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Today in History (1945) - Adolf Hitler and Eva Braun commit suicide after being married for one day. Eleven years later, Anton LaVey founds the Church of Satan. And in unrelated news, happy 71st birthday to Willie Nelson! |
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Today in History (1945) - Adolf Hitler and Eva Braun commit suicide after being married for one day. Eleven years later, Anton LaVey founds the Church of Satan. And in unrelated news, happy 71st birthday to Willie Nelson! |
The very cool blog, Patrons of the Absurd, points to this funny website called Found Magazine which apparently collects random photos and notes that people find laying around.
My favorite is this handwritten note:
If I'm not mistaken, it says "to the bigot upstairs. that's what you think!" Judging by the inspired choice of words, I conclude that the author was writing a haiku, but failed to finish. My sense of justice compels me to complete the unfinished business:
I know, it doesn't produce quite the epiphany the author was going for, but I can hardly imagine the conflict and passion that set the author to writing in the first place.
Today in History (1945) - Adolf Hitler and Eva Braun commit suicide after being married for one day. Eleven years later, Anton LaVey founds the Church of Satan. And in unrelated news, happy 71st birthday to Willie Nelson!
1. Write something outrageous for your college newspaper.
2. Have the editors print it under the banner of free speech.
3. Watch everyone foam at the mouth.
Rinse. Repeat. Beats the leading competitor, "Live in your school library and blog about it," by several months of inconvenience.
I say "Rinse. Repeat," because the website for the Universty of Massachusetts at Amherst's Daily Collegian is experiencing such massive traffic that, at the time I am writing this, it asks people to come back later. With such a boost in notoriety, the Collegian's editors are likely to see this as a successful experiment in fostering debate, instead of as the automatic reaction people have to a verbal kick in the groin.
For those who are wondering and haven't heard already, the editorial is by Puerto Rican UMass graduate student Rene Gonzalez, who calls former NFL player and killed-in-Afghanistan soldier Pat Tillman an idiot under the headline, "Pat Tillman is not a hero: He got what was coming to him." Predictably, the rant of a single young man is now being generalized as the opinion of every person identifying as anti-war or liberal.
At least the moderator at Lucianne.com quickly noticed and shut down a thread that featured people wishing Gonzalez in hell, etc. Though rarely a beacon of rationality, Lucianne.com does have the sensible policy of not permitting posts from college publications. Its rules require that articles be from "legitimate on-line newspapers, magazines or news sites only." While this may shut out some useful and interesting pieces from sources deemed illegitimate, such as college publications, it limits the death threats to being made against fairly mainstream writers such Paul Krugman.
Gonzalez himself appears to have gotten a quick lesson in the consequences of being rude to a U.S. soldier killed in action, especially in a war that the vast majority of Americans support, judging by the response now automatically sent to everyone who e-mails him. It can be found at the end of this post.
Today in History (1974) - President Richard Nixon announces the release of edited transcripts of White House tape recordings related to the Watergate scandal. Thirty years later, President George W. Bush and Vice President Richard Cheney appear before the commission investigating the Sept. 11 terrorist attacks.
Today in Communist History: 1965 - U.S. troops land in the Dominican Republic to "forestall establishment of a Communist dictatorship" and to evacuate Americans. 1977 - The Red Army Faction (Baader-Meinhof Gang) trial ends, with three members found guilty of murder and attempted murder. 1978 - Afghanistan President Mohammed Daoud Khan is overthrown and assassinated in a coup led by pro-communist rebels.
I've had plenty of symptoms for two years now, but having just finished a grueling Federal Courts final only to find that I really miss the class already, the diagnosis is unmistakable: Law Geek. There are far too many good reasons to study federal jurisdiction, but perhaps chiefly among them is the awesome privilege of understanding what is among the most amazing things ever written in a law journal: Henry Hart's Dialogue (yes, the Platonic kind) on congressional control of the federal courts. Most of it requires background knowledge, but it's frequently punctuated by lovely bits of legal philosophy, like this gem, which I think many De Novo readers would enjoy:
The unfortunate cynicism I've learned in law school gives me pause to appreciate the profound dialectical optimism of this passage, but I suppose, in the long run, I too think the law grows more just, and that change is not merely change, but growth. I wonder, nevertheless, how a judge possessed of what Professor Solum has called "the virtue of justice" would read this passage.
Today I attended my first Supreme Court oral argument, Cheney v. U.S. District Court for the District of Columbia. Despite the less-than-exciting issues involved (separation of powers, jurisdiction), the case drew a decent crowd. I would have thought that the vice-president's being involved would have brought more people out, actually, and initially just drove by to see how long the line was, figuring that the people who reportedly "began lining up the night before" would be a large group. Coincidentally, as I drove down Constitution Ave., I saw ducks walking in the grass along the sidewalk. This struck me as a propitious sign for my getting into the courtroom.
I've unsuccessfully tried to attend oral arguments twice previously, so I was excited to get inside, particularly as one of the last dozen people seated. I stowed my belongings in the locker room and took my place on a chair at the back. The courtroom features several long benches, both in the middle and on either side, and then additional chairs wherever they can be squeezed in.
As often happens while waiting to get inside the Supreme Court, the people in line had bonded and we talked in whispers in the half hour before the justices arrived. A gentleman seated behind me pointed out that Solicitor General Theodore B. Olson, who as the administration's counsel was arguing for Cheney, was wearing tails. This is not an affectation peculiar to Olson; according to an interview, advocates traditionally wear formal attire to argue before the Supreme Court. Before the arguments started, several members of the Illinois state bar, including Cook County Judge Robert W. Bertucci, were admitted to that of the Supreme Court.
Each of the justices who participated heavily seemed to have their own idea about what was important in the case. Scalia focused mainly on what made someone a member of a government commission. His own view, which he stated clearly and repeatedly, was that anyone who had a vote was on the commission. If non-governmental employees such as Ken Lay of Enron had a vote, they were members of Cheney's task force; if they didn't have a vote -- regardless of whether or not anyone else did -- then they weren't members, de facto or otherwise.
Breyer was surprisingly mean to the attorney for Judicial Watch Inc. When Orfanedes tried to argue that non-governmental employees could influence policy strongly even without having a formal vote, the justice said that Congress, in passing the Federal Advisory Committee Act, could not have intended government to develop policy in a cocoon. Orfanedes began to reply, "I don't think--" and Breyer interrupted with, "That's right, you don't think."
I found the justices' hypotheticals about cocoons and such to be a bit silly. FACA, as one might guess from its name, applies only to committees, and a phone call from a cabinet member does not create a committee. Moreover, Judicial Watch & Co. are not saying that these committees should have their access to private individuals limited, only that substantial contributions from non-governmental employees make those people de facto committee members, and thus their identities should be known to a public that did not elect them nor hire them.
Olson's spectre of non-stop lawsuits to have this information disclosed also was excessive. The executive branch presumably has a limited number of formal committees, and a limited number of people outside the government who strongly affect what those committees come up with. Moreover, to pretend that "there is no such thing as a de facto member" stretches credulity. Merely because certain people are not named to the government commission does not mean that they do not have as much as, or more, influence than those whose names are listed.
Of course, the fundamental basis of the lawsuit is the Sierra Club's pique at having environmental groups shut out of the decision-making process while energy industry executives were consulted. Sierra is fine with having private individuals and organizations lobby the government and try to affect policy -- heck, that's the business they're in. What bothers them is the secrecy and one-sidedness of the Bush Administration's invitations. If the cocoon is one extreme, having policy written by the industry affected by it, with little or no moderating influence by public interest groups, is the other.
O'Connor and Ginsberg directed their questions mostly to what the government did wrong in this case, whether by commission or omission. The former wanted to know why the government wasn't directly challenging the constitutionality of FACA, and the latter was puzzled by the government's partial compliance with the FACA request if the Administration's position truly is that the original lawsuit is illegitimate.
Unsurprisingly, Justice Thomas was quiet throughout oral arguments. At the beginning he was leaning back in his chair, his head also tipped back, but a couple of minutes into Olson's argument someone handed him something and he abruptly sat up, put on his glasses and paged through it. It didn't seem to produce any questions, though; by the end of Olson's time, Thomas was back to leaning.
Stevens was the first to posit the aspect of the case I found really head-scratch-worthy: What relief do Judicial Watch and the Sierra Club seek from winning this lawsuit? Olson claimed that the discovery -- the turning over of information in order to fight the case -- is "vastly broader" than what they would have gotten if the government had simply complied with the FACA request. In other words, just by getting the tools they claim to need to pursue the suit, they will have gotten what they wanted in the first place: Cheney's records. As Souter put it, is discovery inherently the win?
Hillary Clinton's 1993 health care task force had to turn over its records because the First Lady was deemed not to be a government employee, and thus her committee fell squarely under FACA simply by virtue of her being on it. Though Clinton was mentioned briefly, Cheney's case is different. The vice president obviously is a government employee, and the official administrative record shows only other government employees as being on the energy task force.
Incidentally, Olson's long experience becomes very appreciable when seeing him during oral arguments. He never became visibly flustered, and always spoke in a calm, even tone, addressing justices by name. Morrison, the attorney for Public Citizen, was far more excitable; he would raise his voice and refer to the justices simply as "Your Honor." Possibly he was concerned that he would be mildly rebuked, as some advocates have been in the past, for getting the justices mixed up with each other.
At the end of arguments, when I walked past the enclosure where the organizations suing Cheney were holding a mini-press conference, a duck was splashing around in the fountain. How it got there (brought by the Sierra Club?) is a mystery to me. During that conference, someone asked one of the attornies if he thought Scalia had treated him fairly. The attorney gave the sensible answer that while he still thought Scalia should have recused himself from the case, the justice had acted without prejudice during oral arguments.
Today in History (1861) - President Abraham Lincoln suspends the writ of habeas corpus, and West Virginia secedes from Virginia. The wisdom of these actions must be judged by the individual.
Well, it hit the NYTimes today. Homeless@NYU is now and forever Steve Stanzak. Bobst Boy, after the library's name, was so much more exciting. The Times recounts his:
curious story of his last eight months as a homeless sophomore at New York University, sleeping six hours a night in the subbasement of the Bobst Library, showering in the gym or at friends' apartments, doing his homework at a nearby McDonald's and subsisting mostly on bagels and orange juice.As he put it on the Internet, where he has spent four or five months recounting his adventure, it was "the tale of a penniless boy and his quest to gain a college education."
Once NYU officials found his blog, they kicked him out of the library -- but gave him a free room in the dorms.
The Washington Square News, which "broke" the story (how can you "break" a story that's already being blogged about?) yesterday. Its editorial today sums the matter up with the cheesiness only a college newspaper editorial can use with such abandon:
We applaud him for not only beating the system and living in one of the most expensive cities in the world for free, but also for doing it with style and flair -- all the while entertaining his many fans with his tale of lighthearted vagrancy.
The NYPost takes their stab at it here.
Courtesy of Volokh, this article about The Invisible Adjunct, an adjunct professor with what apparently is a very cool website, although I haven't read it (yet), so I'm just trusting the archives. She just shuttered it last month after deciding to leave academia. The article implies that if she only revealed who she was it might help her get a job but she thinks it'd be seen as a negative. Obviously, (1) having not read the site, and (2) having no idea how academic hiring works, I have no idea. But interesting article that, like it did for me, may get you to want to read the site, if you haven't been reading all along.
The New York Times had an short article yesterday entitled "If You Went Here, You'd Be Sitting Pretty Now," about how top law firms concentrate their hiring among graduates of top law school. The article, which won't provide anything new to any law students but I suppose it's interesting for people unfamiliar with this stuff, credits Prof. Brian Leiter of the University of Texas with "develop[ing] a formula to determine which law schools placed the largest percentage of graduates at top national firms." I thought it kind of funny that it then credits him with "[finding] 110 Harvard law graduates, 88 Columbia graduates, 59 N.Y.U. graduates and no other school with more than 30 lawyers at [Sullivan & Cromwell]" as if it took more to "find" that than to go their website and count, but whatever, I'm nitpicking. The moral of the article is don't go to law school unless you want to be a lawyer, and don't go to a crappy law school if you want to work for a non-crappy firm, although they say it nicer. "Michael Young, dean of George Washington University's law school, puts it more bluntly: 'Law is possibly a route into politics, business, etc., but it's not a sure route by any stretch. The vast majority of people who start in the law die in the law.'"
Today in History (1994) - South Africa holds its first multiracial elections. And happy 69th birthday to Carol Burnett.
The Sunday NY Times Book Review reviews Bush advisor Karen Hughes' memoir, basically saying it's campaign paraphenalia that lionizes the President and reveals nothing new, nothing insightful, and nothing much of interest at all. What a shocker. Imagine -- someone very loyal to -- and still on the payroll of -- a sitting President would write a book that doesn't really bash him. I'm unclear who decided this would make a worthy book, anyway -- although I guess you put the President's name on a book and someone will buy it. Interesting review. Will leave you completely uninterested in reading the book, but that's ok.
Other useless memoirs that would be funny if they're not already in a bookstore near you:
--Simon Cowell's book about how great American Idol is
--Randy Jackson's competing book about how great American Idol is
--Donald Trump's book about how great Donald Trump is
--Mark Burnett's book about how great reality television is
Coming soon:
--Billy Joel's guide to safe driving (look how topical I can be!!)
--Michael Jackson's reputation management and image control guide (with makeup tips)
--Dick Cheney's "Healthy Heart, Healthy Life"
--Billy Joel's guide to safe driving (oh, wait, I already said that!! Oops!!)
In a brief post regarding today's protests over women's health, Kriston remarks,
Much as I support the cause, I am unmoved by protests. I'd say that I'm not inclined toward activistism, but by virtue of the dedication some people put into protesting, I'm convinced this is a sort of career track on which I'm not set. So, no, I'm not in the business.
Certain activists notwithstanding, attending protests is not a career track. In my life, I've attended two or three, with different results for each.
I went to the Code Pink antiwar rally last year because it was on a nice spring day and I've never learned how to say "no" to my old residence advisor from college. Obviously, my participation had little to no effect; the United States invaded Iraq on the now-groundless basis of eliminating its weapons of mass destruction, and on the "you break it, you buy it" principle, the U.S. must remain until the country is stabilized.
In summer 2000, I attended a vigil in front of the White House to protest the U.S. government's inaction in getting an alleged killer extradited from India. This guy was accused of killing his female cousin and then fleeing to India, where he was being protected by his influential family.
I do think that vigil made a difference; it heartened the victim's sister to know that she had our support, and it showed that people cared and would put in the time and effort to lobby on the issue. Ultimately, the government successfully extradited the accused murderer and put him on trial.
Based on my limited experience, protesting the Bush Administration's policies via massive street marching and rallies is not effective. I considered attending the March for Women's Lives mainly because my younger sister would be there, but decided against it after waking up tired and seeing an overcast sky.
Despite being, like Kriston, a supporter of the cause, I do not see any reason for me to put my political energies into marching. Indeed, this may be a general rule for large street protests; I suspect that the effect of being loud and disruptive annoys more undecided people than it converts. It becomes an exercise in self-affirmation and preaching to the choir.
While not criticizing anyone who does decide to march, I personally do not need the feeling of knowing that I am one of many who hold a particular opinion, nor do I need to hear the speeches. I already know that millions of Americans disagree with the Bush Administration's policies toward women. Joining a cast of thousands on the Mall is unnecessary evidence of that.
I already know that the Bush Administration is wrong about women's health, most undeniably in its yanking $34 million in Congressionally approved funds for UNFPA, thus removing access to contraception (which prevents abortions by preventing unwanted pregnancies) and pre-natal and post-natal care for thousands of poor women in developing nations. He did so to pacify conservative groups who continue to affirm -- despite a State Department fact-finding group's report to the contrary -- that UNFPA takes part in government-coerced abortions in China.
Nor is a march, even of a million people, going to change Bush's mind, particularly when the march is being over-simplified as a "Rally for Abortion Rights" by the front page of the New York Times online. Although there is variability in the particulars (permissibility of abortion for viable fetuses, use of dilation and extraction, exceptions for maternal health or for rape and incest, etc.), most people's broad opinions about abortion are already set. The sight of many people chanting slogans in favor of its legality won't alter those opinions.
Of course, this is even more true of the deluded Mick Greineder of Lancaster, PA, who, according to the Washington Post,
yelled at the abortion rights marchers, "Choice kills. Choice kills." Although his voice was hoarse Greineder said he would continue to scream until he couldn't scream any longer.
"I think some of them can hear me," the 55-year-old engineer said. "If I scream at 700,000 and I get one or two people to change their mind, it's worth losing my voice."
My opinions on many controversial matters, including abortion, have changed over time, but a middle-aged guy screaming two words over and over has never played a part in those changes, except perhaps to make me think, "If the opposition is that dumb, I probably am right."
Admittedly, I didn't spend today in small group meetings lobbying the administration to change its UNFPA policy, or to change people's minds about abortion or reproductive rights or the 2004 election. But there's always tomorrow.
(Post title: Hat-tip to Ben Harper)
Or, Kids! Stay in School.
My knowledge of football is somewhere between limited and non-existent, but a friend recently queried me regarding Maurice Clarett's lawsuit against the National Football League.
Q: Explain to me why the decision whether Maurice Clarett can enter this weekend's draft is up to Ginsburg and not the whole court?
A: Ginsburg handles emergency matters from the 2nd Circuit. She can grant or deny Clarett's emergency request or refer the matter to the full court.
Q: That’s a lot of power.
A: No more than the rest of the Court has. Each of them is assigned to a Circuit (some of them have more than one, as there's more circuits than justices), and having one justice deciding on emergency matters is easier than having the full Court do it.
In cases like Bush v. Gore -- which came up from a state court anyway -- you'd have to refer it to all nine, but Ginsburg decided that the lower court had done a Good Enough job in its ruling. If Clarett tries to appeal to the full court, I doubt he'll get the 4 votes necessary to make them look at the case.
Q: He passed on appealing to the full court. He went to district court, won, then the NFL appealed and won the appeal, and then he went to the Supremes and the appeal was upheld. I know the Supremes affirmed it and that means they don't need grounds, but why was the lower court's ruling overruled in the first place?
A: It wasn't an overturn of the lower court ruling; it was a stay of the ruling, meaning it wouldn't take effect until it was upheld by another court. He went to court and got U.S. District Judge Shira Scheindlin to make him temporarily eligible for the draft. The NFL requested a stay from Scheindlin, she denied it, the NFL went to the 2nd Circuit, the 2nd Circuit granted it, Clarett appealed and Ginsburg upheld the 2nd's decision, as did Stevens.
Q: On what legal grounds did Judge Scheindlin make him eligable?
A: According to her decision, the league must allow Clarett to enter the draft because its eligibility requirement -- that a player must be three years removed from high school -- violates the Sherman Antitrust Act. She said the league's claim that young players could be harmed by pursuing a professional football career prematurely was superseded by concerns about the marketplace operating fairly and efficiently.
Q: And the 2nd Circuit said what?
A: 2nd circuit gave a stay that would keep Clarett out of this weekend's draft, saying that the supplemental draft would be good enough if Clarett eventually prevailed.
That was as much as my friend wanted to know, but De Novo readers may be interested in the legal issue Scheindlin identified: "Should Clarett’s right to compete for a job in the NFL -- the only serious pro football game in town -- trump the NFL's right to categorically exclude a class of players that the League has decided is not yet ready to play?" This class of players is that which is less than three years out of high school.
This is not a problem of Clarett's wanting to violate standard labor laws; the 20-year-old is not a minor and will earn more than minimum wage while working in safer conditions than the average meatpacker. Instead, the NFL wishes to have a higher standard than current legislation in determining who is eligible to work for it.
The general response to the case has been that the NFL is doing the right thing, that 18-year-olds, eligible for nearly every other job in America, should not be allowed to play pro football. The NFL claims to have its restrictions in place for the players' own good. NCAA President Myles Brand said, as his organization filed a brief in support of the NFL's appeal,
If not reversed, [Scheindlin's] decision is likely to unrealistically raise expectations and hopes that a professional football career awaits graduation from high school and that education can therefore be abandoned. The result could be a growing group of young men who end up with neither a professional football career nor an education that will support their life plans.
Leave aside the natural skepticism one feels toward this statement, in light of the scandalous state of most student-(could go pro) athletes' educations. Even if the NFL and the NCAA truly were doing their best to ensure that future professional athletes were well-educated and had solid alternatives to playing sports, their attitude is highly paternalistic.
After all, a parallel argument was made in keeping women from working at all, or working more than a certain number of hours, or working in certain jobs. This was all for their own good. While sex discrimination is more problematic than age discrimination -- we'll all be young and we all hope to be old someday (as the the alternative to being elderly is being dead), but we won't all be female -- there are nonetheless similar attitudes of "We know what's best for you."
Even if one concedes that people just past their teens, without education beyond high school, ought to be kept out of certain positions, one must face the fact that we put people of that type in some of the most hazardous jobs possible. Several columnists have pointed out that as a 20-year-old high school graduate, Clarett could go to Iraq to kill and be killed. Yet he is considered insufficiently mature to play what is, despite all its physical demands and risks, merely a game.
Today (2004) - Hundreds of thousands of people attend the March for Women's Lives in Washington, D.C.
In 1916, the Easter Uprising, an Irish rebellion, begins; in 1975, the Baader-Meinhof Gang blow up the West German embassy in Stockholm; in 1980, an attempt to rescue the American hostages from the embassy in Tehran ends with eight American servicemen dead and no hostages freed; in 1993, an IRA bomb devastates City of London; and in 1996, the Antiterrorism and Effective Death Penalty Act of 1996 is introduced in America.
Say hello to Splendid Bauble, a new blog by Fordham law students, who, eerily remniscent of Ayn Rand's Anthem, write in the first person plural.
In other news, Will Baude is fighting the hypo, as law professors would put it.
From the Overenthusiastic Rookie Legislator file:
People who wear low-slung pants that expose skin or "intimate clothing" would face a fine of up to $500 and possible jail time under a bill filed by a Jefferson Parish lawmaker.While I've advocated voluntary self-regulation in the wearing of low-rise pants, an actual law, with or without penalties, is obviously silly. On the other hand, I don't see any constitutional barrier to it. The head of the Louisiana ACLU "said the bill probably does not meet the U.S. Supreme Court's standard for the prohibition of obscene behavior under the First Amendment," but why would the First Amendment come into play at all?
Unless low-rise pants are inherently expressive, or a person is using them in an expressive way, they do not clearly have First Amendment protection. They lack even the content of obscene materials; they are simply a style of clothing. Indeed, whether a particular pair of pants qualifies as "low-rise" depends to some degree on the wearer's torso proportions.
Until all the low-rise pants wearers get something expressed on their exposed skin or underwear, thus making the pants necessary to their speech (unless the legislature wants people to go around with no pants at all), the bill should have no constitutional problems.
Today in History (1968) - Columbia University students protesting the Vietnam War take over administration buildings and shut down the university. Seven years later, at Tulane University, President Gerald Ford states that the war is over as far as the United States is concerned.
Some random website that Instapundit points to wants to identify (through the tainted sampling of email solicitation) the 100 most influential law professors, as voted on by law students, law professors, and law school admins.
Consider: If you were conducting a poll for which most of the responding group were legally trained, you'd probably want to avoid major equivocation, yeah? If so, then I wonder why the poll has failed to define "law professor."
Must the professor be alive? That would exclude the hugely influential Christopher Columbus Langdell (pioneer of the case method and major force in legal formalism), among many, many others. May the professor have gone on to become a judge? (Richard Posner, Oliver Wendell Holmes, countless other members of the Supreme Court, etc., etc.) To push this inquiry into silliness, how about fictional professors (who may have been inspired by real ones) like Professor Kingsfield from The Paper Chase, who, since the seventies, may have influenced more students' decisions about going to law school than any other professor?
My blogging will probably be a little light these next two weeks, as 2L final exams defeat me, but I'll try to chime in here and there. Best luck to all our student-readers on any upcoming finals.
The New York Times has an article about new summer camps for kids preparing to apply to college:
Those who went to the company's pilot programs last summer said it was both useful and fun... "I learned not to be so fidgety, and not to touch my hair."
Oh, yes, that does sound like fun. For just $2700 for an eleven-day program, kids can take practice SATs, tour college campuses, and participate in mock interviews, as they try to fulfill their parents' fantasies of getting into a better college than they ought to and take the first step toward a dysfunctional adulthood. Naw, I'm exaggerating. But it still sounds a little messed-up.
I appreciate a good cuss word as much as the next fellow, and "shit" is especially valuable for humor, but I'm not about to challenge FCC regulations for reasons that Matt Yglesias puts forward:
That would be pretty funny, but our profanity conventions aren't about to collapse under a revolution in children's vernacular. Parents and teachers, of course, would punish "shit" talkers, and even sympathizers with Matt's view, I imagine, would hesitate to take the first step by using "shit" more freely than is appropriate. Such is the self-enforcing power of conventions, even when there's no intrinsic basis. If everyone, all at once, agreed to liberate "shit" from its stigma, I suppose that'd be nice, but I don't think the FCC has that kind of power. And maybe, if everyone was doing it, we'd all agree that a friendly pat on the face should replace the handshake, but I'm not about to start an interview by touching some guy's face.
UPDATE: ubiquitous "shit" saying is exactly the scenario in the South Park episode I'm watching right now. Catch the rerun if you can.
All this talk of "Technicalities" has put me in the mood for legal theory. The first problem with defending or rejecting a judicial result based on a technicality is that “technicality” doesn’t have a very specific meaning. It’s sometimes used rhetorically to argue that one’s opponent is relying on the letter but not the spirit of the law, or that a theory advocates some result that appears to be outside the law’s purpose, even if it’s within the law’s mandate. So if a criminal defendant argues that his confession was “compelled” by an overwhelming sense of guilt and civic duty, suppressing that confession under the 5th Amendment would certainly be an instance of “getting off on a technicality” that one should disapprove (I know, this example is extreme, but you get the idea).
But some cry “technicality” when the law does precisely what it’s supposed to do at the momentary expense of justice. If our defendant—though guilty as sin—had been forced to take the stand and speak (or face contempt penalties), we ought to say that any incriminating testimony should be thrown out, regardless of guilt, to preserve the function of the 5th Amendment, for better or worse, because fidelity to our Constitution requires that we set free the guilty sometimes in order to minimize unjust law enforcement.
So the rule of law certainly doesn’t depend on the first kind of technicality—which I doubt Will Baude meant to argue—and I’d even suggest that it doesn’t absolutely depend on the second type, either, at least with respect to non-constitutional technicalities. As I understand it, courts often sidestep some of the finer points of procedure when strict adherence seems pointless. And technicalities, in judge-made law, are revised (and even jettisoned) all the time by higher courts. The very fact that trial judges are given a great deal of discretion over evidentiary matters is an indication that hyper-technical regimes of finely tuned rules for every occasion are not only very difficult to design properly, but are sometimes not worth the administrative burdens they bring.
Unlearned Hand's report of an exchange he overheard got me thinking:
The answer, of course, is "Bill's reality!" But the point I actually wanted to bring up--which is probably rather obvious--is that reality TV isn't about reality, because reality is generally too boring for TV. In some sense, all TV is "reality TV" because actors are actually in front of the camera, actually doing and saying the things we hear and see. The difference is simply that in reality TV, the events and people represented on camera are events and people that are not as strictly fictitious as a sitcom or a movie. But reality TV may as well be just as "scripted," even if actors aren't reading lines. Instead of mere words and ideas, actual relationships (financial and personal) and actual events become the elements manipulated by writers to produce what ultimately may as well be fiction. The reality TV fiction, however, as anyone who's seen "The Swan" would vouch, can indeed be stranger than fiction itself.
Today in History (1993) - The 50-day siege of the Branch Davidian complex outside Waco, Texas ends when a fire breaks out. Eighty-one people die. Two years later, the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma is bombed, killing 168.
Captain Clueless, like any responsible blogger, posted an update at the bottom of an entry to point out an error he made. Then some dude emailed the Captain to point out the error--you see, this dude hadn't read to the bottom of the post to see the correction because the Captain's entries tend to, shall we say, use a surprisingly large number of words considering the small amount of content delivered. So the captain, in an email exchange posted for the world to see, chewed this dude out for emailing a correction that had been duly noted. The captain's problem is too much email every time he makes a mistake. But the dude had objections to the Captain's tone, and wanted no more than a simple "thanks for the pointer, I corrected it." But now the Captain has shown us who's boss by asserting his American Liberty to run his blog how he pleases, including the liberty to respond to emails without the word "thanks."
Kevin Drum has said pretty much all that needs to be said about this:
But I thought I'd just like to tell the Captain how to run his blog: just stick the UPDATE in right after the error, for goodness sakes! The alternative you've chosen (lecturing your readership on your perogative to be an ass) will only increase the flow of emails, this time, I imagine, featuring phrases like "you ass," and "man, you're an ass."
Today in History (1983): A suicide bomber destroys the United States embassy in Beirut, Lebanon, killing 63 people, 17 of whom are Americans. Thirteen years later, over 100 Lebanese civilians are killed when the Israel Defense Forces shell the UN compound at Qana.
I read somewhere the other day that the Air America Network, the liberal radio network with Al Franken and Janeane Garofalo designed to compete with Rush Limbaugh and his fellow conservative radio talk show hosts, had missed some payments and was off the air in some big cities. The article also emphasized that Franken and his fellow hosts don't have much experience in radio and haven't been taking best advantage of the medium. I don't have a link for you. In fact, I only mention it because it gives me an excuse to try and be funny. Emphasis on "try."
The Air America Radio Network: Programming Schedule for Saturday April 17
6:00 AM -- "Liberal Morning," the show where radio personalities describe what they see as they watch the sun rise through a smog-filled sky made filthy by corporate polluters who get tax breaks.
8:00 AM -- Listen to a man who looks like George Bush get pies thrown at him.
9:00 AM -- Hear the sounds of endangered species over the radio dial for an hour.
10:00 AM -- Game Show: Who's More Liberal, with Ted Kennedy and Dennis Kucinich
11:00 AM -- Yelling at Republicans
Noon -- "Lunchtime on the Streets," the show where poor people complain that they have no food because the Republicans don't care about them.
1:00 PM -- Three hours of reminiscing about how wonderful Jimmy Carter was.
4:00 PM -- "The day the Republicans ended the world," a radio drama featuring the voices of Barbra Streisand and James Brolin.
6:00 PM -- "You may be eating dinner, but only if you're rich."
7:00 PM -- One hour of reflection: this week, we'll be listening for an hour to a tape of Michael Moore snoring.
8:00 PM -- Listen to someone throwing darts at pictures of Dick Cheney
9:00 PM -- Alternative Family storytime.
11:00 PM -- Obscenity, because the first amendment still exists. For now.
Today in History (2003) - The Bush administration lowered the terror alert level from orange to yellow, saying the end of heavy fighting in Iraq has diminished the threat of terrorism in the United States. Saddam Hussein expressed pride that, despite the success of the U.S. invasion and the civilian casualties it has inflicted, he still has killed far more Iraqis than President Bush.
The only plausible arguments left against gay marriage are those conceding that denial of marriage to gays is indeed discrimination, but it's discrimination that is justified for whatever reason (slippery slope, damage to the family, tradition, etc.). Arguments that attempt to cast the denial of marriage to gays as some kind of equal treatment are works of hollow casuistry and cannot be squared with Loving v. Virginia. Here's an example of such an argument, from Shelby Steele at TNR:
This stripe of argument is often spelled out like this: blocking gay marriage is not gender discrimination because both men and women are given the same options, namely, marry the opposite sex or marry no one. Hence, the treatment is equal. (Some would even argue that there is no sexual-orientation discrimination because gays and straights have the same right to marry the oppsosite sex.) Let me formalize the argument:
Sounds facially plausible. But notice how that kind of argument would conclude that anti-miscegenation laws also provide equal treatment:
The only difference between the argument above (against gay marriage) and this one (against inter-racial marriage) is that "sex" is replaced by "race," and "opposite" is replaced by "same." If one really thinks that blocking gay marriage does not discriminate on the basis of sex, then one must also conclude that blocking inter-racial marriage does not discriminate on the basis of race. I suppose staunch advocates might say "fine, anti-miscegenation laws provide equal treatment too." But that's a normatively worthless meaning of "equal" and it's not the equal treatment of the 14th Amendment.
Day 1--
Bratcher: The Matrix Experiment
Clerk: Child Self-Pornography
Trinh: Beer Via E-mail, and Other IP Challenges
Day 2--
Bassett: Lynch, Lessig, the Irish and '60s Rebels
Palmer: File Sharing Is File Stealing
Adin: Policing the World... Wide Web
Fred: The Tale of Two Countries
Day 3--
Nick Morgan: Who Owns Intellectual "Property"?
Sinclair: Holding Names Hostage
Day 4--
Jeremy Blachman: Would Thomas Jefferson Have Surfed Porn Sites
PG: Mosul ---
Chris Geidner: Who Is an Online Journalist?
Amusing as it as, I haven’t had time to do more than quickly read the symposium entries on our topic this week because I have been busy working on a paper and presentation about the Internet’s intersection with defamation law at 47 U.S.C. § 230. The statute provides some immunity to Internet “re-publishers.” For now, however, I thought I’d move closer to the source: Internet authors and the First Amendment—specifically, the Press Clause, and “journalist” status.
The implications of this status include, in many states and some federal circuits, a qualified privilege against compelled testimony, as well as the protections granted to journalists under federal law and regualtions (as were discussed recently in regards to the Scalia-marshal debacle).
A few years ago, when at the paper, I wrote an editorial about Vanessa Leggett. Leggett “ha[d] been researching the murder of the wife of a Houston ex-bookie, and federal prosecutors want[ed] her notes.” She wouldn’t give them up, and the U.S. Court of Appeals for the Fifth Circuit upheld a contempt order jailing her. As I wrote then:
Either Leggett is not considered a reporter by Ashcroft because she works free-lance and has not published a story on the murder—as Leggett's attorney claims—or the Justice Department has changed its standard for jailing reporters. Either way, this is an unacceptable federal intrusion on a free press.
Eventually, the grand jury disbanded, Leggett went free, and when the jury reconvened her notes were not re-subpoenaed. The “real” journalists—notably, the Reporters Committee for the Freedom of the Press, as well as others—fought for Leggett’s case. Throughout the amicus brief filed at the Fifth Circuit, Leggett was clearly referred to by the Reporters Committee as a journalist and reporter deserving of First Amendment press coverage. The head of the Reporters Committee, Lucy Daglish, said of Leggett in a news release: “Had this journalist not sought help from journalism organizations prior to being sentenced for contempt, she would have been secretly jailed as well.”
Enter Paul Trummel.
According to an article posted last week at USC’s Online Journalism Review, Paul Trummel is “a pugnacious nursing home resident whose online rants landed him in jail.” A Washington state judge jailed Trummel, like Leggett before him, for contempt—in this case, however, it was because he wouldn’t stop talking. Trummel was, it appears, a kind of nursing-home watchdog. Among other things, he reported his findings on a Web site, which the judge ordered to have any identifying information of nursing-home employees removed. When Trummel kept the information up but simply switched to a server in the Netherlands, the judge had him jailed. The judge has since refocused his ruling as to Trummel’s status as a “recalcitrant stalker,” but the question remains for my purposes as to whether Trummel is a journalist.
What did Lucy Daglish, defender of Vanessa Leggett (who had never published a story and worked for no press organization), have to say about Trummel’s “journalist” status? He’s not, at least as to this case. Online journalism, she said, “lower[s] the barriers to entry, increasing the number of people who can do journalism.” Here is her standard for who is a journalist on the Web:
"If someone calls and says they work for a Web site, and it covers a variety of issues, and has good distribution and there is a broad base of people interested in what they have to say, and they take an independent view of the issues, then yes, I would consider that journalism and I probably could provide assistance for you," she said."But if you have a Web site that is targeted at a specific group of people and the sole purpose of the Web site is retribution against those people, I don't think that is journalism. It doesn't mean you're not a journalist. It means that that particular product you're working on is not journalism. In other words, I look at what your purpose is."
Distribution? Interest? Daglish is wrong to base journalist status on what is, essentially, a success factor. What she is saying is that because it’s so easy to become a reporter on the Web, we’re only going to allow in some of the Web reporters—the ones with the most hits and in which people are the most interested.
Independent view? I don’t see how this standard could be used—even in traditional media—for determining whether someone is a journalist. Does this mean the Internet journalist has to report something unique to be covered? If so, then only the first newspaper to get a story is worthy of journalist status—and that includes all those local papers reprinting AP and NYTimes’ stories. Does it mean the news has to come from an independent source? If so, convergence has all but eliminated independent viewpoints from traditional media.
Finally, Daglish’s “sole purpose of the Web site” comment shows her lack of understanding about the low “barriers to entry” on the Web. Let’s say your town’s water supply is being polluted by the major employer in the town (who, incidentally, is also the top ad revenue generator for the one newspaper in town). You are a chemical engineer who understands water pollution; you test the water and report the findings on a Web site, www.CompanyXPollutesOurWater.com. Under Daglish’s “sole purpose” test, you’re out of luck.
The Web does decrease barriers to becoming a journalist, and that’s a good thing. A part-time or occasional journalist is as much a journalist for purposes of the First Amendment as Linda Greenhouse or Chuck Lane. If Daglish wishes to limit the scope of her organization (for financial or feasibility reasons), that’s one thing. But for Daglish—as the representative of all reporters—to announce a restrictive standard for who should be given the status of “journalist” is unacceptable.
Why would Daglish, as a defender of the press, not want an expansive reading of who should fall under its press protections?
In his post about how the "Internet in general has had an amazing impact on daily life," Jeremy avoids discussing weblogs and mainly regards himself as a consumer of content, instead of as a creator. Yet part of the cultural importance of the Internet is how easy it has made publishing. Blogs may be the most popular form of dissemination, but one also can contribute to massive group projects such as Wikipedia.
When I checked Wikipedia this morning for something to put up in the "Today in History" feature, I noticed the last "Events" entry for April 15.
2003 - The Mosul Massacre. American troops opened fire on anti-US protesters in the northern Iraq city of Mosul, killing at least ten unarmed Iraqis.
The term "massacre" for what happened a year ago in Mosul is by no means used universally. If you Google mosul massacre, the first results are from a Marxism list and other self-identified socialist publications and liberal blogs. Typing mosul massacre into CNN's self-search only pulls up an article about Chemical Ali, the massacre being the one he allegedly ordered in a 1988 chemical attack on Kurds. The Washington Post also did not report on the event as a massacre.
Progressive Review writer Sam Smith amalgamates coverage from international sources here, with himself the only person calling it a massacre. Yet "massacre" is the word used by Wikipedia as well as a similar free encyclopedia site.
In short, here is a conflict between sources that consider themselves unbiased and authoritative. Obviously "massacre" is inherently loaded with meaning, but that does not prevent such sources from using it. Everything from the action taken by Chinese troops against Tiananmen Square demonstrators to British troops' violence against Amritsar protestors to British troops' firing on a crowd of American colonists has been described as a massacre. The essential elements of a massacre appear to be the deaths of multiple civilians who are overwhelmed by a stronger military force.
I don't know if the Mosul incident will go down in U.S. history as a rare instance of our military's committing what we are willing to describe as a massacre. (The main ones we do admit are the mass killings of Native Americans at various times and the My Lai destruction in Vietnam.) The point is that the Internet opens us up to the possibility of all becoming revisionist historians.
If Wikepedia becomes the first encyclopedia to which the schoolchildren of 2053 turn, then they will believe that a massacre occurred in Mosul. Yet Wikepedia does not require us to show any credentials to add entries to it, or to make modifications. It democratizes the writing of history, while also democratizing access to that history.
Although the digital divide continues to exist in America and the rest of the world, even it is slowly growing smaller. Villages in the developing world that do not have American encyclopedias do have a computer with internet access. The Internet versions -- because clearly there will be more than one -- of history may become the most authoritative, or at least most popular and widely-known.
Today in History (1920) - Anarchists Sacco and Vanzetti allegedly murder two security guards while robbing a shoe store. And happy 125th birthday to poet Melville Henry Cane, who also was copyright lawyer to the likes of Sinclair Lewis, Upton Sinclair and William Saroyan.
I read our symposium topic this time – Internet, Law, and Culture – and wasn’t sure what I wanted to write about. I figured we’d get some pieces on file sharing, which we have, and on Internet regulation, which we have, and I assumed we’d have something on weblogs and how they’ve transformed life as we know it, and the Internet is creating a whole new paradigm of communication – which we didn’t get, but I’m sure any number of writers out there have wonderful pieces on the topic that I could link to, or, even better, who can feel free to link to themselves in the comments.
I’m torn, as I sit here wanting to write something thought-provoking and interesting and compelling. Forget weblogs. The Internet in general has had an amazing impact on daily life. The amount of trivial knowledge I accumulate each day is frightening. The amount of topics I have a completely superficial knowledge of just because I read an article in the Kansas City Star or a paragraph on some company’s website, or a message board post written by an expert in whatever field it is – it’s mind-boggling.
Thomas Jefferson receives a great deal of well-deserved credit for somehow becoming a skilled architect, farmer, scientist, violinist, inventor, religious scholar, and – I’m forgetting one – political thinker, politician, founding father of a great nation, I don’t know, whatever the right words are. And he didn’t have the Internet. If he did, he’d have also become a competent physician (if I was a doctor, I’d buy the rights to funnyrash.com and make a killing charging people for dermatological creams based on whether it was red and itchy or brown and oozing or whatever else funny rashes do), a functioning lawyer (every statute and regulation is online somewhere), a literary critic (amazon.com), and, of course, a connoisseur of hardcore porn.
The Internet opens up all of these windows of knowledge I can’t imagine how people accessed thirty years ago. My grandmother can’t believe that I can check the price of the one stock she owns as the market’s trading. She’s flabbergasted that I can get the weather in any city around the world. She has no idea how I can send someone something and they can read it without me having to type it over again. And these aren’t even the things people who use the Internet think are particularly extraordinary.
So, like I said three paragraphs ago, I’m torn. I’m torn between writing this piece about how amazing the Internet is, and writing its companion piece about how the Internet gives us access to all of this new information we didn’t have access to before, but mostly that just gives us more stuff to talk and think about, and what do we really need it all for? It’s just mental clutter. Do I really need to read the sports section of all seven major New York-area newspapers to find out whether Cliff Floyd is going on the disabled list? (He is.) Do I need to know about the new modern art exhibit at a museum I won’t be visiting? Do I need to know what some random people in the middle of the country thought about Fantasia’s performance on American Idol? Not really.
But I can’t bring myself to really embrace the argument that it’s all pretty useless, because then I think about the cool stuff that the Internet enables. Being able to get to know people I otherwise wouldn’t, reading people’s thoughts and perspectives that force me to think and reflect and engage, feeling like the world is small and accessible instead of huge and impossible, being able to satisfy every craving for knowledge.
I don’t know what my point is really. Or if I even have one. Or if it even matters if I don’t. Maybe it’s this: I think life with the Internet is better than life without the Internet. But I want to know people’s feelings on the flip side. Who wishes it never showed up? Who wishes we still needed to pick up the phone to call someone and couldn’t just send an e-mail? Who misses card catalogs?
I was at an interesting wedding Saturday -- weddings, in fact, uniting a Jain woman and a Christian man, with a ceremony from each person's religious tradition. But not nearly as interesting as the wedding I missed Thursday night:
Big Gay Wedding
You are cordially invited to the wedding of Dan Savage and Amy Jenniges, a showcase of everything that's wrong with letting the gayest gay man in the Western tradition and The Stranger's token lesbian unite in holy matrimony. (They'd much rather marry their own boyfriend and girlfriend, respectively.) The joining of these two in the most unholy alliance ever sanctioned by the institution of marriage will be officiated by Reverend Wm. Steven Humphrey and celebrated by serenades from the flamboyantly talented likes of Sarah Rudinoff and Nick Garrison. Drinking will happen, cake will be sliced, dancing will ensue. It's a full-blown gay marriage, wedding dress and all, and to the horror of conservative naysayers, it's completely legal.
That wedding would have cost me a $10 donation to Lambda Legal, though, and the one I attended was free. It also was planned well ahead of the Savage-Jenniges union, which was invented earlier this year after a visit to the Seattle licensing office. (via girlfag and eclecticism):
I'm happy to have a "marriage license." It's not the marriage license I'd like to have, of course. But, still, let me count my blessings: I have a 10-year relationship (but not the marriage license), a house (but not the marriage license), a kid (but not the marriage license), and my boyfriend's credit-card bills (but not the marriage license). I don't know what a guy has to do around here to get the marriage license. But I guess it's some consolation that I can get a meaningless one anytime I like, just so long as I bring along a woman I don't love and my $54.The Savage-Jenniges union may be over by the time you read this, as they planned to file for divorce in just a little more time than it took Britney Spears.
One blogger managed to miss the point:
Who cares that you are queer? Certainly not the State, who doesn't care if you are gay, straight, rich, poor, or even if you are in love. This is called being treated equally, Dan. Thanks for illustrating that point so perfectly.
Actually, it's not being treated equally. Dan's boyfriend Terry is not being treated the same way Amy is being treated, because she can marry Dan and Terry can't. Amy's girlfriend Sonia is not being treated the same way Dan is being treated, because he can marry Amy and Sonia can't. This is blatant gender inequality.
Although everyone from Equal Rights Amendment advocates (who do not count President Bush in their number) to Eugene Volokh has disagreed with this view, the failure to recognize same-sex marriages is properly seen as sex discrimination, not sexual orientation discrimination.
Gay people can get married, and many have. Unfortunately, they've only been able to marry people of the opposite sex, which frequently results in making both spouses unhappy and causing divorce. So I'm definitely not urging anyone who's a lesbian to marry a man, or for that matter, urging anyone who's straight to marry someone of her own sex.
But marriage has been an option for gay people. There is no "are you straight?" test before granting marriage licenses. No one asked, and if a spouse did seem to be gay, or even engaged in homosexual behavior, it was deemed to be no one's business except that of the happy couple.
This distinguishes marriage discrimination from that involved in the workplace or hate crimes. People have been fired and murdered for being gay, but no one has been refused the recognition of his marriage because he is gay -- only because he wants to marry another man.
If I wanted to marry a female friend who lacks health insurance and who in return has agreed to care for my pet rabbit, explaining that I'm straight wouldn't convince the Commonwealth of Virginia to give us the benefits of marriage. The state discriminates against me not because of my sexual orientation, but because of the sex of the person whom I choose to marry.
BoifromTroy argues that Kerry's position on same-sex marriage is "is even more vile" than Bush's support of the Federal Marriage Amendment -- despite Kerry's vote against the 1996 "Defense of Marriage Act," despite his support for civil unions -- because Kerry has said that homosexuality is "in your genes" yet still opposes legalizing marriage between two people of the same gender.
Boi's view appears to be that Kerry's insistence on reserving the term "marriage" for man-woman unions, while giving all the rights and protections of the institution through civil unions, is worse than Bush's opposition to any recognition of same-sex partnerships because if someone believes homosexuality is genetic, then he must agree that homosexuals should be able to marry as they wish.
John A. Kalb challenges the idea that homosexuality is entirely genetic, noting that people "move back and forth too much," experimenting sexually with people of both genders. Many people consider themselves bisexual, attracted to men and women.
Moreover, basing acceptance of same-sex relationships on whether the participants are genetically fated to homosexuality is highly problematic. If I can be attracted to both people of the same sex and those of the opposite sex, should I be constrained to opposite sex relationships only? This is heterosexual supremacy, deeming opposite-sex relationships always preferable whenever possible.
If Dan Savage can feel a smidgen of sexual attraction to his temporary wife, that's hardly a justification for abandoning his partner and co-parent, even though some conservatives may encourage him to do so. As Andrew Sullivan has said, "Reducing people's relationships to mere sex is a subtle way of dehumanizing them." Same sex marriage, just like opposite sex marriage, ideally is not just about sexual attraction. It's about committment, first and foremost -- otherwise, why get married?