Volokh Conspiracy

And don’t forget the commercials!

UPDATE: And speaking of commercials, some have already sparked controversy. Ford is unhappy about GM’s 2012 Mayan Doomsday ad. Also, an ad GOP Senate candidate Pete Hoekstra is running during the Super Bowl on Michigan stations has also sparked controversy.

This is the litigation I mentioned when the judge allowed it to go forward earlier this year; the judge has now ruled on the merits that the fact that President Obama’s father wasn’t a U.S. citizen doesn’t keep President Obama from being a natural-born citizen: Anyone born in the U.S., with narrow exceptions (such as that for the children of diplomats) is a U.S. citizen from birth, and therefore a natural-born citizen.

I’m not an expert on this area of the law, but the Georgia judge’s reasoning, which echoes the reasoning of a 2009 Indiana Court of Appeals decision strikes me as quite persuasive, as does the much more detailed reasoning in a Nov. 2011 Congressional Research Service report, which reaches the same result.

UPDATE: I originally accidentally omitted the link to the Georgia administrative judge’s ruling — I’ve now added it above.

Next spring semester, I will be teaching a First Amendment class. So I request advice from commenters about what textbooks they liked, or did not like, and why.

For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.

Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett’s textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to “the Constitution outside the courts,” and not just to Supreme Court cases.

Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment’s interplay with the Copyright clause,  the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.).

A few months ago, I asked if anyone could recommend a site that can provide an audio spelling quiz for kids. One of the commenters recommended SpellingCity.com, and we tried it with great success. You (using your parent or teacher account) can set up spelling lists for your kids — there are many you can download from other sites — and then it will pronounce them for the children (who are using their child accounts). The children then type what they think is the right spelling; they get feedback; and you get to see the results on your parent account. There’s a modestly priced pay version, which is the one we’re using, but also a free version, which seems to have the necessary features as well. So it seems like a very nice teaching tool, and I thought I’d pass along my recommendation.

These days the defense of the products and output of the humanities – literature, criticism, the academic study of the arts and letters, etc. – is not an easy task.  At least it is not an easy task if one’s position is doubly, or even triply-conditioned:  First, a defense would have to be of critical thinking in reading and writing, verbal skills, in a forward sense that engages with a changing, technologically driven world, asserting the value of generalist skills in thinking in a world that prizes technical specialization as the key to wealth and success. Second, however, it would have to be a defense of a “traditional” conception of the humanities as a realm of close reason – but without saying that it was better how we “used to do it” and that arts, literature, and criticism should return to how they were when the critic was in college, because by and large it wasn’t so great then.  Third, it would be no defense at all of the humanities in their current academic incarnation, because they aren’t very much about critical thinking, teaching it to students or deploying it in its production; no defense of the current humanities academy, while at the same time urging that its reform does not mean a project in reaction and nostalgia.

The task of defending the humanities is difficult not merely because its academic guardians have by and large failed or given up on the intellectual underpinnings, however.  A big part of the problem is that the collapse of the disciplines in their traditional sense has convinced many that the basic problem of the humanities is not that they are badly taught, but that they do not, or no longer, speak to the ‘truths’ of the world.  One economist friend who shares my love of Stendhal remarked to me that it is not that Stendhal is not revelatory of the “world”; it is, rather that literature, as revelatory of human nature and the human world is anecdotal and personal, whereas today we have social science and data. The taste for story, narrative, and literature remain, but merely as taste, not truth. Indeed, he might have continued, we could probably come up with good evidence that our undeniable taste for story and narrative is the product of a biological wiring that seeks to impose order on the world in the form of a narrative; how, then, are we to see Julien and Mathilde as “revelatory,” given that they, too, are narrative par excellence? The same for criticism and the genres of thinking associated with the academic disciplines of the humanities that seek to explicate and interpret; one might as well return to Freud.

This is not, note, the customary criticism of the “useless” humanities that these are disciplines that don’t produce an obvious rate of return. This new dismissal of the humanities is distinct from the problem of trying to see their value in commercial life. After all, as Tyler Cowen pointed out in one of his finest early books, the most vibrant pursuits of the humanities – pace the prejudices of many humanities professors – are often the product of the most vibrant commercial societies.  Why?  Apart from having a society rich enough to support so complex a division of labor in a strictly material sense, I suppose it’s the relation of sense and sensibility. So much of a vibrant commercial life seems on the surface to consist of “sense” – doing the accounting and figuring the rate of return. Yet the stuff for sale, from ephemeral fashion to the design of the great public infrastructure, is actually “sensibility.”

The role of the humanities in this kind of vibrantly commercial society, one which celebrates the high arts and the low arts, high culture and pop culture, is to bring to bear sense upon sensibility, to provide the tools by which to analyze sensibility.  Part of which is culture for its own sake, but part of which serves, intentionally or collaterally, to more effectively sell sensibility.  Making sense of sensibility seems to me the fundamental task of the humanities; for one to care about that task, really care, one has to think that sensibility is something more than merely ephemeral and contingent taste.  Something more than exogenous preference, if you like.  One of the biggest problems today, in other words, is that we simply don’t much believe that the analysis of sensibility says very much, not merely because the humanities disciplines aren’t very good at their own traditional tools, but instead because there isn’t much at bottom to say about preference and taste.  Curation and categorization?  Sure. Analysis? Not really.

There are two different currents here. One is the humanities as disciplines giving up on delivering answers and, in their academic emanations, coming very close to giving up on reason as such. Apart from anything else, it is a position that leaves academic departments ill-equipped to accomplish the proposition on which universities sell these departments, the ability to teach broad analytic and thinking skills to undergraduates, both as a practical life skill and as a public good.

The other is partly an independent phenomenon and partly a move to fill a disciplinary vacuum created by the humanities’ academic collapse. It is, unsurprisingly, the rise and rise of social science as a claim to empirical explanation of human nature, on the one hand. And rationalist economics, on the other, providing a deductive structure that applies an elegant (in one sense) and brutalist (in another) reductivism that strips human motivation down to a simple machine that takes the raw materials of desires and runs it through, first, a narrow rational choice modeling, finally to be polished up and modified a bit by a little behavioral economics to adjust for “real” human beings. It’s as though the way to explain human beings is to put together a model that mimics the behavior of a human being and tweak until it can’t be distinguished from the human being: a Turing Test for social science modeling. Or maybe a Turing Test for being human. It’s only the humanities that gave up on the search for truths about human beings in the world. The economists and the geeks of social science never gave up the search, and they (and we) seem to have concluded that the answers are located in purely technical subjects through purely technical thinking. Or at least we behave that way.

It is possible, of course, that this turns out to be true.  Human psychology explained by increasingly ramified forms of behaviorism.  I doubt it – I think, rather, that one of these days we will conclude that our current reductionist forms of explaining human beings are too reductionist, and that today’s austere and “on the surface” behaviorism turns out to be as mistaken as the baroque multiplication of psychological entities that characterized Freud and psychoanalysis.  But leave that aside; the consequences for the humanities of turning to purely technical subjects for human understanding are grave.  To start with, the new social scientists and economists, working within the deliberately flat and barren propositions internal to their disciplines, strongly bounded rationality, have no larger frame of intellectual history in which to situate themselves, as part of the history of ideas, as something which is not entire of itself.  There’s a name for the temptation to which it gives rise, one we learned in classes in literature and classics: hubris.

It means, for another thing, that the humanities as disciplines, while they might still (barely) be a way of teaching certain forms of reasoning, don’t provide “content” in the intellectual reproduction of commercial culture – at least, not at the fundamental level, at the level of science and applied science.   They are not part of the production of new knowledge.  Success and advance for society lie in the innovations of technical and applied sciences alone – and the humanities lose a place in the production of these innovations, and become relegated to the status of mere items of consumption.  Literature, the arts, criticism, the essay – their social significance lies solely in their role as entertainment.  Entertainment is what one does in one’s free time, for fun. It is dispensable, and the humanities, too, their raw materials and their analytic products, likewise are dispensable. We didn’t use to think this about the humanities, its products, disciplines, and academic efforts. But that’s where we are now: fantastically produced and expensive, but their deliverances no longer can claim to reveal anything very important about the world.  That role has been ceded to STEM; and, well, The Rest is Noise.

With sadness I report the closure of one of the world’s great stand-alone book reviews, the Revista de Libros de la Fundacion Caja Madrid.  For the past twenty years, it has served as the leading literary review in the Spanish-speaking world – edited in Spain, and possessed of a genuinely global grasp of intellectual and cultural affairs.  It united deeply informed review essays together with unparalleled contemporary Spanish prose – exquisite and lapidary.  I was honored to serve as the Review’s political sciences editor.  I also authored several essays for it, on the United Nations and global governance, Francis Fukuyama on neoconservatism, Philip Bobbitt on terrorism and the state, that were translated into a Spanish that made me out to be much smarter than I am.  (The translator, the Revista’s Luis Gago, won awards for his translation, most recently, of The Rest Is Noise.)

The Revista closed because its patron, the Caja de Madrid, is one of the regional Spanish thrifts that has run into trouble – Spain having a particular economic trouble in that its national banks weathered the crisis well, but its regional thrifts financed Spain’s construction boom and bust. The economic trouble is linked to a particular political trouble in that the national banks were well supervised by national authorities, while the regional thrifts benefited from the perennial conflicts between national authority in Spain and the regions.  I suppose that if I were, say, British, and given my general views on the necessity of a demos for democratic governance, I would probably be a Euroskeptic.  But in fact the European project has pulled off several near-miracles, one of which is the integration of post-Franco Spain back into, well, civilization.  Elite cultural institutions like the Revista are part of that consolidation and its closure is an enormous loss.

The Revista’s closure prompts me to one general comment about book reviews.  The collapse of so many stand-alone book reviews as well as newspaper book sections has left a gap in the intellectual genre of criticism.  The kinds of book discussions that we often have in blogs is great – inviting authors to present their new books in blog posts, or online roundtable discussions with an author of a new book.  These are terrific new ways of presenting the ideas in books made much more accessible by blogs and online resources.  But they also have limitations, and one of the most important of these is, to put it baldly, the presence of the author directly on the stage of discussion.  Offering a comment on a book in which the book’s author will immediately respond changes considerably the sensibility that one brings to making the comment.

The book review as a genre of “criticism,” by contrast, depends upon a critical distance from the author in order to focus upon the book.  It is hard if not impossible to do if the author as a living presence is hovering nearby.  All these genres, the new and the old, have their places, but it is harder than it used to be in part for lack of outlets, especially when the new online resources see their advantage in the ability to bring the author into the discussion directly.  I’m unusual in the academic world in liking to write book reviews; I like to read books and like to write about them.  And I like reading and writing the sophisticated, polished reasonably short book review essay as its own genre.  Most academics see book reviews as a waste of time – not taken seriously in the academy, and are not worth the effort.  I agree that is all how it is – but alas, if I were honest about the writing I’ve done that I most like, it’s the highly polished, sentence by sentence edited and revised, review essays I’ve written for the Times Literary Supplement in particular.  I don’t think it has ever done anything for my academic career, even in the handful of cases when the essay was widely noted in the academy, but I think it’s much of my own best work and the stuff I most like.

So I was excited when the Lawfare national security law blog invited me to become the book review editor; short of becoming editor of the TLS or the Boston Review, this is something I’ve always wanted to do.  But Lawfare is not really a blog; it’s a highly edited online journal, run by a long-time journalist with serious editorial skills, and the editors agreed that we should aim in this particular subject area to reinvigorate the traditional book review essay, at whatever length.  I’m really pleased with this; reviewers have enthusiastically welcomed the instruction to write as though for a traditional book review, and to expect serious substantive and copy editing.  My larger point, however, is that the traditional book reviews cultivated a particular genre with a particular sensibility.  The best of the genre had a certain analytic toughness, and it has been harder to come by with changes in media platforms.

Indiana Secretary of State Charles White was convicted of voter fraud, among other charges, this week for lying about this address on voter registration forms and voting in the wrong precinct. White apparently continued to use his ex-wife’s address for his voter registration after they split, in part, because he didn’t want to lose a modest town council salary for moving out of the district. As Secretary of State, White was the highest ranking elections official in the state.

There’s much speculation and debate over whether non-citizens and others who are ineligible vote in U.S. elections, but relatively few documented instances.    That makes this report by a local television station in Fort Myers, Florida all the more significant.  The station’s investigation uncovered nearly one hundred non-citizens who were registered to vote, and several admitted to have cast ballots.  The non-citizen voters were discovered because they said to be excused from jury service due to their lack of citizenship.  The question now is whether this report is symptomatic of a larger problem in Florida, if not elsewhere, or a relatively isolated problem.

UPDATE: As noted in the comments below, the station supplemented the report with the following comment on its story:

People seem very interested in which party these ineligible voters were for, so let’s look at the numbers we have. We found 87 people who said they couldn’t serve on a jury but were registered to vote. Of those:
33 were registered as Democrats (3 inactive).
25 were registered as Republicans (1 inactive).
1 was a registered Independent.
20 were No Party Affiliation (1 inactive).
8 were unknown.
It’s a small sampling, so trying to extrapolate these numbers probably wouldn’t give you any reliable statewide percentage breakdown. But that’s what the data show.

Liberty Counsel points to these these excerpts of an interview with Justice Ginsburg on Egyptian television, and argues:

In a recent interview with Egyptian television, Supreme Court Justice Ruth Bader Ginsburg insulted the U.S. Constitution and advised Egypt to look somewhere else when drafting its own constitution. Justice Ginsburg was asked to give insight on this crucial topic for the post-Mubarak government but focused more on liberal human rights, rather than traditional American freedom.

When describing the nature of a constitution, Justice Ginsburg did appropriately recognize the importance of a constitution and the duty of the citizens to defend it. Justice Ginsburg did not, unfortunately, take her own advice. She undermined insight of its crafters and stated, “I would not look to the US Constitution if I were drafting a Constitution in the year 2012.” Instead, Justice Ginsburg referred to the constitutions of more supposedly progressive countries, like South Africa, Canada, and the European Convention on Human Rights. She stated, “I can’t speak about what the Egyptian experience should be, because I’m operating under a rather old constitution.” This directly refutes the U.S. Constitution’s relevance today.

For a United States Supreme Court Justice, entrusted with the duty to interpret the Constitution, this type of statement is unacceptable. Justice Ginsburg failed to respect the authority of the document that it is her duty to protect. When given the opportunity to promote American liberty abroad, Justice Ginsburg did just the opposite and pointed Egypt in the direction of progressivism and the liberal agenda.

Mathew Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law, said, “For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg’s comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”

This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today?

To be sure, our Constitution has the merit of having endured with only one really huge constitutional crisis — the Civil War — for a long time, and of having produced a very rich and free country; that’s good. But much of that, I suspect, comes not from the constitutional text, but from the constitutional traditions that have emerged since then, both in the courts and elsewhere; adopting the U.S. Constitution would not adopt those traditions.

And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions — for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own states’ constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesn’t tell us that it would work well for Egypt for the coming years.

Nor do I think that there’s something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it’s just sensible and sensibly (not excessively or falsely) modest.

And, returning to my first point, none of this tells us whether Justice Ginsburg is committed to following the U.S. Constitution in the U.S. Maybe you think she is so committed and maybe you think she isn’t, but you’d have to figure that out from other sources than from the advice she gives to a different country about whether to adopt the constitutional text in a completely different political and legal requirement.

I’m on the run now, so can’t analyze it in detail, but I thought I’d pass it along: Gonzalez v. City of West Milwaukee (7th Cir. Feb. 2, 2012). Thanks to John Tuffnell for the pointer.

Philip Bobbitt is an old and dear friend, and I was privileged to meet his bride, the marvelous Maya Ondalikoglu, at a dinner in California last month.  This Above the Law story on the romance and wedding is not a gossip piece.  Professor Bobbitt agreed to be interviewed for the story, and it’s a quite lovely wedding announcement.  For those who don’t know Professor Bobbitt, take my word that the announcement he had wed took those of us who do know him, um, somewhat by surprise, save for the fact that the unexpected is so … so characteristically Philip Bobbitt. On behalf of the Volokh Conspiracy, congratulations and best wishes to the newly-weds.  Long life and happiness.

An interesting opinion in United States v. Stone (E.D. Mich. Jan. 30, 2012); this isn’t my field, so I can’t opine on it with confidence, but the decision strikes me as likely right. Here’s an excerpt:

On November 30, 2011, the Government notified Defendants that it intended to call an “Academic Expert,” Professor Michael Barkun, to testify concerning his research into conspiracy belief and theories. In response to Defendants’ motion to preclude Dr. Barkun’s testimony, the Government admitted that a hearing pursuant to Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ( “Daubert hearing”) was necessary to test the admissibility of Professor Barkun’s testimony.

Before the hearing, the Government provided Defendants with a longer, more concrete Rule 16(a)(1)(G) summary of Dr. Barkun’s proposed testimony, containing notice that Dr. Barkun will testify about conspiracy subcultures, beliefs and theories; and theories such as “stigmatized knowledge,” “New World Order” and the “Illuminati.” The Government also intends to ask Dr. Barkun questions to elicit conspiracy theorists’ beliefs about the history behind Federal Emergency Management Agency (“FEMA”) detention centers and the role of the internet in spreading conspiracy belief literature and thought. Dr. Barkun also plans to testify about significant events in conspiracy belief and how conspiracy theorists view these events. The events listed in the Rule 16 summary include: Ruby Ridge, Waco, the Oklahoma City bombing and the 9/11 attacks.

The Government states:

As he testifies about each of the concepts above, Professor Barkun will also be asked whether he has reviewed some of the materials seized during the search warrants executed at the defendants’ residences and some of the recorded conversations and whether this material is consistent with the conspiracy beliefs about which he is testifying. The government found a great deal of material in numerous locations which espouse these beliefs, shedding light upon the defendants’ intent and motive, as well as linking the co-conspirators to the goal of the charged conspiracy in Count One.

… Dr. Barkun’s testimony will not assist the jury, as required by Rule 702…. At the Daubert hearing, the Government insisted it would use Dr. Barkun’s testimony as evidence of Defendants’ “intent and motive” to forcibly and violently oppose the Government under the Seditious Conspiracy count. However, the Government failed to connect the proposed expert testimony to the issues in dispute under that count.

For instance, Defendants asked the professor whether there is any literature on what people who read the conspiracy belief books, charts and other items seized from some of the Defendants’ homes, do with the information contained there, i.e, whether studies demonstrate whether these individuals lead normal lives or act out violently pursuant to their beliefs. Dr. Barkun replied that he is not aware of such studies. Similarly, when asked whether it was possible to predict what a conspiracy theorist will ultimately do with his or her beliefs, Dr. Barkin admitted it was impossible to predict.

Dr. Barkun could not opine on the number of conspiracy belief-related books a person must have, to become a conspiracy theorist, except to say it would have to be a lot. Defendants made the point that Dan Brown, the popular author of The Da Vinci Code and Angels and Demons, writes in his books about the same concepts and beliefs in the literature on which the professor’s testimony is based. Yet, it would be inaccurate to suggest that everyone who reads Dan Brown is a conspiracy theorist. More importantly, even if they are, the Court cannot make the additional required leap that conspiracy theorists will commit acts of violence simply because of their beliefs, or something they read in a Dan Brown novel.

Simply put, the nexus between the testimony the Government proffers through Dr. Barkun and the crimes charged is speculative at best. Dr. Barkun’s explanation of conspiracy theories and his opinion on whether or not items seized from Defendants’ homes are consistent with these theories will not aid the jury in determining whether Defendants agreed and intended to forcibly oppose the United States Government. As Defendants argued at the hearing, the crime charged is one of action, not advocacy. It is neither necessary nor sufficient that Defendants believe in conspiracy theories to be found guilty of Seditious Conspiracy.

This is not a case about the New World Order, the Illuminati, stigmatized knowledge or any other conspiracy theory or concept. This is so even though some of these concepts might be tangentially related to the crime charged, as stated in the indictment. (See, e.g., Doc. # 293, Second Superseding Indictment at ¶ 8 (alleging that the Hutaree views its enemies as participants in the “New World Order,” which the Hutaree intends to oppose by force)). It is a case about an alleged agreement to violently overthrow the Government. There is no place for Dr. Barkun’s proposed testimony, which the Court must treat with more caution than that of a lay witness because, as an expert, he need not have personal knowledge about the case to testify.

The absence of fit between Dr. Barkun’s proposed testimony and the issues is exemplified by some of the topics covered in the Government’s Rule 16(a)(1)(G) summary and during the hearing. These include: the history of FEMA detention centers; the standoff at Ruby Ridge; the standoff at Waco, Texas; the Oklahoma City bombing; and the September 11, 2001 attacks in New York and Washington, D.C. (“9/11 attacks”). The Government does not allege that Defendants were involved in these occurrences; they are not relevant to the facts alleged in the indictment.

The Court is unpersuaded that these topics are relevant even though the Government proposes only to show that conspiracy theorists believe the United States Government was behind these events. Dr. Barkun admitted that there are multiple and distinctive descriptions of the terms and concepts addressed at the hearing and that the Government’s summary of his testimony does not include them all. He admitted that not all conspiracy theorists hold the same views and that some may hold some of the views described in the summary, but not others. As explained more fully below, exploration into these topics would not only lead the trial way off-track, but would likely confuse and mislead the jury….

Fair Housing Council v. Roommate.com (9th Cir. Feb. 2, 2011) holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

The opinion is by Chief Judge Kozinski, joined by Judge Reinhardt. Judge Ikuta concurs as to federal law, but concludes that state law does apply to roommates; she would therefore remand for further briefing in district court on the constitutional question. Thanks to How Appealing for the pointer.

UPDATE: Link fixed, sorry about that.

Here’s my favorite comment on the FOXnews.com story about the holding of Jones, in which I pointed out that the Supreme Court opted not to rule on whether a warrant was required:

every common citizens KNOWS what the SCOTUS ruled. leave it to the know nothing know it all lawyers to think they’re better than you.

And I would have gotten away with it, too, if not for commenter Christopher K.

The Deseret News reports:

Former Naples Police Chief Steven C. Guibord is charged with criminal defamation, a class B misdemeanor, in Uintah County. Prosecutors allege that he used the name of the city’s current police chief [Mark Watkins] to post derogatory comments on the online memorial pages for the two fallen Border Patrol agents….

Guibord — posing as Watkins — posted comments on memorial pages for two Border Patrol agents that are offensive to law enforcement officers, according to state investigators….

Clark’s page on the Officer Down Memorial Page website included a comment attributed to Watkins that said, “I realize that the Border Patrol is just a security organization, but we, in the police services recognize your sacrifice.”

Rojas’ page contained a similar comment, also attributed to Watkins, that referred to the Border Patrol as a “security business.”

For those in the law enforcement community, being identified as a security guard is considered a serious insult….

The theory is that Guibord’s use of Watkins’ name — which essentially states to readers that Watkins posted the comments — is a knowing falsehood that injures Watkins’ reputation. One could argue that the falsehood isn’t defamatory, because a reasonable reader wouldn’t perceive the statements as that derogatory, and therefore wouldn’t have a dimmer view of Watkins. But given the audience, and the fact that Watkins is a police chief, I suspect that the attribution of the statements to Watkins would indeed injure Watkins’ reputation.

And if this is so, then the criminal libel prosecution would likely be permissible: Though Garrison v. Louisiana (1964) held that criminal libel laws must require a showing that the speech is a knowing or reckless falsehood, Utah Code § 76-9-404 — which says, “[a] person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule” — embodies such a requirement. (For more on this, see I.M.L. v. State (Utah. App. 2002), which struck down a different Utah criminal libel statute.) Though most states have repealed their criminal libel statutes, the remaining statutes, if sufficiently narrow (as Utah’s seems to be), are likely constitutional.

Thanks to Dan Laidman for the pointer.

I’ve been light on blogging for the past while, due to a relentless travel schedule and still-more relentless editors on several projects.  However, I did not want to let the day go by without congratulating my Beloved Wife, Jean-Marie Simon, for the online exhibition and commentary in the New York Times Lens photography blog today.  It’s an astounding number of photographs from a book forthcoming in Guatemala of photographs taken during that country’s 1980s civil war.  One interesting feature of this book is that it was produced with $20,000 raised from the crowd-sourcing fundraising site Kickstarter. Also, Beloved Wife, despite some initial skepticism when she began this project to republish her photographs from the 1980s, concluded that the book and photographs could be produced with as high or better quality in Guatemala.  The book by its nature is highly political; Beloved Wife covered a civil war, combat, many military and guerrilla operations, and the whole campaign of state terrorism and disappearances of that conflict; the photographs are sometimes graphic and violent.  Congratulations, Jean-Marie.

So concludes the Oregon Attorney General, in Op. 2012-1 (Jan. 19, 2012):

The requirement in ORS 475.323(2) to return marijuana likely is preempted by provisions of the federal Controlled Substances Act that prohibit the distribution and possession of marijuana….

Based on the reasoning in Emerald Steel [a recent Oregon Supreme Court decision], the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution…

Question …: Assume an individual is arrested and has a lawful amount of medical marijuana under Oregon law in his or her possession; the individual is lodged at the county jail; and the jail staff inventories and stores the individual’s marijuana along with the individual’s other personal possessions for safekeeping. If a jail staff member returns the marijuana to the individual upon the individual’s release from custody, does the jail staff member or the individual, or both, violate federal law?

Short Answer: Based on the reasoning in Emerald Steel, the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution. The recipient of the marijuana would violate federal law by possessing marijuana and also may be subject to federal criminal prosecution.

Sounds right to me, given the continuing federal ban on marijuana possession and distribution, with no medical marijuana exception. A state may, by excluding possession for medical purposes from state marijuana laws, choose to ignore medical marijuana possession (and distribution, to the extent that is legal under state law). But it can’t affirmatively give medical marijuana to someone, even in the process of returning the property to its owner.

Note: If you want to condemn — or praise — the AG’s analysis, please read the opinion first. The AG’s job, after all, is to describe what the law is, given the existing precedents, not to revert to first principles about what the law ought to be.

Here’s a revised version of an op-ed I published on the potential importance of the SOPA fight.  The original appeared in Hollywood Reporter (caution: paywall; free version is here)

What went wrong for SOPA, the entertainment industry’s proposal for stopping international piracy? And what does it mean for Hollywood’s future clout in Washington?

I had a ringside seat for the battle over SOPA, though not as a supporter.  I thought it would make Internet users more vulnerable to cybercrime. That was a problem that could have been fixed.  Instead, after a brief halt and some modest changes, the entertainment industry decided to press for a showdown.

And a showdown, of course, is what it got.

Why did it turn out so badly? The entertainment industry’s first mistake, then and now, is believing that its adversary is a group of other companies — Google, Internet service providers, and others — who are somehow hoping to profit from the Internet travails of the entertainment industry.

In fact, the industry is fighting what amounts to a new popular culture.

Unlike the old pop culture, this one is largely independent of the music, movie, and broadcast industries. In fact, people who spend hours on line instead of watching TV or going to movies will probably encounter the entertainment industry only when Youtube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood’s bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone.

To the entertainment industry these episodes may seem like collateral damage in the fight to stop piracy.  To the new pop culture, though, collateral damage and misuse of enforcement tools is everywhere, and it threatens everyone.  The content industry has made itself into the villain. Increasingly it looks like an occupying power; obeyed at gunpoint, despised for its hamhanded excesses, and resisted from every dark corner.  Unfortunately for the entertainment industry, as its customers migrate to the Internet, it loses not just their money but their hearts and minds as well.

The industry’s miscalculation about the source of the resistance to SOPA may have led to an even bigger mistake.  As long as the campaign for better IP enforcement was an inside-the-beltway, company-versus-company struggle, it could be fought within the Congressional judiciary committees, where both Republican and Democratic politicians were wooed and won as individuals. As a result, strengthening intellectual property enforcement has been a bipartisan issue for the last 25 years.  But when the fight went from the committees to the floor, and Wikipedia went dark, every member of Congress was expected to take a stand.

The two parties reacted very differently. Despite widespread opposition to SOPA from bloggers on the left, Democrats in Congress (and the Administration) were reluctant to oppose the bill outright. The MPAA was not shy about reminding them that Hollywood had been a reliable source of funding for Democratic candidates, and that it would not tolerate defections.

But that very public message also reached another audience: Tea Party conservatives. Most of them had never given a second’s thought to intellectual property enforcement before coming to town. But many had drawn support from conservative bloggers.  They began to ask why they should vote against their Internet supporters to rescue an industry that was happily advertising how much it hated them. Pretty soon, far more Republicans than Democrats had bailed on SOPA, and the Republican presidential candidates had all come out for what they called “Internet freedom.”

That’s what really ought to worry the entertainment industry. For Republicans, opposition to new intellectual property enforcement is starting to look like a political winner. It pleases conservative bloggers, appeals to young swing voters, stokes the culture wars, and drives a wedge between two Democratic constituencies, Hollywood and Silicon Valley.

We’ve seen this movie before.  Immigration reform and the DREAM Act, free trade agreements, and the USA PATRIOT Act all commanded impressive bipartisan support. For a while. Now, not so much. Bills on these topics still come to the floor, and they sometimes even pass, but only after endless partisan point-scoring and amendments driven by talk radio and mass email. The same could soon be true of intellectual property enforcement.

With SOPA, the entertainment industry pushed a generation of Republicans into choosing sides between Hollywood and the Internet.

They may never look back.

While I’m on the subject, talk about culture clash: I’ve written two SOPA op-eds, for Politico and Hollywood Reporter, and both have been put without notice behind paywalls. That’s never happened to me before, and it seems a little odd. Sure, it must sound good to the publishers, at least for a while.  But they aren’t paying op-ed contributors in gobs of cash, or in massive circulation.  They’re giving circulation to the contributors’ ideas.  Or not, in the case of the paywalled publications.

Contributors who actually care about communicating to the public have to wonder why they should offer content to an outlet with such a policy.  That only makes sense to contributors who have a strong reason to communicate just to the elite audience that pays to get these highly specialized publications — lobbyists or studio execs in the case of Politico and Hollywood Reporter. It makes sense, in other words, only to contributors who see their op-eds as an alternative form of targeted advertising.

Nothing wrong with that, either, except that it means the subscribers who pay for the publications have to read even the op-eds with their hands on their wallets, wondering, “Now why did he want me, and only me, to read that?” Ironically, then, in the long run the paywalled op-eds are less valuable than op-eds that appear for free.

UPDATE: The Hollywood Reporter assures me that the paywall is temporary — likely to last only a day or two while they’re promoting the new issue.  So, uh, never mind.  When the public link is available, I’ll add it.

UPDATE 2: Done.

Because of numerous conflicting commitments, I have not blogged as much as I would have liked over the last two weeks. In addition, blogging has been impeded by the fact that our recent transition to a new platform has (hopefully only temporarily) wrought havoc with the VC archives. I rely heavily on links to old posts in many of my new ones, so as not to have to repeat in detail in-depth arguments that I have already made elsewhere. We hope to have these issues resolved soon, and then I have a large number of topics I intend to get to. So please bear with me for what I expect will only be a brief additional delay.

FoxNews.com reports that legal experts are divided on whether United States v. Jones requires a warrant to install a GPS device:

Most media reports of the Supreme Court’s decision said the court was requiring police to obtain warrants for attaching GPS devices.

But several experts argued that the court had not in fact ruled that a warrant is now required.

“The court merely held that the installation of the GPS was a Fourth Amendment ‘search,’” George Washington University Professor of Law and computer law expert Orin Kerr wrote on The Volokh Conspiracy website.

“The court declined to reach when the installation of the device is reasonable or unreasonable. So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment ‘search.’”

But other experts have said the court did create a warrant requirement for installing GPS devices. They point to past Supreme Court rulings that held that all Fourth Amendment searches require warrants unless the police action meets a specific and well-delineated exception.

These scholars say that because the court did not create an exception for GPS searches, those intrusions therefore require a warrant.

“Orin Kerr would probably not say that you don’t need a warrant to break down the door of someone’s house,” Priscilla Smith, who is a senior fellow at the Yale Law School Information Society Project, told NewsCore. “He would say you do need one unless one of the exceptions apply. Same is true here.”

Other scholars had views that fell somewhere in between those of Kerr and Smith.

University of Iowa Law School Professor of Law James Tomkovicz told NewsCore that the Supreme Court “dodged” the warrant issue, but said it would be very difficult to persuade courts in the future that police do not need warrants to install GPS devices on automobiles.

“It would be pretty unprecedented for the court to call it a search and then turn around and say you don’t need a warrant or you don’t even need probable cause,” Tomkovicz said.

Lawrence Muir, who teaches a cybercrimes seminar as an adjunct professor at Washington and Lee University School of Law, said that police are now generally required to obtain warrants for GPS attachments after Monday’s decision.

Two thoughts in response. First, to the extent anyone really claims that Jones ruled on whether the police must obtain warrants, the text of the opinion clearly indicates to the contrary:

The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D.C. Circuit therefore did not address it. See 625 F.3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 (2002).

The D.C. Circuit concurring opinion referenced above notes that “because the Government did not argue the points, the court did not decide whether, absent a warrant, either reasonable suspicion or probable cause would have been sufficient to render the use of the GPS lawful[.]” Maybe I lack creativity, but I cannot see how anyone — much less an expert — can read the Supreme Court’s discussion here as a ruling that a warrant is required to install a GPS device.

Second, I’m puzzled by the claim that a warrant is obviously or very likely required for GPS surveillance because the Fourth Amendment requires warrants for home searches. The police install GPS devices on cars, not homes. Sure, the Fourth Amendment requires warrants to search homes. But the Supreme Court has always treated searches of automobiles quite differently. The unbroken rule from the first automobile case in 1925 to the present is that searching an automobile requires probable cause but does not require a warrant. This is known as the “automobile exception” to the warrant arequirement.

The Court has justified the different treatment of cars on two grounds. First, cars can be quickly moved. By the time an officer obtains a warrant to search a car, the car might be outside of the court’s jurisdiction; if the car is outside the court’s jurisdiction, the car can’t be searched either as a matter of law or fact. As the Supreme Court recognized as far back as 1925, in language that it has repeated since:

[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Carroll v. United States, 267 U.S. 132, 153 (1925).

The second justification for treating automobile searches differently than home searches is that while searching a car is still a search, cars are simply less private than homes.

Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.

The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate’s prior evaluation of those facts.

In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.

California v. Carney, 471 U.S. 386 (1985) (internal quotations and citations omitted).

So let’s return to Jones. The Jones majority opinion argues that installing the device with intent to use it constitutes a search of the car. That’s the traditional set of circumstances that trigger the automobile exception. And the rationale of the automobile exception plausibly applies here, too. If the police delay to get a warrant, the car known to be in one place today might be lost tomorrow. A car in one jurisdiction today can be driven outside the court’s jurisdiction in minutes or hours. And if it is a reasonable search to break open a car’s trunk and rifle through a suspect’s private stuff without a warrant, why isn’t it a reasonable search to attach a device to the outside of a car’s frame? Isn’t the placing of the device on the outside of the car less invasive than rummaging through a suspect’s personal items stored in the locked trunk?

To be clear, I’m not arguing that the automobile exception definitely applies to the installation of a GPS device. You can make arguments that it does not.** Maybe those arguments will carry the day, maybe they won’t. But it seems mistaken to me to suggest that the relevant Fourth Amendment precedents strongly point to requiring a warrant to install a GPS device. Under the automobile exception to the warrant requirement, that’s not where the relevant precedents most naturally point.

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** For example, in his opinion concurring in the denial of rehearing en banc, Judge Ginsburg briefly suggested two reasons why the automobile exception didn’t apply. First, Jones’s car was not “readily mobile”; second, the automobile exception only applies to searches for contraband. As for the first reason, it’s hard to know why: If the motor home in Carney was deemed readily mobile, I don’t know why Jones’s car wasn’t, as well. As for the second reason, it”s true that the early cases did limit the automobile exception to contraband instead of mere evidence. But as the Sixth Circuit noted in United States v. Kemper, 503 F.2d 327 (6th Cir. 1974), this limitation reflected the “mere evidence rule” later overturned in Warden v. Hayeden (1967), and is hard to justify post-Hayden. See Kemper, 503 F.2d at 331 (“While it could initially have been said that Carroll is applicable to the search for and seizure of contraband only, the demise of the ‘mere evidence’ rule in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), would suggest that the distinction between contraband and instrumentalities, on the one hand, and mere evidence on the other, would no longer be a valid limitation on the automobile exception.” See also Arizona v. Gant, 556 U.S. 332 (2009) (articulating the automobile exception as being that”[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, [the automobile excerption] authorizes a search of any area of the vehicle in which the evidence might be found.”) (emphasis added). In my view, a better argument that the automobile exception doesn’t apply would start from the point that the kind of information revealed by GPS surveillance is not information about the inside of the car, but rather about its public location. You could then try to argue that the automobile exception should apply only when the relevant information involves the former not the latter. This isn’t an easy or obvious argument to make, but it might go somewhere.