Eugene Volokh's Blog, page 2671
November 15, 2011
Judge Upholds Eviction of Occupy Wall Street
From In re Application of Waller (N.Y. trial ct. Nov. 15, 2011):
It would appear that Zuccotti Park is a privately owned public-access plaza, created in 1968 by a City Planning special permit issued pursuant to then existing authority of the New York City Zoning Resolution, which encouraged the creation of space for public use in exchange for additional or "bonus" development rights given to the owners of adjoining properties.... [T]he special permit requires that Zuccotti Park be open to the public and maintained for public use 365 days per year.... [S]ome time after the Occupy Wall Street began, [the park owner] promulgated rules which prohibited, among other things,
"Camping and/or the erection of tents or other structures.
Lying down on the ground, or lying down on benches ...
The placement of tarps or sleeping bags or other covering on the property
Storage of placement of personal property on the ground, benches, sitting areas or
walkways which unreasonably interferes with the use of such areas by others"The parties dispute whether the First Amendment applies to the actions of the owner [of Zuccotti Park] in enacting the rules [against sleeping in the park].... Assuming arguendo, that the owner's maintenance of the space must not violate the First Amendment, the owner has the right to adopt reasonable rules that permit it to maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law....
[M]ovants have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment.
To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner's rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable [to] the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.
The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely.
The judge therefore rejected the request for a temporary restraining order that would have required the city to allow the protesters back in the park (in violation of the park rules). Procedurally, the protesters may yet ask for a preliminary injunction or a permanent injunction, based on more detailed briefing, but the judge's analysis suggests that the judge will reject that request as well. This is especially so given the Supreme Court's decision in Clark v. CCNV (1984), which held that a rule banning sleeping in the park doesn't violate the First Amendment rights of protesters. The judge's opinion doesn't cite Clark, but it's consistent with Clark.
UPDATE: A commenter asks whether Clark would be inapplicable because the policy here was enacted after the start of the protest, rather than before (as in Clark itself). I don't think so. To be sure, if there were evidence that the action was motivated by disagreement with the message, rather than by a worry about the content-neutral effects of the behavior, that might lead a court to conclude that the rule is unconstitutional. Compare United States v. O'Brien (holding that the supposed legislative purpose for enacting a facially content-neutral conduct restriction is irrelevant to the First Amendment analysis) with Cornelius v. NAACP Legal Defense & Education Fund (holding that a viewpoint-discriminatory purpose for an executive agency's action may be relevant to the First Amendment analysis).
But if the action indeed seems to be motivated by the content-neutral effects of the behavior — and I suspect the evidence before the judge suggested that this was indeed the motivation — then it is treated as content-neutral. That's true (albeit controversially) even of judicial injunctions aimed at a particular organization, see Madsen v. Women's Health Center, Inc.. A fortiori, I think it would apply to generally applicable rules that affect all future speakers, even when their enactment was prompted by a particular speaker (which likely was the first speaker to create the harms that justified the enactment of the rule).
Dialogue with Victoria Nourse on Lochner
University of Wisconsin Professor (and Seventh Circuit nominee) Victoria Nourse and I discussed Lochner v. New York for the Federalist Society's Madison chapter. Wisconsin Eye (Wisconsin's version of C-Span) was there, and posted this video of the event.
In other Rehabilitating Lochner news, attorney Thomas Bowden's review in the George Mason Law Review can be found here. ("A a serious and significant work of historical revisionism. ... Rehabilitating Lochner belongs on the short list of works that effectively debunk myths clinging to important Supreme Court cases.")
As a reminder, you can read the introduction to the book for free here.
"Occupy"
From the Oxford English Dictionary:
8. a. trans. To have sexual intercourse or relations with. Obs.
The OED offers various examples, from 1475 to 1811, but here's one from Shakespeare's Henry IV, part 2:
[T]hese villains will make the word as odious as the word 'occupy' ....
(The word involved was "captain." "Captain! thou abominable damned cheater, art thou not ashamed to be called captain? An captains were of my mind, they would truncheon you out, for taking their names upon you before you have earned them. You a captain! you slave, for what? for tearing a poor whore's ruff in a bawdy-house? He a captain! hang him, rogue! he lives upon mouldy stewed prunes and dried cakes. A captain! God's light, these villains will make the word as odious as the word 'occupy;' which was an excellent good word before it was ill sorted: therefore captains had need look to 't.")
See also this page from Gordon Williams, A Dictionary of Sexual Language and Imagery in Shakespearean and Stuart. Thanks to dictionary.com for the pointer.
Women's Gaydar Accuracy Related to Their Menstrual Cycles
From Rule, Rosen, Slepian & Ambady, Mating Interest Improves Women's Accuracy in Judging Male Sexual Orientation, 22 Psychological Science 881 (2011) (paragraph breaks added):
We examined heterosexual women's accuracy in judging male sexual orientation across the fertility cycle (Study 1) and found that women's accuracy was significantly greater the nearer they were to peak ovulation. In contrast, women's accuracy was not related to their fertility when they judged the sexual orientations of other women (Study 2).
Increased sexual interest brought about by the increased likelihood of conception near ovulation may therefore influence women's sensitivity to male sexual orientation. To test this hypothesis, we manipulated women's interest in mating using an unobtrusive priming task (Study 3). Women primed with romantic thoughts showed significantly greater accuracy in their categorizations of male sexual orientation (but not female sexual orientation) compared with women who were not primed.
The accuracy of judgments of male sexual orientation therefore appears to be influenced by both natural variations in female perceivers' fertility and experimentally manipulated cognitive frames.
Thanks to InstaPundit for the pointer.
C-Span Requests Live Broadcast of SCOTUS Obamacare Argument
The letter is here. I've personally always found the arguments against allowing television cameras in the Supreme Court to be unconvincing. Perhaps for trial courts (although even then I'm not so sure) but for appeals courts, and especially the Supreme Court, allowing cameras seems compelling to me. I remember hearing Scalia say that the problem is that it might be edited to take clips out of context. Well yes, but newspaper reporters can do the same thing. In fact, being able to actually watch oral arguments might help the public to understand law better by disintermediating the Supreme Court reporters who run their coverage through their own biases and hobby-horses. Five hours though? I think I'd have to Tivo that thing.
Student Walkout of Greg Mankiw's Class
Somehow I missed this when it happened a couple of weeks ago and I didn't see any of my co-conspirators post on it. But I read that a couple of weeks ago a bunch of Harvard students staged a walkout of Greg Mankiw's introductory economics course because of its purported conservative bias. They wrote in a letter explaining their action: "Instead, we found a course that espouses a specific—and limited—view of economics that we believe perpetuates problematic and inefficient systems of economic inequality in our society today. There is no justification for presenting Adam Smith's economic theories as more fundamental or basic than, for example, Keynesian theory."
Leave aside that it seems somewhat questionable whether Mankiw's class is biased as opposed to being just good economics (a detailed description of the course to date is provided here). Mankiw, of course, is a well-respected economist of the highest order and the author of one of the most popular introductory economics textbooks (apparently he sells 700 a year at Harvard alone–man, that's a big class!).
Now here's the humor in the cluelessness of the students who walked out–apparently Mankiw's class is set up like a typical introductory economics course: the first semester focuses on micro economics and the second semester focuses on macro. So the Keynesian macroeconomic theory that the students are demanding will be covered in the second semester of the course–when he actually teaches, you know, macroeconomics.
And here's the irony: when one considers the number of left-wing professor proselytizing from the podium in higher education today, it is comical to think of these students are unable to tolerate the uncongenial views of even a single conservative professor. If I had walked out of every class where my professors were saying things that were uncongenial to my ideological worldview then I would never have been able to finish enough courses to complete a degree. By contrast, these students can–and, it seems, probably will–spend their entire four years hearing from professors who will never challenge their preexisting worldview. I find it quite disconcerting that these kids at one of the premier universities in the world are so resistant to having their worldview challenged in even the slightest fashion.
If You're Stopped At a Red Light, Are You "Driving"?
Yes, says a California court, at least for purposes of interpreting a California law that prohibits using a cell-phone while driving. Thanks to Howard Bashman for the link.
Ahmed Rushdie
An interesting about Facebook and people's identities:
The writer Salman Rushdie hit Twitter on Monday morning with a flurry of exasperated posts. Facebook, he wrote, had deactivated his account, demanded proof of identity and then turned him into Ahmed Rushdie, which is how he is identified on his passport. He had never used his first name, Ahmed, he pointed out; the world knows him as Salman.
The writer Salman Rushdie objected when Facebook tried to use his name as it appeared on his passport, and nowhere else.
Would Facebook, he scoffed, have turned J. Edgar Hoover into John Hoover? ...
The Twitterverse took up his cause. Within two hours, Mr. Rushdie gleefully declared victory...
The article then goes on to more broadly discuss real-name requirements imposed by social networks such as Facebook, and some of the implications of these requirements — very interesting. Note the closing paragraph:
Mr. Rushdie, who once lived incognito because of death threats, has more recently been busy revealing himself on Twitter. He had to fight for his online name there as well. An imposter was using the Twitter handle @SalmanRushdie earlier this year, and Mr. Rushdie had to ask the company for help reclaiming it. Now his page bears Twitter's blue "Verified Account" checkmark and quotes Popeye: "I yam what I yam and that's all that I yam."
November 14, 2011
When a Horse has to be More than Just a Horse to be Eligible for the Olympics
In order to compete in the Olympics, a horse has to be more than just a horse [HT: Tyler Cowen]. It also has to have the right "nationality":
Their bond was a gold-medal partnership years in the making — and practically impossible for Canadian equestrian Eric Lamaze to duplicate.
When Lamaze's horse Hickstead collapsed and died at a competition in Italy on Sunday, it left the world's No. 1 show jumper mourning his longtime teammate. He also could be without an Olympic-calibre mount less than nine months before the London Games....
"It's fair to say there certainly isn't another Hickstead in the world, and that will be a misfortune for Eric," said Akaash Maharaj, CEO of Equine Canada.
Much like a human athlete who must be a citizen of a country for a required period of time before representing that country in the Olympics, a similar rule applies to horses.
"A horse can only represent a country at the Olympics if he has been owned by his country or a citizen of his country for the requisite amount of time," said Maharaj.
That deadline is January.
Although I'm no fan of nationalism, it is fun to watch national rivalries play out at the Olympics. And it makes at least some sense to attribute national loyalties to people. When it comes to horses, it seems silly. Olympic equestrian competitors should be able to ride whatever otherwise eligible horses they want, regardless of their "nationality."
Nominations for a Collective Noun for "Drones"
Drones, that is, as in Predator drones and targeted killing. Although my editor is likely to kill the idea, I am considering as a title for something on targeted killing, drone warfare, and covert action, "A [?] of Drones." Where the bracket should be a newly minted collective noun — i.e., such collective nouns as a murder of crows, a pride of lions, a gaggle of geese, etc. Collective nouns, especially where one is making one up for the first time, are harder than they look. They have to be a noun that is unusual enough that it will signal to a reasonably alert reader that it is a noun being used in its collective sense, and evocative — often ironic and ideally droll — enough to signal something about the nature of the thing. Here is an excellent website with bunches of them. But these are apparently reasonably widely accepted collective nouns — here's a set of collective nouns that might be - proposed neologisms. So, what should it be for drones? I thought about a "murmuration," and perhaps that is best, but it is taken by swallows or some such bird. Perhaps a "consternation"? Too obscure? Suggestions, please.
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