Eugene Volokh's Blog, page 2631

January 18, 2012

Supreme Court Considers Case on "Unprecedented" Assertion of Congressional Power

(Orin Kerr)

You're no doubt familiar with this Term's Supreme Court case involving a constitutional challenge to an "unprecedented" recent federal law. According to the challengers, the new statute exceeds Congress's Article I power. Although Congress had long regulated the relevant kind of activity for economic reasons, for the first time it tried something new. Specifically, It tried to force people who were outside the zone of that activity to come back into it and face regulation (and potential penalties) under federal law.


According to the challengers, this unprecedented step simply goes to far and exceeds Congress's limited powers. Once people are in the zone of freedom outside the scope of federal power, they argued, Congress cannot take the unprecedented step of forcing them back into being regulated by federal law. Initially, this argument struck many as unlikely to succeed. But prompted in part by the advocacy of a prominent law professor, it became seen by some as serious and mainstream. When the Supreme Court agreed to hear the case, the challenge seemed to have a real chance.


This coming summer, looking back on the current Supreme Court Term, analysts will report that the Supreme Court rejected the challenge and upheld the law as within Congress's power. According to the Court's decision, Article I "empowers Congress to determine the . . . regimes that, overall, in that body's judgment, will serve the ends" of Article I's grants of power. Nothing in the text of Article I suggests the distinction that the challengers attempted to draw. And the challenge was doomed under the rational basis test: Congress could have rationally concluded that it was helpful to regulate the unprecedented space that was previously beyond Congressional regulation to avoid a market distortion that would otherwise result. Two Justices dissented, one of which was Justice Alito. The majority opinion concluded:


[This statute] lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not.


The decision was Golan v. Holder, decided Wednesday.







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Published on January 18, 2012 22:32

Rehabilitating Lochner Talk in Philadelphia Tomorrow

(David Bernstein)

I'll be speaking at Temple Law School about Rehabilitating Lochner tomorrow at noon, with commentary from Professor Robert Reinstein. The announcement is here. The event is free and open to the public, and according to the announcement, there will be "Free Jimmy Johns."







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Published on January 18, 2012 19:54

CJR on the New York Times and Israel

(David Bernstein)

I've blogged before about the New York Times' coverage of Israel, so I thought I'd point out a piece in the Columbia Journalism Review by former Times reporter Neil Lewis on that precise topic.


Unfortunately, it's trite, largely repeating what any fair-minded observer already knows: first, that the Times is not hostile to Israel, per se, but its reporters' and editors' views of "proper" Israeli policy have for decades leaned far to the "left" of actual Israeli policy, which in turn makes much of its coverage implicitly adversarial (and which also explains why folks that are truly hostile to Israel think that the Times is a Zionist rag); and, second, that in a David vs. Goliath story, reporters tend to strongly favor David. As the narrative of the Arab-Israeli conflict has shifted from little Israel defending itself against tens of millions of Arabs to stateless Palestinians demanding rights from Israel the advanced military power, reporters, including reporters at the Times, have a natural inclination to skew their stories to favor the Palestinian Davids, with much of the context of the conflict–including those tens of millions of neighboring Arabs still largely unremittingly hostile to Israel–often lost in the shuffle.


Meanwhile the piece misses some opportunities to point out various occasions where the Times's has deviated from anything resembling fairness to Israel. For example, while Lewis notes that Deborah Sontag, the Times's Israel correspondent from August 1998–2001, was considered even by her bosses at the Times unduly unfriendly to Israel, he then adds that the Times considered replacing her with Jeffrey Goldberg, a clearly pro-Israel (albeit, as one would expect, left-leaning) writer.


But he somehow neglects to note a much more salient point than the Times's flirtation with Goldberg: that the head of the Times's Middle East Bureau during Sontag's time (and assumedly therefore Sontag's direct supervisor) was a leftist ideologue named Chris Hedges. As I noted in 2006, we've since learned that Hedges thinks that Israel is far worse than either Hamas or Hezbollah. One wonders, in fact, how much of the bias many saw in Sontag's writing was attributable in one way or another to Hedges. But my main wonder is how someone could write a lengthy essay on this particular topic, and discuss specifically the period when Hodges was in charge of the Times's overall Middle East coverage, and never even acknowledge Hedges' existence.


I'm not going to be available to moderate comments tomorrow, so comments will be open, but not indefinitely.







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Published on January 18, 2012 19:08

Fostering Strong Comment Threads, and the Effort Rule of Comment Moderation

(Orin Kerr)

I sometimes blog on the process of moderating blog comments. I realize it's a bit "inside baseball," as most readers don't comment or run blogs that allow them. But I see Internet comment threads as a new and relatively important kind of online discussion, and I'm very interested in the conditions in which comment threads tend to be useful or just noise. In my view, having a really good comment thread is a terrific asset to a blog: It allows the post to be the beginning of a conversation, with the rest of the conversation carried on it the thread. The interesting and new question is, what are the conditions of helpful comment threads? What kind of comment policies and software leads to the best, most interesting comment threads, and which don't?


In my experience, there are two basic conditions of strong comment threads. Here's the first condition: Comments need to be relatively open and accessible to those using a pseudonym. If you make it too hard to comment, or you require real names, most will stay away. They won't want to engage, for a range of personal and professional reasons.


And here's the second condition: There needs to be some way to moderate threads to delete inappropriate comments or ban commenters who are out of line. For every one Internet commenter who is consistently thoughtful and interesting, there are X Internet commenters who are either inclined to be or can be coaxed into becoming abrasive and obnoxious. Consider the well-known "Greater Internet fuckwad theory" from the site Penny Arcade:



There's a lot to that, with an important caveat: When the site is a popular blog with hundreds of commenters, some of the commenters will be "normal people" and some won't. In any collection of that many people who can post at any time, there will be some stylistic quirks: There are the commenters who always bring up their pet topic, no matter the subject of the post; the commenters who see themselves as needing to wage constant battle with perceived ideological foes; the commenters who see criticism of their views as inherently objectionabe, etc. When any one can comment, everyone gets invited, and the quirky types join in with the rest.


This diversity of audience, combined with the Greater Internet Fuckwad Theory, means that unmoderated threads have a tendency to devolve into virtual food fights. That's especially true if the topic is controversial and relies heavily on ideological priors, like current debates here at the VC on gay marriage or the individual mandate. Threads that devolve into food fights are entertaining for the subset of commenters who get a kick out of written sparring. But they come at a major cost: They tend to discourage readers and contributors interested in more thoughtful contributions. When the thread turns to muck, the readership drops dramatically: Few people want to wade through the accusations and hostility to find the few morsels of insight. So to maintain the quality of comments, there needs to be some sort of monitoring of threads.


These two conditions combine to produce what you might call the Effort Rule of commenting: Having consistently strong comment threads requires a significant effort moderating threads. Vibrant dialogue requires a relatively open door on the front end, and keeping it from devolving into a digital food fight requires significant attention to editing on the back end. But back-end moderation is always unpleasant, for two reasons. The first is that it's work. It requires careful judgment as to where the line us, based on the editor's necessarily limited exposure to the full range of comments. In a blog with thousands of comments a day, no blogger can be fully informed as to the full history (sometimes going back several years) as to exactly which commenter said what to whom. Judgments have to be made, but they necessarily have to be made based on exposure to a subset of the evidence.


Second, the combination of no front-end filter and back-end moderation invariably leads to accusations of bias and claims of censorship. Commenters are most hostile when the subject is deeply controversial, which means that posts on those subjects will trigger the most need for comment moderation. But these are precisely the contexts in which people with strong views tend to interpret the facts to be whatever reaffirms their priors. A great example is the forthcoming paper by Dan Kahan et. al., "'They Saw a Protest': Cognitive Illiberalism and the Speech-Conduct Distinction", which I blogged about here: When shown a video of a protest, people evaluated whether the protest was violent based on whether they supported the cause being protested.


The same basic reasoning applies to interpreting editorial decisions on a blog. The more passionate a commenter feels about the subject, the more likely they are to interpret editing or (in extreme cases) a ban on commenters as incredibly obvious evidence of bias against them based on their viewpoints. The "Joys of Anonimus" thread from a few days ago, now at 450+ comments and counting, has a lot of examples. Anonimus's violations of the comment policy are flagrant, and he candidly admits he ignores the comment policy and says whatever he wants, but several commenters who agree with Anonimus on the issues are deeply persuaded that the real reason he has been banned is that I disagree with the merits and I'm trying to "silence" him.


Where do these points take us? First, to the conclusion that really good Internet comment threads are rare. Good comment threads require someone with the patience to do the editing work and deal with the inevitable bias accusations, efforts to circumvent bans, etc. On a group blog, each commenter need not do that kind of work; some bloggers can free ride on the efforts of others. But there needs to be at least some amount of work put into an unpleasant task to maintain or even raise the quality of threads. That's relatively hard to find, and that means that good comment threads will be rare.


Second, I suspect the future of Internet comment threads is a bifurcation into two sorts of threads on high-traffic sites: open and unmoderated threads, where anyone can say anything and few people read the threads; and sites with more moderation on the front end, such as requiring registration through a Facebook account. Neither of those are ideal, for the reasons stated above, but they are more stable forms of comment threads because they don't require the same amount of work from the editor.


UPDATE: My apologies that comments were off initially; I had forgotten that the software seems to do this automatically when a post has been in draft form for more than a day or two. Comments are now open. As always, civil and relevant comments only.







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Published on January 18, 2012 10:29

The Google Anti-Stop-Online-Piracy-Act Statement, Corporate Speech, and the First Amendment

(Eugene Volokh)

Following Citizens United, I heard many people argue that the Court was wrong because corporations should not be seen as having First Amendment rights — not just that they do have First Amendment rights but that there's some special compelling interest that justifies restricting corporate speech about candidates, but that corporations aren't people and therefore can't have First Amendment rights at all. (UPDATE: I don't agree with this, for reasons that include those briefly sketched here, but I set those arguments aside for now.) Let me then ask this question of our readers who take this view:


Today, Google's U.S. query page features an anti-Stop-Online-Piracy-Act statement from Google. Say that Congress concludes that it's unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can't. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute? Again, I limit the question to those who think corporations generally lack First Amendment rights.


(1) Perfectly constitutional, because corporations aren't people, and thus have no First Amendment rights.


(2) Unconstitutional as applied to Google, because media corporations do have First Amendment rights, though other corporations don't, and Google should be seen as a media corporation, even as to its query page rather than as to news.google.com and the like.


(3) Unconstitutional, because though corporations aren't people and thus have no First Amendment rights for purposes of advertising in support of or opposition to candidates, they are people and thus do have First Amendment rights for purposes of other speech.


(4) Unconstitutional, for some other reason.







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Published on January 18, 2012 08:13

Google's Protest Against the Proposed Stop Online Piracy Act / Protect IP Act

(Eugene Volokh)

Today's U.S. Google query page has the name blacked out, and a line under the search bar that says, "Tell Congress: Please don't censor the web!." I suspect that it makes this among the most widely seen political ads/editorials/statements in American history, at least setting aside statements carried in standard mainstream media programming on historic occasions. Does anyone have a good sense of the number of Americans who use Google on an average day?







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Published on January 18, 2012 08:04

Golan v. Holder

(Orin Kerr)

The Supreme Court has handed down its opinion in Golan v. Holder, holding Congress has the authority to restore copyrights in this country that had had lapsed. The vote was 6–2, with a majority opinion by Justice Ginsburg. A very quick skim suggests it is largely a replay of Eldred v. Ashcroft from 2003.







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Published on January 18, 2012 07:14

January 17, 2012

Santorum the Sophist

(Dale Carpenter)

Conor Friedersdorf has a pretty good take-down of Rick Santorum's reasons for opposing same-sex marriage.  Friedersdorf evidently supports same-sex marriage for culturally conservative reasons (praising marriage and its value to families, wanting to preserve it).  Santorum's argument against same-sex marriage, on the other hand, is little more than an assertion of authority and definition.  Santorum writes:


A husband is a man who commits to a woman, to her and any children she may give him. He commits to his wife without any reservations, to share with her all his worldly goods and to exclude all others from this intimate communion of life. From this vow of marriage comes a wonderful and unique good: any children their union creates will have a mom and a dad united in love, in one family.


Friedersdorf responds by pointing out the wide gap between these assertions about marriage and the actual practice and legal requirements of marriage:



That's a vision of sacramental marriage, but it ain't civil marriage in these United States. In civil marriage, prenuptial agreements are permitted, so the man hardly shares all his worldly goods, and plenty of people marry with reservations, and without violating the law when they do so. People write their own vows too. Sometimes they say them in Vulcan! Sometimes they don't include sexual fidelity, and if they cheat or sleep around with or sans permission they are hardly compelled to divorce. The state keeps on viewing them as being married. Alternatively, it'll permit them to divorce and marry other people, even if they have kids. So much for "one united family."

He then notes that Santorum's one consequential argument — about the importance of marriage to families raising children — actually supports legal protection for same-sex marriage.

"That's the special work of marriage in law — to connect things that otherwise fray and fragment: love, life, money, moms, and dads," Santorum says. Interestingly, gay people are sometimes moms and dads, and the ones who want to marry typically seek material and emotional security — just like straight people, they're trying to prevent love and money from fraying.

The understanding asserted in the writings of natural-law theorists and in Catholic doctrine, upon which Santorum draws, is that marriage is the union of one man and one woman for life, and that sex is proper only for the purpose of procreation within that union.  Yet none of this — except for the opposite-sex part — is actually embodied in law and little more of it is reflected in the teachings of other mainline churches.  But that's the one part, fencing off a tiny part of the population, that must be preserved in the kinds of constitutional amendments Santorum and others back. Meanwhile, the vast majority of the population can divorce and remarry at will, practice contraception, and swing from the chandeliers with or without a marriage license.
Friedersdorf is correct that Santorum's opposition to same-sex marriage is conclusory and weak. But I would add that, of all the candidates running for president this year, Santorum is the only one on either side of the partisan divide who can coherently articulate some reason to oppose same-sex marriage.  The other Republican candidates, at best, simply mouth the definition. President Obama — he of the "God is in the mix" rationale — is incapable of publicly stating a reason for opposing same-sex marriage that fits within his broader world-view, explains his earlier support, or coheres with his administration's position that the man-woman definition in federal law is unconstitutional. 
Santorum, all alone, can at least explain to us why he opposes gay marriage. This year, he's as sophisticated (even if sophistic) as we're likely to get. 





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Published on January 17, 2012 19:12

Another Conviction in Europe for Insulting Religion

(Eugene Volokh)

From TheNews.pl:


A Polish pop star has been fined 5000 zloty (1140 euro) by a Warsaw court for offending religious feelings.


Dorota Rabczewska, known to the public as Doda, was taken to court owing to an interview she gave for the Gazeta Dziennik Prawna daily in 2009. In the interview, the singer lamented that there were no references to dinosaurs in the Bible, and said it was "hard to believe in something written by someone who was hammered on wine and who'd been smoking herbs."


The Warsaw Business Journal adds:


[T]he judge in the case, Agnieszka Jarosz, ruled that the artist's statements could not be defended by an appeal to freedom of speech. She said Ms Rabczewska had the right "to assess [the content of the Bible] in the context of scientific discovery but had no right to insult" the religious text.


For more on this case, see this post from when the case was filed.







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Published on January 17, 2012 08:56

Lawsuit Challenges NLRB Recess Appointments

(Jonathan H. Adler)

Business groups have already begun to take aim at President Obama's recess appointments. As SCOTUSBlog reports, a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama's recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted "notice posting" rule. According to the industry groups, the NLRB lacks the authority to implement and enforce the new rule because it lacks a quorum due to the unconstitutionality of the recent appointments.







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Published on January 17, 2012 05:33

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