Eugene Volokh's Blog, page 2641
January 1, 2012
National Defense Authorization Act (NDAA) Discussion
I've pointed in the past couple of weeks to 'must-read' discussions of the NDAA at the Lawfare blog, by Benjamin Wittes, Robert Chesney, and more recently Steve Vladeck. Now, in a cross post at Lawfare and Opinio Juris, Marty Lederman and Steve Vladeck weigh in with two substantial posts. Their take-away is somewhat different from Wittes and Chesney's, and I strongly commend them to you. At OJ, Marty Lederman also has a guest post on the meaning of the signing statement that accompanied the President's signature on the NDAA, and then there is a response post giving pushback on many of the basic international law assumptions in all of the above discussions from OJ's Kevin Jon Heller. (For my part, I will try to find a moment here to parse the answers given by several of the Republican presidential candidates to a New York Times inquiry on the lawfulness of the targeting of an American citizen, Anwar Al-Awlaki, in Yemen several months ago.)
The Ridiculousness of the Virginia GOP Primary
The Republican primary in my home state of Virginia is becoming ever more ridiculous. First, the state GOP's byzantine signature-gathering rules prevented all but two of the candidates (Mitt Romney and Ron Paul) from getting on the ballot. Now the state GOP has decided to require all primary voters to take a loyalty oath pledging to "support the nominee of the Republican Party for president" in the fall. The pledge is not legally enforceable, but state GOP leaders hope it will deter Democrats and independents from voting in the primary. They can't simply limit the primary to registered Republicans because Virginia has nonpartisan voter registration.
Be that as it may, the oath is still stupid. Even if you're a hard-core Republican partisan, there are surely some circumstances where you might choose to vote for another party's candidate, or simply abstain. What if the eventual GOP nominee has a massive scandal (e.g. — after he gets nominated, evidence emerges proving that he's a murderer or a child molester)? What if you believe that he or she is incompetent or ideologically abhorrent?
Glenn Greenwald on Campaign Season Partisanship
As long-time readers know, I'm not a fan of Glenn Greenwald, but his broad attack (below) on placing partisanship above all other concerns during campaign season–motivated by his desire to praise Ron Paul on various issues on which he thinks Obama has been terrible, including some issues on which Greenwald and I agree, such as the War on Drugs and certain abuses of Executive authority–deserves repeating:
Then there's the full-scale sacrifice of intellectual honesty and political independence at the altar of tongue-wagging partisan loyalty. The very same people who in 2004 wildly cheered John Kerry — husband of the billionaire heiress-widow Teresa Heinz Kerry — spent all of 2008 mocking John McCain's wealthy life courtesy of his millionaire heiress wife and will spend 2012 depicting Mitt Romney's wealth as proof of his insularity; conversely, the same people who relentlessly mocked Kerry in 2004 as a kept girly-man and gigolo for living off his wife's wealth spent 2008 venerating McCain as the Paragon of Manly Honor.That combat experience is an important presidential trait was insisted upon in 2004 by the very same people who vehemently denied it in 2008, and vice-versa. Long-time associations with controversial figures and inflammatory statements from decades ago either matter or they don't depending on whom it hurts, etc. etc. During election season, even the pretense of consistency is proudly dispensed with; listening to these empty electioneering screeching matches for any period of time can generate the desire to jump off the nearest bridge to escape it.
Then there's the inability and/or refusal to recognize that a political discussion might exist independent of the Red v. Blue Cage Match. Thus, any critique of the President's exercise of vast power (an adversarial check on which our political system depends) immediately prompts bafflement (I don't understand the point: would Rick Perry be any better?) or grievance (you're helping Mitt Romney by talking about this!!). The premise takes hold for a full 18 months — increasing each day in intensity until Election Day — that every discussion of the President's actions must be driven solely by one's preference for election outcomes (if you support the President's re-election, then why criticize him?).
Worse still is the embrace of George W. Bush's with-us-or-against-us mentality as the prism through which all political discussions are filtered. It's literally impossible to discuss any of the candidates' positions without having the simple-minded — who see all political issues exclusively as a Manichean struggle between the Big Bad Democrats and Good Kind Republicans or vice-versa — misapprehend "I agree with Candidate X's position on Y" as "I support Candidate X for President" or "I disagree with Candidate X's position on Y" as "I oppose Candidate X for President." Even worse are the lying partisan enforcers who, like the Inquisitor Generals searching for any inkling of heresy, purposely distort any discrete praise for the Enemy as a general endorsement.
Talk About Scale!
So here's the most interesting thing I've come across in 2012**. . . As anyone who reads what I write here or elsewhere knows, I am obsessed with trying to understand Internet scale. I am convinced — and it was Jefferson, interestingly enough, who convinced me — that it is simply impossible to understand any questions about Internet law and policy without considering the extraordinary and unprecedented magnitude of Internet activity. The TCP/IP network had to solve a number of very profound scaling problems before it could perform the tasks it now performs — 700,000 Google searches, 11 million IM conversations, 1 million Facebook status updates, etc. etc., every minute of every day, more content posted to YouTube every month (probably, by now, every 3 weeks or so) than the combined output of all US television networks since their inception in the 1940s, etc. — and the idea that our legal system, and the 19th and 20th century tools it contains, can somehow magically "scale up" to work well on the Net is, frankly, laughable — though I try to keep a straight face when respected colleagues and friends propound it.
It's why the current brouhaha about the "Stop Online Piracy Act" (SOPA) (see my previous posts here and here) is so important. The regulators have started to understand scale, and the solutions they've come up with — law enforcement via the domain name system — is positively chilling. If that's the best we can do, we're in trouble.
** Actually, it's not the most interesting thing I've come across in 2012; the most interesting thing I've come across in 2012 is here.
[and thanks to J. Lewis for the pointer]
December 31, 2011
The 20th Anniversary of the End of the Soviet Union
In addition to being the last day of the year, today is also the twentieth anniversary of the official end of the Soviet Union, when the last Soviet government institutions shut down. Today's quasi-authoritarian Russia is far from admirable. But, despite Mikhail Gorbachev's lame and self-serving claims to the contrary, it is still a vast improvement over the USSR. In addition to the benefits for Russia and other parts of the former Soviet Union, the fall of the USSR also created important benefits for the rest of the world. I covered the many advantages of the end of the USSR in more detail in this post.
With the demise of the USSR, we were spared a regime that slaughtered millions both within and outside its borders, inflicted numerous other human rights violations, and created a threat of nuclear annihilation that hung over the entire world. Compared to that, the very real dangers of the post-Cold War world seem minor by comparison. I recognize, of course, that the USSR in the last years of Gorbachev's reign was much less dangerous and oppressive than it had been previously. But had the regime survived, it is far from clear that Gorby's reforms would not have been reversed. Previous episodes of Soviet liberalization in the 1920s and 1956–64 had been followed by waves of repression at home and expansionism abroad. Moreover, Gorbachev himself was not as much of a liberal democrat as he is often portrayed in the West. He used force to try to suppress the independence movement in the Baltics, and otherwise sought to preserve the Soviet regime, not end it. He was certainly much less ruthless and repressive than his predecessors. But that is judging him by a very low standard of comparison. Nonetheless, it is fortunate that Gorbachev's efforts at limited liberalization spun out of his control and led to a beneficial outcome that he did not intend.
December 30, 2011
Montana Supreme Court vs. the United States Supreme Court
In today's Western Tradition Partnership, Inc. v. Attorney General, the Montana Supreme Court upheld a ban on corporate expenditures to speak in support of or opposition to political candidates — pretty much the same sort of ban that the United States Supreme Court struck down in Citizens United v. FEC. The majority argues that Citizens United is distinguishable, because of Montana's "unique" interests stemming from its history, its size, and its political culture. Here's what strikes me as a key excerpt, though both the majority and the dissent are long, and no short excerpt can do justice to them:
The question then, [given the long Montana history of corporate influence over politics that the court set forth –EV], is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not. Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly Montana has unique and compelling interests to protect through preservation of this statute.
While Montana has a clear interest in preserving the integrity of its electoral process, it also has an interest in encouraging the full participation of the Montana electorate. The unrefuted evidence submitted by the State in the District Court through the affidavit of Edwin Bender demonstrates that individual voter contributions are diminished from 48% of the total raised by candidates in states where a corporate spending ban has been in place to 23% of the total raised by candidates in states that permit unlimited corporate spending. The point is illustrative of Montana, a state where citizens generally support candidates with modest campaign donations. In the case of ballot issues, where corporations may make unlimited donations, the characteristics of donors are markedly different from those who give to candidates. In 2004, for example, 97 institutional donors gave 95% of the total money raised in ballot initiative campaigns, while 760 individual donors accounted for the remaining 5%. Similarly, in 2008, 34 institutional donors gave 95% of the total money donated to ballot campaigns. Moreover, unlimited corporate money would irrevocably change the dynamic of local Montana political office races, which have historically been characterized by the low-dollar, broadbased campaigns run by Montana candidates. At present, the individual contribution limit for Montana House, Senate and District Court races is $160, and for Supreme Court elections it is $310. With the infusion of unlimited corporate money in support of or opposition to a targeted candidate, the average citizen candidate would be unable to compete against the corporate-sponsored candidate, and Montana citizens, who for over 100 years have made their modest election contributions meaningfully count would be effectively shut out of the process....
Finally, § 13–35-227(1), MCA, is narrowly tailored to meet its objectives.... Unlike the Federal law PACs considered in Citizens United, under Montana law political committees are easy to establish and easy to use to make independent expenditures for political speech. As the Bender affidavit submitted by the State in District Court confirms, corporate PACs can make unlimited independent expenditures on behalf of candidates. The difference then is that under Montana law the PAC has to comply with Montana's disclosure and reporting laws. And as noted earlier, corporations are allowed to contribute to ballot issues in Montana, which is a significant distinction because ballot issues often have a direct impact on corporate business activities within Montana but present less danger of corruptive influences that have concerned Montana voters since 1912. The statute only addresses contributions regarding candidates for state political office.
(There is also a good deal of discussion about the lack of burden on these particular plaintiffs, but I focus here on the court's broader rationale, which applies to all corporations that want to speak about candidates.) But the dissent disagrees; here is an excerpt:
Having considered the matter, I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana's political process. The problem, however, is that regardless of how persuasive I may think the Attorney General's justifications are, the Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so.... I cannot agree that [the majority's] "Montana is unique" rationale is consistent with Citizens United....
[W]hat has happened here is essentially this: The Supreme Court in Citizens United ... rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a "Made in Montana" sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute....
My sense is that the disagreement with Citizens United is so striking that it is likely that the Supreme Court will agree to hear the case, and will reverse the Montana Supreme Court's decision.
Indian Court Orders Facebook (and Others) to Delete "Anti-Religious" and "Anti-Social" Posts
Hindustan Times (Dec. 24, 2011) reports:
A Delhi Court on Saturday ordered 22 social networking sites, including Facebook, Google, Yahoo and Microsoft, to remove all "anti-religious" or "anti-social" contents in the next one-and-a-half-month[s] ....
Kumar had on December 20 issued summonses to the social networking sites and asked them to remove objectionable photographs, videos or texts that might hurt religious sentiments....
The websites — asked to remove objectionable contents — include Facebook India, Facebook, Google India Pvt Ltd, Google Orkut, Youtube, Blogspot, Microsoft India Pvt Ltd, Microsoft, Zombie Time, Exboii, Boardreader, IMC India, My Lot, Shyni Blog and Topix....
The Times of India reports that the material included "derogatory articles on Prophet Mohammad, Jesus Christ and Hindu gods and goddesses." "'The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of religious people whether Hindu, Muslim or Christian,' the magistrate said."
The article does not indicate whether this is somehow targeted to Indian-hosted material, or to material being asked using identifiably Indian IP addresses, or whether this would in effect require the companies to delete all material put up by anyone, given that it can potentially be accessed in India. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
"Maldives Bows to Protests, Bans Spas"
So reports OnIslam.net:
Bowing to protests pressures, the Maldives has ordered hundreds of luxury hotels to close their spas, a decision expected to affect tourism industry which forms a vital foreign exchange source for the Indian Ocean country.
"An Islamic party has been agitating against spas hoping to embarrass the government," a senior government figure told Agence France Presse (AFP) by telephone asking not to be named.
The official confirmed Thursday's ministry order following the protests that erupted in the country last Friday.
Answering a protest call by the opposition Adhaalat, or Justice, Party and several other groups, more than 3,000 people accused President Mohammed Nasheed's government of compromising principles of Islam and call for Islamic law.
The government bowed to the pressure less than a week after President Nasheed called for a "tolerant" form of Islam in his nation.
The Maldives is a cluster of 1,200 islands renowned for its luxury resorts.
The tourism industry is a vital foreign exchange earner and employer in the Maldives, a popular high-end destination for honeymooners and celebrities where luxury rooms can cost up to $12,000 a day.
The Indian Ocean country [population 400,000] this year received more than 850,000 tourists, drawn to its secluded islands known for turquoise blue lagoons, as well as corals and reefs filled with multi-colored fish....
Considering the huge revenue earned from the business, tourism industry sources said they expected the government to revoke the decision on spas soon....
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
UPDATE: Thanks to commenter CockleCove, I saw an article from Minivan News, a Maldivean publication, that gives some of the explanation for the closing (CockleCove reports, by the way, that "Minivan" means "Independent," and has nothing to do with minivan):
After thousands of protesters gathered last Friday and demanded the government "close the spas and massage parlors and such places where prostitution is conducted", the Tourism Ministry has today published a circular asking all the resorts to shut down their spas and massage parlors....
Speaking at a press conference held yesterday, [President Mohamed] Zuhair said the protesters did not specify where exactly the prostitution was conducted but mentioned that prostitution was conducted inside spas and massage parlors.
He said the government does not know how to differentiate between the spas and massage parlors that are complicit with prostitution and those which are not.
Therefore, Zuhair said the government has decided to shut down all such locales because Maldivians, including high-profile individuals, have been visiting tourist resorts and having spa treatments.
He said the government does not want those high-profile individuals' good names being damaged by visiting places accused of such crimes.
Zuhair added that some of the individuals making these demands last Friday also conduct business in the tourism industry. Therefore, the government believes that, given their insider understanding of the resort and spa industry, their accusations are well-founded and there is not much to investigate.
This week, five spas run in five resorts owned by opposition Jumhoory Party (JP) Leader 'Burma' Gasim Ibrahim were asked by the Tourism Ministry to shut down operations over similar allegations.
The company subsequently sued the government....
Audio Spelling Quiz Web Page / Software?
My wife and I are organizing a local spelling bee, and watching our children learn spelling; the process made me think of how children can practice their spelling quickly online.
It seems to me that it would be helpful to have a Web page or a program that would
accept a list of words from a parent or teacher, and then, for each word,
look up the audio in some master repository (e.g., at dictionary.com or some such),
play the audio for the student who is using the program,
ask the student to spell the word (possibly giving a sample of how the word is used, if the parent or teacher wants to provide that),
check the student's spelling against the correct spelling, and
provide the definition, likely borrowed from the same master repository.
I know there are programs that let parents and teachers create such tests by entering the words and speaking them into the computer, but my sense is that this makes the process considerably more cumbersome, and thus much less likely to get done. I also know there are some sites that provide such quizzes for their own sets of words, but the ones that I've seen have only relatively few words included.
Do any of you know of any program, whether free or for pay, that fits this description? If not, then it seems to me that it would be worth writing, and wouldn't be hard for someone to write. (There might be a need to get clearance from the owners of the audio reference database, but I suspect that this shouldn't be hard to arrange.)
Neal Gaiman + FIRE + Firefly + Campus Free Speech, All Together
A Foundation for Individual Rights in Education video, about the now-notorious University of Wisconsin-Stout Firefly poster incident:
Here's a brief summary of the incident from FIRE:
On September 12, 2011, Professor Miller [UPDATE: who is a professor of theater] posted on his office door an image of Nathan Fillion in Firefly and a line from an episode: "You don't know me, son, so let me explain this to you once: If I ever kill you, you'll be awake. You'll be facing me. And you'll be armed." On September 16, UWS Chief of Police Lisa A. Walter emailed Miller, notifying him that she had removed the poster and that "it is unacceptable to have postings such as this that refer to killing."
Amazed that UWS could be so shockingly heavy-handed, Miller replied by email, "Respect liberty and respect my first amendment rights." Walter responded that "the poster can be interpreted as a threat by others and/or could cause those that view it to believe that you are willing/able to carry out actions similar to what is listed." Walter also threatened Miller with criminal charges: "If you choose to repost the article or something similar to it, it will be removed and you could face charges of disorderly conduct."
Later on September 16, Miller placed a new poster on his office door in response to Walter's censorship. The poster read "Warning: Fascism" and included a cartoon image of a silhouetted police officer striking a civilian. The poster mocked, "Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets."
Astoundingly, Walter escalated the absurdity. On September 20, Walter emailed Miller again, stating that her office had removed the poster because it "depicts violence and mentions violence and death." She added that UWS's "threat assessment team," in consultation with the university general counsel's office, had decided to have the poster removed, and that this poster was reasonably expected to "cause a material and/or substantial disruption of school activities and/or be constituted as a threat." College of Arts, Humanities and Social Sciences Interim Dean Raymond Hayes has scheduled a meeting with Miller about "the concerns raised by the campus threat assessment team" for this Friday.
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