Eugene Volokh's Blog, page 2604
March 2, 2012
The Cato Institute and the Kochs
For what it is worth, I completely agree with co-blogger Jonathan Adler's comments on the Koch brothers' lawsuit against the Cato Institute. I don't know whether the Kochs' legal rights have been violated or not. If they have, I can understand their frustration. But, for the reasons Jonathan explains, this lawsuit – even if meritorious – can only do damage to the Cato Institute and the broader libertarian cause which the Kochs have supported for many years.
Cato is the nation's most prominent libertarian think tank. For both public relations and substantive reasons, it is unwise for it to be controlled by members of one family, whether the Kochs or any other. The public relations problem is obvious. The substantive problem is that such a setup increases the chance that the organization will develop blindspots that might have been avoided with more diverse leadership.
As I explained here, much of the litany of charges against the Kochs is unfounded, based on a combination of distortions and outright factual errors. In this case, however, they have made a mistake. Most likely, the Kochs genuinely believe they have been wronged and that they could run the Institute better than its current leaders. But not every well-intentioned action is wise, and this one isn't.
CONFLICT OF INTEREST WATCH: I am a Cato adjunct scholar, which is an unpaid position. Back in the summer of 1992, I was a college student intern at Cato, a job that paid a small salary. I have published several articles and op eds in Cato publications or with Cato's assistance, sometimes for free, and sometimes for small honoraria. Cato was also my client on a pro bono amicus brief I wrote on their behalf (along with several other organizations). Cato has expressed interest in co-publishing a book I currently have under contract with an academic publisher (I would not be paid by Cato under this arrangement, but we hope that their participation would increase exposure for the book). Finally, I have lectured at several programs organized by the Institute for Humane Studies that are partially funded by the Koch Foundation. In each case, I received a small honorarium.
"Jesus Christ Superstar" Performance Canceled Due to Religious Outrage in Belarus
Telegraf.by reports (Russian language version here):
Homel eparchy of Belarusian Orthodox Church has succeeded in [cancellation] of performance of the St. Petersburg Theatre "Rock Opera," which arrived in Belarus on a tour with the rock opera "Jesus Christ – Superstar." The local authorities were requested to abolish the rock opera. The believers' [outrage] was also caused by the fact that the performance was scheduled for March 4 (the first Sunday of the Lent). The rock opera show was also disrupted in Minsk.
According to Homel [local government], it was not planned to cancel the performance but only to reschedule it for another day. However, the artists have cancelled the tour themselves and now are not going to stage in Homel in the near future, [said] Head of Culture of the executive committee Oleg Ryzhkov, "Komsomolskaya Pravda in Belarus."
[But] the official report of St. Petersburg Theater [in Homel] says that the play was not voluntarily canceled but banned. "Due to the aggressive position, taken by a number of leaders of the Orthodox dioceses in Belarus, the play was banned in several cities of the tour."
"The local departments of culture allegedly received letters from "outraged believers" with the requirement to prohibit the "profane" rock opera. Meeting the "wishes of the workers," some secular cultural institutions denied admission to our theater. As a result, the show was cancelled in four out of five cities. As it turned out, the performance of the theater in Brest was in jeopardy. Thus, contrary to all sorts of contractual practices, the theater had been notified in advance about the show cancellation in Mahiliou," noted the theater "Rock opera."
For more, see the Christian Post and RIA Novosti. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
Did Historian Ilan Pappe Fabricate a Quote by David Ben-Gurion?
The quotation in question is "The Arabs will have to go, but one needs an opportune moment for making it happen, such as war."
With regard to the first part of the quotation, "The Arabs will have to go," this piece makes a strong case that he, at best, relied on a mistranslation of the Hebrew by others rather than going back to the original source (the mistranslation saying the exact opposite of the original writing's "We do not want and do not need to expel Arabs and take their places").
With regard to the rest of the quote, the ethics committee at Pappe's University of Exeter determined that this was a "fair and accurate paraphrase" of sources relied upon by Pappe (without specifying the sources), but was mistakenly put in quotes.
This raises the obvious question of how this could be a fair and accurate paraphrase if the first part of the quotation was incorrect. On that point, the ethics committee apparently concluded that the fact that others incorrectly "translated" the first part of the quotation even more egregiously exonerates Pappe.
I wasn't aware of this controversy previously, and I haven't gone back to the original Hebrew sources. But if the linked-to piece is correct, it looks like Pappe took a bogus English translation of a Ben-Gurion quote that had been repeated by others, then "paraphrased" some other material that he nevertheless put into quotation marks, and combined them into a quotation falsely suggesting that Ben-Gurion had a longstanding to expel the Arabs of Palestine.
In fairness to Pappe, in the editing process things like this can happen inadvertently, and can especially happen if the mistake creates a quotation that seems perfectly sensible to the author based on his ideology–one is much less likely to carefully check a quotation that "sounds right" than one that doesn't. But it certainly doesn't help Pappe's case that he attributes the difficulty this has caused him not to his own errors, but to the machinations of "Zionist hooligans," [UPDATE: fwiw, an old Soviet propaganda term used to denounce American Soviet Jewry activists as well as Israelis] which hardly makes him sound like an objective scholar pursuing the truth.
Prisons, Privatization, and the Elusive Employee-Contractor Distinction — Part 6
On Friday, I posted the introduction to my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. On Monday, Tuesday, Wednesday, and Thursday, I posted following sections. You can find the whole paper here on SSRN.
Here's my conclusion. Thanks again to all the commenters, some of whom I'm answered and some of whom I haven't (hey, I've got other papers to work on!). Some of your points will make it into future drafts of the paper.
* * *
Throughout, I've focused on private prisons. But these non-empirical arguments are often used to oppose privatization in other areas as well—from the military, policing, and air transport security (which, like prisons, raise "privatization of force" concerns) to social services like water provision, education, health care, and Social Security.The limitation to prisons was useful for illustrative purposes, but the employee-contractor distinction has similar problems in these other areas.
It should be clear, though, that I'm not making a general argument in favor of privatization. I'm only arguing against the use of certain non-empirical arguments related to the employee-contractor distinction. My goal here is merely to clarify the discourse, and clear away arguments that I believe are unproductive.
On empirical grounds alone, there are plenty of possible reasons to oppose privatization. I've already mentioned many of them in the Introduction: critiques based on factors like cost, quality, democratic influence, accountability, and penal policy, to name just a few. Privatization critics have been vocal about the "[f]raud and waste," "[i]nsufficient oversight," and reductions in "transparency" and "accountability" that, in their view, have accompanied private contracting.One can complain that private firms will use anticompetitive tactics, opportunistically hold out for favorable contract renegotiations when circumstances change,use their position of incumbency to outbid competitors in later bidding (or even avoid later bidding altogether),fail to develop institutional norms of professional service,or go bust and leave an unprepared government holding the bag.
I'm not taking a position here on whether these empirical critiques are justified. I've argued, in other work, that at least some of these empirical critiques are overblown. But enough respectable people have made enough respectable empirical arguments strongly opposing privatization that an entirely empirical case against privatization in particular spheres may well be fully adequate.
Moreover, adopting an empirical perspective doesn't imply any sort of utilitarian law-and-economics efficiency model. Sharon Dolovich, for instance—a strong critic of prison privatization—simultaneously argues, in the Duke Law Journal, both against the efficiency framework and in favor of empirical reasoning (while acknowledging the temptation of non-fact-based arguments):
The insistence of the inherent-public-function approach on the irrelevance of the practical consequences of prison privatization likely stems from the desire of these critics to escape the powerful force field of comparative efficiency, which operates to crowd out all considerations except practical consequences. Yet understandable though this resistance is, to the extent that it denies the moral relevance of actual conditions of confinement, it will necessarily operate with a conception of legitimacy that is only partially satisfying at best. It will, moreover, appear wholly insensitive to the needs and interests of the prisoners themselves and thus be vulnerable to charges of "intellectual indulgence" or "moral or ideological fundamentalism."
Perhaps non-empirical arguments are correlated with anti-privatization views, but if so, this is only as an empirical (!) matter. The bottom line is that one can be convinced by this Article, abjure non-empirical argumentation on privatization matters, and still be just as anti-privatization as one was before reading it.
In this Article, I also haven't sought to promote or dispute any substantive theory of punishment. I've questioned the distinction between public employees and private contractors, but I haven't questioned any of the underlying theories that the distinction supposedly served.
Thus: I haven't questioned that accountability is important, but I have suggested that there's no necessary connection between public status and accountability. I haven't questioned that private purposes are undesirable, but I have suggested that there's no necessary connection between private status and private purposes. I haven't questioned that institutions should be subjectively legitimate, or that punishment should be communicative, or that people should respect prisoners as real people and care about their well-being, but I have questioned whether people really consider private contractors to be less legitimate, whether privatization makes communicative punishment harder, and whether privatization implies moral distancing.
Perhaps all this is true, but let's investigate it empirically. Of course, I don't demand concrete survey data—where real data collection is impossible, theoretical argument as to which way the data might point is acceptable. But we have to start from the premise that the data, if it existed, could go either way. Mere assertion, backed up by essentialist statements about the supposed nature of the public and private sectors, won't do.
It should therefore be apparent that, though the focus here has been empiricism, I'm not generally arguing for consequentialism. After all, for purposes of this Article, I've endorsed all sorts of non-consequential, non-instrumental claims, like the inherent importance of accountability or public purposes or communicative punishment. I'm sympathetic to non-consequentialist arguments generally, but I don't think those arguments adequately distinguish between employees and contractors.
Finally, this isn't an argument against the public-private distinction, either in political theory or in constitutional law. I'm fully committed to the idea, basic to modern liberal political philosophy, that there is an important difference between the public and private sectors, even if there are cases that are hard to classify.Locking people up on your own initiative is different from public prisons in a way that private contract prisons aren't.
And I have no basic problem with the general idea of the state action doctrine, even if one may quarrel with some of the individual cases. The state action doctrine crops up in some areas that have nothing to do with contracting out;the arguments I've presented here don't apply in those cases. Where there is contracting out, sometimes state action does indeed treat employees and contractors identically;in other cases, there are enough empirical differences, as a general matter, between employees and contractors, that treating them differently may make eminent sense.
The same goes for any other doctrine that distinguishes between employees and contractors, like whether an agent can make the principal liable in tort. My argument here should merely be taken as an attack on the non-empirical lines of argument that might support a distinction between employees and contractors.
Contractors, just like employees, are flesh and blood. They're private people like you and me, who lived a quiet life in the private sector until they felt the call of duty, or were conscripted, or wanted to make money, or any combination of the above, and became, in one way or another, government actors.
They have their own views, their own ideologies, their own agendas. If they work voluntarily, they "profit" from government work, insofar as they're being paid more than the bare minimum it would take to induce them to do the work. They're not completely controlled in every single action, so they have some discretion, within limits, to follow their own preferences rather than the voters' or the legislators' or their immediate bosses' commands. And they mostly have contracts. Some of them file W-2s and are called "employees." Some of them file 1099s and are called "contractors." But this is an administrative distinction, not necessarily a philosophical one. To limit the state a priori to the "employee" category is to let an HR category channel one's moral thinking.
Of course employees and contractors differ systematically, because different contracts have different terms and different remedies and encourage different actions. Predictably, employees and contractors will act differently, and so it makes sense for us to be for or against privatization under particular conditions. This is the empirical approach to privatization.
I understand the temptation to seek out non-contingent, non-empirical grounds to favor or oppose privatization, especially when one opposes privatization for reasons that sound like "justice" reasons. Of course, justice and empiricism can live together just fine: one could just say "I predict (possibly based on past experience) that private prisons will violate prisoners' rights more often, and this is unjust; therefore, we shouldn't privatize prisons." But now we're vulnerable to the vagaries of data and empirical inference. Surely it's nice to have a more solid, less fact-intensive ground of argument.
I appreciate the impulse in general, and so, as I've said, this Article shouldn't be understood to say that everything is contingent. Nor is the argument here opposed to "soft" concerns like symbolism; nor do I believe, as Richard Harding does, that "the purist moral argument" (which includes accountability concerns) "is something of an intellectual indulgence."
What I'm essentially attacking is the failure to think clearly about what it means for the state to act. Liberal political philosophy gives us many reasons to think that certain realms—many would include at least the police, prisons, military, and courts in this category—belong exclusively to "the state." And, colloquially, one often talks about privatization, including contracting out, as being a retreat of "the state." But this is a sloppiness of terminology. Between favoring state action and opposing contracting out—between recognizing areas of public authority, and insisting that the state be limited to one specific standard-form contract—falls the shadow. Contracting out is merely a retreat of state employment in favor of other forms of state contracting. There are plenty of differences between different kinds of contracting, but they all relate to how these contract forms play out in the real world. The a priori philosophical distinction between public and private provision is tempting but ultimately illusory.
Koch v. Cato
Yesterday the Washington Post's "ThinkTanked" blog reported that Charles and David Koch have filed a lawsuit to take control of the Cato Institute, the nation's most prominent libertarian think tank. Although it is a non-profit, as initially incorporated, Cato is effectively owned by a board of shareholders. Until recently, this board consisted of Cato President and founder Ed Crane, Charles Koch, David Koch, and the late William Niskanen, each holding equal shares in the corporation. According to the Kochs' complaint, when Niskanen died his shares should have been returned to the corporation, giving the Kochs majority control on the board of shareholders. Instead, the shares were transferred to Niskanen's widow, Kathryn Washburn.
The lawsuit has already generated substantial commentary. Here is a fuller Washington Post story, background from David Weigel (drawing on Brian Doherty's history of the libertarian movement, and commentary by Jane Mayer of the New Yorker (who has a thing about the Kochs). The Kochs maintain their suit is simply about enforcing the shareholder agreement. The Post quotes Charles Koch saying ""We support Cato and its work. We want to ensure that Cato stays true to its fundamental principles of individual liberty, free markets, and peace into the future, and that it not be subject to the personal preferences of individual officers or directors." Cato's Crane and Cato Chairman Bob Levy charge the suit is about transforming Cato into a less independent and more political (if not also more partisan) institution. Others speculate the suit could have its roots in a longstanding feud between Crane and one or both of the Koch brothers.
Whatever the merits of the Kochs' claim, I cannot understand how their actions can, in any way, advance the cause of individual liberty to which they've devoted substantial sums and personal efforts over the years. Even assuming their legal claim has merit, a legal victory will permanently injure the Cato Institute's reputation.
Many libertarian-leaning organizations receive money from the Kochs and their foundations and are attacked on this basis. Such attacks can be deflected, as financial support is not the same thing as control. But if the Koch brothers themselves represent the controlling majority of an organization's board, that organization is, by definition, a Koch-run enterprise. Progressive activists and journalists will have a field day with this. They will forevermore characterize the Cato Institute as "Koch-controlled" — and, as a legal matter, they will be correct. No efforts to re-establish the Institute's credibility or independence will overcome this fact.
The Koch brothers may well have legitimate concerns about how the Cato Institute is managed. I don't know. They may have good ideas about how to make the Institute more effective. Again, I don't know. From my perspective, it seems that Cato's work nicely complements the efforts of more activist organizations the Kochs support, but I may not see the whole picture. That's not the point. Even if one assumes that the Kochs have better ideas for how Cato should direct its resources, know more about how to advance individual liberty, and are correct that the Institute is too " subject to the personal preferences of individual officers or directors," any benefit from whatever changes they could make will be outweighed to the permanent damage to Cato's reputation caused by turning it into a de facto Koch subsidiary. In short, they will have destroyed the Cato Institute to save it.
[DISCLOSURE: Some twenty-plus years ago I interned at the Cato Institute, I currently serve on the academic advisory board of the Cato Supreme Court Review, and have written articles for various Cato publications, including Regulation, for which I received payment. I am also working on a book manuscript in which the Institute has expressed interest. I have also spoken at various Koch-sponsored programs, for which I received modest honoraria, and have solicited and received grants for projects from the Charles Koch Foundation, the most recent of which funded this roundtable (but for which I received no compensation).]
The Limited Venture Capital Funding for Robotics
Wired's Chris Anderson points to a new report by the Hizook robotics portal on the relatively limited levels of venture capital funding for robotics. I was surprised – I assumed there was more. Information is hard to come by, Hizook says, but the post has a chart with annotations on various VC investments in robotics for 2011. The comparison for 2011 is on the order of $160 million for robotics versus $6.9 billion for web-based companies. The robotics figure almost certainly undercounts and probably by a lot, and the category of web-based companies in some ways is too inclusive to mean very much. It's an order of magnitude comparison, really, but I am struck at the relative paucity of VC funding for robotics. That means, of course, that much of the robotics development takes place within large existing technology corporations. Hizook points to some of the barriers for VC funding in robotics (comments are open):
[G]etting VC funding for robotics is a decidedly tough nut to crack. Robotics companies have large capital requirements for robot hardware, few potential acquirers, and almost no "Google-scale" breakout success stories (ie. IPOs). I mean, c'mon… one of the best known robotics companies, iRobot, has a market cap of just $700 Million. This makes robotics a difficult sell to your typical VC firm. My hope is that this list can give others courage to pursue "swing for the fences" type projects along with a source for robotics-friendly VC firms.
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March 1, 2012
Fisher v. Texas and the Texas Ten Percent Plan Revisited
Joshua Thompson of the Pacific Legal Foundation has an interesting response to my post arguing that a victory for the plaintiffs in the Fisher v. Texas case could turn out to be a pyrrhic victory for opponents of racial preferences, if it is coupled with an endorsement of the Texas ten percent plan and other "facially neutral" efforts to extend racial preferences to certain minority groups without doing so openly.
In my last post and an earlier 2006 critique of the ten percent plan, I argued that measures like the ten percent plan are in many ways worse than traditional explicit affirmative action policies because they are less transparent and create more perverse incentives.
Thompson agrees with several of my points, but also takes issue with others. Here, I focus mostly on the areas of disagreement.
Thompson first argues that the ten percent plan actually is transparent because "finishing in the top ten percent of your high school class is an objective (race-neutral) criterion that can be judged on its face, and permits no obfuscation by university admissions officials." It is true that the ten percent plan is "objective" in the sense that finishing in the top ten percent in your high school class is a verifiable fact. What is not transparent, however, is the racial motivation behind the adoption of the ten percent plan in the first place. With traditional affirmative action, the racial goal is clear and unambiguous. With the ten percent plan, administrators can and do pretend that they aren't really doing anything racially motivated at all. In addition, it is difficult for the public to judge how much academic merit is being sacrificed by preferring people who graduated in the top ten percent at weak high schools over those who placed at lower percentiles at stronger ones.
Thompson also suggests that traditional affirmative action programs may sacrifice more academic merit than the ten percent plan does because "Preferences, definitionally, let in those who are less academically qualified. Under a preference regime, someone is getting in because of their skin color. Under the Top Ten Percent Law someone is getting in because of their grades." Actually, under traditional racial preferences, skin color is only one of several reasons why affirmative action beneficiaries get in. They also must have at least some academic qualifications, albeit lower than those required of other applicants. More importantly, this ignores the reason why the ten percent plan has a much greater negative impact on academic merit than traditional affirmative action: the former affects far more applicants. As I explained in my 2006 post:
[T]he ten percent plan affects a great many more admissions decisions than even the most rigid old-style affirmative action systems do. Rarely, if ever, do traditional affirmative action plans determine the admission of more than 15-20% of a school's student body. By contrast, at the University of Texas at Austin, over 70% of the student body was admitted under the ten percent plan. While some of these students would surely have gotten in anyway, it is highly likely that the ten percent plan leads to much larger sacrifices of academic merit than do racial preferences similar to those used at most other academic institutions.
Finally, Thompson partially rejects my point that facially neutral means of preferring some racial groups over others are just as unconstitutional as racially explicit ones. In response to my historic examples of facially neutral poll taxes and literacy tests that were used to exclude black voters in the Jim Crow south, he notes that "poll taxes and literacy tests were never ruled per se unconstitutional." This is true, but irrelevant. They are unconstitutional in cases where they were enacted for the deliberate purpose of excluding black voters (or voters of any other particular racial or ethnic group). Similarly, the ten percent plan would be constitutional if it were enacted for nonracial reasons. But if enacted for the purpose of advantaging African-American and Hispanic applicants over members of other racial and ethnic groups, it is unconstitutional. Ultimately, however, I am not sure that we disagree very much on this aspect of the issue, since Thompson also states that the ten percent plan may be unconstitutional because "[i]t was undoubtedly passed in order to increase racial diversity throughout the University of Texas."
Where we continue to differ is over the question of whether a world in which racial preferences are pursued through "facially neutral," nontransparent means is preferable to one where such preferences are in the open for all to see, and inflict less social harm. I fear that if the Supreme Court strikes down the present University of Texas affirmative action plan, but endorses the ten percent plan and other similar programs, we will end up with a worse situation than one where explicit affirmative action plans remain legal.
How Charming
From Rush Limbaugh (as quoted in ABC News' The Note), talking about the Georgetown law student who spoke out in favor of legal mandates that contraception be covered in health plans:
"Can you imagine if you're her parents how proud of Sandra Fluke you would be?" he said. "Your daughter … testifies she's having so much sex she can't afford her own birth control pills and she agrees that Obama should provide them, or the pope."
Fluke testified that without insurance coverage, contraception can cost a woman as much as $3,000 during law school.
"Three thousand dollars for birth control in three years? That's a thousand dollars a year of sex — and, she wants us to pay for it," Limbaugh said, adding that high school boys applying to college should consider Georgetown. "They're admitting before congressional committee that they're having so much sex they can't afford the birth control pills!"
The conservative radio host continued: "What does it say about the college co-ed Sandra Fluke, who goes before a congressional committee and essentially says that she must be paid to have sex, what does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex. She's having so much sex she can't afford the contraception. She wants you and me and the taxpayers to pay her to have sex. What does that make us? We're the pimps."
Limbaugh shied away from his word choice towards the end of his show, saying "So, she's not a slut. She's round-heeled. I take it back." Round-heeled, though, is a euphemism for the same thing, an old-fashioned term for a "promiscuous woman."
The logic makes no sense. There's nothing substantive in common between being paid to have sex, and having contraceptives be provided by a health plan. (Would you call a man a gigolo because he uses a condom that he got for free from some university giveaway?) The allegation that somehow Ms. Fluke is "having so much sex" strikes me as misunderstanding the way birth control pills work: You have to take them all the time even if you're having sex only rarely, and even if you're having sex with only one person (I mention this because the implication seems to me that Ms. Fluke is being promiscuous). Beyond this, I should think that most parents have to recognize that their 21-to-24-year-old daughters — remember, she's a law student — probably are having sex with someone; I would think that even in conservative circles, many 21-to-24-year-old women these days are having sex (even assuming Limbaugh was limiting his comments to unmarried women).
But beyond that, consider the manners: Instead of dealing with a woman's arguments on their own, he's trying to slime her with vulgarities. I would think that parents would much rather hear on the radio that their 21-year-old daughters are using birth control than that their grown sons are calling women "sluts" on national radio.
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Nevada Supreme Court Reverses "Criminal Anarchy" Conviction
The case is Rosales v. State (Nev. Sup. Ct. Feb. 28, 2012) (unpublished 3-judge opinion). An excerpt:
"Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means." NRS 203.115(1). To convict Rosales of criminal anarchy, the State had to show either that Rosales's graffiti and other writings advocated the "overthrowing or overturning organized government by force or violence," NRS 203.115(2)(a), or that his writings justified the killing of executive officers "with the intent to teach, spread or advocate the propriety" of the doctrine that organized government should be overthrown by force or violence. NRS 203.115(2)(c).
The State supported its criminal anarchy charge with evidence of graffiti sprayed on buildings throughout Reno. This graffiti encouraged killing of police officers and violently attacking their families. It also lauded as heroes those who had killed police officers in the past and generally supported enmity toward the police. The State also produced evidence of Rosales's taunting phone calls to the police, in which he called 911 and asked that officers be sent "down here, so I can shoot [the]m in the face." Shortly after the phone calls, menacing graffiti appeared that listed the response times of officers and identified them by squad car. A letter mailed to the police station said "another one must die, a cop in the wrong place at the right time will be end of games when they come across me." Finally, Rosales allegedly created a flyer (though it's not clear that it was distributed) that applauded Larry Peck for killing Officer John Bohach in the line of duty. It also exhorted others to kill police officers and sodomize their wives. Other graffiti sprayed throughout south Reno threatened District Attorney Richard Gammick, warning, for example, that he "will die soon" and that he "must be killed now!!" …
Nevada's criminal anarchy statute proscribes advocating the overthrow of organized government by force or violence, NRS 203.115, and because this statute has the potential to reach constitutionally protected speech, see Brandenburg v. Ohio, 395 U.S. 444, 447–49 (1969), we read its proscription narrowly. Richard Gammick, though he is an elected official, is not "organized government." Equating Rosales's encouragement to kill a single elected official with the overthrow of organized government would call the constitutionality of NRS 203.115 into serious question.
Rosales's writings, including those directed at the police, are both hate-filled and heinous, but they provide no hint that he sought to rouse the populace to overthrow organized government by force or violence. For this reason, we conclude that the evidence is legally insufficient to sustain his conviction of criminal anarchy. Although Rosales argues that NRS 203.115 violates the First Amendment and is unconstitutionally vague, we do not reach these arguments, because we conclude that the statute, properly construed, does not permit his conviction of criminal anarchy on the evidence presented.
Note that the court affirmed Rosales's conviction for threatening Gammick, under a separate "aggravated stalking" statute. And Rosales's speech does seem to consist of constitutionally unprotected "true threats."
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