Eugene Volokh's Blog, page 2567

California Bill Would Ban Psychotherapy Aimed at Changing Under-18-Year-Olds’ Same-Sex “Desires, Attraction, or Conduct”

(Eugene Volokh)

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds.

Arizona Cyber-Harassment Bill Has Been Narrowed

(Eugene Volokh)

The Arizona cyber-harassment bill, which I blogged about March 31, has now been narrowed in the Arizona Legislature. The original proposal — which had been passed in nearly identical forms by both houses of the Arizona Legislature — read,

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

This, as I argued, would have posed serious First Amendment problems. Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.

So, under the proposal, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would have been a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if “profane” is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. 2000), then the statute would have been unconstitutional as well.)

The same would have been true if someone posted something lewd in one of these places in order to annoy or offend someone, for instance if he posted a comment on a police-run public discussion page that says something like “the chief of police can suck my dick,” to borrow subject matter from a prior Arizona telephone harassment case. And, given that case, the speech need not even have been about one of the recipients, so long as it had been intended to annoy or offend one of the recipients.

Fortunately, the Arizona Legislature’s House-Senate conference committee has dramatically narrowed the proposed statute. The new version — which I expect will become law — reads,

A. It is unlawful for any person, with intent to terrify, intimidate, threaten or harass a specific person or persons, to do any of the following:

1. Direct any obscene, lewd or profane language or suggest any lewd or lascivious act to the person in an electronic communication.

2. Threaten to inflict physical harm to any person or property in any electronic communication.

3. Otherwise disturb by repeated anonymous, unwanted or unsolicited electronic communications the peace, quiet or right of privacy of the person at the place where the communications were received….

C. This section does not apply to constitutionally protected speech or activity or to any other activity authorized by law….

This is much more likely to be read as limited to one-to-one messages, such as unwanted targeted e-mails, instant messages, text messages, and the like. The language is not completely airtight on that score, but I think it’s much more likely to be so interpreted. And though there are problems with the proposal even as to unwanted one-to-one messages — for instance, “harass” is not defined in the statute, and the word “harassment” is defined three different ways in three other Arizona statutes, which reflects its ambiguity — I think the new version is much better than the original draft.

Many thanks to Alan Solot for pointing me to the original version of the bill in the first place, to Charles Brownstein of the Comic Book Legal Defense Fund for writing the March 30 post that Mr. Solot had passed along to me, and to Media Coalition for its earlier criticisms (see here and here).

UPDATE: Thanks also to author Neil Gaiman; Alan Solot tells me that he learned of the bill through a Twitter message by Mr. Gaiman, which pointed to the Comic Book Legal Defense Fund post.

Podcast on the Politics of The Hunger Games

(Ilya Somin)

The Institute for Humane Studies has put up a podcast I recently did for them on the politics of The Hunger Games, the popular science fiction book series by Suzanne Collins, which has been recently made into a hit movie.

I previously blogged about political issues in The Hunger Games here, here, and here. Many have suggested that the series has a libertarian anti-government message, though I think it is much more ambiguous than that.

For those interested, I have also done IHS podcasts on political themes in Star Trek and Battlestar Galactica.

Polling and the Supreme Court

(Randy Barnett)

Jonathan posts yet another poll confirming both the unpopularity of the individual insurance mandate and the popular desire and expectation that the Supreme Court will it unconstitutional.  What is interesting to me about this particular poll is that this result obtains despite the fact that it has elements of a push poll.  As supporters of the ACA love to point out (see below), individual elements of the Act — such as those concerning pre-existing conditions, or allowing offspring to stay on their parents’ health insurance policies until age 26 — consistently score favorably.    The Kaiser Family Foundation, which specializes in health care policy and supports the ACA, first informs the respondents of these known-to-be favorable features of the Act before soliciting their approval or disapproval.  This is probably not technically a “push poll” because they ostensibly ask whether respondents are aware that the bill contains these features rather then tell them that it does.  But the information-imparting function of these questions still remains and was undoubtedly intended.  Now this practice can be defended as measuring the public’s “true” opinion of the ACA, but it is not a very good way of assessing the opinions of the public “in the wild” so to speak.  All this is very well known among polling companies, and the previous polls about the ACA and the individual mandate, such as those by the AP and USAToday, to which I have referred here have not done this.

Still, having done all it could to favorably affect the outcome, the individual mandate still scores highly unpopular, and is perceived as unconstitutional.

But then, according to Barry Friedman and Dahlia Lithwick, the Supreme Court should ignore the unpopularity of the ACA when making its decision.  In their Slate column, Justice by the Numbers: When it comes to deciding the future of Obamacare, the Supreme Court should ignore public opinion, the identify two academic theories on the relevance of the ACA’s unpopularity to the Supreme Court’s deliberations, both of which I find plausible and have offered some variant of myself:

Most recent academic thinking doesn’t assess how the Supreme Court decides cases. Rather, it observes that public opinion might constrain what the justices would otherwise do on legal or ideological grounds. (And even on this point there is disagreement.)  Say, for example, that the current justices believe the ACA is unconstitutional but are worried that they may get in hot water if they strike it. To the extent the polls are giving the justices accurate information—itself a dubious proposition—there  may well be breathing room for them to do what they believe is appropriate.  Conversely, if public opinion were hot for health care reform, then the justices might want to think twice before letting a negative view of the law take its course.  The idea here is that if the justices get too far out of line, they are apt to feel the sting of a disgruntled populace. (Ronald Dworkin ends this piece with a version of that argument.)

Another academic theory runs a little closer to what the media are saying. This theory is that the zeitgeist of the times actually affects the way the justices think about legal questions, whether consciously or not. As Yale Law School’s Jack Balkin has put it, an idea that seemed “off the wall” can begin to appear “on the wall.” For instance, there’s surely something to the idea that long-changing notions of the role of women in society affected the evolution of the gender-discrimination cases in the 1960s, 1970s, and 1980s. Public views about congressional control over the national economy, which evolved between the early 1900s and 1936, may well have played a role in the Supreme Court’s decisions upholding New Deal legislation. This is a story some endeavor to tell about the health care law today.  The idea that the individual mandate is unconstitutional—which seemed implausible a year ago—has evolved into something far more acceptable in the public mind.

They then find fault with these accounts and along the way, they predictably seem to equate a decision to invalidate the mandate with Dred Scott, the Godwin’s Law of constitutional discourse.  But here is their bottom line:

Assume it is true that a majority of Americans (a slim majority in most polls) has come to believe the individual mandate is unconstitutional. Then note the point the pundits overlook—that those very same polls also show a majority of the same people like their health care, and believe that the rest of the legislation should be upheld. For example, aMarch New York Times/CBS poll showed that 85 percent of respondents approved of the requirement that insurance companies cover people with a pre-existing medical condition, and 68 percent approved of the provision allowing children to remain on their parents’ policies until age 26. In the same poll, 51 percent of the respondents disapproved of the mandate. The problem is that Johnny and Janie Public can’t have what they want: affordable health care and no mandate.

Here’s the risk for the court:  The public may not like the mandate, but when it becomes apparent the choice was mandate or rejection for pre-existing condition (or any other provision of the law the public adores), Johnny and Janie may be really angry at whoever took their health care away. Think about Citizens United again. Who knew the public was so enamored of McCain-Feingold? The answer is no one—until the court showed what life without campaign finance regulations would look like.

It’s hard to predict, of course. But that’s the reason for caution in claiming polls are going to point the way out of this debate.  To hear some in the media tell it, you’d think the justices not only are, but should be, reading the polls to decide this case. That’s the very antithesis of constitutionalism:  reading the latest poll to understand our most long-standing and binding commitments.  The justices should keep their day job, and leave the poll numbers to the pollsters.

I totally agree with this recommendation to the Justices, though I find the reference to “Johnny and Janie Public can’t have what they want” to be both condescending and false.  What is remarkable about this column to me is that, as I recall, someone has written quite a lot, to the point of “obsession,” about how the Supreme Court is not actually a countermajoritarian body, and that it hews pretty closely to the mainstream views of the public.  And I never got the sense that this was considered by him to be a bad thing.  As it happens, I generally agree, as a descriptive matter, that the Court tends to reflect majoritarian views, though I think this is has sometimes resulted in very bad constitutional decisions and doctrines.

Oh, but maybe I am being misled by the last paragraph.  Maybe the real message is that the Court better uphold the mandate or Johnny and Janie Public will be very angry with it for “taking their health care away.”  So maybe Friedman and Lithwick are really counseling the Court against misreading the polling data, while ostensibly pulling back from this friendly advice at the end to counsel that the Justices should stick to their legal knitting.

In the past couple days, at least two serious academics who I like and respect have told me that the Supreme Court’s legitimacy with the public will be severely undercut if it invalidates the mandate, so the Court either should or will (or both) uphold it.  In response to this contention I then present polling date to show that, for example, that the Court’s approval rating jumped 12 points after the oral argument.  So not only does this “realist” assessment and/or recommendation run afoul of the polling data, these observers are either urging the Court to rule politically or predicting that it will (or both). Yet if the Court were perceived to have acted in this manner, then this would indeed undermine its legitimacy with the public.  

So the Court had best do what I think it did do during the oral arguments, but which all too many pundits and professors have failed to do:  take seriously the actual legal arguments being made by both sides in their briefs to the Court.

Why we need to fix CISPA , not kill it

(Stewart Baker)

Security guru Dan Kaminsky and I joined earlier this year to fight SOPA because it was bad for cybersecurity.  Today, for the same reason, we joined in a Politico op-ed to rebut attacks on CISPA, the Cyber Intelligence Sharing and Protection Act:

We may have thrown some of the first stones, but SOPA was ultimately buried by an avalanche of criticism. Tumblr, Reddit and Wikipedia, among others, even protested by taking their sites down for a day. The effect was not subtle. SOPA is dead.

They say victory has a hundred fathers. It also has a hundred would-be sons — and “son of SOPA” campaigns have proliferated. In Europe, for example, SOPA’s defeat inspired a surprisingly successful effort to block the Anti-Counterfeiting Trade Agreement.

Here in the United States, though, the debate has taken an odd turn. After stopping a bill that would have undermined cybersecurity, some Internet activists are now targeting bills that could actually make the Internet safer. They’re charging that bills like the Cyber Intelligence Sharing and Protection Act represent stealth attempts to resurrect SOPA under the guise of promoting cybersecurity….

There are ways to address this concern, but we must remember the bigger privacy and civil liberties threat: the Internet’s insecurity….

Without security, no network offers privacy. A hacked database offers no protection.

Part of the solution is to get better at sharing information. That means sharing attack signatures at light speed so as soon as a new attack vector is identified by one company, it can be blocked by others. Government needs to be part of that system — it has a lot to defend and it’s pretty good at identifying signatures.

But under current law, once the government shows up to receive information, private-sector participation slows from the speed of light to the speed of lawyers. Current law lets companies share information with the government without a court order only to protect their own networks against malware, but not to protect others….

In short, we need to fix CISPA, not fight it. We can all agree that if Facebook reports that a link has been used to propagate malware, the government should expend its resources to warn users and foil the attack, not issue notices of potential copyright violations about the link.

 Remarkably, the House Intelligence Committee has proposed additional amendments that would accomplish precisely this goal.

Be Careful Recommending Your Own Diet Without a License

(Jonathan H. Adler)

Via Brian Doherty comes this report of how a blogger got in trouble North Carolina Board of Dietetics and Nutrition for a website that explains how he came to love the paleo diet.  Because he answered readers’ questions and recommended the paleo diet the Board determined he was “practicing nutrition” without a state license, despite the existence of disclaimers on every page.

this past January the state diatetics and nutrition board decided Cooksey’s blog — Diabetes-Warrior.net — violated state law. The nutritional advice Cooksey provides on the site amounts to “practicing nutrition,” the board’s director says, and in North Carolina that’s something you need a license to do.

Unless Cooksey completely rewrites his 3-year-old blog, he could be sued by the licensing board. If he loses the lawsuit and refuses to take down the blog, he could face up to 120 days in jail.

The board’s director says Cooksey has a First Amendment right to blog about his diet, but he can’t encourage others to adopt it unless the state has certified him as a dietitian or nutritionist.

Post-Argument Polling on Health Care Reform

(Jonathan H. Adler)

The Kaiser Family Foundation just released its most recent polling on health care reform — its first tracking poll since last month’s oral argument in the Supreme Court.  The poll finds little change in public opinion about the mandate.  A majority of respondents both want and expect the Supreme Court to strike down the individual mandate.  A majority also wants the balance of the law to be left intact.  One significant change the poll did find, however, is an increase in reported awareness of the health care reform law’s provisions.  The poll also found an increase in public confidence in the Supreme Court, largely driven by mandate opponents who appear to have been buoyed by the tenor of the oral arguments.

Here are the KFF release, summary, and the toplines.

Another Misquote

(Eugene Volokh)

From President Obama’s remarks today at the University of North Carolina:

One Republican congresswoman said just recently — I’m going to quote this because I know you guys will think I’m making it up — (laughter).

AUDIENCE MEMBER: We trust you. (Laughter.)

THE PRESIDENT: No, no, no. She said she had “very little tolerance for people who tell me they graduate with debt because there’s no reason for that.”

AUDIENCE: Booo –

THE PRESIDENT: I’m just quoting here. I’m just quoting. She said, students who rack up student loan debt are just sitting on their butts, having opportunity “dumped in your lap.”

AUDIENCE: Booo –

THE PRESIDENT: I mean, I’m reading it here, so I didn’t make this up. Now, can you imagine saying something like that?

The “we trust you” turns out to have been a mistake. Here’s what Congresswoman Virginia Fox actually said:

I have very little tolerance for people who tell me that they graduate with $200,000 of debt or even $80,000 of debt because there’s no reason for that.

That strikes me as quite different from “very little tolerance for people who tell me that they graduate with debt because there’s no reason for that,” without the “$200,000 or even $80,000″ qualifier. Indeed, as of 2007-08, the 90th percentile for total undergraduate student loans was $44,500, so $80,000 would be a very high student loan amount indeed, at least for undergraduates (likely the people whom both the President and Congresswoman Fox was targeting). Today, the amounts would likely be a bit higher — the 2007-08 data gives the median 4-year student debt at $20,000, and President Obama said in his speech it was $25,000 — but not by enough to make $80,000 a normal student debt.

So Congresswoman Fox was expressing a lack of sympathy for students who take on unusually large — perhaps 95th or higher percentile — levels of debt. President Obama, though, quoted her as if she was expressing a lack of sympathy for students who take on any debt at all.

One can certainly disagree with the Congresswoman’s views. But if one wants to disagree with those views, one should at least quote them correctly.

See also this post from yesterday, which is the first misquote to which my title “another misquote” refers.

The Lochner Awards

(David Bernstein)

Despite my pre-oral argument warning that Lochner v. New York really has nothing to do with the constitutionality of the individual mandate, Lochner has consistently arisen. Most prominently, of course, the President mentioned Lochner (and in a dubious context), but only after the Solicitor General raised it at oral argument, CJ Roberts parried, and Justice Sotomayer raised it again, not especially coherently.

Surveying some of the post-oral argument Lochner-related commentary, I hereby present The Lochner Awards in various categories noted below:

Weirdest and most conspiratorial use of Lochner

Breitbart.com "In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision–an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution."

Spookiest Lochner reference

Jamin Raskin, Huffington Post "The ghost of Lochner is alive and well on the Roberts Court" (someone call Bill Murray!)

Smelliest use of Lochner

Daily Kos: "the stench of Lochner and Dagenhart will cause SCOTUS to uphold the law"

Most "challenging" reference to Lochner

Attorney Bryan Caskey: "So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding."

Most Honest use of Lochner

Jonathan Cohn, New Republic: "But I'm pretty sure both Obama and his administration's lawyer were saying something different, and broader, when they invoked Lochner: By invalidating the Affordable Care Act, the Supreme Court would be resurrecting a vision of constitutionally limited government that, quite rightly, went out of fashion a long time ago." (Constitutionally limited government! The very idea is preposterous!)

Most Puzzled reference to Lochner

DailyGreg blog: "Lochner? Who the hell is Lochner?"

Disco Lochner

Allergictobull.com: "Now one thing that comes up several times is what I refer to as the Lochner 'boogie man.'"

Most judicious comment about Lochner

Damon Root, Reason: "the legal challenge to the individual mandate has nothing whatsoever to do with overturning any New Deal era precedents"

Correcting Jonathan Cohn on the New Deal Cases

(David Bernstein)

Cohn in TNR:

I've tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified… It'd be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn't happened since those early New Deal cases, just as Obama suggested.

Actually, the most important of the New Deal laws invalidated by the Court, the National Industrial Recovery Act, a law far broader than the ACA, went down 9-0. The other two New Deal decisions on "Black Monday" in 1935 were also 9-0. The second most important piece of New Deal Legislation to be invalidated by the Court, the Agricultural Adjustment Act, went down 7-2. The Guffey Coal Act went down 6-3. Offhand, I can think of several major pieces of New Deal legislation that were upheld 5-4, but I'm drawing a blank on ones invalidated by that vote.

And the Court was NOT split along party lines. Justice James McReynolds, who typically voted with the conservatives, was a Democrat, as was Justice Brandeis, who led the Progressive wing of the Court. All of the other seven Justices were Republican appointees, and most of them were loyal Republicans (as opposed to, e.g., Justice Cardozo, who Hoover appointed because he was the most prominent judge of his era, and not for standard "political" reasons).

So in a sense, from Cohn's perspective, this would make a decision invalidating the ACA even worse. But one can rejoin that never has such an important piece of federal legislation been rammed through on a narrow, partisan vote. And given the Schechter case invalidating the NIRA, it's also true that the Court has even in times of great economic crisis saw fit to unanimously invalidate the signature piece of legislation of an overreaching president. One difference, today, of course, is that the liberal wing of the Court, led by Justice Breyer, sees NO justiciable limits on the scope of federal power, so there's no hope of a unanimous, or even bipartisan, vote today.

Finally, as Barry Cushman points out, the biggest reason early New Deal legislation had trouble getting past the Supreme Court is that the Roosevelt Administration didn't take care to draft the legislation to avoid constitutional objections. Sound familiar?

[post expanded a bit from the original]