Obama's Neglect of Pardons

(By Andrew MacKie-Mason)

Pardon Power reports that President Obama still hasn't granted a single request for clemency, and he's fast approaching his 500th day in office. The pardon is an important part of the criminal justice system and when used correctly can fix many of the injustices of American criminal law by looking at cases with a human eye rather than the one-size-fits-all approach that has become too common in trial courts due (in part) to legislatively imposed mandatory minimum sentences.

Your neglect of this important power is extremely disappointing, Mr. President. The American people deserve better.

Supreme Justices are People Too

(By Andrew MacKie-Mason)

Two recent occurrences at the Supreme Court serve as a reminder that the Nine are people too.

Kashmir Hill from Above the Law talks about the oral argument in City of Ontario v. Quon, a case dealing with privacy rights in text messages. And, apparently the justices had some issues understanding texting. (God help us if we have to tell the Court that there's something called "sexting" too.)

Justice Kennedy was apparently confused about how "call waiting" works with text messages if someone sends you one while you're writing one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

And Justice Scalia had two problems wrapping his head around texting. First, he didn't understand the concept of a service provider–aka, the difference between cell phones and walkie talkies.

“You mean (the text) doesn’t go right to me?” he asked.

It's the hotel switchboard operator, Scalia. Does that help you understand? Scalia also wondered if texts could be printed out.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

No...no he can't. Welcome to the 21st century. Full transcript of the oral argument here.

The second story is brought to us by Tony Mauro at the Blog of Legal Times. The case was Krupski v. Costa Crociere, a case involving plaintiffs suing the wrong defendant and the proper way to interpret statutes dealing with such mistakes.

During the oral argument, Justice Breyer apparently brought up a hypothetical that should be near and dear to every man's heart. He asked one of the lawyers: "Have you ever driven a car where your wife has said turn left and you have turned right?" The justice's point, of course, was that people can make mistakes even when they have all the facts.

Justice Scalia jumped it, saying to Breyer: "I think your wife made a mistake. I don't think you made a mistake." While Scalia might have received an earful that night from the missus, Breyer knew the correct response. "No, my wife does not make mistakes."

So, there you have it, ladies. The Court has ruled: you're always right (unless you're Maureen Scalia.)

It's moments like these that I particularly wish that the Court allowed video recording.

Harvard 3L and Larry Summers

(By Andrew MacKie-Mason)

What do a Harvard 3L and former Harvard President Larry Summers have in common? They've both been demonized for making valid statements that certain groups took as offensive.

The Harvard 3L incident happened this week. Apparently, months ago, she sent an email to a few friends. Now, after having a falling out, one of those "friends" forwarded the email and it went viral. PrawfsBlawg has the story here, as does Above the Law here. The student has been pilloried as "racist." So what did she actually say? Here's the full email, per Above the Law:

… I just hate leaving things where I feel I misstated my position.

I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent. I could also obviously be convinced that by controlling for the right variables, we would see that they are, in fact, as intelligent as white people under the same circumstances. The fact is, some things are genetic. African Americans tend to have darker skin. Irish people are more likely to have red hair. (Now on to the more controversial:) Women tend to perform less well in math due at least in part to prenatal levels of testosterone, which also account for variations in mathematics performance within genders. This suggests to me that some part of intelligence is genetic, just like identical twins raised apart tend to have very similar IQs and just like I think my babies will be geniuses and beautiful individuals whether I raise them or give them to an orphanage in Nigeria. I don’t think it is that controversial of an opinion to say I think it is at least possible that African Americans are less intelligent on a genetic level, and I didn’t mean to shy away from that opinion at dinner.

I also don’t think that there are no cultural differences or that cultural differences are not likely the most important sources of disparate test scores (statistically, the measurable ones like income do account for some raw differences). I would just like some scientific data to disprove the genetic position, and it is often hard given difficult to quantify cultural aspects. One example (courtesy of Randall Kennedy) is that some people, based on crime statistics, might think African Americans are genetically more likely to be violent, since income and other statistics cannot close the racial gap. In the slavery era, however, the stereotype was of a docile, childlike, African American, and they were, in fact, responsible for very little violence (which was why the handful of rebellions seriously shook white people up). Obviously group wide rates of violence could not fluctuate so dramatically in ten generations if the cause was genetic, and so although there are no quantifiable data currently available to “explain” away the racial discrepancy in violent crimes, it must be some nongenetic cultural shift. Of course, there are pro-genetic counterarguments, but if we assume we can control for all variables in the given time periods, the form of the argument is compelling.

In conclusion, I think it is bad science to disagree with a conclusion in your heart, and then try (unsuccessfully, so far at least) to find data that will confirm what you want to be true. Everyone wants someone to take 100 white infants and 100 African American ones and raise them in Disney utopia and prove once and for all that we are all equal on every dimension, or at least the really important ones like intelligence. I am merely not 100% convinced that this is the case.

Please don’t pull a Larry Summers on me,
CRIMSON DNA

(Above the Law doesn't list people's names when it comes to things like this, so used CRIMSON DNA as a pseudonym. I'll respect that and use it here, too.)

Many people are claiming that this 3L's email demonstrates deep seated racism. Some went so far as to attempt to pressure the judge who she's clerking for next year. They want the judge to cancel her clerkship.

The Dean of Harvard Law School even went so far as to criticize CRIMSON DNA for her statements:

Dear members of the Harvard Law School community:

I am writing this morning to address an email message in which one of our students suggested that black people are genetically inferior to white people.

This sad and unfortunate incident prompts both reflection and reassertion of important community principles and ideals. We seek to encourage freedom of expression, but freedom of speech should be accompanied by responsibility. This is a community dedicated to intellectual pursuit and social justice. The circulation of one student’s comment does not reflect the views of the school or the overwhelming majority of the members of this community.

As news of the email emerged yesterday, I met with leaders of our Black Law Students Association to discuss how to address the hurt that this has brought to this community. For BLSA, repercussions of the email have been compounded by false reports that BLSA made the email public and pressed the student’s future employer to rescind a job offer. A troubling event and its reverberations can offer an opportunity to increase awareness, and to foster dialogue and understanding. The BLSA leadership brought this view to our meeting yesterday, and I share their wish to turn this moment into one that helps us make progress in a community dedicated to fairness and justice.

Here at Harvard Law School, we are committed to preventing degradation of any individual or group, including race-based insensitivity or hostility. The particular comment in question unfortunately resonates with old and hurtful misconceptions. As an educational institution, we are especially dedicated to exposing to the light of inquiry false views about individuals or groups.

I am heartened to see the apology written by the student who authored the email, and to see her acknowledgement of the offense and hurt that the comment engendered.

I would like to thank the faculty, administrators, and students who have already undertaken serious efforts to increase our chances for mutual understanding, confrontation of falsehoods, and deliberative engagement with difficult issues, and making this an ever better community.

Sincerely,
Martha Minow

Of course, this is all ridiculous. The student's comments do not "suggest that black people are genetically inferior to white people." All she did is point out a disparity in scores between races and wonder whether some of that disparity could be caused by genetics. She said that she could be persuaded either way by empirical evidence.

And is there anyone out there who wouldn't be convinced one way or the other by empirical evidence? If there is, I submit, those people are the racists.

It should never be considered out of bounds to look for empirical evidence to explain social phenomena. The student didn't claim that there is a genetic predisposition, and she didn't suggest that we should treat black people differently from white people. All she did is exactly what she's supposed to do as a scholar, and she was rebuked for it by her own dean. Shameful.

Of course, the last line of the student's email is particularly apt. "Please don’t pull a Larry Summers on me." Because that's exactly what happened.

For those who aren't familiar with Larry Summers, he is a former President of Harvard University who resigned during the aftermath of a gender-scandal. The scandal?

At a conference meant to address gender disparities in tenured faculty positions in the math and sciences, President Summers suggested that men may have a broader distribution of IQ scores than women do. I.e., even if the average man and the average woman are equally intelligent, there are more extremely intelligent men as well as more extremely stupid men. As I understand the research, this claim is actually relatively well supported.

President Summers was widely criticized and accused of sexism, in much the same way that CRIMSON DNA was accused of racism. And both issued apologies, seemingly under pressure to do so.

The lesson, it seems to be, is that Harvard creates people who are willing to keep open minds (even when it goes against social norms) but that there are many people, in academia, the legal profession, and the wider world, who are more interested in suppressing conversations about race and gender rather than actually trying to figure out the vexing questions that surround those topics.

President Summers, CRIMSON DNA: I salute you. Continue to ask questions, even if it's uncomfortable.

Florida Schools and Religious Expression

(By Andrew MacKie-Mason)

Howard Friedman at the Religion Clause reports on an effort by legislators in Florida to lower restrictions on religion in public schools. They're trying to get around First Amendment concerns by letting the students vote on whether to have an inspirational message and having the students select a representative to deliver the message.

Yesterday the Senate Education Pre-K-12 Committee unanimously approved SB 1580 that would "permit the delivery of an inspirational message, including a prayer or an invocation, at a noncompulsory high school activity, including a student assembly, a sports event, or other school-related activity, if a majority of the participating students request the delivery of an inspirational message and select a student representative to deliver the message.

This sounds nice and safe at first: after all, the students are approving the speech, right? It's not being forced upon them?

But really, this is exactly what the Establishment Clause is meant to protect against: government sponsorship of majority religious views while ignoring minority religious views. The First Amendment is a protection against the majority, schools shouldn't be able to get around it just with a majority vote.

National Day of Prayer

(By Andrew MacKie-Mason)

Eugene Volokh reports on a decision by a district court striking down the federal statute that provides for the National Day of Prayer on Establishment Clause grounds. The statute in question is codified at 36 U.S.C. § 119.

Title 36—PATRIOTIC AND NATIONAL OBSERVANCES, CEREMONIES, AND ORGANIZATIONS
Subtitle I—Patriotic and National Observances and Ceremonies
Part A—Observances and Ceremonies
CHAPTER 1—PATRIOTIC AND NATIONAL OBSERVANCES
§ 119—National Day of Prayer

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

There seem to be two possible interpretations of this statute. Let me know if you would interpret it a different way:

1. Congress is declaring the first Thursday in May as a day on which praying is allowed and "the people of the United States may turn to God in prayer." By extension, prayer is not allowed on other days.
2. Congress is encouraging "patriotic" citizens of the United States to "turn to God in prayer."

The first interpretation, though the most faithful to the text, is pretty clearly ridiculous. The second one presents some major Establishment Clause problems, so I think the district court was right to strike the statute down. Appeals to patriotism aren't mere formalities, they're actually a powerful motivator in modern America. See, inter alia, the debate surrounding the passage of the USA PATRIOT Act.

There's no reason for us to declare a National Day of Prayer, and it presents Establishment Clause problems. So why do we have it?

(See also: Howard Freidman's post at Religion Clause.)

Conservative Radio Host Undergoes Waterboarding

(By Andrew MacKie-Mason)

This happened almost a year ago, but I was recently made aware of it by the best person I know. A conservative radio host, sick of people calling waterboarding "torture," decided to undergo the experience himself and prove that it was actually no big deal. "I've gone swimming before," he said.

Within about five seconds of them starting to pour the water on him, the man jumped up, terrified, refusing to continue. Asked immediately what he thought, he said "I don't want to say this...definitely torture."

The Huffington Post has the story and the videos here. It's something to keep in mind: people who say that a particular interrogation technique is no big deal should be willing to undergo that interrogation technique. Eirch Muller rose to that challenge, and realized the error of his ways. Bravo to him.

Non-Judge for Supreme Court

(By Andrew MacKie-Mason)

The Supreme Court is currently filled with former judges. Former judges from the Courts of Appeals, that is. All nine sat on a Circuit Court before their elevation to One First Street, N.E.

• DC Circuit: Chief Justice Roberts, Justices Ginsburg, Scalia, Thomas
  
• First Circuit: Justice Breyer
• Second Circuit: Justice Sotomayor
• Third Circuit: Justice Alito
  
• Seventh Circuit: Justice Stevens
• Ninth Circuit: Justice Kennedy

That wasn't always true. Many prominent justices throughout history have come out of more political careers rather than judicial ones, including Earl Warren. I'm not aware of any justices who came straight out of academia, but I assume it must have happened: does anyone know? [UPDATE: Tony Mauro at the National Law Journal points out Justices Douglas and Frankfurter as (unsuccessful) former academics who were appointed to the Supreme Court.]

There have been suggestions that President Obama should look for a non-judge to take Justice Stevens' seat on the Court when Stevens retires at the end of this term. Recently, Michigan's Governor Jennifer Granholm joined in, suggesting that non-judges will bring a new perspective to the Court. Of course, Granholm has ulterior motives: she's one of the non-judges whose name has been floated around to join the Court.

It's undeniable that adding a non-judge to the Supreme Court will bring a new perspective, but that doesn't mean it's a good thing. Appointing a high school dropout to the Court would likewise bring a new perspective (after all, judicial nominees need not be lawyers or have law degrees at all.) And a specific candidate might be worth nominating even if they never graduated high school, but that doesn't mean we should search for high school dropouts and list that as a positive characteristic when it comes to selecting Supreme Court nominees.

There's no doubt that a deliberative institution benefits from differing opinions and perspectives. But we don't want the Supreme Court to be a microcosm of the American democracy. We don't intend the Court to represent every possible viewpoint. Instead, we "carefully" select nominees through a process that is at least designed to find people who will bring useful and productive perspectives to the Court.

Would a non-judge bring a valuable perspective to the Court? Remember that the Supreme Court is, at root, a judicial institution. It is a the highest court in the land, but it is still a court. While the Court's decisions of course have an effect on the political landscape, that is a role we should accept rather than embracing. So if we look to a non-judge as a potential nominee for the Court, it should be with an eye to their capabilities as a judge, not their record as a politician.

I don't mean to suggest that previous judicial service should be a prerequisite to serving on the Supreme Court. Lawyers with appellate experience (such as Solicitor General Elena Kagan) would also be good picks for the Court. However, judicial experience should always be considered an asset for a potential Supreme Court nominee, never a liability.

(For another perspective on this issue, see Tony Mauro's article at the National Law Journal.)

Should You Talk To The Police?

(By Andrew MacKie-Mason)

Norm Pattis says no: never. It's an interesting post (hat tip to Mirriam Seddiq of Not Guilty) and generally true. Even when you think you didn't do anything, talking to the police when it seems they suspect you is generally not a good idea. You can never be sure how they'll use what you say against you, but they almost always will.

Make friends with a criminal defense lawyer, or have a local legal aid center's number in your cell phone (assuming you can't afford to hire your own lawyer.) Talk to them if it seems like the police suspect you. They'll know, better than you, how the cops will react to your story.

The obvious exception is minor cases like speeding tickets that you don't intend to fight. There, admitting what you did to the police could help get you a warning (although "I'm sorry officer, I must not have been paying attention" should work as well as an actual acknowledgment.) But once you get into more serious offenses, the risk outweighs the possible rewards.

If you're concerned about the police taking a refusal to speak to them the wrong way, just remember to always be polite to them. "I'm really sorry officer: I know you're just doing your job, but my lawyer tells me never to talk to police without talking to him first. I don't have anything against you." Most Police officers are human beings, and reasonable ones will understand that wanting to speak to a lawyer doesn't imply guilt. What will annoy them is "Get outta my face! I know my rights! I want a lawyer!"

If you missed it, also check out this post about how to deal with police encounters.

Utah: Execution by Firing Squad

(By Andrew MacKie-Mason)

Apparently, this June (yes, 2010), Utah is set to execute a man by firing squad. State law in Utah gives death row inmates a choice between firing squad and lethal injection. I find the entire idea of the death penalty to be barbaric, but at least the state gives the condemned some choice in how they will be killed.

An interesting fact about death by firing squad. There is usually a group of shooters (in the case mentioned in the article, five). One of the people in the group always has a gun that has a blank instead of a real bullet. All five shooters fire at the same time. This ensures that none of the shooters know whether they were actually the one to kill the person, or even whether or not they actually shot a real bullet. Presumably this reduces the level of guilt for the shooters. (Really, I think executioners should have to live with the guilt. It is the career path they chose. But that's an issue for another day.)

I find it intriguing that we don't do the same thing with lethal injection. Does that mean that doctors have a less developed sensation of remorse than armed and trained killers do?

The Tea Party and History

(By Andrew MacKie-Mason)

Ron Rosenbaum has a long article at Slate criticizing the historical perspective present in the Tea Party movement. It's worth reading, at least most of it, but I think a few points bear mentioning again.

Tyranny

Common rhetoric in the Tea Party movement (including when a well-educated tea partier went on the Daily Show) is that Obama and the Democratic Party are running a "tyrannical" government. Such people, of course, confuse tyranny with losing an election or losing a vote. The fact that your opinion is no longer the prevailing one does not mean the government is tyrannical.

Governments are tyrannical when they force people to be part of a political system that they don't want to be in. That is clearly not the case in America. All of these "well educated" tea partiers have chosen to be and remain in America. They just aren't happy with the result.

Fascism v. Socialism

Fascism is not socialism, and socialism is not facism. Right wing rhetoric often confuses these two extremes (fascism is extreme right-wing, socialism is extreme left-wing.) While it's true that once movements become extremist in either direction they start to take on some similar characteristics, the two are based in very different rationales.

Fascism is extreme nationalism and patriotism. Fascists believe that the state itself should be venerated and protected. Recent aspects of American culture that approach fascism are the USA PATRIOT Act, indefinite detention of "enemies of the state," etc.

Socialism, on the other hand, is extreme charity and compassion, not for the state but for other human beings. Socialists regard the state as a tool to redistribute wealth in a way that creates the best possible world and gives everyone as much as possible, but they don't see the state as inherently deserving of protection.

Marxism v. Leninism and Stalinism

Many people who watch Glenn Beck and Bill O'Reilly but have never actually studied Marx, Lenin or Stalin think that Russian communism is "Marxist" in nature. This is partially due to Lenin and Stalin co-opting Marx's name and reputation to legitimize their own proposals, but it can only really be blamed on historical ignorance.

Marx predicted the inevitable and universal rising of the proletariat against the bourgeoisie. He then predicted the temporary dictatorship of the proletariat (a dictatorial democracy is the most reasonable interpretation) followed by the withering away of government.

Lenin and Stalin (really, their ideologies should also be looked at separately but that's more detail than I'll go into here), on the other hand, saw it as their duty to force the proletariat revolution in Russia. Instead of being a spontaneous and universal event, then, it became a forced and limited one. And the government that Lenin and Stalin set up was a dictatorship of the elite, not of the proletariat.

The conflation of Marx with Lenin and Stalin and the idea that Russian communism was an experiment with Marxian philosophy is thus unfortunate and historically unfounded.

Anyways, read the Slate article fore more good points about how the Tea Party would benefit from historical perspective.

Sex, Reproduction and Morality

(By Andrew MacKie-Mason)

One of the most reasoned and logically sound arguments against homosexual marriage is rooted in the proposition that marriage is moral only so long as it is directed towards a reproductive (or "generative") end. Since homosexual marriage cannot be aimed at such a reproductive end, the argument goes, it is immoral.

Critics of this theory have pointed out (rightly, I believe) that if logically applied, the reproductive justification for marriage would prevent many heterosexual relationships from being considered moral. (For example, see Andy Koppelman's post on Mirror of Justice.)

Robert George, a professor at Princeton, is a proponent of the reproductive justification for marriage. Last month, he posted a short piece by one of his former students defending the reproductive justification and arguing that it does not, in fact, lead certain kinds of heterosexual acts to be deemed immoral. (The student is Sherif Girgis, who Professor George identifies as a graduate of Princeton and a Rhodes Scholar currently pursuing graduate work at Oxford.)

You can find the original post at Mirror of Justice, and should read the work there before continuing on to the rest of this post.

As I read it, Girgis' analysis relies on three main points: some things may be said to be natural while others may called artificial; "natural" organs have a natural function in a way that "artificial" objects do not; and the natural purpose of an organ is implied in any natural use of that organ. I believe that each of those points is mistaken, and I will address each one separately below.

Natural vs. Artificial

Girgis' piece makes a great deal of the supposed difference between things that are natural and things that are artificial, without explaining how he distinguishes these categories. His examples (borrowed from Koppelman) are guns and genitalia. However, it is difficult to explain how one is natural while one is artificial. Both are created by natural processes. Both are composed of natural materials. Both have evolved through a process of selection to suit a particular set of purposes.

While I'm not willing to say that there is no possible line to draw between the natural and the artificial, Girgis doesn't articulate a clear argument for a primary distinction upon which the rest of his criticism of Koppelman rests.

Natural Purpose

Girgis also assumes that there is a definable natural purpose for natural objects, distinct from what those objects are actually capable of doing. Girgis does acknowledge that this is an assumption ("I have only relied on the idea that organs have natural functions"), but he doesn't acknowledge the extent to which this assumption is central to his argument. He assumes, but does not prove, that natural objects have a function independent of their capabilities. For example:

In other words, unlike knives and guns, natural organs are what they are (and thus have their natural function) independently of what we intend to use them for and even of whether the function that they serve can be brought to completion.

This assumption is foundational to his entire argument, and I contend that it is a rather weak one. What means are there to define a natural function beyond capability? We say that the natural function of an eye is to see, because that is what an eye does. We say that the natural function of a heart is to pump blood, because that is what it does. But if the natural function exists even if it cannot actually be "brought to completion," what defines this natural function?

With regard to the loss of function, Girgis says:

For Koppleman’s objection to succeed, he would have to produce examples of living organs and natural processes that lose their natural function when that function cannot be completed—and by analogy to which the same would be true of genitalia and of intercourse. But there are none.

I would beg to differ. Take, for example, an eye and the process of opening it. We can fairly say that the purpose of opening one's eye, and the natural function of the eye, is to see. However, given a blind person, we cannot say that they are involved in a "visual activity" when they open or close their eyes. Likewise, we cannot say that the joining of genitalia is a "reproductive activity" when the genitalia in question are incapable of actually reproducing.

If, nevertheless, we assert that we can find a natural function for an organ independent of function, why cannot we also do so with "artificial" objects? (Assuming that we even accept the distinction between natural and artificial.) Girgis asserts that artificial objects' purposes are derived from the intent of the actor while natural organs' purposes are derived from nature, but he does not really offer an argument in support of that assertion.

Natural Purpose Imbibed Into Actions

Girgis claims that the natural purpose of an organ becomes an integral part of actions taken with that organ, e.g. sexual intercourse is reproductive in nature because the genitals involved have a naturally reproductive purpose. He says:

So male and female genitalia retain their natural functions to play certain (complementary) roles in the reproductive process regardless of whether we intend that they be so used and even of whether reproduction will be successfully completed (which depends, e.g., on sperm count).

The weakness of this argument can be seen when we consider the multiple natural functions of various organs. (Assuming, in arguendo, that organs have natural functions in the first place.) Genitalia, for instance, can be said to have more than one natural function: reproduction, yes, but also pleasure. And male genitalia has a natural function in the discard of various wastes from the body.

Is the act of discarding waste thus a reproductive one because genitalia are involved? Is intercourse an excretory act because an excretory organ is involved?

Conclusion

While I'm not familiar with Girgis' other work (including an award-winning senior thesis at Princeton, according to Professor George), this discussion of the reproductive nature of intercourse seems bogged down by unproven assertions and assumptions. It does little, I think, to set forth a convincing explanation of how intercourse can be considered a reproductive act when reproduction is not an intention or possible result of the intercourse.

United States v. Stevens

(By Andrew MacKie-Mason)

In United States v. Stevens, decided recently, the Supreme Court struck down a law banning depictions of animal cruelty. Though the Court seemed inclined to say that the law was constitutional as applied to its main target (crush videos) by its language it could also reach hunting videos shown in states where hunting is not allowed, etc. Thus, the Court said, it was an overbroad restriction on free speech. (The law banned depictions of animals being hurt, maimed or killed if the act in question is itself illegal. However, it applies if it is illegal where the act was taken or where the depiction is published.)

The government, defending the law, made two main points:

• They had only charged people with serious violations, like crush videos or dogfighting.
• The Court should balance the value of animal cruelty videos against the value of banning them, and find the ban legal if it is more valuable to do so.

In reply, the majority (eight Justices, with Alito as the lone dissenter) said that the government's use of prosecutorial discretion does not save the law, because it could reverse its position on that at any time. That seems right to me.

The Court also said that a balancing test is not acceptable under the First Amendment. I'm tempted to agree with that too, but it is a misrepresentation of the First Amendment precedents. In allowing bans on obscenity and other categories of "unprotected speech" the Court has balanced the value of the speech against the value of banning it.

I do think that the balancing test should be scrapped, so long as those types of speech also become protected again.

Now, a roundup of other blogs' reactions to Stevens:

• Josh Blackman had an instant analysis of the opinion the morning it was released.
• Josh Blackman talks about the Court's historical use of balancing tests.
• David Kopel at Volokh praises the Court's decision in Stevens.
• Eugene Volokh proposes ways that Congress could write a narrower, constitutional ban on animal cruelty depictions.
• Eugene Volokh reports on how the Court has historically excluded certain types of speech from First Amendment protection.
• Carissa Hessick at PrawfsBlog thinks that United States v. Stevens could be used to strike down those ridiculous bans on teenage transmission of explicit photographs (which I've talked about before.)
  

South Park and Images of Muhammad

(By Andrew MacKie-Mason)

First, a question (and I mean this genuinely): does anyone know why images of Muhammad are prohibited in Islam, even to non-believers? I assume it is some evolution of the Old Testament commandment against images and idols, but then why does it apply even to people who aren't a part of the faith? Wouldn't there be no risk of such people idolizing an image? Unfortunately, I don't know enough about Islamic theology to understand this. Can anyone help me out on it?

In related news, South Park had a hilarious episode where they dealt with the Muhammad issue. Can we hear Muhammad's voice so long as he is in the back of a semi truck? Can we let him out as long as he wears a bear suit? It's really a good episode, and you should check it out.

Both Jim Lindgren at Volokh and Howard Friedman at Religion Clause report that the extremist website RevolutionMuslim.com has threatened Comedy Central over the episode.

The original post includes this (per Volokh, as the Revolution Muslim site seems to be down at the time of this writing.)

We have to warn Matt and Trey that what they are doing is stupid and they will probably wind up like Theo Van Gogh for airing this show. This is not a threat, but a warning of the reality of what will likely happen to them.

A follow up posted on the Revolution Muslim blog has a few interesting points:

By placing the Prophet Muhammad (peace be upon him) in a bear suit, the creators of South Park sought to insult the sacred, and show their blatant and general disregard for religion.

This, you really can't disagree with. It's what South Park does, but they do it to everyone. However, they go on to say:

In fact, one of the major reasons there is such little opposition to American domination today is the reality that the principle of free speech, as envisioned by the founding fathers of the United States and by wise men and women throughout the ages, is a universal principle that may protect citizens from political, economic, or religious persecution. Today it is understood much differently; today “free speech” is interpreted as the right to promote pornography, homosexuality, slander, and libel against even that which is considered sacred.

Of course, being able to speak out against that "which is considered scared" is precisely what the founders intended by making free speech "protect citizens from...religious persecution."

To be clear, it is not only Muslim groups who take this view. Many Christians would agree that "free speech" should not be interpreted "as the right to promote pornography, homosexuality" etc.

Is there a purpose, other than evil, in insulting something someone holds sacred?

Yes. Calling into question, through humor, basic assumptions and thereby expanding people's worldviews.

I could go on, but I don't really see the point. Do keep in mind, though, that the Revolution Muslim folks say they are not trying to threaten or incite violence against the creators of South Park, just informing people what the proper Islamic response would be. Take that for what it's worth.

I suspect most of the world's Muslims would disagree.

Ham in Foster Homes

(By Andrew MacKie-Mason)

In the state of Maryland, certain private companies are certified by the state to train foster parents and place children with them. Contemporary Family Services, Inc is one of those companies. Eugene Volokh reports on an interesting story: apparently Contemporary Family Services refused to give a Muslim company final certification because they refused to let bacon into their home. Contemporary Family Services apparently felt that children shouldn't be put in such a horrible situation.

Professor Volokh thinks this is a ridiculous decision and supports the ACLU lawsuit against Contemporary Family Services. I agree. As I've discussed before, I don't think that parents (biological or foster) should be able to prevent their kids from doing something like eating pork. However, parents certainly have the right to refuse to spend their own money on pork or to allow pork into their home, so long as the child, once he or she starts earning money, has the right to purchase it on their own.

Contemporary Family Services should try to find the best cultural match possible between children and potential foster parents. However, denying access to pork within the home falls within a reasonable measure of parental privileges.

(See also this discussion at Religion Clause.)

Are Beck and Palin "Seditious"?

(By Andrew MacKie-Mason)

Last week, POLITICO had an article about a Time columnist (Joe Klein) who said that inflammatory rhetoric coming from Fox News pundits like Glenn Beck and Sarah Palin has begun to edge up against sedition. Specifically, he argues that it's not legitimate consent to argue that a government is illegitimate in an attempt to get people to overthrow that government. Presumably, this is a reference to Palin and Beck's endorsement of the ridiculous "birther" movement.

I disagree with Klein. While working to overthrow a government is seditious, working to oust an administration is not. No matter how much weight Palin and Beck throw behind ridiculous conspiracy theories about the current administration, they are not being seditious until they say that their watchers no longer need to respect American law. As long as they work for his ouster within the law (through impeachment or defeat at the polls) they are engaging in legitimate dissent, not sedition.

Those on the left who are sick of the ridiculous vitriol spouted by pundits in the mold of Beck or Palin need to be careful about how far they go in criticizing them. If liberals start going after conservatives for legitimate but ridiculous forms of dissent, that will only come back to bite them the next time there's a conservative administration in power.

Why is Catholic Sexual Abuse News?

(By Andrew MacKie-Mason)

Greg Sisk at Mirror of Justice excerpts a column by Katherine Kersten which compares sexual abuse statistics between public schools and the Catholic church and wonders why abuse in the Church is more news than abuse in schools. She claims:

The church draws the mainstream media's ire because, in a world increasingly characterized by moral relativism, it continues to teach enduring moral rules that don't shift with cultural fashions. It dares to challenge the doctrine preached by America's new priestly class -- our opinionmaking elite -- on social issues ranging from abortion and embryonic stem cell research to same-sex marriage.

While it is certainly possible that the newsworthiness of Catholic sex abuse scandals comes from the Church's "[teaching of] enduring moral rules" and its opinions "on social issues ranging from abortion and embryonic stem cell research to same-sex marriage," I doubt that this is some sort of punishment because the Church has "dare[d]" to do these things. It makes more sense to assume that Catholic abuse scandals are newsworthy because of the hypocrisy they expose about the Church.

For well over a thousand years, the Church as employed a sense of moral superiority to justify imposing (or attempting to impose) their moral views on others, whether it's with regard to "abortion and embryonic stem cell research" or "same-sex marriage." Immoral acts by members of the Church, and intricately connected with the Church's structure, are more newsworthy because they challenge the perception of itself that the Church has nurtured.

Public schools do not (usually or extensively) claim moral superiority to justify their actions, they rely on claims of educational superiority. News about school officials teaching things that are not true would likely be more interesting than similar news about the Church. In the same vein, news about moral failings by the Church is more compelling than similar news about public schools.

This is not to say that these scandals reflect badly on all Catholics or make them hypocritical for their beliefs. However, institutions that preach moral truths cannot reasonably cry victim when they are criticized more harshly for moral failings than other groups are.

200!

(By Andrew MacKie-Mason)

This marks post #200 on Source 4 Politics. Thank you to those of you out there reading: I really appreciate it and I hope you enjoy what I write, at least most of the time. To celebrate #200, I give you the following graphic demonstrating the evolution of my addiction to this blog:

Rasmussen Proves its Conservative Credentials

(By Andrew MacKie-Mason)

A recent poll report published by Rasmussen is a perfect illustration of why you should never trust polls without examining the specific wording of the questions. As Josh Blackman points out, the opening of the report puts up an instant red flag about the legitimacy of the poll results.

Only 21% of Americans think that rulings by judges in recent years regarding religion in public life have correctly interpreted the U.S. Constitution, according to a new Rasmussen Reports national telephone survey.

Sixty-four percent (64%) of adults believe the judges’ rulings have been more anti-religious than the Founding Fathers intended. Fifteen percent (15%) aren’t sure.

It seems to imply that the "Founding Fathers[' intent]" is the "correct" way to interpret the Constitution. Many of us disagree and subscribe to other views than originalism, such as evolutionary public consensus.

But, you might say, perhaps they just wrote the report badly. The poll must be accurate still, right? Not so. The main question from the poll:

• Have rulings by judges in recent years regarding religion in public life correctly interpreted the Constitution or have those rulings been more anti-religious than the Founding Fathers intended? Accepted answers: "Judges have correctly interpreted the Constitution," "Rulings have been more anti-religious than the Founding Fathers intended," "Not sure."

One of the most basic rules of polling is that possible answers must be mutually exclusive and that all possible answers must be an option. This question presents an either/or fallacy. Rulings regarding religion being correct and also being more anti-religious than the Founding Fathers intended aren't mutually exclusive possibilities. Someone can believe that they are correct and also more anti-religious than was intended or that they are incorrect but not more anti-religious than was intended.

This is true even among originalists. Most (reasonable) originalists don't look solely to the intent of the "Founding Fathers," whatever that term means. They also look to public understanding at the time of the founding. And any originalist could, of course, think that the decisions are incorrect because they are less anti-religious than the Founders intended.

The danger of this question isn't just that it could produce a bad representation of public opinion. It is also a political push poll that tries to convince people of the Rasmussen political stance: that there really is no distinction between a correct opinion and an originalist opinion.

The other question from the poll is:

• Is the United States Supreme Court too hostile towards religion or too friendly towards religion? Accepted answers: "Too hostile," "too friendly," "neither," "not sure."

This is an example of when polling employs vague or ambiguous terms. What does "too hostile" mean? Does it mean that they go beyond the Constitution? That they strike down laws that the person answering the poll likes, even if it was the correct thing to do? We just can't be sure. And if we can't be sure, the people interrupted during dinner to answer these questions couldn't possibly have been sure either.

So don't trust Rasmussen Reports to ask legitimate questions, and don't trust polls at all without actually examining the questions.

(Wikipedia has more instances of misleading questions by Rasmussen.)

Credentials as a Crutch

(By Andrew MacKie-Mason)

In the era of media individualization and a plethora of opinions, how do we decide what we pay attention to? We clearly can't pay attention to everyone, or even to everyone who has a valuable perspective to offer. So we find people we trust. We skim, follow references, read what catches our attention. Should we, in addition, pay attention to the credentials of the person who is writing when we determine what to read?

As a matter of first discrimination, credentials can be useful. Someone looking for good writing on legal theory should probably look for things written by legal academics, even if there are non-academics who can provide equally as good (or better) analysis of legal theory. So in determining what is worth a first glance, credentials are useful.

But once we begin reading, they should begin to matter not at all. For critical thinkers, what should matter is the quality of the argument and the strength of the opinion put forward. If an "expert" with all of the requisite credentials makes unfounded claims or weak arguments, we shouldn't trust them. If a random person makes good arguments based on solid facts, we should trust them. Once something is actually read, relying on the credentials of the author to judge it is a crutch for those who can't manage to critically analyze it on their own.

I apparently kicked up something of a fuss the other day when I commented on a thread at Affirmative Links. I'll go into the substance of that debate another time, but basically I challenged the way the author and other commentors were approaching the problems with Fourth Amendment jurisprudence. I said they were overdramatizing the state it's in and that the Fourth Amendment still has more teeth than they were claiming.

Scott Greenfield then went after me as part of this post at his blog (Simple Justice.)

Scanning the blawgosphere, I saw a fascinating exchange over at Affirmative Links in the comments section of a post that riffed off the discussion here between Orin Kerr and me. It involved efforts to make one commenter, Andrew MacKie-Mason, agree with the idea that the exceptions to the Warrant Clause have swallowed the rule. The commenter wasn't buying and wanted it proven to him. What made this remarkable is that anyone cared.

A few clicks and it appeared that Andrew MacKie-Mason is a law student of no particular account. To his credit, lawyers spent their time attempting to educate him, to no avail as it appears. The student has a blog of his own, where he expresses his opinions. It too is of no account. That doesn't mean that Andrew doesn't sincerely believe that his opinion matters, or that he is owed an explanation to his satisfaction upon demand. Every one of the 135,000 current law students believes, with all his heart and soul, that the world revolves around him or her, and that every lawyer in the country is obliged to indulge them.

Through a discussion in the comments section of that post, it turns out that Scott Greenfield's main problem with me is this:

Be careful, however, of being disingenuous. Your comments at Affirmative Links were clearly to elicit a response, though you neglected to mention that you lacked any foundation to understand what they were trying to tell you. That's a bit dishonest, and given your obvious intelligence, I would bet that you intended it that way.

In other words, I didn't properly present by credentials before being allowed to board the plane. (At this point, it's perhaps interesting to note that I commented under my full name, with a link back to this blog which has almost 200 other posts by me. I really didn't hide who I was. The post I was criticizing, on the other hand, was written under a pseudonym which is described on this page as "Catch all pseudonym for any contributor that wishes to use the name." We can't even be sure that other writings under that name are by the same person, let alone know their credentials.)

And the thing was, nothing I said relied at all upon those credentials. I didn't imply that I had a certain level of expertise, nor did I make claims based on my personal experience without explaining what that personal experience is. The sin, it seems, was that I didn't preface my opinion with a full biography. My age and level of schooling were just as relevant as where I was born, where I grew up, what my parents are like, what I ate for breakfast that morning... The opinions are meant to (and do) stand on their own.

Perhaps Scott Greenfield would like to know my credentials before he spends his time reading what I write. I won't fault him for that. But once the opinions are read, they should stand on their own. Mr. Greenfield seems to be operating on the assumption that a certain set of people (those with the proper credentials) hold a monopoly on the ability to understand a topic. It's clear that that's not true (plenty of J.D.'s can't understand the law and plenty of non-J.D.'s can) and it's equally clear that once you read what someone writes you should be able to tell whether or not they understand.

If Mr. Greenfield (or others) would like to only interact with other lawyers, he is certainly free to do so. However, if he is going to read opinions by others he should be able to employ relatively basic critical thinking skills and analyze those opinions without the aid of crutches like credentials. If an explanation is going past someone's ability to understand, that should become clear within a minute or two. Relying on credentials to make that judgment is an easy, but inaccurate, way out.

Televising the Supreme Court

(By Andrew MacKie-Mason)

The perennial debate about cameras in the courtroom has come again, this time with Senator Arlen Specter (D-Pa.) The debate is old and contentious; on one side, we have Judge Judy and her ilk with their pseudo-legal television farces, and on the other is the Supreme Court, sitting silently and majestically inside its marble building.

Advocates of televising the oral arguments before the Supreme Court say that it will make the public more aware of what goes on in one of the most powerful institutions in this country. Critics say it will polarize and politicize the Court.

Personally, I'm torn. As a Supreme Court geek who's only had a chance to visit the Court once so far, I would love more chances to see the arguments. However, I also want the oral arguments to retain their value as discussion between the justices and advocates. I'm worried that televising the arguments would turn them into what "debates" in Congress have become: political posturing for the cameras.

So, I propose the following two possibilities for ways to provide more openness and transparency to the Court without politicizing it further. These two options are not, of course, mutually exclusive and some combination could be employed.

1. Have video of oral arguments available on the Supreme Court or National Archives website in full for individual viewers but not available for secondary publication by broadcasting corporations.
2. Release the video of oral argument to broadcasters and others at the start of the following term. Thus, video from OT2009 would be released in October 2010. This would allow dissemination of the video in an informative fashion while removing most of its political value. In our 24 hour news cycle, video that is months old will be hard to make sensational.

Of course, neither of these perfectly provides for transparency or completely prevents the further polarization of the Court. But I believe they strike a good balance between the two. Thoughts?

Health Care Reform: Privacy Violation?

(By Andrew MacKie-Mason)

David Kopel reports on another lawsuit related to the health reform bill that recently passed through Congress. This one, unlike all the others, actually has an interesting and plausible claim.

75. Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act’s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress’s individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs’ present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.

I've never been a fan of the broad concept of constitutional "privacy" rights (I prefer a more specific analysis of situations) but there is a certain amount of precedent supporting them since Roe v. Wade.

However, I think this claim will ultimately fail too. The concept of privacy is best rooted in the Fourth Amendment, which reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Privacy rights in health records would have to be rooted in the "persons" or "papers" provisions. I'm not sure that the "persons" provision would apply: to me, that implies physical examinations or seizures of someone's body, not simply demanding information about the history of a body. The "papers" provision also doesn't seem to apply, as that implies protection of documents created by a person, not information about them.

It's also important to remember that the Fourth Amendment is not a complete ban on searches. It is a ban on "unreasonable" searches. Let's assume for a moment (even if you don't agree) that the health reform bill is otherwise constitutional. If there are other reasons it's unconstitutional there's no reason to reach this question in the first place, so in arguendo assume that Congress would have the power to ensure that every American buys health insurance if there were no privacy concerns.

Then, the reasonableness standard would instruct us to engage in a balancing consideration. Given the government's interest in and authority to ensure universal coverage (as assumed for the argument), is the privacy invasion (if existent) reasonable in relation to the goal? It seems that it is. The interest is tailored to a specific person and the information is necessary to achieve the goal.

So, it seems to me, if the government can otherwise enact the health reform bill, any invasion of privacy is reasonable under Fourth Amendment standards.

(It's perhaps also useful to note that in legal proceedings the government doesn't need a warrant to access your medical records, just a subpoena certifying that your records are related to the proceeding. That would also seem to counsel in favor of the health bill being permissible.)

Like I said though, I'm not sure of my views on this. It is the most plausible attack on the bill I've seen, and I'm not that familiar with Fourth Amendment jurisprudence as it applies to health records. Feel free to try to change my mind in the comments, as always.

Racial Representation in Sports

(By Andrew MacKie-Mason)

USA TODAY had an article bemoaning the lack of African-American players in Major League Baseball. Ilya Somin has a good post at the Volokh Conspiracy deconstructing their numbers, but I'd like to make a simpler point.

If statistical underrepresentation of blacks in one sport (if it were occurring) would be proof of racism, is the underrepresentation of whites in other sports (basketball, for instance) proof of racism? I doubt it. This is why I have so much of a problem with claims of discrimination that are based only on statistical evidence of underrepresentation. There are so many other factors that go into these things that statistics alone aren't really proof of anything.

Sessions: Politicians Shouldn't Decide Trial Venues

(By Andrew MacKie-Mason)

An interesting piece in the BLT quotes Senator Jeff Sessions (R-AL) as saying:

It makes me a bit uneasy, having served in the department, to have politicians discussing where the cases ought to be tried. That is normally the Department of Justice career prosecutors.

He's speaking, of course, about terrorism trials under the Obama Administration. This anti-politician sentiment is an intriguing one, but not one that I'm sure I agree with.

Like it or not, terrorism trial decisions affect more than just our law enforcement or military interests. These decisions include foreign affairs interests, long-term strategic planning and constitutional concerns. It's proper, I believe, for elected officials to have some input on decisions that have so broad an impact.

It's also interesting to note that the President is probably taking a more direct hand in the decision because of the political pressure related to the issue created by members of Senator Sessions' own party.

For that matter, how would Senator Sessions respond to Congressional Republicans (and Democrats, for that matter) who want to talk about the proper place for trials—including himself, in that same hearing? Is he not a "politician discussing where the cases ought to be tried"?

Tell me if I'm crazy, but this seems like pretty direct hypocrisy by Senator Sessions. It's not something he said a while ago, or a change in position. It is literally conflicting positions within a single statement.

Birther Saga: Army Doctor Refuses Deployment

(By Andrew MacKie-Mason)

Bithers are members of the right-wing fringe who believe that President Obama wasn't actually born in Hawaii and that there has been a far-reaching conspiracy to set him up as President illegally. You can see my original thoughts on birthers (one of the very first posts on this blog, actually) here, and they're also mentioned in this post.

About a week ago, birther ideology came up again when an Army doctor refused to deploy until President Obama showed a birth certificate. The doctor's theory was that the President was not legitimately the Commander in Chief and therefore the orders weren't valid.

Of course, as I've mentioned before, these birther claims are ridiculous both from the perspective of common sense (it would have taken an intricate conspiracy to place birth announcements in newspapers, get Hawaiian officials to lie, and have a disgruntled confidante never reveal the secret) and from a legal standpoint. President Obama has released a certificate of live birth listing his birth place as Honolulu, and certificates of live birth are, under Hawaiian law, prima facie evidence of the facts stated on them.

What prima facie ("at first glance") means is that once the certificate of live birth has been introduced, there is a presumption of fact that it is actually true. This presumption can only be rebutted by evidence from the other side. However, no birthers have presented any kind of evidence (other than an easily rebutted, fabricated news article) that President Obama is not a United States citizen. They rely, instead, on the fact that he hasn't released his long form birth certificate. That proves nothing, other than that he values his and his family's privacy. It takes actual evidence to rebut the presumption made by the certificate of live birth.

However, I'm pretty sure that that's all moot in the Army case. I'm no expert in military law, obviously, but my impression is that even if President Obama wasn't legitimately president, the orders would still be valid since they've been endorsed (presumably, unless this doctor gets his orders directly from the president) by other officers in the chain of command. In the absence of a legitimate president, the military does not suddenly become nonexistent. It can continue to function normally with its career officers.

So, even if we accepted the doctor's ridiculous birther claims, he still had to follow his orders and deploy.

More coverage of this on the New York Daily News, POLITICO, and the Greeley Gazette.

Media Individualization

(By Andrew MacKie-Mason)

Technology always provides the good along with the bad, and that's no less true when it comes to media technology. The internet and associated advances have made it much easier to consume information and publish commentary (this blog is, of course, a perfect example), but the internet has also made it much easier for us to filter and individualize the content we want to see. With diversity comes the risk of self-imposed isolation.

To combat these problems, I always recommend reading a range of publications that offer different perspectives, whether they be different newspapers, TV networks, or blogs. That's why I tend to draw ideas for this blog from many sources, most of whose commentary I disagree with, at least most of the time. The thrill of reading people you disagree with is that every so often you find common ground or one person actually changes the other person. The rest of the time, the value is in the intellectual stimulation of a varied set of reading. I try to give a diverse list of recommended blogs (at right) and if you have other suggestions feel free to send them my way.

On the issue of media specialization, my better half showed me this page, which has a masterful vision of the future. It considers the world of individualized content under the media giant Googlezon (Google + Amazon) and what that means for democracy and journalistic ethics. It's worth a watch, and it combines real events (some of which I didn't know about) with its vision of the future.

In the end, use the world of specialized media for its good, but be aware of the dangers. Do not fall into the trap of reading one source of news or opinion, and do not blindly accept what you read.

Late Term Abortions

(By Andrew MacKie-Mason)

Professor Robert George raises an interesting question at Mirror of Justice. How should the pro-choice lobby feel about late-term abortions morally and legally?

First, let me be very clear about something: those are two different questions. People can be morally opposed to abortion without thinking that it should be legally prohibited.

The issue of late-term abortions does present some interesting questions. I'll approach this from the point of view of unwanted pregnancy as involuntary servitude, laid out here and here.

From this point of view, I think that legislative regulation of late-term abortions based upon bright-line rules is acceptable, so long as a long enough period is available for women to make an informed choice about abortion early enough in the pregnancy that abortion is still an option.

Let me explain. If a law creates a bright line (say, four months) before which abortion is legal and after which abortion is illegal, women can be informed about their options and make their decision before that deadline arrives. By knowing about the deadline and choosing not to have an abortion before it arrives, women can be considered to have waived their right to an abortion.

For the waiver to be legitimate, some conditions must apply:

• The time period provided for the choice (from the time the pregnancy is known to the time that the woman can no longer have an abortion) must be sufficient to allow for careful consideration and decision-making. Of course, women learn about their pregnancies at different times, so the law must give a long enough window to ensure that all women have the time to make the choice.
• The pregnant woman must know about the possibility of abortion. While it seems less and less likely that people wouldn't know about abortion in modern society, it is still possible, especially when considering young women in areas where abstinence-only education is taught. If women don't know that ending their pregnancy is an option, they cannot be said to have waived the right to end the pregnancy.
• Abortion must actually have been available. The unavailability of abortion before the deadline, whether it be due to lack of funds, lack of available practitioners, parents preventing a child from getting an abortion, etc, defeats a waiver argument.
• Unpredictable changes in circumstance must not occur. If, for instance, a doctor learns after the deadline that continuing to be pregnant could threaten the woman's life, waiver arguments would not hold.

Where those conditions hold, reasonable restrictions of abortion would not infringe upon a woman's rights.

Professor George brings up another question. How strict should those restrictions be? Should we require extensive legal inquiry into whether those conditions have been met before we allow the abortion? I'm inclined to say no, since the legal process is too slow to deal with medical practice in real time. Instead, women seeking late term abortions should merely be required to assert enough facts to justify the abortion (they didn't know soon enough to choose, they didn't know that abortion was available, abortion wasn't available, their life is now in danger, etc.) If those assertions are later investigated and found to be unreasonable, the woman could be subject to prosecution.

So, responsible regulation of late term abortion should be acceptable, so long as it does not inhibit the legitimate exercise of women's right to be free of involuntary servitude.

Anti-Islam Bus Ads

(By Andrew MacKie-Mason)

An anti-Islam group bought space for some controversial advertisements on Miami-Dade transit buses, prompting the county to originally take down the ads and then reinstate them. You can see the advertisement at right, along with the pro-Islam ad that inspired it.

In his commentary on this issue, Eugene Volokh makes what I think is a relatively typical error. He says that the county was right to reinstate the advertisements because to not do so would count as viewpoint discrimination.

But the restrictions do have to be viewpoint-neutral, and it sounds like the exclusion here was based on the viewpoint that the ads expressed — and the offense caused by that viewpoint — and not on some viewpoint-neutral policy. Of course the same would apply to exclusions of, for instance, pro-atheism bus advertising or pro-Islam bus advertising, if the exclusion is based on the supposed offensiveness of the viewpoint expressed by the ad.

Professor Volokh seems to think that any offense from the original advertisement would be based upon its viewpoint (anti-Islam) and that this shouldn't be a viable reason to censor speech because every viewpoint will upset some people. He would be right, if the only offensive thing about the advertisement is the fact that it's anti-Islam.

However, there are other reasons why the advertisement could be considered offensive: the fact that it suggests that anyone who leaves Islam will face threats and violence, that it falsely portrays the Islamic practice of fatwa as a death sentence against infidels, and that it suggests that the viewer needs "refuge from Islam."

Perhaps these don't rise to the level of offensiveness that's necessary to censor speech; I'm not sure, and that's irrelevant to what I'm trying to say. The point is, offensiveness-based regulation of this kind of speech would be viewpoint-neutral and would apply to all viewpoints (pro/anti-Islam, pro/anti-Christianity, etc.) It's incorrect for Professor Volokh to claim that censorship of offensive ads like this is a question of viewpoint.

Chief Justice Rehnquist as a Trial Judge

(By Andrew MacKie-Mason)

The Blog of Legal Times brings us a charming story from a recent talk given by Chief Justice Roberts. Asked if he would ever preside over a trial by designation, Roberts related a story where former Chief Justice Rehnquist did just that.

Justices of the Supreme Court can sit on lower courts "by designation." It's an old practice that used to be common but has mostly fallen out of use. In the early days of the republic, justices would "ride circuit" to different areas, forming a court with that justice and two local trial judges. This court would hear appeals from trial courts in the area. (This is why modern federal appeals courts are called Circuit Courts.)

Justices are no longer required to ride circuit, and few do. Apparently, though, Chief Justice Rehnquist was invited by a friend to preside over a trial. The upshot? The Chief performed so badly as a trial judge that he was summarily reversed on appeal—the appeals court didn't even bother to write a full opinion to explain what the Chief did wrong. The Deseret News (Jan. 10, 1999 via Google News) has the story.

Let that be a reminder to all: the man up top can't necessarily do all of the necessary work.

Sincere but not Religious

(By Andrew MacKie-Mason)

Howard Friedman at the Religion Clause reports on an interesting case arising out of federal district court in New York this month. The case is about a New York vaccination statute which exempts children whose parents have genuine and sincere religious beliefs against vaccination. The court held that the beliefs of the parent in question were genuine and sincere...but not religious.

This raises two interesting questions. Why do we care about the parents' beliefs and why do we distinguish between religious and non-religious sincere beliefs?

Why do the parents' beliefs matter? Obviously, the statute can be based on those beliefs if the legislature so chooses. But let's look at it from two perspectives: the First Amendment and public policy.

First, to be clear, I don't think that exempting children based upon the parents' First Amendment beliefs violates the First Amendment (unless, possibly, the child wants the vaccine and the parent does not want the child to have it.) However, let's suppose that the claim by the parents was based upon the First Amendment and free exercise, not upon the statute. In that case, would we see vaccination decisions about another individual as a realm where the religious exercise of the parent is at issue? I would say not, and you can see my previous thoughts on this topic here and here.

So, then, what is the public policy justification behind the statutory exemption, if it's not based in a desire to respect the First Amendment? Perhaps because we think parents can make the best decision about vaccination? But then why limit it to sincere and genuine religious beliefs, instead of making it a parental choice entirely? What public policy justification is there for not requiring children to be vaccinated if their parents sincerely and genuinely object?

And why do we care if beliefs are religious, so long as they are sincere and genuine? What does "sincere" mean, outside of the realms of sincerity and genuineness? To me, calling a belief "religious" is shorthand for conveying a certain level of sincerity and the amount of faith put into the belief. A casual belief in the resurrection of Christ is no more religious than a casual belief that Republicans make better Presidents, and a faith-based, sincere belief that vaccinations are harmful is no less religious than a faith-based, sincere belief that Jesus Christ is the resurrected Son of God.

The court in this case distinguished the religious from the secular. That, it seems, does raise First Amendment issues, in that it seems to favor a system of organized religion familiar to the judge. This would encourage the establishment of a certain type of religious system.

In the opinion, the judge talks about how beliefs about respecting ancestral practices, respecting the sanctity of the human body and respecting Mother Earth are not really religious in nature. This seems to just be a way to establish the judge's idea of what a real religion is as the only valid one in our system of laws. And it seems like this will be the case any time we try to distinguish between religious beliefs and other faith-based, sincere, genuine beliefs.

A person should not be given less protection because they subscribe to a personal code rather than an organized, revealed, closed religion.

Canada Jails Anti-Abortion Tax Protestor

(By Andrew MacKie-Mason)

Our cousins to the north have recognized the fact that you cannot refuse to pay taxes just because you disagree with some of the uses those taxes are being put to. (Story by Howard Friedman at the Religion Clause.) A man there was jailed for failing to pay taxes, which he claims to have done because he doesn't support abortions, which are subsidized by the Canadian government.

If one objects to the purposes taxes are being put to, they are free to cease being a part of a certain society. If they remain in the society, however, they consent to the system of majority rule that creates the taxes and distributes the revenue.

The religious-right plaintiffs in this lawsuit may want to take notice.

The Status Quo

(By Andrew MacKie-Mason)

The concept of the "status quo" comes up relatively often when discussing morality and ethics. According to some people, actions and policies should be judged differently based on their relationship to the status quo. (See, e.g. Jack Balkin's discussion of an article by Robert Moffit.)

Is this distinction really a legitimate one, though? Let's look at the example from the Moffit article: tax incentives.

Situation A: The population is taxed (say at $10 per person). The ruling organization promises a tax reduction of $3 per person for people who behave in a certain way. Those who do not behave in that way do not get the tax exemption.

Situation B: The population is taxed $7 per person. The ruling organization imposes a $3 tax increase on people who do not behave in a certain way.

Is there a distinction between the two situations? In both, people who engage in the favored activity pay $7 in taxes and people who do not do so pay $10 in taxes. The status quo argument would say that in the first situation, the government is rewarding action, but the status quo remains the same. In the second situation, though, continuing to do the same thing leads to an increase in taxes, thus changing the status quo.

The distinction, to me, seems ridiculous. After all, the outcome is identical.

In fact, the entire concept of the status quo seems based in a pretty large assumption: that we can define states of the world that can remain constant or change. Why doesn't this work? Clearly, everything is in constant flux. At no point will everything be in exactly the same state as it was before. Discussions of the status quo would then seem to be not "which one keeps things the same," but "which one changes things less," with amount of change of course being very hard to define.

That's why the current state seems to be somewhat irrelevant in determining the best possible state for the future. based on that, I tend to see choices about the future as a choice between possibilities, not as a choice between staying the same and changing.

I realize that this is neither fully thought out nor completely rigorous. I would welcome challenges that help me revise my opinion on this.

Know Your Rights in a Police Encounter

(By Andrew MacKie-Mason)

The CATO Institute screened an outstanding film by FlexYourRights.org. The film is called "10 Rules for Dealing with the Police," and you can watch CATO's screening of it here. (The movie starts at 5:20 if you want to skip the intro. It lasts 42 minutes, and there's another 40 minutes of panel discussion after they show the film.)

The film truly is great. Excellent production values, and good actors. It doesn't feel preachy, even when they're preaching. It's not your typical "things you should know" infomercial and it doesn't talk down to you like many of these things do.

And it goes over some essential points that everyone should know, including:

• You always have the right to not consent to a search, but always do so verbally. ("I'm sorry, officer, but I don't consent to searches.") Never, never, never physically resist. The street is not the courtroom, and interfering (even if they're acting inappropriately) is often a crime.
• If you want to end a police encounter, ask "Are you detaining me, or am I free to go?" If they acknowledge that they're detaining you (or otherwise prevent you from leaving) then you gain extra legal protections. But don't try to leave against their orders: resisting is still a crime.
• Never, ever consent to searches of your home or car, even if you didn't do anything wrong. And that includes not letting the police into your home. Talk to them outside: letting them exposes you to more risk. You never know what they might find, even if someone else left it there and it gets pinned on you.

Now, go watch the film. It goes over more than that, and in a much more interesting and compelling way than I can through the written word.

In this same vein, here are the "Rights & Responsibilities" printed on the back of the local public defender's office business cards (which I got during an internship).

• When stopped by the police, you should be calm, courteous and responsible. Do not flee, make sudden moves or physically resist the police in ANY way, even if they are acting improperly. You may be required to give your name, age and address.
• You never have to agree to any search, but DO NOT RESIST a search.
• When spoken to by the police, you should not try to give explanations or excuses without an attorney present. USE YOUR RIGHT TO REMAIN SILENT.
  

Garland and Guns

(By Andrew MacKie-Mason)

Merrick Garland, currently a judge on the U.S. Court of Appeals for the DC Circuit, is a probable candidate to fill the vacancy left by Justice Stevens' retirement. Judge Garland has (predictably, perhaps) attracted the ire of some conservative legal commentators, specifically for his opinions on gun rights.

David Kopel, in particular, points to a decision that Judge Garland joined on the DC Circuit (written by Judge Tatel). The case is NRA et. al. v. Reno. The question at issue is whether, under the Brady Act, the Justice Department could maintain records of gun transfers for six months for purposes of audits. Kopel believes that Garland joining in Tatel's opinion "suggests a cavalier disregard for privacy rights in general."

"Gun rights" and "privacy rights" are not really at issue in this case. It turns on statutory interpretation: whether the Brady Act requires the immediate destruction of records or just the destruction of records within a reasonable time. I'm not going to go into the statutory interpretation, because three Circuit Judges and their law clerks have done a better job at it than I can. But it's clear that characterizing this as a "gun rights" or "privacy rights" case is a red herring.

It's not a gun rights issue because neither opinion would make it easier or harder for a person to possess or sell guns. The same checks would be performed no matter which way Garland came down on this issue, and the burden on the gun owner/seller would be the same.

It's not a privacy rights issue, because it only deals with how long records can be maintained, not whether those records can be created in the first place. And that assumes you even think that the creation of records is a privacy issue in the first place, which is questionable. Reports which compile publicly available information don't really seem to be a privacy issue.

We can expect the media and politicians to try to turn technical court cases into political issues by misrepresenting what the questions in the case are. But we should expect better from lawyers like Kopel who (should, at least) be able to understand what they're talking about.

CLS v. Martinez

(By Andrew MacKie-Mason)

Yesterday, 1 First Street, NE hosted the oral argument in an interesting case: Christian Legal Society (CLS) v. Martinez. Martinez is the representative of the public UC Hastings College of Law, which is being sued by a student organization, CLS. Hastings refused to grant CLS official recognition (including funding) unless CLS allowed all students an equal opportunity to hold leadership positions in the organization. CLS wants to impose a litmus test by only allowing people to become officers if they share the core Christian beliefs of the organization.

This is a particularly interesting case because it combines freedom of association claims with concerns about discrimination and equal protection. And, of course, there's a little religion thrown in for good measure.

Freedom of Association

The concept of associational liberty is derived from the First Amendment guarantee that "Congress shall make no law...abridging...the right of the people peaceably to assemble." Together with a right of assembly or association must come the right to exclude; a right to associate with who you choose is not really meaningful if there is not also a right to not associate with others.

This exclusionary right makes sense and is common. Congress cannot force a private club to open its membership to poor people, and they cannot force the Catholic Church to start ordaining practicing homosexuals. It may seem, then, like UC Hastings Law shouldn't be able to force CLS to accept non-Christian leadership, which brings me to my next point.

Public vs. Private Association

There is a distinction to be drawn between private association and association that is sponsored by the government (i.e. public association.) The basis for an exclusionary right becomes much less clear when we consider public association. The right to assembly can be meaningful without allowing it (because the exclusionary right still exists for private association) and the dangers of the exclusionary right become more prevalent when we look at government-sponsored association, such as student groups at public schools.

Segregation and Equal Protection

When dealing with public association, exclusionary groups run the risk of violating the Fourteenth Amendment's guarantee of equal protection under the law. Exclusionary public assemblies, by their nature, provide public funding to one segment of people and deny it to another.

But what if all groups are equally able to receive government funding, some might argue? After all, public schools do not discriminate between groups that they fund; an anti-Christian law group could get funding just as easily as CLS.

My issue with that argument is that it brings us closer and closer to the doctrine of separate but equal, an idea rejected in American society for over half a century.

Thoughts? I'm not completely sold on this. I think the argument is relatively solid, but I would welcome criticisms.

(Josh Blackman has a good roundup of interesting segments from the oral argument.)