The Volokh Conspiracy

Prominent lawyer and legal blogger Robert Ambrogi reports on an interesting recent decision by Massachusetts judge Peter Lauriat, who has decided to ban tweeting but permit blogging by members of the audience in his courtroom [HT: Josh Blackman]:

Does it make sense for a judge to allow blogging but ban tweeting from the courtroom? That was the question in a recent Massachusetts murder trial, and the judge’s explanation of why he did it has failed to satisfy media observers.

The recent first-degree murder trial of Nathaniel Fujita attracted national media to Superior Court Judge Peter Lauriat’s courtroom. Fujita, 20, was convicted March 7 of brutally murdering his former high school girlfriend.

Given the media interest in the case, Judge Lauriat no doubt faced a difficult challenge in balancing the right of the media to be present in the courtroom against the need to maintain order and decorum. Even so, his decision about how to handle courtroom coverage left some observers scratching their heads....

The ban on tweeting drew the unavoidable question: What’s the difference? The judge allowed blogging from the courtroom, television cameras in the courtroom, and what he described as the “pencil press” in the courtroom. Why draw the line at Twitter?....

Judge Lauriat was clearly skeptical of Twitter. When told that journalists regularly use Twitter to report from courtrooms, he asked, “And what is it that [they] disseminate in what I understand to be a hundred and forty character maximum amount with Twitter?”

In the end, his explanation for banning Twitter focused primarily on SJC Rule 1:19, a Massachusetts court rule adopted last year to govern the use of technology in courtrooms.....

The rule requires reporters to register with the SJC’s Public Information Office in order to use technology such as computers or cameras.

I certainly agree with Judge Lauriat that blogging is a much better way to provide news coverage and commentary on legal issues than tweeting. That’s why I’m a blogger who (so far at least) doesn’t have a Twitter account. That said, as Ambrogi points out, Judge Lauriat’s legal rationale for drawing a distinction between the two seems dubious. It also raises the issue of whether reporters in his courtroom are allowed to post status updates on other social media, such as Facebook. Unlike Twitter posts, Facebook status updates are not limited to 140 characters. So perhaps they are closer to blogging than to tweeting under Judge Lauriat’s interpretation of SJC Rule 1:19.

UPDATE: Here is a more detailed account, which suggests that Judge Lauriat barred the use of all electronic social media, not just Twitter. It also makes more clear than Ambrogi’s analysis that Lauriat’s reason for distinguishing between Twitter and blogging is that the latter provides more serious and in-depth coverage of events than the former. He thus concluded that Twitter coverage was not really “necessary” to providing news coverage of trials. He may be right about that. But I’m not convinced that it is either constitutional or good policy for judges to impose restrictions on reporters’ coverage of their trials based on what the judges to believe good journalistic practices. As I see it, unless the use of Twitter was somehow disrupting the trial or causing the release of confidential information, it should be permitted. And it is difficult to see why courtroom tweeting would be any more disruptive and harmful in these respects than courtroom blogging.

Paul Campos may have closed his “Inside the Law School Scam” blog, but his longstanding feud with Brian Leiter continues (see here and here), and is spilling over onto other blogs.  If you ask me, it’s getting a bit ridiculous.

UPDATE: Brian Leiter responds to Campos’ latest charges in an addendum to this post.

FURTHER UPDATE: Haven’t had enough of this?  Scott Lemieux is distressed we’ve not taken sides in what Above the Law appropriately calls a “Celebrity Law Prof Death Match.”

STILL ANOTHER UPDATE: Yes, the insults and allegations are still flying.  See, for instance, Paul Campos’ latest post.  And were that enough, now we have one of Campos’ co-bloggers going after a Leiter co-blogger.  It’s almost as if these folks don’t have enough to do at their day jobs.

MORE SUBSTANTIVELY: Howard Wasserman asks about the real legal issues in this dispute.  I don’t know enough about the relevant privacy rules, but it seems to me that some of the various allegations could be libelous if untrue.  Does that mean the Leiter-Campos death match could end up in court?  I don’t think we have enough popcorn for that.

Aside from any legal issues, it is surprising to me that no one from The Faculty Lounge has sought to clear the air on whether identifying information about anonymous or pseudonymous commenters was shared with third parties.   TFL provides a valuable forum for discussion of many issues, particularly those related to legal academia (see, e.g. here), and it would be a shame to see such discussion chilled due to unfounded fears that some at TFL would not respect the privacy of forum participants.  If no such information was shared, folks at TFL should say so, and if such information was shared, it seems to me those responsible should provide some sort of explanation.

ANOTHER UPDATE: The Faculty Lounge bloggers posted Monday that they never shared identifying information with Brian Leiter.

Mark Kleiman wonders why so many of his ideological compatriots are driven to fits of rage by Megan McArdle, noting the fevered reaction to her recent column on the Sandy Hook shooting and potential policy responses. (See also here.) Though Kleiman would not endorse everything in the piece, he thinks it’s “one of the more sensible pieces of writing about Sandy Hook,” and yet has sent some liberal bloggers into a frenzy.

In a related vein, David Hoffman notes how difficult it is to have calm, reasoned discussions on this sort of issue.

Like many of you, I’ve been horrified by the events in Newtown, and dismayed by the debate that has followed.  Josh Marshall (at TPM) thinks that “this is quickly veering from the merely stupid to a pretty ugly kind of victim-blaming.”  Naive realism, meet thy kettle!  Contrary to what you’ll see on various liberal outlets, the NRA didn’t cause Adam Lanza to kill innocent children and adults, nor did Alan Gura or the army of academics who helped to build the case for an individual right to gun ownership.  Reading discussions on the web, you might come to believe that we don’t all share the goal of a society where the moral order is preserved, and where our children can be put on the bus to school without a qualm.

But we do.

We just disagree about how to make it happen.

If anything, Hoffman understates the problem. It seems increasingly rare in political discourse for either side to consider that the other may be arguing in good faith. Why is this? One contributing factor is ideological cocooning. Many people, academics in particular, have relatively little meaningful interaction with people of opposing views. As a consequence, alternative viewpoints seem alien and hard to fathom. For many it is bewildering that someone of reasonable intelligence, good will, and good faith could reach diametrically opposing conclusions. Thus arises a need to ascribe contrary views to idiocy or bad faith.

Hoffman also suggests the nature of internet discourse cuts against the tolerance of differing approaches to social problems.

My intervention here is to just to point out that the problem we actually have here is one of discourse – we are forced by the Internet to nationalize problems. This makes it much, much harder for local communities to experiment with localized solutions to threats to the moral order. If a community in, say, Connecticut wanted to ban assault weapon clips (because it made them feel safer – let’s put to one side data on efficacy!), Glenn Reynolds would lead a charge against the liberal fascists. Indeed. Heh. Yes. If a community in Tennessee wants to arm its teachers (because it makes them feel safer – let’s put to one side data on efficacy!) Josh Marshall and Andrew Sullivan would call them out as conservative fascists. Or loonies. Or winners of the Moore award. And we’d all get to pat ourselves on the back, but no one would actually get the benefit that law is supposed to provide, which is the helpful illusion that we’re more civilized than we actually are, and that we’re actually doing something to push back against the tide.

That is: a national conversation about guns and violence, facilitated and sped up by the internet, reduces our ability to try out different versions of the good life, and thus diminishes our capacity live together in peace.

I think he has a point. I also suspect this problem is magnified due to a decline in the understanding and appreciation of tolerance as a virtue. Not tolerance as acceptance or approval, but true tolerance. Tolerance as in there is something unpleasant, objectionable, or distasteful that one nonetheless tolerates. And this is brings us back to the problem of cocooning. If we have little interaction with those of truly different viewpoints — those whose entire worldview and starting premises are different than ours — we have a harder time recognizing the goodwill and fundamental humanity of those with whom we disagree. And that means we have a more difficult time discussing divisive political issues and trying to find common ground. So instead we demonize and attempt to marginalize our opponents — undertakings that may make us feel good, but do nothing to improve the situation.

The Volokh Conspiracy has been nominated by the ABA Journal Blawg 100 competition for the award for the top law blog in the “News Analysis” category. The winner will be determined by popular vote. Our loyal readers can vote for us (or, to be sure, one of the other worthy competitors), here.

We are also happy to note that the VC has been selected as one of the inaugural inductees in the newly established ABA Journal Blawg 100 Hall of Fame. Perhaps this puts us and the other initial inductees on par with the inaugural five members of the baseball Hall of Fame (the institution that first popularized the idea of an HOF): Ty Cobb, Babe Ruth, Honus Wagner, Christy Matthewson, and Walter “Big Train” Johnson. Eugene Volokh surely qualifies as the Big Train of legal blogging.

Noncuratlex, “Another Law Blog, Dedicated to Old Law Stuff, Mostly,” has suggests some mottos for other law blogs. (Hat tip: How Appealing)

Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of “shaping the narrative” about the case, and may not have actually believed what they said. Paul Horwitz of Prawfsblawg suggests that such advocacy blogging (at least by legal academics) is unethical.

In one sense, all blogging that expresses a position on a controversial issue is “shaping the narrative.” Whenever I write a post on a disputed issue, whether it be the individual mandate or the politics of The Hunger Games, part of my purpose is to persuade readers that I’m right and competing views wrong. I don’t think there is anything unethical about engaging in such efforts at persuasion. Indeed, they are part of what makes blogging – including blogging by academic experts – a useful enterprise.

At the same time, Horwitz is right to suggest that it is wrong for an academic to publicly “assert... with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence” for the purpose of influencing public opinion. Doing so attaches the veneer of academic respectability to an opinion that isn’t actually backed by the scholar’s expert judgment.

As I said in my previous post on this subject, I don’t think this is what most of the liberal commentators who claimed that the mandate was an easy case actually did. I believe that they meant what they said and said what they meant.

And, for what it is worth, I myself have never said anything in a VC post that I didn’t actually believe at the time I said it. Can I definitively prove that? Obviously not. I’m the only one who knows what I really think, and even I don’t remember my exact state of mind at the time I wrote every one of the hundreds of blog posts and dozens of op eds I’ve written over the six years I have blogged for the VC.

However, I will note that I have often said things that weren’t helpful to the position I was defending at the time. For example, I would not have initially expressed the view that the individual mandate was covered by Gonzales v. Raich, or later called attention to my change of mind on this point. The former post was written before the mandate litigation began, but at a time when it was becoming clear that lawsuits against the mandate were likely to be filed should it pass. Similarly, I would not have repeatedly predicted that the Supreme Court was more likely to uphold the mandate then strike it down (e.g. – here), or pointed out flaws in some of the lower court decisions striking down the mandate (e.g. – in my analysis of the very first such decision).

The issue on which I have probably had the most involvement in public debate was the controversy over Kelo v. City of New London and its aftermath. In my writings on that subject (most recently here), I pointed out that Kelo was consistent with previous Supreme Court precedent which already allowed the government to condemn property for almost any reason (though I also noted that Kelo could have been decided the other way without completely overruling those earlier precedents). From a “shaping the narrative” point of view, it would have been more effective to portray Kelo as a radical new departure. In my view, however, the case was actually an opportunity for the Court to correct – or at least cut back on – some egregious errors from previous decisions.

I have also foregone making plausible claims that might help my cause, but which I did not believe to be true. For example, some mandate opponents have argued that the federal government’s shift away from its Commerce Clause argument to put greater emphasis on the Necessary and Proper Clause and the Tax Clause was a sign of desperation, or at least declining confidence in the commerce argument. I did not believe there was any proof of this (making every plausible argument for your side is just good lawyering), so I didn’t say it, even though it might have helped “shape the narrative” in our favor.

Law Daily Blogger has a list of reasons “Why Big Firms Don’t Blog well.” Most of the reasons aren’t surprising, at least not to me. Big law firms do many things well, but they don’t really have a comparative advantage in blogging. The one revelation in the post is that so many big firms seem to have blogs (41% of the Amlaw 200, according to this 2009 study), despite all the reasons why those blogs are unlikely to succeed.

UPDATE: Apparently, the Law Daily Blogger site copied verbatim – and without attribution – a 2009 post by Mark Herrmann at the Drug and Device Law Blog. I have taken down the link to the LDB post so as not to reward them for their bad behavior. My apologies to Mr. Herrmann for failing to notice this egregious copying until he brought it to my attention.

At Prawfsblawg, Paul Horwitz offers useful perspective on “Inside the Law School Scam” and its author’s decision to reveal his identity.

In the latest post at Inside the Law School Scam, titled “An apology,” the LawProf reveals himself to be the author of this essay.

UPDATE: Paul Caron rounds up coverage and background here.

FURTHER UPDATE: Brian Leiter comments quite critically here.

THIRD UPDATE: A reminder that Campos and Leiter have clashed before.

FOURTH UPDATE: The comments of Paul Horwitz on this affair are much worth reading.

The NYT reports that a former CIA official is alleging that the Bush Administration sought damaging information on liberal blogger Juan Cole, a University of Michigan professor who had been quite critical of the Bush Administration’s foreign policy..  From the story:

In an interview, [former CIA officer Glenn L.] Carle said his supervisor at the National Intelligence Council told him in 2005 that White House officials wanted “to get” Professor Cole, and made clear that he wanted Mr. Carle to collect information about him, an effort Mr. Carle rebuffed. Months later, Mr. Carle said, he confronted a C.I.A. official after learning of another attempt to collect information about Professor Cole. Mr. Carle said he contended at the time that such actions would have been unlawful.

It is not clear whether the White House received any damaging material about Professor Cole or whether the C.I.A. or other intelligence agencies ever provided any information or spied on him. Mr. Carle said that a memorandum written by his supervisor included derogatory details about Professor Cole, but that it may have been deleted before reaching the White House. Mr. Carle also said he did not know the origins of that information or who at the White House had requested it.

Intelligence officials disputed Mr. Carle’s account, saying that White House officials did ask about Professor Cole in 2006, but only to find out why he had been invited to C.I.A.-sponsored conferences on the Middle East. The officials said that the White House did not ask for sensitive personal information, and that the agency did not provide it.

Cole comments here.

The New York Times recently ran an interesting article on the Secular Right blog, which I commented on here back when it was first established:

As a child, Razib Khan spent several weeks studying in a Bangladeshi madrasa. Heather Mac Donald once studied literary deconstructionism and clerked for a left-wing judge. In neither case did the education take. They are atheist conservatives — Mr. Khan an apostate to his family’s Islamic faith, Ms. Mac Donald to her left-wing education.

They are part of a small faction on the right: conservatives with no use for religion. Since 2008, they have been contributors to the blog Secular Right, where they argue that conservative values like small government, self-reliance and liberty can be defended without recourse to invisible deities or the religions that exalt them....

Ramesh Ponnuru, a senior editor at National Review, noted that conservatives throughout history have esteemed “mediating institutions” like schools and churches, sources of authority other than the state. “If that’s the way you’re thinking, concern for the strength of organized religion follows pretty naturally,” Mr. Ponnuru said.

I do have a small bone to pick with the article and possibly with Ramesh Ponnuru. There is a difference between being an atheist and having “no use for religion.” One can deny the existence of God, while simultaneously recognizing that religious institutions sometimes serve useful purposes. Being an atheist doesn’t prevent me from seeing that the Catholic Church runs an excellent system of private schools, for example. It also doesn’t prevent anyone from recognizing the value of “mediating institutions,” including religious ones.

At the same time, it is also the case that organized religion has often contributed to grave injustices, providing support for slavery, gender inequality, and occasionally (in the case of “Liberation Theology”) even communism. Whether a mostly secular society will be better off than a mostly religious one depends on the values advocated by the religious and secular ideologies in question. Atheism doesn’t require anyone to believe that every conceivable secular belief system has better social consequences than every conceivable religious one. One can be an atheist while still believing that Catholicism, Judaism, or Mormonism is less harmful than Marxism, for example.

Like my George Mason colleague Bryan Caplan, I gave two talks at the Students for Liberty International Conference this weekend. And I emphatically agree with Bryan’s observation that the SFL students I met had vastly better social skills and are generally much more socially “normal” than were the young libertarians of my own generation (I graduated college in 1995):

The Students for Liberty conference has to be seen to be believed: the attendance (about 500 students), the energy (off the charts), and most remarkably of all, the high social skills. Twenty years ago, a pack of libertarian students would have been roughly as awkward and freakish as attendees at Comic-Con... or, say, me. Now I see hundreds of students who aren’t just smart, but smooth. What happened?

The best explanation I’ve got so far: the Internet. Back in the old days, libertarian students spent a lot of time alone with their books. It was awfully hard to meet others with a shared interest in liberty. This social isolation had two effects.....: Libertarians got a lot less practice sharing their ideas in a civilized and constructive way [and]... Few “people people” became libertarians because it was too depressing. As the Internet – and social networking, its favorite child – blossomed over the last two decades, these effects of libertarian isolation largely faded away.

A closely related trend is the high proportion of women among today’s young libertarians. By my rough estimate, about 40-45% of the SFL attendees were female. That’s a sea change from twenty years ago, when young libertarians were an overwhelmingly male group. Considering that women are on average less interested in politics than men are in general, the percentage of women in SFL is roughly what one would expect in a student political group that isn’t specifically focused on “women’s issues.”

I think Bryan’s explanation for these changes may be right. But I would point to other factors as well. First, as libertarianism has become better known and more mainstream, it has attracted a wider range of personality types. Even before the rise of the internet, the work of people like Milton Friedman and Ayn Rand helped popularize libertarianism to a wider audience than would have known about it in the 1940s and 50s.

People with poor social skills are more likely than others to adopt an unpopular ideology. They tend to care less about adherence to social norms and conventional wisdom, and thus are less reluctant to embrace unpopular ideas. In addition, because they are already disliked by their peers, they generally don’t have much to lose from the social stigma attached to adherents of an ideology considered to be weird or extreme. When I was in high school, I was the only libertarian I knew, with the partial exception of my father. There weren’t any other libertarian student or teachers. At Amherst College in the early 1990s, I knew only two or three other libertarian students, and there wasn’t a single libertarian on the faculty. This isolation didn’t bother me very much in part because I wasn’t that popular to begin with. As an ideology becomes more common and seems less “weird,” more socially normal people join the bandwagon.

This point also helps explain the greater involvement of women in the libertarian movement. Social science research suggests that women are, on average, less willing to violate social norms and court unpopularity than men are. That’s not necessarily a bad quality; as a result, women are less likely than men to act like insensitive jerks. But it also makes them less willing to adopt unpopular or stigmatized political ideologies (for similar reasons, women are less likely than men to be atheists). The mainstreaming of libertarianism has increased its appeal to both genders, but may be especially important for women.

Second, the effect of the internet goes beyond facilitating networking by people who are already libertarian. It also enables more people to learn about the existence of libertarianism in the first place. At most academic institutions (including most academically strong high schools), left-liberalism is the overwhelmingly dominant political ideology. Some students, however, reject liberalism for any number of possible reasons. In my case, it was the experience of being an immigrant from the Soviet Union. For others, it may have to do with their personality type or other factors.

In an earlier era, many of these people would not be aware of any alternatives to liberalism other than conservatism or establishment centrism. As a result, they became conservatives or centrists themselves or simply lost interest in politics altogether. I myself might not have become aware of libertarianism when I was in high school were it not for my father’s introducing me to the work of Milton Friedman and Thomas Sowell, and my own discovery of Robert Nozick as a result of involvement in high school debate.

With the proliferation of libertarian blogs and other websites, any high school or college student with a strong interest in politics is likely to become aware of libertarianism as a potential alternative to liberalism and conservatism. The fact that these people learn about libertarianism while they are still young is critical; most people become less receptive to new ideas as they get older, especially if they go against their preexisting views. If I had first learned about libertarianism when I was 35 rather than 15, it’s a lot less likely that I would be a libertarian today. This is not because libertarianism has some special appeal to the young, but because older people are less likely to adopt new political ideas of any kind, libertarian or otherwise. Because the internet enables more people to become aware of libertarianism at an early age, a much higher proportion of those who might find libertarianism appealing will learn about it and become converts.

Obviously, “rationally ignorant” people who pay little or no attention to politics are still largely unaware of libertarianism. But they are unlikely to become active participants in an ideological movement, though libertarians can and should do a lot more to channel this group’s skepticism about government in a more libertarian direction.

Alleged Mafia boss Thomas Gioeli has started his own blog from prison [correction: jail] [HT: Instapundit, who claims that he himself is the true "Blogfather"]:

Call him the blogging crime boss: Reputed Colombo kingpin Thomas (Tommy Shots) Gioeli has set up a behind-bars blog to portray himself as a good guy – not a wiseguy – and rant about everything from jail conditions to the way the FBI went after a 94-year-old mobster.

Prosecutors say Gioeli, 58, is trying to influence potential jurors through a blog called “Alleged Mob Boss Tommy Gioeli’s Voice.”

The first posting vowed, “It’s going to be Tommy’s voice; the voice of a generous, good humored, kind, compassionate, and loving husband, father, son, brother, uncle, and friend.”

Gioeli, awaiting trial for six murders, including the rubout of NYPD cop Ralph Dols, has no Internet access from the Metropolitan Detention Center in Brooklyn – but he can email with family members who could post the blog items, a Bureau of Prisons spokeswoman said.

I actually predicted the phenomenon of blogging mobsters several years ago. On one of my Property final exams, which I loosely based on The Godfather, I included a hypothetical scenario where Fredo Corleone starts a blog called “Life in the Mafia,” and then gets sued for cybersquatting by other members of the Corleone family.

No word yet on whether imprisoned New York mobsters are forbidden to play Dungeons & Dragons.

Are bloggers the 21st century equivalent of political pamphleteers?  Would James Madison have had one? I don’t know.  But I do know that several faculty members at the University of San Diego School of Law’s Center for the Study of Constitutional Originalism have launched “The Originalism Blog.” This blog won’t endeavor to answer the question in this post’s title, but it is a good source for information and commentary including the latest scholarship, for and against.  If you have any interest in originalism — whether you love it or hate it — this is a blog worth bookmarking.

Brad DeLong responds to my post.  As illustrated below the jump, he engages in selective editing and continues to misrepresent the players in this saga.  (He also omits links to most of those to whom he’s responding.)  Larry Ribstein also comments here.

Continue reading ‘DeLong Doubles Down’ »