Monday, June 7, 2004

Still more on sex and the mentally retarded:

Clayton Cramer faults the dissenting judge in the Ninth Circuit decision that I point to below (Marsha Berzon) for her interpretation of Lawrence v. Texas:

For all that supporters of Lawrence talk about love, commitment, and relationship, the fact of the matter is that by scrapping all notions of sexual morality between adults, Lawrence is opening the door to scrapping laws intended to protect an adult with the mental capabilities of a chid from exploitation by a guy who barely knew this woman. . . .

I sympathize in some measure with Cramer's point, and I think there's a good argument here that the sexual autonomy rights of the mentally retarded should be determined by legislatures, and not as a constitutional matter.

But at the same time, it seems to me that Cramer's argument misses an important point: Sure, the mentally retarded are vulnerable to sexual exploitation. But if statutory rape laws were fully enforced, then the mentally retarded would be vulnerable to a lifetime with no sexual relationships, even loving, nonexploitive relationships. And even if they aren't fully enforced, then they are vulnerable to a lifetime of sexual relationships only with people who are willing to face time in prison to have such a relationship with them.

Even if one believes that the law should enforce sexual morality, what does sexual morality tell us about this situation? That people who are mentally retarded ought never be allowed to have legally tolerated sex with anyone? That they may only have sex if they're married -- even though such a "marriage" might be a sham, because they cannot comprehend the moral or legal obligations that go with such a marriage, and because they cannot meaningfully consent to the marriage any more than they can meaningfully consent to nonmarital sex? (Should state law even allow marriages among people who are mentally retarded enough that they can't consent to sex, and can't enter into many other much less important contracts?)

Again, I'm far from sure what the right answer is here. And I agree that talk of autonomy and freedom of choice isn't fully apt (and perhaps isn't apt at all) when we're dealing with people who lack the mental capacity to fully comprehend the nature and consequences of their choice. But talk of legally enforced sexual morality doesn't seem to be entirely helpful here, either; and while talk of avoiding exploitation is important, I'm not sure that it provides a complete answer, for the reasons I give above.

Follow-up about sex and the mentally retarded:

One more thought, triggered by a reader who mentioned an incident where the sex seemed clearly exploitative. Imagine that a mentally competent 40-year-old has sex with a mentally retarded 19-year-old. Exploitive or not? After you answer this, please click below for the follow-up questions:

Sexual autonomy and the mentally retarded:

A just-released Ninth Circuit opinion has a fascinating debate on this difficult issue. See especially pp. 7264 and 7278-84, which should be quite accessible to laypeople.

I've long been interested in this issue (as a purely academic matter, I assure you). Sex with the mentally retarded is generally treated as statutory rape — just as children below some age are seen as legally incapable of giving meaningful consent to sex (even when they are in fact enthusiastic about engaging in the act), so are the mentally retarded. And that does make a good deal of sense.

But at the same time, if you take this seriously, the mentally retarded would be legally forbidden to have any sex ever in their lives. That's quite a burden, it seems to me, and a much greater one than for children, because it's permanent rather than just temporary.

In practice, I suspect that many mentally retarded people do have sex — some exploitative and likely physically or emotionally harmful to them, and some quite fulfilling and likely beneficial to them — because these laws are quite underenforced. Still, the existence of the laws means that these people's sex lives are entirely on the sufferance of government officials. If the law were completely enforced, the mentally retarded would have no sex at all; and anyone who is engaged even in a mutually good sexual relationship with them is at the mercy of the prosecutor.

What solution can there be for this? And even if the answer is to stick with prosecutorial discretion, how should prosecutors exercise this discretion? Should they basically let parents decide who should be authorized to have sex with the mentally retarded person? Should they do so, but subject to the prosecutor's veto (or some judge's veto) when the parent's actions seem exploitative (for instance, if the parent is essentially pimping the child, for instance letting their drug dealer have sex with the child in exchange for drugs)?

Should there be some judicial override of the parent's veto, as there is for children's abortion rights? Should prosecutors or judges try to distinguish "exploitative" relationships from "beneficial" ones? If so, should they try to avoid their own value judgments (e.g., casual sex bad, committed relationship good, group sex bad, one-on-one sex good, homosexual sex bad, heterosexual sex good)? Or is it permissible for government officials to impose such judgments where control of the mentally retarded is involved, even if it would be impermissible (or at least unwise) to restrict the actions of mentally competent adults on these grounds?

I don't know the answers here (nor am I looking that actively for the answers, since I don't write much on this subject). But I am pretty sure that these are interesting and difficult questions.

UPDATE: Reader Seth Tillman asks whether there may be an exception to these statutory rape laws when the person is married. Laws that restrict sex with underage people often do have an exception for married couples, though of course the marriage laws themselves have age thresholds (and sometimes, I believe, one threshold for marriage with the parent's consent and one for marriage without the parent's consent). Perhaps some states' restrictions on sex with the mentally retarded also have an exception for married couples; I hope to check into this in a few days, when I have a bit more time.

But even if this so, then this just highlights some of the other issues I mentioned. Requiring people to marry before they can have sex is a pretty serious burden on their autonomy -- a burden that we have in practice rejected for competent adults. Should the rule be different for the mentally retarded? Also, presumably people who lack the mental capacity to meaningfully agree to sex would often also lack the mental capacity to meaningfully agree to marriage -- to lifelong sexual fidelity (at least in the absence of divorce, but how does one decide whether a mentally retarded person really consents to seeking a divorce?), to lifelong emotional commitment, and so on. Does it make sense to require them to marry as a condition of having legally permitted, no-fear-of-the-prosecutor-locking-someone-up sex?

And of course there is one sort of sex that marriage won't make legal (except in Massachusetts): Sex between people of the same gender. If you oppose recognizing same-sex marriage but also oppose locking people up for same-sex sexual activity -- and I suspect that many tens of millions of Americans take that view -- then what do you do about mentally retarded adults who have sexual interest in people of the same sex? Do you just say "Sorry, it's not legal for people to have the sexual relationships with you that you want, though it's legal for heterosexual mentally retarded adults (since they can get married)?"

Dishonest Real Estate Agents:

I've noticed that real estate agents here in Arlington, Virginia, are increasingly moving from typical puffery in their listings to outright misrepresentation. A house around the corner from me was listed as "two blocks from metro." I count five and a half long blocks, a ten minute walk (the house, an old bungalow without much going for it, nevertheless sold during its first week on the market for more than $500K). Another agent listed a house as "walking distance to metro" that was in fact 1.4 miles from the metro. When I challenged him on this, he insisted that the owner of the house walks to the metro every day, and added that "who knows whether walking distance means 10 minutes or 20 minutes?" I pointed out to him that walking 1.4 miles in even 20 minutes would require a pace of 4.2 miles per hour, which is more like a slow jog than a walking pace. I won't even look at houses anymore when I recognize such misrepresenations. Why would I want to do business with a dishonest agent?

Terminology and the media:

Jeff Jacoby has a good column on the subject in the Boston Globe:

. . . Consider how the illegal procedure was identified in news accounts of last week's [abortion law] ruling: . . .

National Public Radio: "Partial-birth abortion is a term used by opponents for what doctors call intact dilation and extraction."

Washington Post: "The ban on the procedure that critics call 'partial birth abortion' was already on hold temporarily as three courts heard legal challenges to it."

NBC: "A federal judge declared the so-called 'partial birth abortion' act unconstitutional on Tuesday." . . .

Why the circumlocutions? In journalism, short and clear is better than long and wordy; reporters generally don't have the space or time to reach for periphrastic phrasings when something more direct is available. Yet when it comes to partial-birth abortion, many of them suddenly feel compelled to distance themselves from a familiar and straightforward term. Why?

The answer most journalists would give, I imagine, is that they are just being accurate. "Partial-birth abortion" isn't a proper medical term, they would argue — the phrase was originally coined by prolife activists and it's appropriate to point out the political baggage it comes with.

Which is fair enough — but only if the same standard applies across the board. "Choice" and "the right to choose," the most common euphemisms for abortion, aren't medical terms either. They come straight out of the abortion-rights lexicon, which adopted them for their favorable connotation. . . .

For that matter, when was the last time a news report spotlighted the political provenance of any label *other* than "partial-birth abortion?" After all, it isn't only in the abortion wars that terminology can have partisan overtones. If it's a matter of good journalism to call attention to the fact that a phrase tends to favor those on one side of a controversial issue, shouldn't reporters be more fastidious about using terms like "campaign finance reform" or "the gun lobby?" Shouldn't they point out the implicit bias in referring to only some violent offenses as "hate crimes?"

When legislation to ban guns bearing certain cosmetic features is proposed, journalists should note that the measure would restrict "what opponents call 'assault weapons,' a term not used by weapons experts, who say it has no clear meaning." When reporting on the same-sex marriage controversy, they should observe that "what critics call 'homophobia' — a term promoted by gay and lesbian activists — is not recognized by medical authorities." . . .

There are often no convenient politically neutral labels for some things; advocates on all sides often try to convey their political message by embedding it in seemingly objective terminology; it can indeed be helpful for journalists to alert readers to this; and at the same time journalists can't do this for all terms, so it will have to select which terms it will flag this way.

But, as Jacoby points out, the journalists' selection decisions do tell you quite a bit about the journalists' political prejudices — and about how these prejudices can affect supposedly objective reporting.

[Gail Heriot (visiting from The Right Coast), June 7, 2004 at 1:36am] Trackbacks
Brown University: Has Brown changed? Two years ago, after the Brown Daily Herald published a David Horowitz advertisement opposing slave reparations, a group of irate students reacted by stealing the entire issue. Rather than condemn the thieves, the University condemned the student-run newspaper for running a "deliberately and deeply hurtful advertisement." A faculty forum was convened at which the Brown Daily Herald, Horowitz and anyone else who dared oppose slave reparations were excoriated. Slave reparations may be a non-starter off campus, but they were part of the reigning orthodoxy at Brown, and the folks there made it clear that they would brook no debate.

According to an article by Stephen Beale in the Providence Journal, however, this year things were a little better. In previous years, College Republicans had been warned off inviting Horowitz to speak on the ground that it would cause a race riot. Speakers like Ward Connerly, Dinesh D'Souza, and Ralph Reed were harassed or entirely hooted down. This year, however, the College Republicans was able to invite Horowitz and he was politely received. In March, University President Ruth Simmons announced the formation of a university committee to consider the issue of "slavery and justice," in part because the issue had not received a full and fair debate back in 2002.

But don't get too excited. This isn't going to be a real debate--not judging from the composition of the committee. Students from the Young Communist League are represented on the committee. And the president of the College Democrats is a member. But that's it for students. Faculty members similarly run the gamut from left of center to strongly leftist; the chairman is among those who were hurling epithets at the Herald back in 2002. I suppose Brown doesn't want to get too carried away with the free and open debate stuff. It's bad for school spirit.

Sunday, June 6, 2004

[Mike Rappaport (visiting from The Right Coast), June 6, 2004 at 7:55pm] Trackbacks
The Greatest President of the 20th Century The eulogies for Ronald Reagan are already abundant, but I cannot resist offering my own.

I believe that Ronald Reagan was the greatest President of the 20th century. The only competitor is Franklin Roosevelt, who gets credit for leading the country during World War II and for helping the US persevere through the Great Depression. But Roosevelt's accomplishments were marred by his enormous failures, including significantly expanding government control of the economy, undermining traditional constitutional restraints, failing to actually end the economic downturn until World War II, and not appreciating the dangers of Soviet Communism.

By contrast, Reagan's accomplishment were tremendous in both the domestic and foreign spheres, and they were not undermined by any significant failures. In the domestic sphere, Reagan inherited an economy plagued by stagflation and bequeathed one with both low inflation and strong economic growth. In foreign affairs, Reagan took a nation that was paralyzed by Iranian students and transformed it into one that persuaded the Soviet Union that it could never win the Cold War. Reagan's failures, such as trading arms for hostages, pale in comparison.

Perhaps President Reagan's greatest accomplishment was that he achieved these goals even though elites, especially liberal elites, regarded his policies as dangerous if not absurd. The elites claimed he practiced voodoo economics, and in 1982-1983 in the midst of a severe recession, lesser men would have despaired. But the President's courage and wisdom prevailed, and the Reagan boom soon emerged.

The elites believed that one had to coexist with the Soviet Union, that calling it an evil empire would provoke it, and that building SDI would be a waste of money. Yet, Reagan again had the vision to see that the US could actually win the Cold War, which was accomplished in no small part due to Star Wars.

These accomplishments were significant, but he had others as well. It was Ronald Reagan who really started the Supreme Court on its slow path towards, at least some of the time, taking the original Constitution seriously. And it was Reagan who helped to give the country self-confidence and to communicate the great truths of freedom and responsibility to ordinary Americans.

I had the privilege of working for Ronald Reagan twice, first in the Office of Legal Counsel in the Meese Justice Department, and then in private practice, helping Ted Olson to represent the former President during the Poindexter trial. Both times it was an honor to serve him.

Ronald Reagan's passing yesterday was sad. But the world can be grateful that he left the earth when he did rather than in 1981 as a result of John Hinkley's bullets.


Brian Leiter collects the comments on Reagan of liberal and left bloggers. They still don't get it. My "favorite" is from William Rivers Pitt: "The truth is straightforward: Virtually every significant problem facing the American people today can be traced back to the policies and people that came from the Reagan administration. It is a laundry list of ills, woes and disasters that has all of us, once again, staring apocalypse in the eye." (The link is not registering: To see Leiter's collection, go to the Leiter Reports.)
Sunday Song Lyric Index: Sorry about not posting a song lyric last Sunday. I was unexpectedly out-of-pocket for several days. In any event, here's an index of all of the song lyrics I've posted to date:
- May 23 - P.O.D., Alive
- May 16 - Something Corporate, If I Were a Terrorist (I'd Bomb Your Graduation)
- May 9 - Pink Floyd, Mother
- May 3 - The Police (Stewart Copeland), On Any Other Day
- April 25 - Maroon 5, Shiver
- April 18 - Bob Dorough, Devil May Care
- April 11 - Patsy Cline (Willie Nelson), Crazy
- April 4 - Cole Porter, Every Time We Say Goodbye
- March 28 - Duke Ellington, Prelude to a Kiss
- March 21 - Nine Inch Nails, The Fragile
- March 14 - Incubus, Megalomaniac
- March 7 - Rush, The Trees
- February 29 - Oingo Boingo, Only A Lad
- February 22 - Bob Mould, Heartbreak a Stranger
- Feb. 15 - Yaz, Ode to Boy
- Feb. 8 - Joe Jackson, Obvious Song
- Feb. 1 - The The, December Sunlight
- Jan. 25 - Hank Williams, I'm So Lonesome, I Could Cry
Sunday Song Lyric: I had thought a song honoring the late President Ronald Wilson Reagan would be appropriate for today, but there are not many positive songs about Reagan (and, no, nothing by Reagan Youth would fit the bill). But there are songs about President Reagan's most important legacy: the fall of Communism. Reagan's policies directly contributed to the collapse of the Berlin Wall and the spread of freedom throughout the former Soviet bloc. One of the first pop songs about this transformation — the world waking up from history — was "Right Here, Right Now" by Jesus Jones, a band I liked quite a bit in the early 1990s. It seems a fitting choice for the Gipper.

A woman on the radio talked about revolution
when it's already passed her by
Bob Dylan didn't have this to sing about you
you know it feels good to be alive

I was alive and I waited, waited
I was alive and I waited for this
Right here, right now
there is no other place I want to be
Right here, right now
watching the world wake up from history

I saw the decade in, when it seemed
the world could change at the blink of an eye
And if anything
then there's your sign... of the times

I was alive and I waited, waited
I was alive and I waited for this
Right here, right now

I was alive and I waited, waited
I was alive and I waited for this
Right here, right now
there is no other place I want to be
Right here, right now
watching the world wake up from history

Right here, right now
there is no other place I want to be
Right here, right now
watching the world wake up...

Saturday, June 5, 2004

More on the L.A. County seal controversy:

Cathy Young has a very good column on this in the Boston Globe. "When secularists go after a tiny cross on a county seal or Christmas decorations at a firehouse, they lend substance to the 'religious persecution' complex -- and play right into the extremists' hands." Indeed.

[Gail Heriot (visiting from The Right Coast), June 5, 2004 at 8:38pm] Trackbacks
Accountants Say the Darnedest Things: Is it just me or does this make your stomach turn? Evidently, some of the folks at Ernst & Young made a presentation at the State Government Affairs Council entitled "Turning Your State Government Relations Department from a Money Pit into a Cash Cow." In it, they instructed the audience, consisting of representatives of major corporations, on some of the finer points of how to milk their state governments for corporate welfare.

Paul Caron at taxprof blog writes:

"Ernst & Young ... suggests ways to 'provide government with justification' for giving tax incentives to businesses. A key strategy is to identify 'public benefits' while making a threat of dire consequences if the deal is not made. At the same time, the PowerPoint presentation suggests techniques to prevent states from rescinding the tax incentives if the promised public benefits do not materialize.

"Ernst & Young holds out the recent Boeing-Washington state deal as the model. Faced with Boeing's threat to move manufacturing jobs out of state ..., Washington ponied up almost $4 billion in tax incentives. Yet, as the Evergreen Freedom Foundation notes, Boeing since has shed more than 4,200 jobs in Washington. But the deal stipulates that 'the state shall not suspend, revoke, or require repayment' of the tax incentives, no matter what Boeing does on the jobs front. The deal even requires Washington to 'assume the entire defense' for any legal challenge to the $4 billion package, including 'all fees, costs and expenses'!"

I suppose this is the inevitable result of state governments' willingness to go in for such deals. But it makes me reach for the Alka Seltzer.
[Gail Heriot (visiting from The Right Coast), June 5, 2004 at 5:50pm] Trackbacks
OBIT: Reagan dies.
[Mike Rappaport (visiting from The Right Coast), June 5, 2004 at 4:23pm] Trackbacks
Chomsky Brian Leiter quotes Noam Chomsky:
"Among Western intellectuals, it is a virtual axiom that the US goal -- sometimes Bush's 'messianic mission,' as the elite press puts it -- is to bring democracy to Iraq, the Middle East, and the world. [In Iraq, however, the great majority believe] the obvious answer, dismissed with some hysteria here as a 'conspiracy theory' or with some other intellectual equivalent of a four-letter word: to control Iraq's resources and to reorganize the Middle East in the interests of the US and its Israeli client."
Chomsky appears to endorse this "obvious answer," but his argument is weak. Lets start with the claim that the US is trying "to reorganize the Middle East in the interests of the US and its Israeli client" rather than to promote democracy. But most defenders of the war, including me, would argue that the US is attempting to do both. It is trying to establish a democratic Iraq, with the understanding that a democratic Iraq would promote individual rights, civil society, commerce, and peace, and thereby would be in the interests of the US and other democracies in the region, including Israel (and also Turkey). To my mind, this strategy is both moral and has a better chance of achieving these laudable objectives than other possible strategies do.

It is not clear why Chomsky ignores the possibility that we are furthering our self interest by undertaking the morally praiseworthy task of promoting democracy. But a large part of good statesmanship is to find policies which have this double benefit. Sadly, we are too often faced with the choice of helping ourselves or helping others. But when we can help ourselves by helping others, we should jump at the chance. That is, after all, what is so great about the invisible hand in a functioning market. Somehow, I think Chomsky missed that one, too.

Finally, consider the claim that the US "seeks to control Iraq's resources." While this makes it seem as if we are trying to transfer the oil fields, in fee simple, to the US, our objectives are a bit more limited and benign. Our first objective was to keep Iraqi oil (and Kuwaiti oil) out of the hands of that evil menace, Saddam. Beyond that, I am sure the US would be happy if Iraq were to leave OPEC and help undermine that cartel, but I can't imagine many people believe this is likely to happen. For what it is worth, there is also no dishonor in that objective: again, our self interest coincides with a moral goal: We would be promoting the dissolution of a cartel, an objective we generally regard as good public policy and which would benefit not only US consumers but consumers throughout the world.
[Maimon Schwarzschild (visiting from The Right Coast), June 5, 2004 at 2:13pm] Trackbacks
Fat Dilemma There seems to be some confusion as to the "correct line" on the urgent public question of obesity. On the one hand, Time magazine devotes most of this week's issue to the "obesity crisis". ABC News and Ralph Nader put the blame where you might expect, i.e. on greedy corporations — aka fast food — and the trial lawyers are readying their class actions accordingly.

On the other hand, there is a large body (as it were) of feminist writing against the "beauty myth" — key phrase: "fat is a feminist issue". The New Republic runs a pro-fat (or at least anti-thin) cover story by Paul Campos entitled "Rubens Was Right". Campos, a quirky but left-of-centre law professor, has just published a book entitled "The Obesity Myth" insisting that fat isn't so bad and that it's false consciousness -- manipulated by "experts" -- to think that it is. The media are taking note, and The Guardian, Britain's left-wing broadsheet, has published lengthy excerpts from Campos' book.

Is there dissonance in the progressive camp on this question? Or is corporate greed guilty both of making us fat and making us want to be thin?

Perhaps this question can be resolved by a closer study of the classics...
[Tom Smith (visiting from The Right Coast), June 5, 2004 at 12:06pm] Trackbacks
Communion Kerfuffle Our house is full of guests for William's first communion tomorrow, so it seems a good time to address the communion kerfuffle, the controversy over whether public officials who support abortion rights ought to be able to receive communion in the Catholic Church. "Catholic" means "universal," apparently in the sense that absolutely everybody is entitled to an opinion about what the Church should do, whether or not it is their wish that St. Peter's will someday be a car museum. People who would no more go to Mass than they would last year's Manhattan eatery are suddenly full of advice about how Peter should manage the big ministry. The New Yorker weighs in, in its usual psuedo-fluffy way, with these, among many other observations:

Theodore Sorensen, the Unitarian who was President Kennedy's closest aide, wrote that while his boss faithfully attended Mass on Sundays, "not once in eleven years—despite all our discussions of church-state affairs—did he ever disclose his personal views on man's relation to God." John Forbes Kerry, who also attends Sunday Mass, has been similarly reticent about the intimate details of his spiritual beliefs.

And the world is a poorer place for not knowing JFK's conception of God-Man relations. Perhaps it resembles the jihadist idea that heaven includes lots of babes, just like Vegas. Just a suggestion for the New Yorker crowd: American Catholics, even my mother, are so over the St. Jack nonsense. The Kennedys are Catholics, yes, and so are the Corleones.

The critics and kibbitzers are right about one thing — it is an issue of tolerance. The standard line is that the various prelates who have proclaimed that communion is not for supporters of abortion are being intolerant, not being open minded enough about the varities of conscience. The interesting thing is that it is just assumed that to be a good Democrat, you have to support abortion, and not only abortion, but even the forms of it very few doctors will touch with a referral, let alone perform, that is, the killing of infants who could survive in a neo-natal ICU. When it comes to its infallible teaching on abortion, the Democratic Party is more than willing to exercise its power of excommunication and anathema for heretics and apostates. "I'm a good Democrat, but I'm against abortion" are the words of a Democrat not long for her party. And this hypothetical person would be drummed out, to switch metaphors, for what? For being intolerant, of course.

Much more could be said on this, but I've imposed on Eugene's hospitality enough, and there are guests to attend to, every single one of them, curiously enough, very solid Democrats.
Blankley on Soros:

There's much to condemn in George Soros's recent statements (and actions), but Mark Kleiman is right to fault Tony Blankley for making Soros's Jewishness part of the condemnation. On the June 3 Hannity & Colmes, Blankley had the following odd statements:

. . . [L]et's get back to Soros.

This a man who blamed the Jews for anti-Semitism, getting Abe Fluxman (ph) — excuse me — head of the Anti-Defamation League to call it an obscene statement.

This is a man who, when he was plundering the world's currencies in England in '92, he caused a Southeastern Asian financial crises in '97.

[Richard Aborn]: Please, come on. Wait a second. You're so far beyond the facts. Hold on.

[Blankley]: He said that he has no moral responsibility for the consequences of his financial actions. He is a self-admitted atheist. He was a Jew who figured out a way to survive the holocaust.

What does his being a Jew who managed to survive the Holocaust have to do with things?

I think it's quite a stretch from this to concluding, as Mark Kleiman does, that this "resolv[es] doubts" "about how much of the [anti-Soros] campaign was based on simple anti-Semitism." I'm not sure this even tells us how much of Blankley's anti-Soros views are based on simple anti-Semitism, much less the views of the rest of the campaign.

There's a simple explanation for why Republicans, especially pro-Administration republicans, dislike Soros and are working to undermine them — he seems to dislike them, and is working to defeat them, using some rather intemperate rhetoric. I have no reason to think that their actions are based, in any significant part, on anti-Semitism.

At the same time, when a person just trots out someone's Jewishness (or whiteness or blackness) in a context where it seems to make very little sense (the first Blankley reference to his Jewishness does make sense, but the second does not), it does at least suggest that the person is more focused than he should be on who's a Jew and less on the merits on the debate — and it certainly hints at broader hostility to Jews.

Finally, the line about atheists is pretty reprehensible, too. Just as many Christians rightly condemn anti-Christian insults or anti-religious-Jewish insults, so they should condemn anti-atheist insults.

It is true that there are theoretical arguments about why one shouldn't trust atheists (they don't answer to any higher authority) — just as there are theoretical arguments about why one shouldn't trust devout Christians (they believe things without adequate factual evidence) or devout Catholics (they are governed by the actions of a foreign potentate) or devout Jews (see Christians above if you're irreligious, plus if you're a Christian, in theory you should end up agreeing more with Christians than with Jews). But in practice, such generalizations end up being much less reliable than one might think; and they end up being highly destructive of civil debate, and ultimately of society in general, especially when society consists of many religions and denominations.

And that's just as true of condemnations of people for their atheism as it is of condemnations of people for their Christianity or religious Judaism or Catholicism or Hinduism or whatever else. (This may not extend to all religious beliefs — if a religion in fact requires adherence to some genuinely evil beliefs, then one can rightly infer that adherents of that religion hold those beliefs and are likely to act on them. Satanism, as I've heard it described, may be one such example; likewise, if someone belongs to a militant sect that in practice is likely to push its members to engage in holy war against others. But it certainly applies to most mainstream sets of religious belief, including the absence of religious belief, which simply requires as its foundation an understandable skepticism towards the existence of the unproven.)

UPDATE: My colleague Steve Bainbridge explains the story behind Blankley's first reference to Soros and Jews -- "This [is] a man who blamed the Jews for anti-Semitism." (I didn't mention it, because I thought that story was fairly well-known; but indeed some people might not know it, so Prof. Bainbridge's explanation is useful.)

But while that story is the reason I don't fault Blankley for that first reference (see above), the story does nothing to explain Blankley's second reference, which is the subject of my criticism.

[Maimon Schwarzschild (visiting from The Right Coast), June 5, 2004 at 2:24am] Trackbacks
Levy's Wry Gail Heriot's post from Proverbs (just below) was well timed. Friday evening is the time, in traditional Jewish families, that husbands and sons read or chant that passage in full, as the household gathers for the Friday night dinner and the women light the Sabbath candles. "Eshet hayil mi yimzah?..." in Hebrew; literally, "A woman of valour, who shall find?..." A moment of grace each week, for women who often led rather downtrodden lives. (So did many of their menfolk, of course.)

Gail's citation to this passage just goes to show, as Levy's Rye Bread used to point out, that you don't have to be Jewish to read the King James Version.

Friday, June 4, 2004

[Gail Heriot (visiting from The Right Coast), June 4, 2004 at 7:21pm] Trackbacks
I am a Merchant Ship My colleagues at the University of San Diego sometimes tease that I am "not a real woman," evidently because I am conservative, a bit outspoken, and good at math. (One or two of them are not kidding.) Today, however, I feel decidedly like a woman and a virtuous one at that--at least as that term in used in the Bible. Like the "virtuous woman" of Proverbs, Chapter 31, I am a merchant ship.

Who can find a virtuous woman? for her price is far above rubies....
She seeketh wool, and flax, and worketh willingly with her hands.
She is like the merchants' ships; she bringeth her food from afar....
She considereth a field, and buyeth it: with the fruit of her hands she planteth a vineyard....
She perceiveth that her merchandise is good: her candle goeth not out by night....
She is not afraid of the snow for her household: for all her household are clothed with scarlet.
She maketh herself coverings of tapestry; her clothing is silk and purple.

Well, perhaps I have not exactly clothed anyone in scarlet. Or even made coverings of tapestry or clothing of silk and purple. But I have done the modern equivalent: I discovered BARGAINS. Yes, I know that it is hardly news that one can get bargains on Ebay. But did you know that you can buy new Stuart Weitzman shoes on Ebay for $50? Or that shoes are a particularly good thing to buy on-line, since each shoe style has a name like "Elizabeth" or "Contempo," so they are easy to search? I didn't know any of this, and evidently many people don't, since Saks, Nordstrom and Needless Mark-up are getting away with selling the same shoes for $200. But now I know, so now I'm a virtuous woman. Tomorrow I'll go back to being a law professor (perhaps then the market will be back in equilibrium).
[Mike Rappaport (visiting from The Right Coast), June 4, 2004 at 12:29pm] Trackbacks
Scalia, Originalism, and Clear Rules Recently, the Supreme Court decided an important federalism case, Tennessee v. Lane. I previously blogged on the Right Coast about the minimalist conception of federalism that appeared to animate Justice O'Connor's vote in that case. Here I want to discuss Justice Scalia's interesting dissent. Tennessee v. Lane involved the question whether Title II of the Americans with Disabilities Act is authorized by section 5 of the 14th Amendment. The majority, including Justice O'Connor, held that it was.

There are three basic ways to read section 5 of the 14th Amendment, which provides that "the Congress shall have power to enforce, by appropriate legislation, the provisions" of the Fourteenth Amendment. First, in the narrowest interpretation, Congress might simply have the power to enforce provisions of the Amendment, such as the Equal Protection Clause, by laws that go no further than the meaning the courts give to those provisions. For example, Congress could enforce the Equal Protection Clause by making it a crime for a state official to deny someone the equal protection of the laws.

Alternatively, Congress might have a broader power to enforce the Amendment through laws that go beyond the Amendment's prohibitions. For example, although the Equal Protection Clause might prohibit only intentional race discrimination, Congress might have the power to forbid state laws that unintentionally have disparate effects on different races, because Congress believes it is too difficult to prove discriminatory intent in a court of law.

There are two versions of this latter approach. First, the Court might inquire in a serious way to determine whether Congress is actually enforcing the Amendment rather than just using its enforcement power to pass legislation it would not otherwise have the power to enact. In 1997, in the Boerne case, the Supreme Court adopted this approach, promulgating something called the "congruence and proportionality test." Second, one might employ a more lenient standard, allowing Congress much wider discretion to go beyond the Amendment's provisions. Advocates of this approach argue that it is the same standard that applies under the Necessary and Proper Clause.

In Justice Scalia's dissent in Lane, which no other justice joined, he adopted the narrowest interpretation. The question is whether he is correct. Scalia's textual argument is that enforcing a provision means passing laws to remedy the violation of that provision, not passing laws that go beyond that provision. One does not enforce a 55 mph speed limit with a 45 mph speed limit. While this textual argument makes sense, it is not sufficient, since the text is ambiguous. One might also read the Amendment's language ("Congress shall have power to enforce, by appropriate legislation") to convey the same power that Congress has under the Necessary and Proper Clause, because that power had been famously described as allowing Congress to use "all means which are appropriate." The legislative history of the Amendment also included some statements to that effect.

Scalia attempted to buttress his interpretation by claiming that it resulted in a test that was clearer than the congruence and proportionality test, which could be manipulated by judges. While this argument is certainly true, it also raises an important conflict within Scalia's jurisprudence. As a formalist, Scalia strongly prefers clear, determinate rules. But as an originalist Scalia should only interpret provisions to be clear if that is their original meaning. Scalia, however, failed to provide any clear evidence of that meaning in Lane. While I suppose one can legitimately assume a mild preference on the part of the Framers for clear rules, the Constitution simply does not exhibit a clear and strong preference for such rules generally.

Thus, Scalia appears open to the charge that he reads his preference for clear rules into the Constitution, much as he charges other justices with reading in their preference for abortion. Of course, Scalia might respond that a preference for clear rules is more justified than a preference for specific results, such as protecting abortion, because there is more chance of a general agreement in favor of clear rules than for specific results. But this ignores the main point: A principled originalism requires that one consistently apply the original meaning and Scalia's approach here does not appear to do that.

This is not the first time that Scalia has pursued clear rules without considering evidence of the original meaning. In Employment Division v. Smith, Scalia wrote an opinion for the Court interpreting the Free Exercise Clause to have a clear meaning, but without supplying any originalist support for the interpretation. (In response to criticism, however, Scalia did attempt to supply some evidence.) Another example is Scalia's position on the nondelegation doctrine, which he refuses to enforce on the grounds that there is no clear test for doing so, but without providing originalist evidence for his interpretation.

While I am critical of Scalia's reasoning in Lane, it is possible that he may in the future be able to supply additional evidence to support his interpretation. Even if he cannot, I still don't think that section 5 allows Congress the strong deference that advocates of the Necessary and Proper Clause interpretation advocate. But that is a post for another day.

I continue to be puzzled by Slate's Kerryism of the Day feature. The column is largely about editing — about showing how Kerry's speech is marred by his "caveats and embellishments" and how it could be improved ("translated into plain English"). The column also purports to use these "caveats and embellishments" as evidence of Kerry's "pomposity and evasiveness", but that works chiefly to the extent that the proposed edits work. After all, if it turns out that the editing removes necessary provisos (and not "pointless embellishments"), then this suggests that the original is actually not so bad — rightly cautious rather than evasive.

What's more, Slate, like many magazines, is itself also largely about editing — taking the universe of commentary and cutting away the dross, plus taking a particular article and cutting it down to its readable, clear, focused essence. People who run magazines should want their readers to feel that the magazine is consistently well-edited.

It's remarkable, then, how bad the editing in the Kerryisms really is. The Kerryisms author strips away necessary material, not just the "pointless embellishments." In the process, he substantially changes the original author's meaning; this often leads to the result's conveying something the original author doesn't want to convey (something authors rightly hate). At the same time, the Kerryisms author often omits other edits he should be making. And he makes all these mistakes with a smug, self-satisfied tone that leads the errors to just be more annoying.

For evidence, just look at today's Kerryism. Kerry was asked "Does the Kerry administration care if I want to take a trip to Cuba some time?"

Kerry replied:

Well, since there isn't a Kerry administration yet — I believe that, I have said this publicly, that I think that — I'm not for lifting the embargo. I think we ought to keep the embargo in place. I think we ought to continue to find ways to push Castro to change. But I am in favor of allowing cultural exchanges and travel.

The supposedly "plain English" version is:

I'm not for lifting the embargo. I think we ought to keep the embargo in place. I think we ought to continue to find ways to push Castro to change.

Kerry's original is indeed not great, though even articulate people often can't be as concise in their off-the-cuff oral responses as they can be in edited text.

But Slate's "translat[ion]" is awful. First, it strips out Kerry's entire "there isn't a Kerry administration yet" line. My guess is that this is not a "pointless embellishment," but rather a useful little bit of modesty, helpful to keep the response from sounding overconfident (especially since the question was asked in the present tense, as if the Kerry Administration was already in power). Kerry didn't put this as well as he could have, but that's no reason to cut out the entire thing.

Second, it changes Kerry's meaning, and in an important way. Kerry isn't in favor of a total embargo; he's in favor of allowing "cultural exchanges and travel." That (1) helps him win support from voters who support at least some contacts with Cuba; (2) helps him seem generally moderate, even to voters who don't care much about this issue; and (3) is necessary to adequately answer the question: For all Kerry knows, the questioner might be wanting to go there as a matter of "cultural exchange[] and travel" (or perhaps Kerry thinks that all personal travel should be exempted from the embargo), and just omitting that sentence would thus misrepresent to the questioner what Kerry's position really is. And yet Slate thinks this should be edited out.

Finally, the most useful edit is one Slate doesn't even note: The two sentences "I'm not for lifting the embargo. I think we ought to keep the embargo in place." are pretty much redundant of each other. Sure, sometimes repeating things is helpful for emphasis, but this doesn't seem to be one of those times. Now perhaps Slate just decided not to mention it because this isn't a matter of "caveats and embellishments," but some of Slate's other edits (for instance, the deletion of "I think that") don't seem limited to caveats and embellishments, either.

So if I had to edit Kerry's response, I'd suggest this:

Well, there isn't a Kerry administration yet, though with your help we can change that. I think we ought to keep the embargo in place. I think we ought to continue to find ways to push Castro to change. But I am in favor of allowing cultural exchanges and travel.

It's crisper, and Kerry's speech indeed can often be made crisper. (Slate's objections to "I believe that, I have said this publicly, that I think that" are sound, though again note that it's hard to avoid some such stammering in an off-the-cuff oral response.) But it keeps Kerry's important substantive and rhetorical points, rather than just dismissing them, with no foundation, as "pointless embellishments."

Or, better yet, I'd suggest that the whole column (and its older companion "Bushisms") be dumped.

For more criticisms of Kerryisms, see here, here, and here.


The Spanish medals-for-nothing controversy is now apparently being dubbed "Medalla-Gate" in Spain (though, I suspect, at least partly facetiously).

[Gail Heriot (visiting from The Right Coast), June 4, 2004 at 3:28am] Trackbacks
Sharpen Your Number Two Pencils The Chronicle of Higher Education reports that a new study on that most dreaded of standardized tests, the SAT, will soon be published in the Journal of Econometrics. According to the Chronicle, the study's author "argues that SAT scores can 'launder' an applicant's background, such as race and family income." "'If colleges do not wish to consider a student's background as an admissions qualification,'" he says, "'you have to be very careful ....'"

I look forward to the article as I look forward to all articles on the SAT. I'm sure that one day I'll find one that is fair and thoughtful, but so far the ones I've seen that have received pre-publication publicity have tended to be more political propaganda than anything else, even those that appear in respectable journals. Still, you can't blame a woman for hoping.

SAT bashing has been popular over the past few years, mainly because the issue is seen as related to the controversy over race-based admissions. Nicholas Lemann's The Big Test: The Secret History of the American Meritocracy attempted (unsuccessfully in my humble opinion) to portray the SAT as somehow sinister. Peter Sacks' Standardized Minds: The High Price of America's Testing Culture and What We Can Do to Change It was even more critical. Using neo-Marxist jargon, he called standardized tests, including the SAT, "a highly effective means of social control ... serving the interests of the nation's elite" and a tool for elites to "perpetuate their class privilege with rules of their own making." At one point, the Clinton administration's Office of Civil Rights at the Department of Education issued draft "guidelines" that would have strong-armed colleges and universities into de-emphasizing or eliminating the SAT. (They were withdrawn when an uproar ensued.)

James Bryant Conant and Henry Chauncey no doubt took a few revolutions in the grave when they heard Sacks' accusation. They created the SAT for precisely the opposite purpose--to take privilge away from the WASPish families of the Eastern Establishment and put it into the hands of talented young people, regardless of background. And they were pretty successful. More than one Nebraska farm girl or governemnt clerk's son from Newark has beaten out a scion of wealth and privilege for a seat at Harvard or Yale precisely because of the SAT.

Sacks called the close relationship between social class and standardized test score the "Volvo effect." He cited a study, which he claimed found that 50% of the variability in individual SAT scores is explained by parents' level of education. If so, that would be extraordinary. But the study he cited wasn't about individual test scores at all, but rather school-wide average test scores. As a statistical matter, it is irrelevant to the point Sacks was trying to convey.

The error was one statisticians call an "aggregation fallacy." Groups and individuals are different. Focusing on groups will tend to obscure important individual differences that happen to be evenly distributed among the various groups. In other words, even if individual SAT scores tend to be one-tenth social class and nine-tenths random luck, schools in wealthier neighborhoods would tend to do a bit better than those in poorer neighborhoods if only because the more important "random luck" factor would be pretty evenly distributed among all schools. Under such circumstances, the school-wide data would indicate--quite misleadingly--that social class accounts for up to 100% of the variation, while the individual data would credit it with only 10%.

Does that mean that there is no relationship between socio-economic class and SAT scores? Of course not. For whatever combination of nature and nuture, the children of successful, well-educated parents do tend to do better than less-privileged children. But the effect is not as overwhelming as Sacks argues. The notion that only those with Volvos need apply to the Ivy League is nonsense.

Moreover, insofar as the children of successful parents do score more highly, the test is measuring something real and not something that will disappear if the SAT is abolished. Such students, on the whole, don't just tend to get better scores, they tend to do better in college too. Ignoring SAT scores just because the children of high-achievers tend to do well would be like ignoring height in basketball players just because the children of tall people tend to be tall.

Thursday, June 3, 2004

Whose vision of the Constitution produces spiffier diagrams? Blogging here from Carefree (the name of the town), Arizona, I see Will Baude is running an informal blogpoll on Crescat Sententia. Here is how he describes it:

It's time we found a neutral principle for picking a theory of Constitutional Law. I have one. Whose vision of the Constitution produces spiffier diagrams?

Exhibit A: Randy Barnett (link via Randy Barnett)

Exhibit B: Laurence Tribe (link via Waddling Thunder)

You be the judge, and vote below.
See if you can discern the substantive implications of the Tribe diagram.

Click here to cast your vote. Choose wisely.

I'll be on the road almost continuously until 6/22 (Charlottesville, Postdam, Salt Lake City), and don't anticipate blogging much or at all between now and then; e-mail will also go almost-entirely unread.

One note on e-mail I've been getting: several people have written to confirm that "bobo" has been internalized as a French word over the past year or so, not only in Le Monde but also in conversation. I've never heard it, but my French conversations tend to be on very specialized topics that don't include contemporary middle-class culture, so that's probably not a surprise. "Bobo" doesn't come up in Montesquieu very often...

Another Kerry ad intellectual property issue?

The Corpus Christi Caller-Times reports (thanks to reader Chris in Austin for the pointer):

A television advertisement for Democrat John Kerry's presidential campaign appears to have violated copyright laws by broadcasting several photos from the Caller-Times book "South Texas Heroes." . . . These veterans or their relatives say they did not give permission to use their photos, nor did the Caller-Times. . . .

The advertisement targets Hispanic voters in six states, and features photos of 16 Hispanic veterans, 15 of which were featured in "South Texas Heroes." . . .

The Kerry campaign's director of Hispanic media, Fabiola Rodriguez-Ciampoli, said late Wednesday that the ad may be pulled off the air after she learned that some people did not give permission to run the photos. It's also possible a different version of the ad may run with photos of people who gave permission to Gutierrez and the campaign. . . .

[Ad producer Armando] Gutierrez said "South Texas Heroes" is not the source of the photos used in the commercial, which started airing Friday. . . .

Gutierrez said he is related to most of the people in the commercial, including five Barrera brothers. The other photos were from friends of the family, he said. That's why he didn't think it was necessary to have written permission, he said. . . .

Gutierrez said if there is a problem with obtaining rights to the photographs, it is his mistake and not that of the Kerry campaign. . . .

Let's assume -- and the story suggests that this is likely so -- that indeed Gutierrez copied some of the photos from the Caller-Times book without getting anyone's permission. Would this be a copyright infringement?

Potentially, yes, since the photos are copyrighted works, with the copyright being owned by the original photographers (or their heirs), though possibly with the photographed people having an implied license to authorize others to republish the photos. (The copyright might be owned by the photographed people, but I doubt it -- that would probably require the photographed to have conveyed the copyright in writing, which generally isn't done.)

Still, I think the Kerry campaign would have a pretty strong fair use defense here.

1. It's using the photographs for self-interested purposes, it's true, but not for commercial ones -- that cuts in favor of fair use.

2. The photos are factual works, with some creative component (lighting, posing, and the like), but relatively little. That also cuts in favor of fair use.

3. The entire photo is used; that cuts against fair use, but probably not by much, since that's the only really practical use of such a photo.

4. Such uses probably have virtually no effect on the income of the copyright owners -- the photographers and the photographers' heirs. The owners would be extremely hard to track down, 50 years after the photos were taken; often people might not remember who the photographer even was. They would thus be very unlikely to get any money from licensing the use of such photos. As a result, Gutierrez's actions would not have in practice materially affected the market for their works.

If the photos were taken by family members, then they might be easaier to track down; but even there, you'd have to know exactly who took the photograph. Moreover, since the commercial value of the license to use the photo would likely be fairly low (not nil, but fairly low), this effect-on-copyright-owner's-income factor would probably not weigh heavily against fair use, especially since it would often be so hard to figure out for sure exactly who took the photograph, and whom the rights descended to at the photographers' death, if the photographer is dead. In the fair use effect-on-market factor, such practicalities do make a difference.

Ah, you say, but what about the objections of the photographed people and their families, as subjects rather than as photographers? Well, copyright law provides no protection to the subjects as subjects (and neither do other legal rules, for reasons given here). Copyright law protects the rights of the copyright owner, or, more precisely, the owner of exclusive rights under a copyright. And, especially for published works, the fair use analysis focuses on the economic value of the work, and not on the subject's (or even the photographer's) moral or political objections to the use. The subjects and their families might have the right to license the uses, under the theory that the photographer gave them an implied nonexclusive license to do so. But they have no right to sue over such uses, because they only have the nonexclusive right to use the photo and maybe the right to license it; they have no right to exclude others from using it.

So my sense of the legal issue: This is probably not a copyright infringement, because it's a fair use. Again, though, it's possible that the Kerry campaign may feel political pressure to stop using those photos (see the story for more details on some of the family members' objections).

Technical note: Because the photos were taken before the Copyright Act of 1976 was in effect, but were published afterwards, they would be essentially governed by the 1976 Act. See secs. 303 & 302, for instance, which show that the photographs are still protected by copyright; likewise, the photos didn't have to have a copyright notice on them when they were first taken, because they weren't published then, and they didn't have to have a copyright notice on them when they were published, because the publication happened in 2003, long after the copyright notice requirement was eliminated.

[Tom Smith (visiting from The Right Coast), June 3, 2004 at 12:59pm] Trackbacks
That darn New York Times The New York Times coverage of Bush's speech at the Air Force Academy is a special treat. Like a complete idiot, I hurt my back doing dead lifts in my garage, and so spent a fair part of yesterday on my back in the family room, looking for entertainment on the tube, and caught W's address. It was actually a very good speech, but poorly delivered. The Times puts it this way:

In a grim commencement speech on a sparkling morning at the foot of the Rocky Mountains, Mr. Bush outlined in the most detail yet what he sees as the continuing threat of terrorism. Rather than expressing any misgivings about the course of the war in Iraq, Mr. Bush emphatically affirmed his belief in striking enemies before they can strike first to protect Americans against Al Qaeda and other terrorist threats.

Giving a grim speech on a nice day? We can now add meteorological insensitivity to Bush's many other style-crimes. "What he sees" as the continuing threat of terrorism? This is idiosyncratic? Maybe it's not a threat anymore? And only the Times would think it was good journalism to add "[r]ather than expressing any misgivings about the course of the war in Iraq . . ." at the beginning of a sentence describing what the speech was about. I suppose we should be grateful that it did not read, "As car bombs exploded in Iraq, killing American soldiers and Iraqi children, the President . . . "

We do get this choice insight, however:

The president's remarks appeared to try to strike a balance between frightening Americans and offering himself as the only choice to lead the nation out of danger and to shore up his credentials as commander in chief in an election year when polls show support for the Iraq war and his presidency declining.

Either that, or a sincere attempt to inform Americans about real threats facing them, and to do the graduates and their parents the dignity of acknowledging the danger he is responsible for sending them into. I watched the speech, and the Times fails to mention the standing ovation Bush received when he said, referring to the Bush Doctrine of preemptive war against terrorism, that he intended to take the fight to the enemy. The Times describes Bush's speech as "interrupted intermittently by applause, most of it modest" and this is true. The applause was modest, except when it was enthusiastic.

The Times informs us that

Mr. Bush also tried to answer critics who say that his policies and the war in Iraq have simply created more terrorists.

But only tried, of course. The "we better not make the terrorists mad at us" argument is so compelling on its face that attempts to answer it are bound to be futile, but Bush did the best he could with his limited resources.

But the choicest passage is this:

Casting forward to his D-Day speech, Mr. Bush told the cadets that "on this day in 1944, General Eisenhower sat down at his headquarters in the English countryside and wrote out a message to the "Soldiers, Sailors and Airmen of the Allied Expeditionary Forces" who would soon be invading Normandy. Mr. Bush said Eisenhower wrote that "the eyes of the world are upon you" and "the hopes of prayers or liberty-loving people everywhere march with you."

Mr. Bush omitted the first line of Eisenhower's message, which was, "You are about to embark upon the Great Crusade, toward which we have striven these many months."

The president used the word "crusade" once soon after the Sept. 11 attacks to describe the campaign against terrorism, and it was criticized in the Arab world for its association with the medieval struggle between Christians and Muslims.

I think we may be seeing the emergence of an exciting new doctrine of political correctness here. Not only may we not use words like Crusade, at least in the positive sense of a noble fight against a crazed ideology that wants to murder us, but, we should not use any language from a paragraph that includes such a verbotten word. As to whether D-Day was still a good thing, even though Ike called it a Crusade, I admit I cannot say. Perhaps the Times will clear that up for us some objective reporting at a later date.

What they're giving medals for these days:

From, via Arthur Chrenkoff" and InstaPundit:

The . . . [Spanish] Defence Minister handed back a medal he was given for his role in withdrawing troops from Iraq, it emerged Wednesday.

José Bono sent a letter to the prime minister José Luis Rodríguez Zapatero saying he would give back the Cross of Military Merit, according to sources close to the minister.

The move comes after Bono was heavily criticised when he was given the award last week.

It was awarded by Zapatero for Bono's "merits" as a minister, including his role in the withdrawal of Spanish troops from Iraq.

But Opposition political figures said Bono should not have received the award only six weeks after taking over as Defence Minister.

Zapatero granted the award to all those who helped in the withdrawal of Spanish troops from Iraq. . . .

Smuggling Yemenite Jews Out of Monsey, NY

From Ha'aretz:

"Na'ama Al-Nahari, a woman of Yemenite origin, and five of her 12 children were smuggled out of the ultra-Orthodox township of Monsey, N.Y., on Tuesday and flown to Israel on El Al, in a Jewish Agency covert operation that had been in the works for a few months. According to the plan, a larger number of Yemenites living in Monsey were to be smuggled to Israel, but Satmar Hasidim in the township discovered the preparations and prevented their departure."

If Satmar Hasidim (a virulently anti-Israel sect, based on their belief that it is contrary to God's will to establish a sovereign Jewish state before the Messiah arrives) are "preventing" the departure of Yemenite immigrants from their community, they are undoubtedly violating all sorts of laws, federal, state, and local. No one needs to be "smuggled" out of the U.S. Why is the Jewish Agency smuggling people out of Monsey, instead of calling the authorities?

If I were an enterprising journalist, I'd be on top of this story.

[Maimon Schwarzschild (visiting from The Right Coast), June 3, 2004 at 6:17am] Trackbacks
Cox and Dash, RIP Two major Watergate figures -- nemeses of Richard Nixon -- died this week: Archibald Cox, the Harvard law professor turned Special Prosecutor, and Sam Dash, Democratic counsel to the Senate Watergate Committee.

Nixon's dismissal of Cox as Special Prosecutor gave us the anti-Nixon bumper sticker "Impeach the Cox Sacker".
[Maimon Schwarzschild (visiting from The Right Coast), June 3, 2004 at 5:20am] Trackbacks
Death In Haiti There were floods in rural Haiti (and nearby in the Dominican Republic) over the past few days. Thousands may have died -- no one will ever know the casualty figures very exacly, at least in Haiti -- and thousands more Haitians lost everything of the very, very little that they had.

I spent some time in Haiti in the late 70s and in the mid 90s -- in what passed for "non-crisis" times -- and life there is hard enough even without natural disasters. Haiti is a fascinating and beautiful country. But the poverty and squalour are pervasive: everything is broken, there are crowds of very poor people everywhere, and many Haitians look near the edge of starvation, with hollow cheeks and painfully thin arms and legs. And that is in "normal" times and in areas accessible to a casual visitor: things were, and are, much worse in the hellish urban shantytowns, and worse still in many rural areas from which people flee to the shantytowns.

Haiti is small, of course: just the western third of the Caribbean island which it shares with the Dominican Republic. But Haiti doesn't feel small when you are there, in part because the infrastructure is so bad that it is very slow and difficult to get around. The floods this week were just thirty or forty miles from Port-au-Prince, but that would be a hard day's journey even in "normal" conditions. And as the NY Times reports it, the flood areas are now almost completely cut off.

The Times story mentions that deforestation made the Haitian floods especially dangerous. But the Times doesn't put this in context. You can literally see the Dominican border when you fly into Haiti. There are trees and it is green on the Dominican side; on the Haitian side the hillsides are brown and bare. As with most doleful things in Haiti, there is history to explain this. In the egalitarian spirit of the French Revolution, the newly independent Haiti abolished primogeniture. With each generation, peasant holdings were divided and subdivided into ever tinier parcels. The peasant smallholders, desperate to survive, cut down their trees for charcoal, their only fuel. But without trees, the soil washes out to sea. (You can see this, too, from the air: the Caribbean is brown with washed-away soil all around the Haitian coast.) Now the land is denuded. Crops do not grow: there isn't much hope that they ever will. And there is nothing to impede the floods.

Haiti's political history was nightmarish from the beginning. The French slave system there was probably the cruelest and greediest in the western hemisphere. The French sugar planters made out so well that their biggest town, Cap Haitien, was reckoned one of the richest places in the world in the eighteenth century. When the Haitian slaves revolted, inspired by the fall of the Bastille, they massacred all the whites. (The Haitian flag is blue and red: the founders of Haiti famously ripped the white out of the tricolour...)

Ever since, Haitian history has been a kind of civil war between the tiny Black middle class and the even tinier Mulatto aristocracy. (The impoverished masses don't count, except in occasional mob scenes, and as victims.) Papa Doc Duvalier came from the Black middle class, for example; so did Jean Bertrand Aristide. General Cedras, on the other hand, who led the coup against Aristide in the 90s, was light-skinned and quite French looking.

The US sent troops to occupy Haiti in 1915 after a mob dragged President Guillaume Sam from his palace and tore him limb from limb. US troops stayed until 1934. It was an interlude of comparatively good government: at least, a period when some infrastructure was built up. But Haitians resented the white occupiers, of course. (Note re Iraq: yes there are some parallels, and also lots of differences...)

An easy moral that comes to mind is that when a political history begins with cruelty, it is set to remain cruel, corrupt, and dysfunctional. That seems true of Haiti: the worst slave system there was, overthrown in a revolution soaked in blood, anarchy, and massacre. Two centuries of misery followed. On a bigger scale, it seems true of the Communist tyrannies as well: the Bolshevik coup, for example, with its Red Terror, the murder of the Romanovs, the Leninist cult of violence, all setting the scene for the Stalinist (and later the Maoist) horrors that followed.

But it ain't necessarily so. The French Revolution had its definite "terror" elements, elements that inspired the Haitian insurgents, and inspired Lenin and Trotsky as well. But France, for all its ups and downs since 1789, has not been one long nightmare of blood, starvation, and national misery.

Even the American Revolution had its cruel and anarchic elements. And the Civil War was savagely cruel.

So when do cruel beginnings make for a cruel and failed state? And when do they not? Discuss. (It is exam season.)

Meanwhile, Haiti is one of those places that ought to make you pray there is no such thing as reincarnation. If you think the odds are good that you wouldn't be reincarnated as a Haitian peasant, consider that things are as bad, or worse, in the Congo and in many other places in Africa, and for that matter for many, many people in India and elsewhere. People lucky enough to be law professors in this life -- like us RightCoasters, and most of the regular Volokh Conspirators -- have especially strong reasons for being dead set against reincarnation...

Wednesday, June 2, 2004

[Mike Rappaport (visiting from The Right Coast), June 2, 2004 at 6:12pm] Trackbacks
Removal of the Cross Eugene notes that LA County has decided to remove the cross in response to the ACLU lawsuit, even though he believes LA could have successfully defended the case. Some people are wondering why LA would have agreed to remove the cross in these circumstances. While the costs of defending the lawsuit is one possible explanation, there is another: Some of the LA County Supervisors wanted the cross removed before the lawsuit, but feared an electoral reprisal if they took the action on their own. The ACLU lawsuit gave them an excuse for removing the cross, without having to take responsibility for it.

I don't know the actual motivations of the LA County supervisors, but it is worth pointing out this possibility, since such lawsuits are sometimes used to fool voters. Government defendants can be defendants in name only. If a prison or government psychiatric hospital is sued on the grounds that the Constitution requires additional funds for its operation, the prison or hospital administrators will often secretly want the plaintiffs to prevail.
Cathy Seipp on Maureen Dowd's latest.

As always, Cathy's work is much worth reading.

The Rule of Lawyers:

Walter Olson's Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law is out in paperback. If you didn't catch the hardback, you have a second,cheaper, chance to The buy the book. I highly recommend it, both for its comprehensive tour of the litigation fiascoes of our time--such as breast implants, tobacco, and asbestos--and because, like Wally's other books, it's entertaining and well-written.

[Tom Smith (visiting from The Right Coast), June 2, 2004 at 1:15pm] Trackbacks
Global Warming Update I got to see The Day After Tomorrow over the weekend, and unlike some grumpy conservatives I could name, I thoroughly enjoyed it. The movie raised many interesting questions, the most important of which was probably, if there were another ice age, what would be the best SUV to have? I noted with amusement that when Dennis Quaid took his son to the airport, he drove a Honda Hamster, or whatever you call their vile, little electric vehicle. But when the time came to brave the mother of all blizzards, and drive to New York to save his ice-bound son, he elected to use a fully equipped, big manly 4 wheel drive pickup. The truck got stuck somewhere north of Philadelphia, of course -- you can't have an SUV be the hero -- and Dr. Quaid had to snowshoe the rest of the way, but don't worry. It's only a couple hundred miles in whiteout conditions.

Among many silly and impossible events was a display of magical crevasse rescue technique. Quaid's loyal assistant falls through the snow covered roof of a shopping mall, but the resourceful Quaid belayed him with an ice hammer. Then, without setting an anchor, he crawls to the edge of the hole, but not in time to save his loyal assistant, who elects bravely to cut the rope and fall to his death. This seemed especially heroic, given that it was a magic rope, holding him up even though the other end of it was not tied to anything except Quaid, who when crawling toward the hole would presumably have lowered his comrade and then fallen in himself. But why worry about the basic physics of weights and pullies when you have global warming to contend with!

This was only one of many hilarious moments. You get to see a TV news hound swept away in mid syllable by part of flying house as tornados wreak havoc in LA. A gigantic tidal surge rolls over Lady Liberty till only her head and little torch are sticking out. Politically correct ice hurricanes freeze the northern hemisphere, but for some reason the southern hemisphere remains toasty, probably because they have fewer SUVs. Not once, but three times, the Dick Cheney look alike has to eat crow, while scientists say "if only you had listened to us when there was still time!" Apparently, the new ice age could have been stopped anytime up to a few hours before it started.

This movie is not a danger to the republic; it is attack of the killer tomatoes. I advise fellows on the right to relax and enjoy the fun. If you can't laugh at the end of the world, what can you laugh at? I hope by the time it comes out in video, I will have my Yukon XL with built in DVD player and, just be on the safe side, the cold weather package.
Suing Kerry campaign?

CNN reports (thanks to InstaPundit for the pointer):

A group of Vietnam veterans opposed to John Kerry's presidential campaign demanded Tuesday that he remove a photograph that appears in one of his television advertisements.

In Tuesday's "cease and desist" letter, Swift Boat Veterans for Truth called on Kerry's campaign to stop what it said was the unauthorized use of the images of some of them in a 60-second biographical spot titled "Lifetime." The ad began running nationwide in early May.

The U.S. Navy photo in question depicts 20 officers, including Kerry, and was taken January 22, 1969, on the island of An Thoi in Vietnam. The ad shows only a portion of the picture -- not all of the men are visible -- and is displayed for two seconds.

But even the men who are not in the ad have a right to demand the picture not be used, said Alvin A. Horne, a Houston attorney who served on a swift boat in Vietnam in 1969-1970. He is giving legal advice to the group. Eleven of the 20 men in the picture oppose their images being used in the campaign ad, he said.

"The use of the 11 images in this political campaign wrongfully and incorrectly suggests their present endorsement of his candidacy for president of the United States of America," said the letter, which Horne wrote. . . .

"Suing is a possibility," said Horne . . . .

Would the objectors have a good legal case? No. You generally can't use another name's or likeness without their permission in a commercial ad, but that doctrine (the so-called right of publicity) doesn't apply to political ads (and I suspect it wouldn't apply to such ads even if the ads were overt political fundraising, though that doesn't seem to be the case here).

The Lanham Act -- which is the federal trademark / false advertising statute -- and similar state laws prohibit the use of misleading statements in commerce, and especially the use of names, likenesses, or symbols that misleadingly suggest that a product is being endorsed by someone who isn't really endorsing it. But this too wouldn't apply to political ads. Courts are rightly reluctant to judge what statements in political ads are merely misleading. Though the Lanham Act has at times been extended (often wrongly, in my view) to parody magazines and other speech beyond merely commercial advertising, I'm pretty sure that it wouldn't be applied to a candidate ad such as this one.

The tort cause of action called false light invasion of privacy does apply to purely political speech. But it covers only a quite narrow category of speech -- in this context, it would be speech that pretty clearly conveys a false impression about the plaintiff, and a false impression that most people would find highly offensive. A false ascription of support for a mainstream political candidate probably wouldn't qualify as offensive enough to lead to liability. But more importantly, from all I hear of the ad, it doesn't say or clearly imply that the people in the photograph all endorse Kerry. Maybe for a purely commercial ad, under the more relaxed standards of the Lanham Act, the ad's use of the photo would be seen as misleading enough to be actionable. But I'm pretty sure that it wouldn't be so seen as to a political ad, under the rules applicable to false light invasion of privacy.

But all this is just the legal analysis -- as a political matter, the veterans' objection might well be powerful and effective, either at getting the Kerry campaign to change the ad, or more broadly at hurting the Kerry campaign politically. I leave that speculation, however, to others who are more knowledgeable about the politics of such things.

"Facing Suit, County to Remove Seal's Cross":

So reports the L.A. Times (thanks to How Appealing for the pointer). Here is my explanation of why the ACLU's complaints are unsound; I think the County could have easily and successfully (though, of course, at some expense — there's always some expense) defended the suit on these grounds.

The Jordanian and Egyptian Options:

It seems as though the present Israeli government has given up on any hope that the Palestinians will create a government capable of negotiating a stable peace agreement so long as Yassir Arafat is alive. Instead, Israel is activating the Jordanian and Egyptian options: encouraging these countries to be active in the West Bank and Gaza, respectively, and making them guarantors of the peace. With Israelis having given up on the "New Middle East" vision of harmonious relations between them and the Palestinians, or even on the economic integration that existed pre-Oslo, the obvious strategic political goal for Israel would be to have two Palestinian states: one, ruled in Gaza by someone like Mohammed Dahlan, a city-state, blocked from Israel by a fence, with no airport or port of its own, integrated economically with Egypt. The other in West Bank, demilitarized, economically integrated with Jordan, with the Jordanian army at border crossings and cooperating with Israel on security. There is no law that both Gaza and the West Bank have to be ruled by the same people, it makes much more sense from Israel's and the world's perspective to split them up and subject to the calming influences of countries with peace treaties with Israel, rather than have a pathological state ruled by Yasser Arafat and his henchmen. Professor Efraim Inbar of Bar-Ilan University has been suggesting something along these lines for some time.

The main questions are whether Jordan, Egypt, and the U.S. are on board (the EU still seems to support Arafat). Jordan and Egypt were previously extremely reluctant to get involved in anything that could be seen as impairing Palestinian statehood, but the continuing Israeli-Palestinian conflict is a medium-term risk to the stability of both regimes. The Jordanian Hashemites have always hated Arafat, with whom they fought a brutal civil war in 1971, and King Abdullah recently made it clear that he wants Arafat to relinquish control of Palestinian military forces. The Egyptians, though their intelligence service "invented" Arafat and the PLO, have clearly lost interest in him.

Perspective from Israel on Abu Ghraib:

Ze'ev Schiff of Ha'aretz reiterates a point I made on the VC a few weeks ago: Given human nature, occupation inevitably entails abuses, and a certain corruption of the occupiers. This isn't a slamdunk argument against occupation (should the U.S. have not occupied Japan or western Germany after WWII, and let the Soviets march in instead?), just a factor to be weighed when considering whether, and for how long, to occupy.

[Mike Rappaport (visiting from The Right Coast), June 2, 2004 at 2:19am] Trackbacks
Chalabi and Espionage: Hi. My name is Mike Rappaport, and I normally write for the Right Coast. My day job is being a Law Professor at the University of San Diego, where I write about and teach public law, especially structural issues concerning the Constitution. Over the years, though, I have taught and written on a variety of subjects. I want to thank Eugene and the rest of the Conspiracy for giving me the chance to guest-blog here.

In what is sure to be an important story, the New York Times reports that Ahmad Chalabi disclosed to Iran that the United States had broken the secret communications code of Iran's intelligence service. If it is true, there are many fascinating aspects to this story. One is that the US had Iran's secret code. Nonetheless, what is most striking from the Time's report is the apparent gross incompetence of the Iranian official who received the information from Chalabi:
American officials said that about six weeks ago, Mr. Chalabi told the Baghdad station chief of Iran's Ministry of Intelligence and Security that the United States was reading the communications traffic of the Iranian spy service, one of the most sophisticated in the Middle East.

According to American officials, the Iranian official in Baghdad, possibly not believing Mr. Chalabi's account, sent a cable to Tehran detailing his conversation with Mr. Chalabi, using the broken code. That encrypted cable, intercepted and read by the United States, tipped off American officials to the fact that Mr. Chalabi had betrayed the code-breaking operation, the American officials said.
If the intelligence agencies of other countries are committing mistakes of this magnitude, then perhaps it becomes a little easier to forgive our own intelligence agencies for their mistakes. Perhaps. In any event, that the United States had Iran's secret code, at least for a while, gives me more confidence in our intelligence agencies than I have had for some time.


Several readers wrote in to say that one should not necessarily take the information in the Times story at face value, because there are many strategic reasons why the US and/or Iran might have taken these actions (or at least claimed to have taken them). Clayton Kramer also makes this point. I entirely agree, although once one attempts to look beyond the face value of the information in the story, the possibilities seem endless. Michael Ledeen offers some speculations of his own at NRO. Other readers wrote that the US has long excelled at signals intelligence. American skills in this area were certainly evident in the past, such as in World War II. It is good to know we're still good at it, although it is sad to find out this way. (Note: sorry not to supply the links to Kramer and NRO, but I am still figuring out how the Powerblog software works.)

Tuesday, June 1, 2004

Constitutional Cryptograms: Some time ago I ran across this blog post, Special Randy Barnett Constitutional Cryptograms, on Flog by Daniel Atkinson, but was unable to link to it at the time. So now I am finally posting it for the amusement of those who have heard my lectures or read my book.
Please change your links:

As various readers have pointed out, some schmoe has set up his blog (apparently something having to do with search engines) at, our old home. When we moved our then-blogger-based blog to, that freed up the old location, and blogger let people snag it from us.

We certainly should have prevented that, presumably by quickly setting up a new blogger-based dummy blog that pointed to And the squatter shouldn't have taken advantage of our error, since as best we can tell he has nothing whatsoever to do with anything Volokh, and is just trying to bait-and-switch unsuspecting users. (If he's actually some long-lost namesake, I will withdraw the allegation.)

In any event, I'm a bit annoyed, but too swamped to try to do anything much about it right now. But if you have a link to on your site (or some subpage), and could change it to, I'd much appreciate it. One reason the person grabbed the site, I take it, is that it has a high google ranking because of all the old links that go there. Changing the links will diminish this windfall, and will also make your site more helpful (since if you try to link to us, presumably you want to link to us).

Incidentally, what prompted me to get off my duff and write this post — no, wait, I'm writing it while still on my duff — was this message from reader Tony Rickey (who also got in touch with some big blogs himself to get them to update their links):

OK, I just figured it out.

You guys used to blog at, didn't you? And a load of people . . . still link to you there. See:

Which means this guy now has a PR6 site to play with. PR6 is really hard to get, especially one as strong as yours, and I'd assume as strong as your old blog. I know some folks who also have PR6s that have used them to do some serious damage before this.

I'd actually consider it a favor if you could write a quick entry asking everyone who links to you to change the link . . . . Taking this baby's toys away would make me one happy camper. And it would give the guy an incentive to shut the site down. . . .

As you might know, I've wanted a PR6 for ages — no reason to give this guy one for free!

I had never heard of "PR6" before, though I suppose I can figure it out from context. But it's obviously enough to get my correspondent righteously angry.

Welcome to the Right Coasters! As I sit sipping coffee in a plaza outside the Omni Hotel here in beautiful scenic downtown LA, I warmly welcome my friends from The Right Coast to the friendly confines of the Conspiracy. I have known most of them for many years BG (Before Blogging) and they, along with Larry Solum of Legal theory Blog and others like Mike Ramsey, Mike Kelly, Steve Smith, Larry Alexander, Bernie Siegan, Fred Zacharias, and their Dean Dan Rodriguez, are making San Diego one of the most happening law schools in the country today. Volokh readers beware: unlike we soft and cuddly Volokh regulars, these Right Coasters often have a bit of an edge. Whenever I need a little goosing, however, I scoot right over to their blog, and so I predict will many of you after their guest tour this week.

(See UPDATE below.)

Quoth Kevin Drum:

everyone who looks seriously at federal spending for more than a few minutes knows perfectly well that the vast majority of spending goes to four things: Social Security, Medicare, national defense, and interest payments. Unless you propose large cuts in those programs, you just aren't serious about "small government."

And of course no one will ever propose serious cuts in those programs. Interest payments are untouchable for obvious reasons, and the other three are all highly successful and highly popular programs. Not only won't they be cut, but demographic and other pressures ensure that all of them will grow considerably over the next couple of decades and everyone knows it.

It's this that makes modern Republican fiscal policy so deeply cynical and abhorrent. The leadership of the pary knows perfectly well that spending won't be cut because they'd be kicked out of office instantly if they tried it. At the same time, they also know that their tax cuts will produce extremely damaging long term deficits. But they don't care because the damage won't become apparent until they leave office.

Off the top of my head I can't think of another period in which a political party deliberately enacted policies they knew to be so damaging over the long term. Mistaken policies, sure, but not deliberate ones. But that's what the Newt Gingrich revolution did to the Republican party.

In a sense the following doesn't matter, because I basically agree with Kevin's analysis of the current Republican strategy. But the last quoted sentence seems off to me. We got where we've gotten because of Clinton's defeat of the Gingrich revolution. Remember that Gingrich wasn't demonized for wanting to cut taxes; he was demonized for wanting to cut spending. The Contract for America guaranteed a vote on a Balanced Budget Amendment, and Clinton pulled out the stops to argue that balancing the budget would require slashing popular programs. And then the ultimate reversal in Gingrich's and Clinton's fortunes came as a result of the budget showdown and government shutdown-- when the Gingrich Republicans were trying to exercise the kind of spending restraint that's so out of fashion in the Bush administration.

Clinton's willingness and ability to frame every proposed spending cut, or every proposed reduction in a rate of spending growth, as an apocalyptic threat to the existence of Medicare, Social Security, and public schools taught the Republicans that they would always lose if they tried to cut spending. It certainly taught them that they would lose if they even kind of looked in the direction of restraining Medicare growth.

Now in an important sense Clinton was able to pull this off because he had the better sense of popular preferences. That is, as Kevin rightly points out, voters in the aggregate really don't want to see cuts in Social Security or Medicare. There was certainly deceptiveness on Clinton's part, but in basic outline he was honestly closer to where voters wanted to be than Gingrich was. (And part of the deception was over how wide the gap between them was. Clinton was a relatively moderate spender, and Gingrich was a pretty moderate cutter. But such is politics; you try to define your opponent.)

But still. The 1994 Republican Party doesn't somehow logically culminate in the 2004 Republican Party. The latter is in an important way the repudiation of the former. It rests on the commitment to never get Gingriched again.


Kevin updates (same link as above) to say that he agrees, and just worded the original sentence vaguely.

Guest-blogging from The Right Coast:

I'm delighted to say that the University of San Diego law professors from The Right CoastGail Heriot, Sai Prakash, Mike Rappaport, Maimon Schwarzschild, Tom Smith, and Chris Wonnell — will be guest-blogging here from Wednesday, June 2 to Tuesday, June 8.

This is really a first-rate group of accomplished scholars and thinkers, and I'm very pleased that they agreed to join us for the week. You will, I suspect, find them a bit more conservative than the average Volokh Conspirator, but we've got a Big Tent here.

To e-mail any of the guest-bloggers, please go to their home blog, which conveniently provides all their addresses in the sidebar.

Commercial speech:

A reader asks: Why isn't the professional speech question -- when may the government regulate speech by lawyers, psychiatrists, accountants, doctors, and other professionals -- covered by the commercial speech doctrine? Under First Amendment law, "commercial speech" is less protected than other kinds of speech; and professional speech is commercial speech, right?

Wrong; and this raises an important point that's worth remembering -- the commercial speech doctrine is generally limited to commercial advertising, which is to say speech proposing a commercial transaction with the speaker. There are certainly gray areas, as in the recent Nike v. Kasky litigation, but they relate to how direct the proposal has to be: For instance, if Nike assures the public that its shoes are made in factories that abide by certain labor rules, is that commercial advertising, because it's aimed at getting the public to buy Nike shoes? Or should it not be treated as advertising, because Nike should have a right to participate equally in debates about its own supposed labor practices?

But it's quite clear that speech does not become "commercial speech" simply because it's being sold in commerce. True, a psychiatrist and a patient are engaging in a commercial transaction -- a patient pays money for advice. But the New York Times and its customers are also engaging in a commercial transaction: The customer is paying money for the newspaper. (The newspaper also engages in commercial transaction with its writers, who write for money.) Likewise, the author of a psychiatry self-help book and his customers are engaging in a commercial transaction. Yet newspapers and books are treated as fully protected speech, not commercial speech. Only commercial advertising, not commercially sold speech generally, is treated as "commercial speech."

The same goes for professional-client speech: Unless the speech is itself commercial advertising (e.g., speech by the professional urging the client to engage him), it is not commercial speech. If professional-client speech can be more heavily regulated than other speech, the reason must be something other than the commercial speech doctrine.

So just remember: "Commercial speech," for First Amendment purposes, basically means "commercial advertising." It's not speech sold in commerce. It's not speech about commerce (such as the Wall Street Journal). It's not even advertising bought in commerce (such as a political ad in a newspaper). It's speech by which the speaker proposes, directly or indirectly, a commercial transaction with itself (or its business associates).

(Warning: As is generally the case with posts that try to boil down complex doctrine into a few paragraphs, this post contains some necessary oversimplification -- but the basic thrust, I think, can be quite reliably applied to most situations, including professional-client speech.)

More on the Pew survey:

The Pew survey mentioned below was "conducted in association with The Project for Excellence in Journalism and the Committee of Concerned Journalists"; and the report was accompanied by a section called "Commentary: A Crisis of Confidence," signed by Bill Kovach, chairman of the Committee, and Tom Rosenstiel and Amy Mitchell, director and associate director of the Project. Here's part of that commentary:

Journalists' own politics are also harder to analyze than people might think. The fact that journalists — especially national journalists — are more likely than in the past to describe themselves as liberal reinforces the findings of the major academic study on this question, namely that of David H. Weaver and G. Cleveland Wilhoit, in their series of books "The American Journalist."

But what does liberal mean to journalists? We would be reluctant to infer too much here. The survey includes just four questions probing journalists' political attitudes, yet the answers to these questions suggest journalists have in mind something other than a classic big government liberalism and something more along the lines of libertarianism. More journalists said they think it is more important for people to be free to pursue their goals without government interference than it is for government to ensure that no one is in need. . . .

The last sentence in the last paragraph is accurate on its own, but it isn't responsive to the first sentence in that paragraph — "what does liberal mean to journalists?" Of the 28% of journalists who described themselves as liberal (just 10% described themselves as conservative, and the rest said they were moderate or didn't respond), 61% said they thought it was more important for the government to guarantee that no-one is in need than for people to be free from government interference; 33% said the contrary.

Most journalists describe themselves as moderates; there are many more liberals than conservatives, but self-described moderates exceed both these numbers. But when journalists call themselves liberal, they generally mean standard modern liberal. I wish they meant libertarian, but they don't.

(Note: The calculations for percentages of conservatives who are liberal and conservative are mine; the only information I saw in the survey was broken down by national, local, and Internet journalists, rather than aggregated, but I did my own aggregation by combining the percentages listed under Q 27 and the Ns listed under Q 1.)

What journalists think:

The Pew Research Center survey of journalists (see here for Juan's original post on the subject) asked the following questions:

Q.9 Is there any daily national news organization that you think is especially liberal in its coverage of the news, or can't you think of any?

Q.10 Is there any daily national news organization that you think is especially conservative in its coverage of the news, or can't you think of any?

The order of the questions was randomly switched, to compensate for any bias that might flow from the order, so don't worry about that.

The survey also asked the respondents to identify themselves as liberal, moderate, or conservative, and the Pew report broke down the answers to Q 9 and Q 10 by the respondents' political self-identification.

My questions to you: Of the conservative journalists, how many could think of organizations with "especially liberal" coverage, and how many could think of organizations with "especially conservative" coverage? And of the liberal journalists, how many could think of organizations with "especially liberal" coverage, and how many could think of organizations with "especially conservative" coverage?

(Click here for the answer.)

Life imitates The Onion:

The Oregonian reports:

A Portland lawyer says suffering by African Americans at the hands of slave owners is to blame in the death of a 2-year-old Beaverton boy.

Randall Vogt is offering the untested theory, called post traumatic slave syndrome, in his defense of Isaac Cortez Bynum, who is charged with murder by abuse in the June 30 death of his son, Ryshawn Lamar Bynum. Vogt says he will argue — "in a general way" — that masters beat slaves, so Bynum was justified in beating his son.

The slave theory is the work of Joy DeGruy-Leary, an assistant professor in the Portland State University Graduate School of Social Work. It is not listed by psychiatrists or the courts as an accepted disorder, and some experts said they had never heard of it.

DeGruy-Leary testified this month in Washington County Circuit Court that African Americans today are affected by past centuries of U.S. slavery because the original slaves were never treated for the trauma of losing their homes; seeing relatives whipped, raped and killed; and being subjugated by whites.

Because African Americans as a class never got a chance to heal and today still face racism, oppression and societal inequality, they suffer from multigenerational trauma, says DeGruy-Leary, who is African American. Self-destructive, violent or aggressive behavior often results, she says.

Noting the theory has not been proven or ever offered in court, Washington County Circuit Judge Nancy W. Campbell recently threw out DeGruy-Leary's pretrial testimony.

But the judge said she would reconsider the defense for Bynum's September trial if his lawyer can show the slave theory is an accepted mental disorder with a valid scientific basis and specifically applies to this case. . . .

(That last paragraph means, I'm pretty sure, that the judge will indeed exclude it at trial, because no such showing could be made.)

I'm not entirely serious in the title of the post — I don't think even The Onion would make this up. But this is just such a perfect unintentional self-parody, consisting of the mix of (1) infantilization of the very group that one is supposedly trying to defend (they can't be treated as responsible citizens, because they've suffered so much), (2) such a deep obsession with psychological trauma that the trauma is said to somehow get passed down five or six generations, (3) theories of causation that sound more like sympathetic magic than anything else (the evil overseers beat my ancestors, so I think it's good for me to beat my child), and, best of all, (4) the deployment of all this to justify . . . the killing of a black child (much as many race-based defenders of criminals of various racial groups conveniently ignore that most of their victims are themselves of the same racial group).

If my fellow Jews came up with similar excuses to defend a killing by a Jew, I'd hope that all Jews would feel appalled and insulted (and that non-Jews would condemn it as well). Likewise, I hope, here. It is funny, as unintentional self-parody often is. But it's also sad and contemptible.

Thanks to Dan Gifford for the pointer.

Monday, May 31, 2004

Political blogging:

Rachel Smolkin of the American Journalism Review-- a very sharp writer and an old friend from college journalism days-- has a new story in the AJR on "The Expanding Blogosphere," in large part about the nexus between bloggers and the political press and accordingly concentrating on the pro/ semipro world of bloggers and blogs currently or formerly associated with magazines and newspapers, with a bit about les affaires Lott [Trent, not John] and Kos. No real surprises for those of us who follow this stuff anyways, but a very nice piece that avoids either blog triumphalism or dismissiveness. One good passage:

Kevin Drum, a self-described "centrist liberal" and one of the more contemplative bloggers, spent two decades as a software-marketing executive before launching his blog in August 2002. In mid-March, he agreed to blog for The Washington Monthly (

His unedited blog is a comfortable fit with the magazine's advocacy. But Drum notes that bloggers such as Reynolds and the anonymous Atrios ( are not nearly so sober, and that style "is part of what makes blogs a lot of fun." Drum worries "if you try to put the rules of mainstream journalism onto blogs, you end up sucking the life out of them."

While professional journalism has standards for sourcing and reporting, with blogs, the whole point "is that the standards are lower," Drum says. "They're able to toss stuff out that a reporter on a daily newspaper couldn't. They express opinions loudly and with fervor. It's not clear to me how those two things can intersect."

Drum, who holds a journalism degree from California State University, Long Beach, admits to "some doubt about whether blogging and professional journalism can go together... If it turns out at the end of the year that the five most popular blogs are associated with professional journalism, it would change the nature of blogging."


In his post on the article, Kevin says

A reporter working on a blog article talked to me last week and asked how many blogs I read. I told him there were 30-40 that I read daily and probably another 30-40 that I read less frequently. He was surprised: the other bloggers he had talked to had all virtuously claimed to read only two or three blogs a day.

My blog reading habits may be extreme, but I have a funny feeling that mainstream reporters (and apparently some bloggers too) tell little white lies when asked how many blogs they read. After all, it only takes a couple of minutes to read the latest posts on a blog, less if you're skimming via an RSS feed. My guess is that many national political reporters read more blogs than they're fessing up to — not one of them admits to reading Atrios, for example — but are embarrassed to admit it, sort of like a serious novelist not wanting to confess that he likes reality TV shows.

So add this to the great lies of our time: how many blogs do you read? Only two or three? Sure, sure.....

Sixty to eighty altogether? If I really feel like I've got time on my hands I might read (counting on fingers... looking for more fingers... checking my blogroll, and the Conspiracy's, and Crooked Timber's which is what I mostly use to click back and forth from) 25, counting the three TNR blogs separately. And I don't do much clicking through to other blog posts out of those couple of dozen; I'm looking for the posts by those writers, and for the links to newspaper or magazine stories, journal articles, etc that they provide. Twenty-five is down a bit; Josh Cherniss and Russell Arben Fox seem to be on long-term hiatus, Invisible Adjunct is gone, some bloggers I read have joined group blogs that I already read anyways. But 25 isn't a daily number, in any event; it's a max. Beyond that... well, beyond that there are all these books on my shelves I haven't read yet...