (2008), quoting 1 Jerry W. Markham, A Financial History of the United States 46 (2002).

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District Court Decision on McCain's Being a Natural-Born Citizen:

It was handed down yesterday in Robinson v. Bowen. The key language (paragraph break added):

Article II states that “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828 (1970). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens. Nonetheless, subject to the floor of the Fourteenth Amendment, it has always been left to Congress to define who may be a citizen by reason of birth (or naturalization proceedings, for that matter). Id. at 829–30.

At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. [Footnote: United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) (“The words ‘in the United States, and subject to the jurisdiction thereof,’ in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the Congress which proposed the amendment ... [as] the converse of the words ‘out of the limits and jurisdiction of the United States,’ as habitually used in the naturalization acts.”)]

Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.

The court goes on to say that the plaintiff ("a mere candidate hoping to become a California elector pledged to an obscure third-party candidate whose presidential prospects are theoretical at best") also lacks standing to challenge McCain's qualifications, and also that

Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review -— if any -- should occur only after the electoral and Congressional processes have run their course.

All this makes the judge's views quoted above pretty much dictum rather than legally binding on anyone -- but then again the reasoning in many judicial opinions (for instance, most concurrences and all dissents) falls in the same category. The judge thought that his opinion on the subject would be helpful, so he rendered it.

Thanks to How Appealing for the pointer.

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Danes, Porn, and the War in Afghanistan.

Michael Yon, reporting from Afghanistan (tip to Instapundit):

There were some Danish soldiers on Gib [Gibralter base in Afghanistan]—the British soldiers get a kick out of them. The Danish infantry, despite their small numbers, have a good reputation among the Brits because the Danes, they say, will mix it up. But the Danes at Gib were intelligence, not infantry. Recently, an American mission was running nearby, but our folks did not alert the Danes, who could have told our guys that they were about to be ambushed. A few minutes later, sounds from a fierce firefight rumbled over the base.

The Danes have always been interesting. I recall Special Forces friends coming home from Denmark, telling tales of the rigors of their scout swimming course, and saying that the Danish frogmen all swam like fish. The Danes would tell stories about the Vikings, but the SF soldiers were more interested in hearing about Danish women. I’ve never grown tired of hearing Danish stories. One never knows what they will say next. A Danish soldier at Gib told me that when he was younger, he operated a call-girl service from his house, right in front of his mom and his girlfriend.

The Danish section on Gib was just near the headquarters, and so I saw them frequently. Often, at least one of the Danish soldiers would be watching porn on a computer. When I told them that American soldiers would get busted for that, they were astonished. No, they were shocked. What?! American soldiers are not allowed to watch porn? The Brits couldn’t believe it, either. We’re just a bunch of Puritans to them. One particularly energetic Danish soldier had bought two blow-up dolls, and when I saw the dolls still in the packages, I thought it was a joke. But other Danes assured me, “It’s not a joke. He bought those for business.” Nobody seemed to mind that another soldier might be sleeping among them with his love balloon.

The Brits didn’t know what to think of the Danes, except that they were great at their job. The Danes served two functions: saving British lives, and comic relief.

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Palestine and Mexico - Two Interesting Anomalies in the World Public Opinion Survey Data on Knowledge of the Perpetrators of the 9/11 Attacks:

Yesterday, I blogged about the recent World Public Opinion survey that gauged knowledge of the identity of the perpetrators of 9/11 attacks across 17 countries. For the most part, the distribution of responses in the 17 nations was about what I had expected. However, there were two interesting anomalies, one positive and one negative.

I. Palestine.

The positive anomaly is Palestine. 42% of Palestinian respondents correctly indicated that al Qaeda were the perpetrators of the 9/11 attacks. If you add in the 7% of Palestinians who named "Saudis," "Egyptians," or other Arabs as having also given correct answers, it turns out that almost half of Palestinians know who carried out the 9/11 attacks. This may not seem like an impressive figure; after all, 46% of Palestinians still claim that either the US government (blamed by 27% of respondents) or Israel (19%) were responsible. However, it is far better than comparable results elsewhere in the Arab world. For example, the WPO survey found that only 16% of Egyptians and only 11% of Jordanians realize that al Qaeda was responsible for the attacks. 54% of Egyptians and 48% of Jordanians say that it was either Israel or the US. These results are also consistent with previous surveys showing that the vast majority of respondents in several Arab countries as well as many European Muslim populations deny that the 9/11 atrocities were perpetrated by Arabs. The WPO results show that recognition of the true identity of the 9/11 perpetrators is far more widespread among Palestinians than any other Arab Muslim population ever surveyed on this issue. Interestingly, only 19% of Palestinians claim that Israel was responsible, compared to 43% of Egyptians and 31% of Jordanians; this despite the fact that Palestinians have far more grievances against Israel than do Arabs residing in these two other countries. What accounts for the difference between the Palestinians and other Arabs? It's hard for me to say; perhaps experts on the region can shed light on the answer. Whatever the cause, it is a mildly encouraging sign (emphasis on "mildly") that Palestinian public opinion is at least somewhat rational and therefore potentially amenable to one day living in peace with Israel and the US.

II. Mexico.

The negative anomaly is Mexico. Only 33% of Mexican respondents in the WPO poll identified al Qaeda as the perpetrators of 9/11; this number is statistically indistinguishable from the 30% who blamed the US government (1% of Mexicans laid the blame on Israel). Strikingly, a higher percentage of Mexicans claimed that the US government carried out an attack on its own citizens than did respondents in any other country except Turkey (36%). Ironically, there is far more recognition of al Qaeda's responsibility for 9/11 among Palestinians than among Mexicans, even though the former have far more reason to be unhappy with American foreign policy.

Obviously, I know that there is anti-Americanism in Mexico and that Mexicans have various historical grievances against the US government, some of them legitimate. At the same time, Mexico derives many benefits from its relationship with the US, including extensive trade, and remittances from the large Mexican immigrant population in this country. Certainly, I didn't expect this level of anti-American prejudice in Mexican public opinion on 9/11.

I strongly support free trade with Mexico and continued Mexican immigration and decry the recent nativist attacks on Mexican and other Hispanic immigrants. A positive relationship between the US and Mexico is, I think, very much in the interests of both countries. Before writing this post, I even wondered whether I should avoid highlighting the Mexican data, so as not to give more fodder to opponents of NAFTA and advocates of draconian restrictions on immigration.

However, the WPO poll results are a troubling indication that there is more irrational anti-Americanism in Mexico than I, at least, would have expected. That does not bode well for the future of US-Mexican relations. Perhaps specialists in Mexican politics and public opinion can shed more light than I can on the causes of this disturbing trend.

UPDATE: Various commenters on this and my previous post suggest that the Palestinians may simply be "proud" or supportive of al Qaeda's role in the 9/11 attacks and thus unwilling to deny it. This is theoretically possible, but unlikely. In virtually every survey, including the WPO survey, anti-Americanism and support for radical Islamism are positively correlated with 9/11 denial. In other similar cases, people who deny the reality of major atrocities or blame the victims for them overwhelmingly tend to sympathize with the perpetrators and/or hate the victims. For example, most Holocaust deniers are anti-Semitic. Most of those who deny the realities of communist mass murder are either communist sympathizers or at least people who think that communism may not have been as bad as the "capitalist" alternative.

In principle, anti-Semites could take the view that the Holocaust did happen, but that Hitler had good reason for doing it. In practice, that response is far less common than denial. The same seems to be true of the anti-American and radical Islamist reactions to 9/11.

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Happy Birthday!

The U.S. Constitution is 221 years old today.

(Thanks to Greg Stasiewicz for the reminder, which kept me from having to hunt for "Happy Constitution Day -- Belated" cards in the Hallmark store.)

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Going For It:

With 3:24 left in the Steelers-Browns game Sunday night, the Steelers led 10-3 and the had 4th and 7 on the Steelers' 20 yard line. The Browns kicked a field goal. Then kicked deep and the Steelers basically ran out the clock (and should have done so if Willie Parker had stayed in bounds).

David Romer wrote the classic article on why teams should go for it more often on 4th down (summarized by Gregg Easterbrook here). Applying the market test (and leaving aside the technicalities)--as a Steelers' fan I was absolutely ecstatic that the Browns decided to kick a field goal in that situation.

Romer's general analysis seems compelling to me, which strongly implies that in that situation you'd want to go for it. Can any readers provide any reason to believe that the Browns made the right decision? John Madden and Al Michaels both thought that the Browns made the right decision, but their rationale (it would've been bad for the Browns' morale) wasn't much of an argument.

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Reasons to Worry about McCain and Obama's "Public Service" Initiatives:

Shikha Dalmia of the Reason Foundation has an interesting Wall Street Journal column explaining some of the reasons why we should be deeply concerned about John McCain and Barack Obama's plans to promote "national service." In a recent follow-up, she argues that Obama's national service plans are ultimately more dangerous than McCain's (though she also believes that Obama is the lesser of the two evils overall). To my mind, the danger of Obama's proposals stems from the combination of their immense scope (covering all high school and middle school students, plus a large proportion of college students and working adults) and the fact that, if he becomes president, he will have a cooperative Democratic Congress willing to give him what he wants. I fear that implementation of Obama's plans would, among other things, establish federal government control over a large portion of the American labor force. Numerous private organizations will then have an incentive to lobby Congress to be declared eligible for participation in Obama's programs. The end result will be to make more firms and charities dependent on government, and to ensure that their priorities come into line with those of whoever controls Congress at any given point in time. Federal government allocation of large parts of the labor force is also likely to divert people away from more productive private sector activities. I'm also not convinced that we should require either school or college students to spend more time on "service" as opposed to studying for their classes. Time spent on the latter might ultimately benefit both the students and society more than additional time spent on government-defined "service" work.

John McCain's plans seem less ambitious and are also likely to face a more skeptical reception in a Congress controlled by the opposing party. There is, however, much to criticize about his emphasis on "public service" as well.

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Governments -- Don't "Inflexibly Cling[] To Free Speech ... With Absolute Disregard for Religious Feelings":

From what is apparently the Preliminary Document of the African Regional Conference Preparatory to the Durban [Anti-Racism] Review Conference — Draft proposal submitted by South Africa [i]n its capacity as coordinator of the group of African countries accreddited to the United Nations Office at Geneva:

We, the African Regional Conference, having met in Abuja from 24 to 26 August 2008 in the framework of the review of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban, South Africa, in 2001, hereby issue the following Declaration and Programme of Action:

13. Calls upon States to avoid inflexibly clinging to free speech in defiance of the sensitivities existing in a society and with absolute disregard for religious feelings; ...

On top of that, the Conference:

11. Reiterates strongly that freedom of religion or belief, freedom of opinion and expression, and non discrimination are interdependent, and stresses the need to strengthen the process of effectively adjudicating cases associated with incitement to religious hatred under article 20 of the International Covenant on Civil and Political Rights [which mandates that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence and other analogous instruments" "shall be prohibited by law"] ...

14. Reiterates that it is critical for Governments and the judiciary to ensure that acts that constitute incitement under article 20 of the International Covenant on Civil and Political Rights are closely monitored and do not enjoy impunity;

15. Urges the Human Rights Committee to clarify the scope and content of article 20 of the International Covenant on Civil and Political Rights with the aim, among other things, of defining an appropriate threshold for enacting relevant legislation;

16. Also urges States, as a matter of priority: ...

(c) To pay special attention to the political use of discrimination and xenophobia, notably the ideological and electoral permeation of racist and xenophobic platforms into the programmes of democratic parties; ...

20. Calls upon States to pay attention to the serious nature of incitement to religious hatred, such as anti-Semitism, Christianophobia and, more particularly, Islamophobia, and to promote the fight against those phenomena by strengthening interreligious and intercultural dialogue concerning the common ethics of all religions;

21. Calls also upon States to wage a systematic campaign against incitement to racial and religious hatred and to respect the complementarity of all the freedoms embodied in the International Covenant on Civil and Political Rights; ...

(Source: UN Watch, echoed by Canadian Jewish News; thanks to Religion Clause (Prof. Howard Friedman) for the pointer.)

The push for the new anti-blasphemy laws is alive and well. After all, "religious feelings" must be protected, and incitement of "hostility" to religions must be prohibited — only those who "inflexibly cling[] to free speech" can think otherwise.

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“Freedom of Speech, or of the Press” as the “Right To Speak, To Write, or To Publish,” Including Symbolic Expression:

So late 1700s and early 1800s judges and commentators accepted the equivalence of symbolic and verbal expression where the freedom of speech or of the press was concerned. But can this be legitimately done, at least as to symbolic expression that wasn’t printed on printing presses, given that the First Amendment expressly speaks only of “speech” and “press”?

If we pay attention to the constitutional text, presumably because the text received legal approval as the supreme law of the land, we should focus on what the phrase actually meant as a legal concept when it was enacted, and not just on what the individual words meant in lay language. This is why those Justices who most focus on the constitutional text continually stress the original meaning of the legal phrases. Likewise, Judge Bork and Senator Hatch, whom I quoted at the start of this article, are prominent originalists, not pure textualists.

Looking to the phrase’s legal meaning rather than the word-by-word lay meaning is especially sensible when we look at “the freedom of speech, or of the press”: Read in its most restrictive sense, the provision would leave the government free to punish its critics based on their personal letters or hand-lettered signs, though exactly the same statement would be protected if it were spoken or broadly disseminated through print. It’s hard to see why the Framers would have wanted to enact a provision with this sort of limitation. And the oddness of such a result points to the likelihood that the original meaning of “the freedom of speech, or of the press” was broader than the most restrictive reading of the individual words.

So what did the phrase “the freedom of speech, or of the press” mean? Apparently it meant what James Madison originally proposed as the text of the clause: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments.”

This was roughly the language suggested by the three state ratifying conventions that proposed a combined free speech and press guarantee -- Virginia, North Carolina, and Rhode Island. “[R]ight to speak, to write, or to publish” was also the language of the influential Pennsylvania Constitution of 1776, and of the Vermont Constitution of 1777. And the three most influential early writers on American law, St. George Tucker, Chancellor James Kent, and Justice Joseph Story, all expressly characterized the First Amendment as protecting a right to speak, to write, and to publish.

I’ve seen no evidence that the omission of the right “to write” was a deliberate decision to narrow the scope of Madison’s language. Tucker’s, Kent’s, and Story’s views suggest that there was no such deliberate decision, and the Court has correctly seen these early and learned sources as highly probative of the original meaning of the Constitution. The First Congress, when editing Madison’s proposal, thus apparently viewed “Congress shall make no law . . . abridging the freedom of speech, or of the press” as a synonym for “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments.”

(The Pennsylvania Constitution of 1790 replaced the language “That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained” with “The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.” Some other constitutions of the era likewise used “print,” though most used “publish.” This replacement may lead one to ask whether “publish” -- the term used in the forbears of the First Amendment -- was seen all along as a synonym simply for printing.

But the answer to that question is apparently “no.” First, the new introductory clause, which speaks broadly of “free communication of thoughts and opinions” is on its face broad enough to go beyond oral and written verbal expression. And, second, the sources cited in the previous Part -- including the views of post-1790 Pennsylvanian judges and lawyers -- show that the constitutional principle was seen as covering symbolic expression as well as the literally spoken, written, and printed expression. This constitutional protection may have been seen as stemming from “free communication of thoughts and opinions,” or “speak, write, and print” may have been seen as extending to analogous “publish[ing]” that didn’t literally use the spoken, written, or printed word. But in any case, such protection seemed to be assumed.)

So the First Amendment was likely originally understood as applying to “publishing.” And “publish” (or sometimes “publication”) meant, to quote Samuel Johnson’s Dictionary, “to make generally and openly known; to proclaim; to divulge,” and not only to print a book. Publishing thus included publicly displaying symbolic expression, and for that matter publicly speaking something. To quote Supreme Court Justice James Wilson, who was one of the leading drafters of the Constitution, a libel is “a malicious defamation of any person, published by writing, or printing, or signs, or pictures, and tending to expose him to publick hatred, contempt, or ridicule.” Blackstone, Chancellor Kent, other commentators, and leading cases likewise used “published” to refer to conveying symbolic expression and not just verbal expression. The same was true of blasphemy law and of obscenity law: “the showing of a picture [in that case, a painting] is as much a publication, as the selling of a book.”

The “right to speak, to write, or to publish” -- which is what the First Amendment was understood as securing -- thus literally covered the right to “publish” symbolic expression by publicly displaying it. The early courts’ and commentators’ treatment of symbolic and verbal expression as equivalent therefore fits well with the provision’s original meaning.

* * *

I hope, then, that I’ve shown one simple point: The original meaning of the First Amendment applies to symbolic expression -- as well as to handwriting -- as much as to spoken words (the narrowest meaning of “speech”) and to printed materials (the narrowest meaning of “press”). One can of course still argue that some sorts of symbolic expression, such as flag burning, should be constitutionally unprotected. But the argument that there is simply no First Amendment issue when symbolic expression is restricted, because such expression isn’t “speech” or “press,” is not supported by an originalist analysis.

(Note: To see the footnotes that support the assertions in this post and the preceding ones, look at the full current draft here, or, if that doesn’t work for you, here.)

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Four Ways to Rationalize the AIG Deal --

1. It really is a loan, not a purchase. 2. It’s a purchase but it’s called a loan and words like “interest rate” are used, so therefore the Fed can do it under the terms of the statute. 3. Even if it’s a purchase, the statute does not literally say that the Fed can’t purchase things and therefore (presumably under Chevron), the Fed has the authority to purchase (see Marty’s comment on my earlier post). 4. It’s an emergency, and a Schmittian state of exception is in play. No one really cares whether the transaction is lawful or not, just do something! Cite something in the Constitution – Article II, somewhere. I mean go to #3 and cite the canon of avoidance just to be sure! (Indeed, this post suggests that the executive branch is really pulling the strings.)

#2 is silly; #3 is a respectable type of legal argument, according to which every grant of authority to an agency for limited purposes turns into a grant of vast discretionary authority unless Congress very very busily lists all the things the agency can’t do; #1 remains possible but unlikely; #4 is most plausibly the truth. We might call #3 the polite version of #4, but to find out for sure I agree we’d need a test case where the Fed actually broke a clear rule – arrested AIG shareholders and put them in Guantanamo Bay or something like that. Maybe tomorrow.

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Palin for President:

The other one.

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ROTC At Columbia:

Barack Obama has given his blessing for ROTC to return to Columbia:

A vote to gauge the opinion of the entire student body on a repeal of the 40-year-old ban could come as early as this week.

A Columbia junior who is a marine officer candidate, Austin Byrd, said that the campus is abuzz about Mr. Obama's opposition, which he discussed at a forum on community service held at the university last week. He said he was surprised by the Democratic presidential candidate's "unabashed support" for allowing the program back on campus.

Other students said that the crowd of 7,500 that had gathered to watch the speech outside was similarly shocked.

A junior at Columbia, Jordan Hirsch, said that Mr. McCain was booed by students when he voiced his opposition to the ban, but that when Mr. Obama expressed a similar sentiment, the crowd had a different response.

"Almost everyone's expecting him to say no, because he's on our side, right? So then you heard him say 'yes' and everyone's mouths opened in stunned silence. It was absolutely priceless," Mr. Hirsch said.

The story reports that Columbia President Lee Bollinger voted to oppose ROTC's return in the Faculty Senate.

The Washington Post echoes Obama and McCain's views and also slips in an endorsement of Obama's views on "Don't Ask, Don't Tell."

Via Dartblog and Dartlog.

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The AIG Deal.

True, the Fed statute says that loans can be issued with conditions. As a commenter asks, what loan doesn’t have conditions? See here also. But the Fed statute does not say that the Fed can purchase businesses, and it seems reasonable to interpret the statute to forbid the Fed to purchase businesses. So here’s the question, is the AIG deal a purchase or a loan? I suspect the deal is a loan in form but a purchase in substance. Unfortunately, the details are not available, but the press accounts suggest that the Fed is receiving AIG equity (more precisely, the option to obtain equity) as collateral for the loan but that it’s going to exercise the option more or less automatically. Here’s an analogy. Suppose that I lend you $100 and we agree that all of the equity in your business will be collateral for the loan. The contract provides, however, that you must pay me interest of a gazillion dollars, due one second after closing, and that if you fail, that counts as a default, whereupon the collateral is mine. The parties use the loan form but substantively a sale occurs. A court would almost certainly interpret the transaction as a sale, not a loan, if tax or other legal consequences turned on the distinction. If the AIG loan is like this, then it’s illegal. So: why aren’t our rule-of-law friends yowling?

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What is the legal status of the AIG takeover?

I've been wondering and maybe you have been too. Here is one opinion:

I imagine that the legal answer to that question depends on a nice distinction between practice and plain language. Under the plain language of the statute, interpreted imaginatively, the Fed can extend credit, upon the right showing, to any company or individual, and so why not insist on conditions on the loan? Heck, why couldn't EPA, in the name of fishable swimmable rivers (that's Clean Water Act language), ban all pesticides, including dishwasher detergent, or nationalize water users like the steel industry? Maybe it can! Which might be good news for environmental activists.

I thank David Zaring for the pointer to this very interesting analysis (there is a related version of this post up at www.marginalrevolution.com). Do you know more?

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Taxpayers to Bail Out Ailing Insurance Giant: Big news:
Acting to avert a possible financial crisis worldwide, the U.S. Federal Reserve Board reversed course Tuesday and agreed to an $85 billion bailout that would give the U.S. government an ownership stake in the troubled insurance giant American International Group.

The decision, announced by the Fed only two weeks after the Treasury Department took over the quasi-government mortgage finance companies Fannie Mae and Freddie Mac, is the most radical intervention in private business in the central bank's history.
I never knew that's what they meant by an "ownership society."
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George Orwell on Judges Who Take Bribes From Both Sides in a Case:

Thomas Porteous, the Louisiana District judge who is being investigated by the House Judiciary Committee is accused of, among other things, taking money from lawyers on opposing sides of a case he was presiding over:

Two lawyers, Robert Creely and Jacob Amato, both friends of Porteous, admitted they had been making cash payments to him for more than a decade...

Yet it was a poorly timed proposition while hearing a case over the ownership of a Kenner hospital that led to what the [Fifth Circuit] Judicial Council called Porteous' most egregious actions.

During a fishing trip in May or June 1999, Porteous broke down, pleading with Amato for money to finance his son's wedding, documents show. Creely and Amato agreed to help, funneling a few thousand dollars to the judge. Porteous also had been receiving gifts, money, and expensive meals from other lawyers, including Don Gardner, Leonard Levenson and Warren "Chip" Forstall, the report says.

In May 1999, the judge took Creely and Gardner to Tim Porteous' bachelor party in Las Vegas. Forstall paid for the flight, and Creely paid for Porteous' hotel room at Caesar's Palace.

All this took place while Porteous was presiding over the hospital case. Amato, Creely's partner, was attorney for one party, and Gardner was representing the other side.

This reminds me of George Orwell's fictional description in Burmese Days, of U Po Kyin, a corrupt Burmese magistrate who takes bribes from both parties in a case and then issues rulings based solely on the legal merits:

As a magistrate his methods were simple. Even for the vastest bribe he would never sell the decision of a case, because he knew that a magistrate who gives wrong judgments is caught sooner or later. His practice, a much safer one, was to take bribes from both sides and then decide the case on strictly legal grounds. This won him a useful reputation for impartiality.

Of course, U Po Kyin's strategy might not be sustainable over the long run. Eventually, litigants would realize that bribing him doesn't improve their chances of winning a case. Thus, the truly sophisticated corrupt judge would allow bribes to influence the outcome at least occasionally, in order to keep the money coming. Perhaps that is what Judge Porteous did. Unlike Orwell's fictional magistrate, however, Porteous wasn't smart enough to avoid getting caught.

Related Posts (on one page):

  1. George Orwell on Judges Who Take Bribes From Both Sides in a Case:
  2. House Judiciary Committee To Investigate Possible Impeachment of Federal District Judge:
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Tuesday, September 16, 2008

Ninth Circuit Strikes Down Pest Control Licensing Scheme: Here's some Ninth Circuit judicial activism that many Volokh readers will like: Merrifield v. Lockyer. It's a decision by Judge O'Scannlain striking down a California pest control licensing regime, giving a victory to the Pacific Legal Foundation (and Timothy Sandefur, who argued the case).

  In 1995, California amended its licensing requirements for pest control companies. Before 1995, a license was required for all pest control. In 1995, the state eliminated the license requirement for those who do non-pesticide pest control of "bats, raccoons, skunks, and squirrels." At the same time, the state maintained the license requirement for those who do non-pesticide pest control of "mice, rats, or pigeons.” In this decision, the Ninth Circuit in a 2-1 decision invalidated the statute on the ground that there was no rational basis for distinguishing pest control for "bats, raccoons, skunks, and squirrels" from pest control of "mice, rats, or pigeons."

  I realize that many of our libertarian readers will cheer the decision — it's nicely libertarian decision. Indeed, if I were a legislator, I would vote against a licensing requirement for all non-pesticide pest control. But as a matter of existing law — boring, plain, doctrinal, what-the-books-say existing law — Judge O'Scannlain's decision seems incorrect to me. The rational basis test is very easy to meet, and it seems readily met here.

  The key reason is that the control of mice, rats, and pigeons is closely associated with the use of pesticides. In light of this close connection, the state might rationally be concerned that people would try to avoid the state licensing requirement by claiming that they do not use pesticides when they actually do. Also, the use of pesticides to control these pests is sufficiently effective that homeowners might be tricked: If a homeowner hires a pest control company to take care of a mouse problem, they're going to expect the use of pesticides, and if they don't inquire they may not realize that they're not getting them. In my view, that makes it rational to have licensing requirement for one but not the other.

  Of course, these rationales may or may not be persuasive to particular readers. As I said, I personally wouldn't vote for the limitation on the exemption; I would have exempted all non-pesticide pest control. But the issue here is constitutional law, not my personal policy views, and it seems pretty clear to me that the arguments are strong enough to get over the very low threshold of rational basis scrutiny. (Hat tip: Howard)
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International Variation in Political Ignorance about the Perpetrators of the 9/11 Attacks:

Last year, I blogged about a series of Pew surveys that showed that 28% of American Muslims, and large majorities in many Muslim populations around the world deny that the 9/11 attacks were perpetrated by Arab terrorists. World Public Opinion.org has an interesting new survey documenting opinion about the identity of the perpetrators of 9/11 in 17 countries around the world. On average, 46% of the WPO respondents correctly identify al Qaeda as the perpetrators, while 15% blame the United States government, 7% Israel, 7% cite other possible perpetrators, and 25% say they don't know who did it. The WPO results are not directly comparable to the earlier Pew surveys because the former are based on "open-ended" questions where respondents volunteer their own answers, while the Pew surveys forced respondents to pick from a list of predetermined options in a multiple choice format.

The WPO survey shows wide variation between countries. Predictably, respondents in the Arab world are much more likely to blame either the US government or Israel than those in other countries. This is true of 55% of Egyptians, 48% of Jordanians, and 46% of Palestinians. But even in Western Europe, 23% of Germans claimed that the US government perpetrated the attack.

Ignorance about the origins of 9/11 is partly caused by general "rational ignorance," arising from the fact that most ordinary citizens have little incentive to become informed about politics. But as I argued in last year's post on Muslim opinion, it is also partly the result of "rational irrationality," biased evaluation of the information you do have. Many studies show that people tend to reject political information that goes against their preexisting biases, while overvaluing data that supports them. Thus, people who tend to be hostile to the US and/or Israel or sympathetic to radical Islamism are more likely to deny that Al Qaeda perpetrated the attacks and instead point the finger at the US or its allies. That helps explain why Arab respondents are so much more likely to deny Al Qaeda's guilt than those elsewhere in the world. I discuss the logic of rational ignorance and irrationality in this article, among others.

The "rational irrationality" explanation of 9/11 ignorance is buttressed by the WPO study's striking finding that "those with greater education are only slightly more likely to attribute 9/11 to al Qaeda." As a general rule, political knowledge is highly correlated with education because educated people are more likely to be interested in politics and follow current events. In this case, however, the normal correlation between education and knowledge may be undermined by the fact that the educated are also more likely to have been exposed to various conspiracy theories blaming the US and Israel which (for some respondents) fit in with their preexisting biases. As I explained in January, widespread belief in crackpot conspiracy theories is yet another cost of political ignorance and irrationality.

Interestingly, the countries with the highest percentages of respondents who accurately identified al Qaeda as the perpetrators of 9/11 are two poor African nations with very low average education levels: Kenya (77%) and Nigeria (71%). The Kenyans and Nigerians did significantly better than respondents from many higher-income nations, including Germany (64%), Britain (57%), and Italy (56%). Even Nigerian Muslims (64%) outperformed all the high-income countries in the study other than Germany; presumably, Nigerian Muslims are on average less anti-American than those in the Middle East and Western Europe, and therefore less likely to reject evidence of Al Qaeda's responsibility due to anti-American bias. Similarly, they may also be less anti-American than many left-wing and radical right-wing nationalist Europeans (groups who are disproportionately represented among 9/11 deniers in Western Europe). This result further reinforces the view that ignorance about the perpetrators of 9/11 is more the result of irrationality than lack of exposure to information.

Finally, it should be emphasized that simple rational ignorance should not be entirely discounted as a contributing factor driving the WPO survey results. Anti-American and anti-Israeli bias surely explain a lot. But even among respondents who have a generally positive view of the US role in the world, only 59% correctly identified al Qaeda as the perpetrators of 9/11 (compared to 40% among those with a negative view).

NOTE: The way the WPO survey results are reported in the link above slightly overstates ignorance about the perpetrators of 9/11 by classifying respondents who identified the perpetrators as "Arabs" or "Saudis" as having given an answer of "other." All of the 9/11 hijackers were Arabs and 15 of 19 were Saudis. The PDF version of results (available by clicking "Questionnaire/Methodology (PDF)" on the WPO website) shows that, in most countries, no more than 3-5% of respondents gave these types of responses which, although they didn't mention the term "Al Qaeda" should probably be considered accurate.

UPDATE: I just realized that I accidentally failed to include a link to the WPO website reporting the results in the first paragraph of this post. That mistake has now been corrected. Sorry for the annoying error.

UPDATE #2: As several commenters point out, the high correct response rate in Kenya may be due in part to the fact that Kenya was the victim of a 1998 Al Qaeda attack targeting the US embassy in that country. The terrorists ended up killing many more Kenyans than Americans. No doubt, many Kenyans remember this and are therefore disinclined to ignore evidence showing that Al Qaeda was responsible for atrocities elsewhere.

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Interesting Second Amendment Challenge to a Lengthy Firearm Sentence

Over at Sentencing Law and Policy, Professor Doug Berman has this interesting post about a motion he has filed on behalf of Weldon Angelos attempting to set aside at least part of his 55-year prison sentence for carrying/possessing guns in connection with several low level marijuana deals.

Berman's post links to a motion he has filed, arguing that part of the 55-year sentence is now invalid after Heller because it punished Angelos for keeping firearms around his house. Angelos, the argument continues, had a constitutional right to keep and bear arms, including arms at his house. Here is a snippet of the argument:

Though the government may eventually dispute some facts set forth in the 2255 motion, there is no dispute that Angelos had no adult criminal record prior to the instant case and that he was subject to 55 years of mandatory federal imprisonment based principally on allegations of possession of firearms in his home, in his car, and on his person. Specifically, the firearms providing the basis for one 25-year mandatory sentencing term were those present within Angelos’s home. And though there is a dispute concerning whether Angelos possessed a firearm during the marijuana sales engineered by the government’s informant, there is no evidence whatsoever or even any serious allegation that Angelos actively utilized firearms to facilitate three uneventful hand-to-hand marijuana sales. Nevertheless, on the basis of (suspect and perhaps incredible) testimony of a single government informant, who belatedly asserted that Angelos possessed a firearm during two marijuana sales, the district court felt obliged under statutory sentencing provisions to impose another 30 years of federal imprisonment.

In light of the Supreme Court’s broad and forceful recognition of the right of all citizens under the Second Amendment to possess firearms to effectuate “the inherent right of self-defense,” District of Columbia v. Heller, 128 S. Ct 2783, 2817 (2008), the extreme sentence imposed upon Angelos for gun possession are now clearly unconstitutional and his 55-year sentence must be at least partially vacated. As explained more fully below, the Supreme Court’s landmark Heller ruling as applied to the unique facts of this case render unconstitutional (1) the Government’s pursuit of a superseding indictment threatening a 25-year mandatory prison sentence based on the presence of guns within the Angelos home, and (2) the imposition of 55 years of federal imprisonment Angelos is now serving based on his gun possession.

In addition, the Heller ruling, considered together with the Supreme Court’s most recent explication of Eighth Amendment jurisprudence and its application in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), confirms that the 55-year federal prison term that Angelos is serving based on the possession of firearms is constitutionally excessive. Indeed, the combined force of the Heller and Kennedy rulings, along with the notable and constitutionally significant public reactions to both decisions, make plain that the sentence Angelos is now serving violates “the evolving standards of decency that mark the progress of a maturing society.” Id. at 2664 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

You can download the whole brief over at Berman's blog.

Note: Professor Berman is trying to get me reversed here. I was the federal district court judge who, very reluctantly, had to impose the 55 year sentence.

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"Illegal Alien" or "Undocumented Immigrant"?

The California Court of Appeal panel in Martinez v. Regents votes for "illegal alien":

Defendants prefer the term “undocumented immigrants.” However, defendants do not cite any authoritative definition of the term and do not support their assertion that the terms “undocumented immigrant” and “illegal alien” are interchangeable. We consider the term “illegal alien” less ambiguous. Thus, under federal law, an “alien” is “any person not a citizen or national of the United States.” A “national of the United States” means a U.S. citizen or a noncitizen who owes permanent allegiance to the United States. Under federal law, “immigrant” means every alien except those classified by federal law as nonimmigrant aliens. “Nonimmigrant aliens” are, in general, temporary visitors to the United States, such as diplomats and students who have no intention of abandoning their residence in a foreign country. The federal statutes at issue in this appeal refer to “alien[s] who [are] not lawfully present in the United States.” In place of the cumbersome phrase “alien[s] who [are] not lawfully present,” we shall use the term “illegal aliens.”

Obviously, both terms have their own connotations, and people making rhetorical arguments understandably prefer to use the one that has the connotation they like. But I tend to agree that "undocumented immigrant" is both less precise as a matter of immigration law and (as a separate matter) less literally descriptive than "illegal alien." The problem with the aliens — the problem they face, and the problem many others have with them (rightly or wrongly) — isn't just that they somehow lack documents. It's that they're here without legal authorization, which is to say illegally (though to my knowledge in some situations not criminally, at least unless they reenter having been deported). [UPDATE: I at first said "to my knowledge generally not criminally," but the comments made me even less sure of that than I already was, so I softened this to "in some situations not criminally"; I hope to be able to look into this more, but for now let me leave this last parenthetical conveniently vague.]

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California Statute Allowing In-State College Tuition for Illegal Aliens Is Preempted by Federal Law:

So the California Court of Appeal held yesterday in Martinez v. Regents:

[T]he most significant issue [in this case] is whether California’s authorization of in-state tuition to illegal aliens violates a federal law, title 8 of the United States Code (U.S.C.) section 1623, which provides as pertinent:

“Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”

The respondents argue the federal statute is not violated for two reasons:

1. Respondents say in-state tuition is not a “benefit” within the meaning of the federal law. For reasons we shall explain, we conclude in-state tuition, which is some $17,000 per year cheaper than out-of-state tuition at UC, is a “benefit” conferred on illegal aliens within the meaning of the federal law.

2. Respondents argue in-state tuition is not granted “on the basis of residence within a state” as required by federal law. Respondents point to the fact that in-state tuition for illegal aliens is based on a student’s having attended a California high school for three or more years and on the student’s having graduated from a California high school or having attained “the equivalent thereof.” As we shall explain, the three-year attendance requirement at a California high school is a surrogate residence requirement. The vast majority of students who attend a California high school for three years are residents of the state of California. Section 68130.5 thwarts the will of Congress manifest in title 8 U.S.C. section 1623.

The court's bottom line conclusion is simply that the case may "proceed in the trial court," but its legal analysis suggests that the state statute is indeed preempted by the federal statute, as a matter of law with no further factfinding required.

Thanks to Greg Broderick for the pointer.

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Symbolic Expression in Late 1700s and Early 1800s Discussions of Constitutional Law:

The view that symbolic expression is functionally equivalent to verbal expression, and therefore should be treated the same, would logically apply to constitutional speech protections as well as to speech restrictions. And this is indeed what several sources from the 1790s to the 1830s, and from several states, assume.

(Sources from the first half of the 19th century are generally considered to be probative of the original meaning of the Constitution, and have often been used this way by the Supreme Court. Though there's always the risk that there was a major change in understanding of a provision in the decades following 1791, in this instance I have not found any evidence that this happened. Early 19th century sources are also relevant to understanding the original meaning of the First Amendment in 1868, when the Fourteenth Amendment was enacted, since it is the Fourteenth Amendment that has been read as applying the First Amendment to the states. Likewise, I rely on cases and commentaries related to state constitutional provisions because they were generally viewed as similar in scope to the federal ones, and the law of freedom of the press was seen as a national body of law, albeit with occasional differences among jurisdictions. The Supreme Court has often relied on early interpretations of state constitutional provisions as elucidating the legal principles that were also implemented in federal constitutional provisions.)

1. The very first American case in which a speech restriction was held unconstitutional on free speech/free press grounds -- the 1839 New York Brandreth v. Lance decision -- treated paintings as tantamount to printed words. (During the late 1700s and early 1800s, very few speech-restrictive actions were set aside by courts on constitutional grounds. Most speech restrictions of the era were judge-made, so the judicially developed constitutional rules understandably fit with the judicially developed restrictions.) Brandreth set aside a lower court injunction against an allegedly libelous unauthorized biography, reasoning that:

[T]his court cannot assume jurisdiction of the case presented by the complainant’s bill, or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to any tribunal consistently with the principles of a free government. (2 R. S. 737, § 1, and Revisers’ note.)

This analysis was based on constitutional principles: “Liberty of the press” was the phrase used in the New York Constitution, and the cited Revisers’ Note made clear that the cited statute was seen as implementing the constitutional free speech/press provision.

Immediately after the just-quoted sentence, the Brandreth court had to deal with the contrary precedents that did authorize injunctions of alleged libels. A few were easily disposed of: Some were from the much-despised Star Chamber of the early 1600; another was from the notoriously oppressive Chief Justice Scroggs, and the Brandreth court pointed out that “[t]he house of commons . . . considered this extraordinary exercise of power on the part of Scroggs as a proper subject of impeachment.”

But the court then had to consider a much more recent case: an 1810 English decision stating that an injunction could indeed be issued against “exhibition of [a] libelous painting.” If the constitutional protections were understood as covering only verbal expression, or even verbal expression plus pictures printed using a printing press, the painting case could have been easily distinguished.

Instead, the Brandreth opinion expressly rejected the reasoning of the painting case, on the grounds that the decision “excited great astonishment in the minds of all the practitioners in the courts of equity,” and “must unquestionably be considered as a hasty declaration, made without reflection during the progress of a trial . . . and as such it is not entitled to any weight whatever.” The court treated the painting case as being a “case of the like nature” to the case about the published book -- and as being equally subject to the “liberty of the press.” Symbolic expression (paintings) was viewed as legally equivalent to verbal expression (biography) where free press protections were concerned.

2. Likewise, consider Justice Morton’s dissent in Commonwealth v. Kneeland, an 1838 Massachusetts blasphemy case. “[T]he liberty of the press,” Justice Morton wrote -- and the official Reporter of Decisions echoed in the summary of the majority opinion -- did not “restrain the legislative power in relation to the punishment of injuries to individuals, or of the disturbance of the peace, by malicious falsehoods or obscene or profane publications or exhibitions.” “[O]bscene or profane . . . exhibitions” likely referred to paintings or displays; Justice Morton was treating such nonverbal expressions as tantamount to verbal expressions, which lose their protections because they are “obscene or profane” and not because they are “exhibitions” rather than spoken or printed words.

Justice Morton similarly derided plaintiff’s freedom of the press argument by saying,

Under [the state constitution’s Liberty of the Press Clause], the defendant claims for every citizen a right to publish, in any form, by printing or pictures, whatever he pleases, without liability to punishment, . . . [n]o matter how obscene, how profane, how blasphemous, how revolting to the sentiments of the community, [or] how shocking to their notions of decency and decorum.

The claim of a “right to publish, in any form, by printing or pictures” wasn’t rejected on the grounds that “press” didn’t cover “publish[ing] . . . by . . . pictures,” a phrase that would have included exhibition of hand-drawn material. Rather, symbolic expression was treated the same way as the “printing” of verbal profanity and blasphemy, such as the printed blasphemous words involved in Kneeland itself.

3. The report of Mezzara’s Case, apparently the earliest American case involving symbolic libel -- there, a painting of plaintiff with ass’s ears -- likewise indicates that free speech and press principles were seen as applying to such symbolic expression. The reporter (Daniel Rogers, a New York lawyer) followed the case with a note hypothesizing what would happen if the painting had been an apt commentary on the subject’s folly and lack of patriotism. In such a situation, the reporter wrote, “if the painter could show the truth of the matter in evidence, as before described, and that he published and exhibited the picture, ‘with good motives and for justifiable ends,’ . . . would he not be justifiable under our statute?”

The statute the reporter cites was passed in the wake of the New York court’s even division in People v. Croswell on whether truth was a constitutionally required defense in libel prosecutions. The statute implemented Chancellor Kent’s view of the constitutional rule, and was seen as an important protection for the liberty of the press. And just four years after Mezzara’s Case, at the next New York constitutional convention, the statute’s provisions were adopted as part of the New York Constitution. The reporter thus saw nothing odd in treating a painting as protected by free speech/press principles, just as the law saw nothing odd in treating a painting as punishable under libel law principles.

* * *

Standing alone, each of these sources would not be dispositive. Some were some decades removed from the Framing. Others spoke generally without having to deal with a concrete fact pattern involving symbolic expression. Others were extrajudicial commentaries or lawyers’ arguments rather than judicial opinions. Each could be suspected of being the idiosyncratic view of one author, or of one state’s legal system. But together, the sources are highly probative, precisely because they show a consistent pattern from the 1790s to the 1830s and in many states, and because they show that the equivalence of symbolic and verbal expression was taken for granted by judges, commentators, and lawyers alike.

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House Judiciary Committee To Investigate Possible Impeachment of Federal District Judge:

The House Judiciary Committee is set to investigate Louisiana federal district Judge Thomas Porteous for possible impeachment on a variety of charges:

The U.S. House Judiciary Committee could form a task force as early as Wednesday to examine the case for impeachment against federal Judge Thomas Porteous.

Committee leaders called today for a vote to jumpstart the congressional inquiry into Porteous' alleged misdeeds, including accusations of bankruptcy fraud, perjury and wanton gambling. The move signals the first actions in Congress to examine the Porteous case since the Judicial Conference of the United States, led by Supreme Court Chief Justice John Roberts, recommended in June that the House go forward with impeachment proceedings.

It would be the first impeachment of a federal judge in almost 20 years.

Related Posts (on one page):

  1. George Orwell on Judges Who Take Bribes From Both Sides in a Case:
  2. House Judiciary Committee To Investigate Possible Impeachment of Federal District Judge:
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Brain Scanner Evidence Used for Conviction in India:

The International Herald Tribune reports:

[W]ell before any consensus on the technology's readiness, India has become the first country to convict someone of a crime relying on evidence from this controversial machine: a brain scanner that produces images of the human mind in action and is said to reveal signs that a suspect remembers details of the crime in question....

[I]n June, in a murder case in Pune, in Maharashtra State, ... a judge explicitly cited a scan as proof that the suspect's brain held "experiential knowledge" about the crime that only the killer could possess, sentencing her to life in prison.

Psychologists and neuroscientists in the United States, which has been at the forefront of brain-based lie detection, variously called India's application of the technology to legal cases "fascinating," "ridiculous," "chilling" and "unconscionable." ...

"I find this both interesting and disturbing," Henry Greely, a bioethicist at Stanford Law School, said of the Indian verdict. "We keep looking for a magic, technological solution to lie detection. Maybe we'll have it someday, but we need to demand the highest standards of proof before we ruin people's lives based on its application." ...

"Technologies which are neither seriously peer-reviewed nor independently replicated are not, in my opinion, credible," said [J. Peter] Rosenfeld, a psychologist and neuroscientist at Northwestern University and one of the early developers of electroencephalogram-based lie detection[, speaking of the particular approach used in the Indian case -EV]. "The fact that an advanced and sophisticated democratic society such as India would actually convict persons based on an unproven technology is even more incredible." ...

Thanks to GeekPress for the pointer.

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I Have Good News and Bad News: The bad news is that Wall Street is in trouble. The good news is that violent crime rates are down, too. Hat tip: Crime & Consequences.
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Symbolic Expression in Late 1700s and Early 1800s Speech Restriction Law:

Let us begin our view of symbolic expression in Framing-era law by looking at speech restrictions. We'll get to speech protections in coming posts, but the law of speech restrictions is relevant because speech restrictions and speech protections were seen as closely related during the era: The restrictions were recognized exceptions from the constitutional freedoms, and the freedoms were recognized as being constrained by the traditional restrictions.

Speech restriction law of the late 1700s and early 1800s took a functional view of symbolic expression, and generally treated it the same as verbal expression. As William Hawkins’ Pleas of the Crown (1716) explained -- in language quoted in the famous American seditious libel trial of John Peter Zenger -- “[S]ince the plain meaning of [defamatory] scandal as is expressed by signs or pictures[] is as obvious to common sense, and as easily understood by every common capacity, and altogether as provoking, as that which is expressed by writing or printing, why should it not be equally criminal?”

We see this equivalence as early as Sir Edward Coke’s report of De Libelli Famosis (1606):

Every infamous libel, [either is] in scriptis, [or] sine scriptis [i.e., without writing]; a scandalous libel in scriptis when an Epigram, Rhime, or other writing is composed or published to the scandal or contumely of another, by which his fame and dignity may be prejudiced. And such libel may be published, 1. Verbis aut cantilenis: As where it is maliciously repeated or sung in the presence of others. 2. Traditione, when the libel or copy of it is delivered over to scandalize the party. Famosus libellus sine scriptis may be, 1. Picturis, as to paint the party in any shameful and ignominious manner. 2. Signis, as to fix a Gallows, or other reproachful and ignominious signs at the parties door or elsewhere.

Later sources constantly repeated these two categories of symbolic expression to verbal expression. Blackstone’s Commentaries (1765) defined libel to include “pictures, signs, and the like” alongside verbal expression; “signs” was a literal translation of Coke’s “signis,” apparently in the sense of “symbols,” such as Coke’s gallows. Hawkins’ Pleas of the Crown took the same view as Blackstone. American sources, which often cited Blackstone and sometimes Hawkins, naturally followed suit. This meant libel law covered a wide range of symbolic actions, processions, and pictures, for instance:

  • burning an effigy of a person,
  • hanging an effigy of a person,
  • engaging in a “procession carrying a representation of the plaintiff in effigy,”
  • painting a man “with a fool’s cap, or coat, or with horns, or . . . asses ears,” or “playing at cudgels with his wife,”
  • “placing a wooden gun at an officer’s door, thereby implying cowardice,”
  • hanging “Wool upon a Tree near the High-way, before the Plaintiff’s Dwelling-house,” which was understood to suggest that the plaintiff was a wool thief,
  • lighting a lantern outside a person’s house, implying the house was a brothel,
  • “carrying a fellow about with horns, and bowing at [the plaintiff’s] door,” implying the plaintiff’s wife is unfaithful,
  • displaying an etching of plaintiff’s head, with an iron nail driven into his ear and scissors attached to the nail, implying the plaintiff is a perjurer,
  • and “riding Skimmington” (see the picture below), a “ludicrous cavalcade, in ridicule of a man beaten by his wife,” consisting “of a man riding behind a woman, with his face to the horse’s tail, holding a distaff in his hand, at which he seems to work, the woman all the while beating him with a ladle; a smock displayed on a staff is carried before them as an emblematical standard, denoting female superiority: they are accompanied by what is called the rough music, that is, frying-pans, bulls horns, marrow-bones and cleavers, &c.”

"Hudibras Encounters the Skimmington," by William Hogarth & Thomas Cook (1802)

Symbolic expression and verbal expression were likewise equivalent under the law of sedition. They were equivalent under the law of obscenity, sometimes called “obscene libel”: “In [obscenity law], as in private libels and slanders, the communication may be, not only by writings and words, but also by exhibitions, symbols, and pictures.” They were equivalent under the law of slander, to the extent that some impromptu symbols were treated as tantamount to spoken slander (the examples above were of more elaborate symbols that were treated as tantamount to written libels).

And symbolic expression and verbal expression were equivalent under the law of blasphemy, or “blasphemous libel.” Though blasphemy was generally seen as consisting of “oral or written” “words,” a leading blasphemy case suggested the crime could equally be committed by burning an effigy of Jesus Christ; depicting the Virgin Mary as “naked . . . in the act of prostitution”; or, in a hypothetical majority Muslim or Jewish community, “gibbeting the image of the prophet,” “burning the koran by the hands of the common hangman,” “burning the prophets in effigy,” or “maliciously stamping the pentateuch under foot.”

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Monday, September 15, 2008

Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?: Corey Rayburn Yung argues that the answer is "no."
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If You're Interested in Law and Religion,

you should be reading Prof. Howard Friedman's Religion Clause blog -- the most comprehensive and timely news source I've seen on law and religion issues. The blog covers both American news and foreign, and both court cases and newspaper reports. It's like How Appealing but for law and religion rather than for appellate cases; I highly recommend it.

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"Religious Decree Saying It Is Permissible To Kill the Owners of Satellite TV Networks That Broadcast Immoral Content"

issued by "Saudi Arabia's top judiciary official." So reports the Associated Press:

The 79-year-old Sheik Saleh al-Lihedan said Thursday that satellite channels cause the "deviance of thousands of people." ...

Al-Lihedan is chief of the kingdom's highest tribunal, the Supreme Judiciary Council. Saudi Arabia's judiciary is made up of Islamic clerics whose decrees, or fatwas, on everyday issues are widely respected. Their fatwas do not have the weight of law. In the courts, cleric-judges rule according to Islamic law, but interpretations can vary....

TheNational (United Arab Emirates) reports that the judge later "sought ... to play down his comments." Originally,

In reply to a listener’s question about “bad programmes” on television, Sheikh Lihedan, 79, said: “What does the owner of these networks think when he provides seduction, obscenity and vulgarity? Those calling for corrupt beliefs, certainly it’s permissible to kill them. Those calling for sedition, those who are able to prevent it but don’t, it is permissible to kill them.”

This led to condemnation by "Sheikh Abdul Mohsen al Obaikan, a popular moderate religious scholar closely allied to the [Saudi] government" and by Saudi newspaper editors, al-Linedan issued a "clarification":

He insisted that he had not meant to refer to all “immodest” television programmes, merely to those that broadcast black magic and sorcery. He did not backtrack on the suggestion that network owners could face the death penalty, but said execution could take place only after a “judicial process”.

Sheikh Lihedan’s views on “sorcery” were, in fact, echoed by another senior Saudi cleric, who was quoted yesterday advancing a similar argument in response to queries about the original controversy.

Sheikh Saleh al Fozan, who is a member of the Higher Council of Clerics, went as far as to say that those who read horoscopes on Arab television should face the death penalty.

“Sorcerers who appear on satellite channels who are proven to be sorcerers have committed a great crime ... and the Muslim consensus is that the apostate’s punishment is death by the sword,” Sheikh Fozan told Al Madina newspaper. “Those who call in to these shows should not be accorded Muslim rites when they die.”

Thanks to Prof. Howard Friedman (Religion Clause).

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What Has the Supreme Court Said About When Government Libraries May Remove Books?

[Reposted because comments didn't work on the earlier version.]

The answer, it turns out, is that the Supreme Court has never given an answer. The issue was indeed before the court in Board of Ed. v. Pico, but — despite some people's reading of the case — the Court did not resolve it.

All the Justices in Pico seemed to agree that removing books for some reasons would be constitutional, for instance if the books used vulgarities that were reasonably seen as inappropriate for the books' target age group. Four Justices took the view that removing books based on disagreement with the ideas that the books expressed would be unconstitutional; they therefore voted to affirm the appellate court decision, a decision that sent the case back to trial court for factfinding on the motivation for the removals. But four other Justices took the view that a government's removal of books from its own library was constitutionally permissible (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans), and thus no further factfinding on the true motives was necessary.

That leaves one Justice, Justice White. He did concur in the judgment, voting to affirm the lower court decision that sent the case down for factfinding. But he expressly declined to endorse the constitutional view of either group:

The District Court found that the books were removed from the school library because the school board believed them "to be, in essence, vulgar." Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board's removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions."

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: "In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred."

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

The Court's fractured decision in United States v. American Library Ass'n — where there was also no majority opinion — doesn't resolve the issue, either. And no other decisions outside the library context dictate, or in my view strongly suggest, a result. If the library were treated as a "designated public forum" that's generally open for a nearly limitless variety of speech, then the library wouldn't be able to set up viewpoint-based restrictions on such speech. But library shelving decisions have never been treated as such a forum, because the choice of what books to select in the first place inherently involves some content-based and often some viewpoint-based judgment. There's no caselaw that squarely tells us whether there are nonetheless constitutional constraints on such judgment, or whether removal decisions are constitutionally different from selection decisions.

In some ways, NEA v. Finley is somewhat on point, because it too involves government action that aims to impose some quality judgments, and that is inherently content-based; and Finley does suggest that "invidious viewpoint discrimination" in such judgments may be unconstitutional, though presumably non-invidious viewpoint discrimination would be permissible. But Finley's point is just a suggestion — the Court specifically stresses that "we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination," and while there's also wording there that suggests such invidious viewpoint discrimination would be impermissible, there's no square holding. There is also no definition of when viewpoint discrimination becomes "invidious," and it's not clear to what extent the Finley case, involving arts grants, would carry over to the public library context (and especially public library books aimed at children).

(Note that Pico was a school library case, and one could certainly argue that decisions as to other public libraries, and especially the adult-aimed collections of those libraries, are constitutionally different from decisions as to school libraries or as to the children's collections of other public libraries. But while this isn't an implausible argument, it is again not one that is firmly supported by existing precedent.)

So all this should make clear, I think, that there's no answer from the Supreme Court on the subject; nor to my knowledge is there a broad and firm consensus of lower courts. My tentative sense is that, when it comes to shelving and removal decisions, then-Justice Rehnquist's argument in Pico is the more persuasive one, at least as to the decisions in the inherently content-based field and often viewpoint-based field of what is on the library shelves (though not necessarily as to Internet access decisions, which could be content-neutral and especially viewpoint-neutral). I also tend to agree with David's view on whether such removal decisions violate basic libertarian principles, and with Dale's analysis of the specific controversy — involving Gov. Palin — in which the subject has most recently arisen. (I also think it's quite proper for people to fault certain kinds of book removal decisions on the grounds that those decisions show narrow-mindedness, or deny library patrons — including children — valuable information, and are thus improper even though they aren't unconstitutional or even more broadly rights-violating. Of course, as with many ethical judgments, such a judgment will turn considerably on the details of each case.)

But my point in this post is the narrower one, albeit one on which I think I can be more helpful: Contrary to what some have said, the Supreme Court has not decided whether and when a government-run library may remove books based on their ideas.

Related Posts (on one page):

  1. What Has the Supreme Court Said About When Government Libraries May Remove Books?
  2. "Bookbanning":
  3. Did Palin try to ban books from the local library?
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A Brief Note on Symbolic Expression During the Framing Era:

Before I get to my specifically legal argument about symbolic expression and the original meaning of the First Amendment, I wanted to say a bit about the kinds of symbolic expression that were commonplace in England and especially America of that time. Of course, the common nature of such symbolic expression doesn’t by itself prove that such expression is constitutionally protected; but it helps show why the evidence that I have come up with makes sense in light of the Framing era’s actual practice of using symbolic expression interchangeably with words. Plus some of the items are quite a bit of fun.

To begin with, one of the leading English holidays, Guy Fawkes Day (called Pope Day in the colonies), revolved around processions and burning effigies. John Jay, the coauthor of The Federalist, Supreme Court Chief Justice, and negotiator of a much-opposed treaty with England, “wryly observed that he could have found his way across the country by the light of his burning effigies in which he was represented selling his country for British gold” -- a continuation of the pre-Revolutionary pattern of burning the effigies of disliked colonial governors.

And sometimes the effigies became parts of more elaborate, and at times self-consciously humorous, displays. In the first major protest against the Stamp Act, colonists placed on a “Liberty Tree” (in that case, a large elm) various effigies, including a “devil . . . peep[ing] out of a boot -- a pun on the name of former British Prime Minister Lord Bute (pronounced Boot), who was widely if erroneously believed to be responsible for the Stamp Act”; “[t]he effigies were then paraded around town, beheaded, and burned.”

Puns were commonplace in other contexts as well. For instance, English supporters of restoring the Stuarts would pass a wine glass over a water jug while drinking a toast to the health of the king, as a clandestine symbol that one is toasting the “King over the Water,” which is to say the Pretender, who lived in exile in France.

Numbers often played a role in symbolic displays. Englishmen and Americans who sympathized with English radical and colonial hero John Wilkes not only toasted him, but toasted and celebrated him using a number associated with him: Forty-five toasts -- representing issue 45 of Wilkes’ North Briton, which got him prosecuted for seditious libel and made him a star -- were drunk at political dinners where forty-five diners ate forty-five pounds of beef; at other dinners, the meal was “eaten from plates marked ‘No. 45’”; the Liberty Tree in Boston had its branches “thinned out so as to number forty-five.” Note also that here, as well as in some of the other examples, literal speech (the words of the toasts) was freely mixed with symbolic expression.

"Funeral Procession of the Black Cockade," by Lewis Miller (ca. 1800)

I haven’t seen the Framers wearing symbolic armbands, but their equivalent were cockades worn in hats. Thus, for instance, many 1790s Americans wore colored cockades to represent their Republican (red, white, and blue, referring to Republican sympathy for the French Revolution) or Federalist (black) allegiances. Some wore cockades made of cow dung as a mockery of the other side’s cockades. Some conducted mock funerals for the other side’s cockades (see the picture above). Mock funerals occurred in other contexts as well: For instance, colonists conducted funeral processions for liberty as protests against the Stamp Act.

"Raising the Liberty Pole," by Frederic A. Chapman (1875)

Flags and liberty poles (see the picture above) also played a role. (Liberty poles were often described as “standards,” in the sense of the equivalents of flags.) From the pre-Revolutionary era to the 1790s, Americans raised liberty poles as symbols of opposition to what they saw as oppressive conduct by the government. They burned “Liberty or Death” flags stripped from their adversaries’ liberty poles. They planned elaborate pantomimes criticizing their Congressmen, with displays of the French and American flags crowned with liberty caps, an upside-down British flag, and a gallows, followed by the burning of the British flag.

And burning played a major role as well, as I’ve already suggested. After the Revolution, Americans burned copies of the Sedition Act and other federal laws. They burned copies of opponents’ publications that they saw as libelous, echoing the English legal practice of having libels be burned by the hangman.

So it is understandable that a nation that so often used symbolic expression as part of politics would see the freedom of speech and press as covering symbolic expression to the same extent as verbal or printed expression. Likewise, it makes sense that the protection for symbolic expression on the Supreme Court dates back to the very first Supreme Court decision striking down any government action on free speech or free press grounds. The Court in that 1931 case simply casually assumed that symbolic expression was as protected as verbal expression, and treated the display of a red flag as legally tantamount to antigovernment speech. But its assumption was consistent with the First Amendment’s original meaning: The equivalence of symbolic expression and verbal expression has been part of American practice -- and, as I’ll try to show below, American law -- since the Framing era.

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Symbolic Expression and the Original Meaning of the First Amendment:

I have an article with this title coming out next year in the Georgetown Law Journal, and I thought I’d serialize it here. You can read the full current draft here (or, if that doesn’t work for you, here), and see all the footnotes. If you’re wondering about the support for some of my assertions, please check the draft first. Plus, as a special bonus, you can think about how to cite to a case from the Star Chamber that isn’t available in Eng. Rep., but is reported in John Rushworth, Historical Collections of Private Passages of State, Weighty Matters in Law, [and] Remarkable Proceedings in Five Parliaments, published in 1680, or speculate whether the Bluebook’s section on New York caselaw should list the New York City Hall Record.

In any case, let me begin with the Introduction (plus some items from the Conclusion).

* * *

The First Amendment protects only “speech” and “press,” not “expression”: So some argue, condemning the Court’s symbolic expression cases. Judge Robert Bork writes that “burning a flag is not speech and should not fall under First Amendment protection.” Senators Orrin Hatch and Dianne Feinstein agree, as do many journalists, activists, and commentators.

Others similarly reason that the First Amendment doesn’t protect the wearing of symbolic armbands or Ku Klux Klan regalia, or the symbolic refusal to salute a flag. Judge Richard Posner concludes that “Nothing in the text of the Constitution, or in the eighteenth century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech,” partly because “Burning a flag is not even ‘speech’ in a literal sense.” (Because Posner is not a textualist or an originalist, however, he doesn’t fault the Court’s results in symbolic expression cases; rather, he correctly points out that the Court didn’t support those results on textualist or originalist grounds, and argues — incorrectly, as I argue below — that those results can’t be supported on such grounds.)

The Supreme Court has disagreed with the Bork/Hatch/Feinstein position, and has generally treated “inherently expressive” or “conventionally expressive” symbolic expression the same way spoken words and printed matter are treated. Symbolic expression, the Court has concluded, is basically functionally identical to expression through words, and should thus be treated the same: The two convey much the same messages through much the same mental mechanism, with much the same effects and for much the same speaker purposes. But are the Court’s critics right, at least if one focuses on the text and original meaning of the First Amendment? Is the Court’s doctrine here vulnerable to reversal given the Court’s growing turn to original meaning analysis?

Even conservatives on the Court and elsewhere have usually shown little interest in revisiting the Court’s general free speech/free press precedents, which now consist of many hundreds of cases, or in adopting some Framers’ attitudes towards seditious libel or even offensive public speech generally. But returning the definition of “speech” and “press” to its original meaning might be feasible, and the call to return to this definition deserves to be considered.

In this essay, I’ll argue that the Court has had it right all along, and that the Court’s critics are mistaken on originalist grounds. (The critics have not, to my knowledge, precisely defined their vision of what constitutes “speech,” and in particular whether it’s limited to spoken words — with “press” to cover printed words — or whether it is used more broadly to refer to all verbal expression but not to symbolic expression. My argument is that the original meaning of “the freedom of speech, or of the press” is broader than either of these definitions, because it covers conventionally expressive symbols as much as it covers verbal expression, whether spoken, handwritten, or printed.) The equivalence of symbolic expression and verbal expression is actually consistent with the First Amendment’s original meaning:

1. Late 1700s and early 1800s courts treated symbolic expression and verbal expression as functionally equivalent when it came to speech restrictions, such as libel law, obscenity law, and blasphemy law. Symbolic expression, for instance, could be just as libelous as verbal expression.

2. This logic and tradition of equivalence extended to speech protections as well as speech restrictions. Paintings, liberty poles, and other symbolic expression (even outside the “press”) appeared to be no less and no more protected than spoken and printed words. In fact, the first decision in any American court striking down government action on free speech or free press grounds (in 1839) treated symbolic expression and verbal expression as interchangeable.

3. And this equivalence of symbolic and verbal expression fit well with the original meaning of the First Amendment. Leading commentators St. George Tucker, Chancellor Kent, and Justice Joseph Story recognized that “the freedom of speech, or of the press” was tantamount to Madison’s original draft of the clause: the “right to speak, to write, or to publish.” And the term “to publish” included not just publishing printed works, but also publicly communicating symbolic expression, such as paintings, effigies, and processions.

I doubt the Framers of the First Amendment focused much on this issue: Then as now, symbolic expression was much less important than verbal expression (though, as I’ll note shortly, it was still quite commonplace). But if you asked lawyers of the era whether symbolic expression was covered by the new provision, they would likely have answered “yes,” as the sources I cite above suggest.

This doesn’t tell us whether the Framers would have understood any particular form of symbolic expression, whether flag burning, liberty pole raising, armband wearing, or dancing, as constitutionally protected. Perhaps, for instance, they would have recognized a special exception for flag desecration, though I doubt it. Perhaps they would have concluded that some forms of expression, whether symbolic, printed, or verbal, were so likely to lead to breaches of the peace that they merited restriction; it’s hard to tell. Perhaps some would have concluded that any subsequent punishments were permissible, so long as they were imposed by juries.

Perhaps they would also have concluded that symbolic expression is protected only against laws that target it precisely because of what it expresses, and not against generally applicable laws (such as public nudity laws) that incidentally cover expressive conduct. The original meaning of the First Amendment is in many ways hard to determine.

But in any event, in my experience many critics of the Court’s symbolic expression cases don’t seek a wholesale rejection of eighty years of broadly libertarian Supreme Court precedent on the freedom of speech. Rather, they criticize only the symbolic expression doctrine, which to them seems the most clearly inconsistent with text and original meaning, and which can be reversed without vast shifts in the law.

And on this narrow question — was symbolic expression understood as legally tantamount to verbal expression, and thus protectable by “the freedom of speech, or of the press” even when it wasn’t published through spoken words or through printing? — the original meaning is comparatively clear. Seventy-five-year-old Supreme Court precedent and original meaning point in the same direction: Symbolic expression and verbal expression ought to be equally covered by the First Amendment.

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The Original Meaning of the Free Speech/Press Clause:

I'm planning to blog in a few days about my new law review article on Symbolic Expression and the Original Meaning of the First Amendment (forthcoming next year in the Georgetown Law Journal). But before I get into that, I wanted to make one broad note: While I think I've found solid evidence about the original meaning of the Free Speech/Press Clause as to one matter, the bigger picture original meaning of the Clause is in many ways hard to determine.

The trouble is that there were several rival views of "the freedom of speech, and of the press" in play around the time of the Framing. It's thus not clear what the original meaning of the Clause was, or even whether it had a single, determinable original meaning. For instance, there is substantial authority for all these possible meanings of the clause:

  1. The freedom consisted only of freedom from prior restraints, and didn't apply to subsequent punishments, such as criminal or civil liablity. See, e.g., Libellous Publications, 1 U.S. Op. Atty. Gen. 71, 72 (1797).

  2. The freedom of the speech and of the press requires that all subsequent punishments be imposed only after a jury verdict, in which the jury was entitled to decide whether the speech was unprotected. See, e.g., Penn. Const. art. IX, § 7 (1790).

  3. "The genuine liberty of speech and the press, is the liberty to utter and publish the truth" and not "falsehood and slander" about the government or private persons. Massachusetts Resolutions in Reply to Virginia (1799); cf. Penn. Const. art. IX, § 7 (1790) (providing that "truth may be given in evidence" in libel cases involving allegations related to "the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof").

  4. Even statutes such as the Sedition Act of 1798, which ostensibly applied only to false statements, violated the freedom of speech and of the press. Massachusetts Resolutions in Reply to Virginia (1799) (providing that "truth may be given in evidence" in libel cases involving allegations related to "the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof").

As I said, there are some things on which most people of the era would have agreed on, for instance that false, defamatory statements about individuals were constitutionally unprotected, at least against state libel lawsuits and likely state libel prosecutions (even though many state constitutions of the era expressly protected the freedom of the press). But beyond that my sense is that was a great deal of disagreement, even on the fundamental issues I noted above. This need not be true as to all constitutional provisions, but it appears to be true as to the Free Speech/Press Clause.

It seems that the Framers — like many politicians since then (and likely before then) — were often happy to avoid difficult issues by enacting broad language that was generally agreed to at a high level of generality, but the specific meaning of which was contested. This is unfortunately a serious problem for original meaning analysis in those fields, though as I said I think there is some original meaning that can be gleaned as to particular questions.

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More on the NSA Surveillance Program Inside the Bush Administration: Today's WaPo has more details from Barton Gellman's new book, Angler. It's a must-read for those who followed the NSA surveillance story in 2005 and 2006.
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"Bookbanning":

The brouhaha over Palin's alleged "bookbanning" assumes the right answer to an issue I deem controversial: do citizens acting through their elected representatives have any right to try to influence library policy regarding which books are on the library shelves, and whether such books are available to children.

Let's start with first principles. From a libertarian perspective, the government shouldn't run libraries, not just because libertarians don't like the government to run almost anything, but because running a library inherently involves making a content-based decision as to what books are worthy or not worthy of being on the library shelves.

But we don't live in a libertarian society, and the government does run libraries. Librarians make content-based decisions as to what books should be on the shelves every day. Well-run libraries apparently typically have set policies as to how to determine whether or not to acquire books, but, as Earl Maltz points out, these policies obviously reflect background social/political norms. You're certainly not going to find a "classics comics" version of Mein Kampf in a public library, nor are you likely to find children's books (or, outside research libraries, adult books) that advocate slavery, racism, or other ideas deemed socially unacceptable. You are also unlikely to find Playboy, much less more hard-core pornographic magazines or books.

So, libraries engage in "censorship" every day; they just call it "professional discretion based on objective policies."

The question, then, is why taxpayers must defer to the professional librarians' decisions. Sure, librarians are "professionals." But citizens who complain about a particular children's book (for its presence or absence) may have Ph.D.s in child psychology, have raised 10 children and have 20 grandchildren, have MSWs and work with children all day, spent 20 years teaching in a seminary, or otherwise have a range of knowledge and experience that make them potentially more qualified than a librarian to determine what is or is not appropriate material for children.

For that matter, we don't let teachers teach whatever the heck they want simply because they are "professionals" relying on some allegedly objective criteria established by teachers' organizations. We have elected school boards that take public input into account.

Let's consider the book that Palin allegedly expressed concern about, "Daddy's Roommate." You can "search inside" this book on Amazon. From the pages I can see, it's about a boy whose parents got divorced last year, and whose father now has a male roommate, with whom he eats, works, and sleeps (with a picture of them in bed together). Readers are later told that Daddy and his roommate Frank are gay and that "being gay is just one more kind of love."

For the record, the book doesn't offend me, and indeed, I'd probably endorse its sentiments (I'd know better if I could read the whole thing). But the book would quite obviously be offensive to many parents who have traditional religious/moral views about sexual matters, as well as to parents who think that such mature content shouldn't be on the shelves for children to discover without parental permission/guidance.

Should these parents have a say in whether this book is available in the library? To what ages? With or without parental permission?

The way the Palin controversy has erupted, apparently parents (or elected officials) raising such questions would be "book banners."

But let's say a library stocked a children's book called "Adam and Eve." The book, which has sold 50,000 copies nationwide, explains that The Lord intended men and women to be couples, and that people who have same-sex relationships are violating the laws of God and nature, and are risking eternal damnation. The librarian had received several requests for this book, and finds it an age-appropriate way of explaining the traditional Judeo-Christian-Islamic position on sexuality to children.

A progressive parent complains that her child read this book in the library, and now is convinced that gay people are bad. She asks that the library remove the book from the shelf. Is she a "bookbanner?" If the librarian had refused to stock the book to begin with, despite its strong sales, the requests, and a finding of educational value and age-appropriateness, is he a "bookbanner"?

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Did Palin try to ban books from the local library?

Over the past couple of weeks, a number of claims made for and against Sarah Palin have been debunked. One persistent charge made by her critics is that she tried to remove objectionable books from the public library in Wasilla, Alaska, where she was mayor. In a generally critical examination of Palin's record in yesterday's New York Times, the reporters revive the story and provide a few fresh details. As the Times frames the allegations, they fit a narrative in which Palin is a religious extremist imposing her ideology on the town's institutions:

The new mayor also tended carefully to her evangelical base. She appointed a pastor to the town planning board. And she began to eye the library. For years, social conservatives had pressed the library director to remove books they considered immoral.

“People would bring books back censored,” recalled former Mayor John Stein, Ms. Palin’s predecessor. “Pages would get marked up or torn out.”

Witnesses and contemporary news accounts say Ms. Palin asked the librarian about removing books from the shelves. The McCain-Palin presidential campaign says Ms. Palin never advocated censorship.

But in 1995, Ms. Palin, then a city councilwoman, told colleagues that she had noticed the book “Daddy’s Roommate” on the shelves and that it did not belong there, according to Ms. Chase and Mr. Stein. Ms. Chase read the book, which helps children understand homosexuality, and said it was inoffensive; she suggested that Ms. Palin read it.

“Sarah said she didn’t need to read that stuff,” Ms. Chase said. “It was disturbing that someone would be willing to remove a book from the library and she didn’t even read it.”

“I’m still proud of Sarah,” she added, “but she scares the bejeebers out of me.”

There are two different episodes recounted here. One involves an alleged attempt by Palin to remove books when she first became mayor in 1996. The other involves the qualms she is supposed to have expressed about the book Daddy's Roommate when she was a city council member in 1995.

As for her actions as a new mayor in 1996, it's undisputed that Palin did have conversations with the librarian, Mary Ellen Emmons, during which Palin asked about library policy for the removal of objectionable books. The conversations, and the ensuing controversy about them, were reported in the local newspaper, the Mat-Su Valley Frontiersman on December 18, 1996. If you're interested in the issue, I advise you to read this contemporaneous account for yourself.

The short of it, as I read the 1996 newspaper article, is that Palin and Emmons disagreed even back then about what was said during these conversations and, more importantly, about how to interpret what was said. For her part, Palin claims that her inquiry about removing books was hypothetical. She was a new mayor and simply wanted to learn more about the library's policies, just as she wanted to learn more about all city departments. But she was not taking steps to ban any books. Consistent with what she said in 1996, Palin recently told ABC's Charlie Gibson: "I never banned a book, never desired to ban a book. When I became mayor in our town, it was the issue of: what if a parent came into our local public library and asked for a book to be taken off the shelf, what's the policy?"

However, Emmons charged in 1996 that Palin's inquiries were more pointed. “She was asking me how I would deal with her [Palin] saying a book can't be in the library,” Emmons told the local paper. Emmons said she responded that she would fight any attempt to remove books. It's a "she said/she said" dispute, and one that may involve genuine misunderstanding about the motives behind Palin's inquiries.

At any rate, several weeks later Palin fired Emmons, which at first looks suspicious. But Emmons was fired along with several other city department heads appointed by the incumbent mayor she had defeated, John Stein. (Emmons was among those city officials who had publicly backed Stein.) There is no evidence Palin fired Emmons for resisting censorship. According to a report in the Anchorage Daily News on February 1, 1997, Palin reinstated Emmons after Emmons reassured her that she would support Palin's plan for a merger of the city's library and museum. The newspaper account of the reinstatement doesn't even mention the earlier book-banning controversy. The fact that Emmons, head of the Alaska Library Association at the time and an outspoken opponent of censorship, continued to work under Palin suggests that Emmons had satisfied herself that Palin would not be pushing to ban books from the library.

The other incident involves concerns Palin allegedly expressed as a city council member in 1995 over the book Daddy's Roommate, which introduces kids to a family headed by a gay male couple. The presence of the book in public libraries, along with Heather Has Two Mommies, has been especially irksome to religious conservatives over the past two decades.

While Palin may indeed have indicated a desire to remove Daddy's Roommate from the public library, there are a couple of problems with the account in the Times. One is timing. Unlike the 1996 dispute between Palin and Emmons, which was on the public record at the time, the 1995 conversation is only now coming to light, thirteen years after the fact. No contemporaneous accounts of the conversation are known to exist, and this incident was apparently not aired in any of Palin's subsequent campaigns for public office. Only now that Palin is a candidate for Vice President have we heard about it. Another weakness is possible bias against Palin. One of the sources is Stein, the incumbent mayor she defeated in 1996. The other source is Palin's 1996 campaign manager, Laura Chase. While Chase is quoted as saying she's "proud" of Palin, she also says Palin "scares" her. This suggests Palin and Chase may no longer be on good terms. I'm not saying Stein and Chase are deliberately lying, but they aren't exactly disinterested witnesses. At the very least a frank conversation in 1995 about Palin's moral objections to homosexuality may have morphed in their minds into a full-blown attempt to start banning "pro-homosexual" books.

Taken together, the 1995 and 1996 incidents can be interpreted either as (1) an aborted attempt by Sarah Palin to ban books from the public library or as (2) the responsible actions of a new mayor anticipating future disputes and desiring to know how the city was prepared to deal with them. If you take Palin to be a religious crusader hellbent on imposing socially conservative policies, you're likely to see these episodes as supporting the former view. If you think of her primarily as a competent and tough administrator pursuing an agenda of reform and accountability in government, you're likely to see them as supporting the latter view.

Unless we get more information, or some further corroboration of the story told by one side or the other, here's my bet about what happened. In 1995, Palin was a young mother and religious conservative concerned about things like abortion and homosexuality, in addition to taxes, spending, and government waste. She was aware of the controversy over Daddy's Roommate and other books and discussed the controversy with others, probably expressing her own discomfort with children accessing the book. But she made no effort to "ban" any books. As a new mayor, Palin anticipated some parents' protest over the presence of some books and genuinely wanted to know how such protests would be dealt with. She probably would not have fallen on her First Amendment sword to save Daddy's Roommate or other books in the event protests began but she wasn't herself eager to start a controversy over it. When she got resistance from Emmons, and public criticism when she fired the popular librarian for other reasons, she backed off on any fleeting thought she might have given to removing any books from the library shelves.

If I'm roughly right about this, there are a couple of things we learn here about Palin. First, her instincts and personal views on social issues do indeed lie with religious conservatives. If it were costless to implement a socially conservative vision of the world, she would do it.

But the second the thing we learn about her is more important: she is not a crusader for a religious agenda in her capacity as a public official. She's a pragmatic reformer and a quick study who learned as a new mayor that there are some things worth fighting about and others that aren't. She has learned to prioritize. Cutting waste and consolidating departments in city and state government are worth ruffling feathers and making enemies (as she has); removing a book from the library is not. There is no evidence that Palin made any further effort as mayor to ban books, or even expressed further qualms about any books. If she was a book-banner back in 1996, she wasn't a proud one since she denied it at the time, and has long since given up such ideas.

This emphasis on small-government conservatism over social conservatism fits her record as governor, where she has mostly ignored the "family values" agenda. She opposes abortion, even in cases of rape, but hasn't pushed new anti-abortion legislation. She believes in creationism, but hasn't forced it on the state's public schools. And she may personally believe that many aspects of modern culture are corrosive and immoral, but there isn't even a hint of book-banning in her post-1996 public record.

To many people, it wouldn't matter one bit if Palin still wanted to ban from public libraries books like Daddy's Roommate and others disliked by religious conservatives. It would even be a plus for some. But it would bother me quite a bit, even apart from whatever constitutional issues such actions raise, because it would suggest an unsettling degree of anti-gay obsession and, more generally, a willingness to use government to suppress opposing views. We may learn something more in the coming weeks that gives more ground to doubt her commitment to liberal values in government, but we aren't there right now. There remain fundamental reasons to be concerned about her candidacy, and some of them are contained elsewhere in yesterday's Times article, but my provisional view is that book-banning isn't one of them.

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Sunday, September 14, 2008

Tina Fey as Sarah Palin: It's almost too easy, but still very good:
Hat tip: Dan Solove. For more, see here.
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Best Wishes: Best wishes to our readers from the Houston/Galveston areas currently being disrupted by Ike and its aftermath. Hope you're all okay.
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A Realist Look at U.S.-Israel Relations:

Here is a brief, interesting "realist" look at U.S.-Israel relations. The key paragraph:

The patron-client relationship forged during the 1960s grew largely out of Washington’s desire to manage the Arab-Israeli conflict more effectively in order to protect American national interests. Washington feared that an existentially threatened, but militarily potent, Israel might act in ways that could harm American access to oil, facilitate further Soviet penetration of the Middle East, and even embroil the United States in a regional war. At the core of this patron-client relationship sat a "security-for-autonomy" bargain. Washington would provide Jerusalem with security assistance in the form of arms, money, and diplomatic backing, thereby greatly enhancing America's commitment to the Jewish state's survival. In exchange, Washington would demand that Jerusalem surrender a significant amount of its autonomy in the realm of foreign policy decision making. The United States, in other words, sought influence over Israel's foreign policy in order to channel it in directions consistent with the protection of American national interests. Contrary to the belief of many opponents of the American- Israeli patron-client relationship, Washington has never given Jerusalem a "blank check." The Jewish state has consistently had to pay a considerable price for American arms, money, and diplomatic backing.

Articles like this make it hard to take seriously Mearsheimer and Walt's claim that they abandoned their standard realist outlook on international relations with regard to the U.S.-Israel relationship because there was no way to fit the square peg of this relationship into the round hole of realist theory.

One thing that is almost entirely neglected in the relevant literature, including in the article linked above, is the role of AIPAC in creating a closer patron-client relationship between the U.S. and Israel. Contrary to the critics who see AIPAC as a font of "dual loyalty," AIPAC has always vigorously tried to improve U.S.-Israel relations in the American national interest, both because its American constituency demands this emphasis, and even more so because it's a lot easier to sell Congress on aid to Israel in pursuit of American national interest than on moral grounds. As AIPAC has grown increasingly influential, the U.S.-Israel relationship has grown closer; Israel has seen some real benefits from this, but, by becoming so reliant on U.S. military and diplomatic assistance, Israel has also come under increased U.S. "control," to the extent that Israel rarely undertakes any significant military or diplomatic initiative without U.S. permission. Perhaps, as the article under discussion suggests, this would have occurred in any event, because it is in both countries' best interest. But while the role of AIPAC in increasing U.S. aid to Israel has received plenty of attention, its role in helping assure that Israel is also under the U.S.'s thumb is virtually ignored.

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Another Account of White House Wars Over Surveillance:

The Washington Post has an excerpt from a forthcoming book on Dick Cheney providing additional details on the internal dissension within the Bush Administration over the legality of its terrorist surveillance programs. Interesting stuff! And, as with other accounts, David Addington does not come off too well.

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Decision Voids Absentee Ballot Apps in Ohio:

It is interesting to juxtapose Ohio Secretary of State Jennifer Brunner's decision to allow some absentee voters to register and vote on the same day with another recent decision that has the effect of invalidating over 1,000 absentee ballot applications collected by the McCain campaign.

More than 1,000 absentee ballot applications in Greater Cincinnati have been ruled invalid because Republican Sen. John McCain's presidential campaign printed a version of the form with an extra, unneeded box on it.

The forms were sent to more than 1 million registered voters statewide, according to a McCain spokesman in Ohio.

The McCain forms included a box voters can mark to declare themselves qualified to vote. But Democratic Secretary of State Jennifer Brunner says that if the box isn't checked, circled or initialed, the application is no good. Those voters are essentially admitting they're not eligible, she said.

That ruling has drawn howls from Republicans, who say it's an attempt to disenfranchise them. Election officials say it could wreak havoc in the weeks leading up to the Nov. 4 election.

"I have not seen a ruling that indirectly impacts voters to the enormity of this since I've been here," Hamilton County Board of Elections Deputy Director John Williams said of his nearly five-year tenure at the board.

This decision could well end up in court, in part because similar absentee ballot applications collected before a special election in 2007 were accepted.

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What if Obama Were White and McCain Black:

Randy Kennedy writes:

I anticipate that most black Americans will believe that an Obama defeat will have stemmed in substantial part from a prejudice that robbed 40 million Americans of the chance to become president on the day they were born black. They will of course understand that race wasn't the only significant variable — that party affiliation, ideological proclivities, strategic choices and dumb luck also mattered. But deep in their bones, they will believe — and probably rightly — that race was a key element, that had the racial shoe been on the other foot — had John McCain been black and Obama white — the result would have been different.

I'm inclined to agree that Obama starts out with an overall disadvantage because of his race, but I wonder what readers think of Kennedy's hypothetical. Let's say that the Democratic candidate was white, but had a bio similar to Obama's: grew up in Hawaii and Indonesia, went to Ivy League schools, worked as a community organizer, then state legislator, then one-term Senator, all the while showing signs that, as co-blogger Jim Lindgren says, he has a very moderate personality, but is among the most left-wing candidates in personal ideology in modern history. And let's say the Republican candidate was black, but like McCain, was a former POW, a relatively moderate Republican, and one who had a history of tangling with the Republican Party establishment, gaining a reputation as a gadfly. Let's also assume that this Republican candidate had been a member of a mainstream African American church free of the radical ideology of Jeremiah Wright's church.

Do readers think it's correct to assume that in this hypothetical matchup, the Republican candidate's race would be a significant disadvantage? And would the Democratic candidate likely have been as successful a candidate against Hillary as Obama turned out to be?

Again, I'm not denying Kennedy's main point, that if Obama loses a close election, racism may well be a decisive factor. I'm just wondering whether there are some interesting nuances that could be discussed.

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From Our Referrer Logs:

13 Sep, Sat, 23:20:22 Google: when a straight guy grabs my ass does it mean they are gay

Can't help you on that one.

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Jumping the Shark, NY Times Style:

A one-sided article criticizing McCain is not unexpected. Given that he is at least temporarily the front-runner, it may not even be a sign of political bias, but of the extra scrutiny and criticism that front-runners often get. But this?

On Friday on "The View," generally friendly territory for politicians, one co-host, Joy Behar, criticized [McCain's] new advertisements. "We know that those two ads are untrue," Ms. Behar said. "They are lies. And yet you, at the end of it, say, 'I approve these messages.' Do you really approve them?"

Wikipedia [yes, I know, but there's plenty of evidence that Behar is liberal, and the comment about the administration has a valid citation] tells us that "Behar stands on the left side of the political aisle and is in favor of taxpayer-funded embryonic stem-cell research and is also in favor of legalizing same-sex marriage, among other liberal positions. She has expressed her opposition to the war in Iraq.... Behar recently referred to the Bush administration as 'liars and murderers.'" Nevertheless, the Times not only featured Behar's criticism of McCain prominently in its story (without noting her political allegiances), but even ran an accompanying picture of McCain on "The View" with a caption repeating Behar's claims.

Next in the New York Times: Barbra Streisand calls John McCain "a big doodoo head."

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