Saturday, January 31, 2004
Notes to self.
CONCLUSION
The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people and the Government may not prescribe the means used to conduct it.
The First Amendment commands that Congress "shall make no law ... abridging the freedom of speech."
The command cannot be read to allow Congress to provide for the imprisonment of those who attempt to establish new political parties and alter the civic discourse. Our pluralistic society is filled with voices expressing new and different viewpoints, speaking through modes and mechanisms that must be allowed to change in response to the demands of an interested public.
Justice Kennedy, McConnell v. FEC.
Because "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office," Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)), our duty is to approach these restrictions "with the utmost skepticism" and subject them to the "strictest scrutiny" Justice Thomas, McConnell.
CONCLUSION
The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people and the Government may not prescribe the means used to conduct it.
The First Amendment commands that Congress "shall make no law ... abridging the freedom of speech."
The command cannot be read to allow Congress to provide for the imprisonment of those who attempt to establish new political parties and alter the civic discourse. Our pluralistic society is filled with voices expressing new and different viewpoints, speaking through modes and mechanisms that must be allowed to change in response to the demands of an interested public.
Justice Kennedy, McConnell v. FEC.
Because "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office," Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)), our duty is to approach these restrictions "with the utmost skepticism" and subject them to the "strictest scrutiny" Justice Thomas, McConnell.
Friday, January 30, 2004
[Randy Barnett, 1/30/2004 05:00:45 AM]
Complete Book Tour Schedule: book tour for Restoring the Constitution: The Presumption of Liberty,
Thursday 3/25:
IU (lunch)
What's for lunch?
Complete Book Tour Schedule: book tour for Restoring the Constitution: The Presumption of Liberty,
Thursday 3/25:
IU (lunch)
What's for lunch?
David Bernstein, Holocaust Denier?
Conspirator Bernstein here objects to a statement by mel gibson:
Yes, of course. Atrocities happened. War is horrible. The Second World War killed tens of millions of people. Some of them were Jews in concentration camps. Many people lost their lives. In the Ukraine, several million starved to death between 1932 and 1933. During the last century, 20 million people died in the Soviet Union."
Dictionary com offers these definitions of holocaust:
A sacrificial offering that is consumed entirely by flames
Great destruction resulting in the extensive loss of life, especially by fire.
The genocide of European Jews and others by the Nazis during World War II: “Israel emerged from the Holocaust and is defined in relation to that catastrophe” (Emanuel Litvinoff).
A massive slaughter: “an important document in the so-far sketchy annals of the Cambodian holocaust”
A sacrificial offering that is consumed entirely by flames. Middle English, burnt offering.
There are two forms of holocaust denial.
One is that the holocaust didn't happen.
The other is that it happened only to the Jews.
Bernstein comes close to engaging in this second form.
He's right, of course, that there was a systematic campaign by the nazis to exterminate Jews. I see no indication Gibson disagrees. My ex-wife lost a third of her family in France to the Nazis, because they were priests, labor activists, or french patriots. I'm ango-saxon and look Jewish, am queer, radical, mentally ill, and would have been the first to be sent to the camps.
It is fair to describe the atomic bombing of the persecuted Japanese Christian comunity in Nagasaki as part of the WWII Holocaust. It is unfair not to.
The holocaust continues.
< rant >
To make the false claim that it happened only to the Jews suggests that it's over, and it's not over. In the twentieth century, governments sought to alter or abolish the people.
100 million were killed. The killing hasn't stopped.
Government studies show that government studies are hazardous to your health. Rats in government studies developed cancer at rates far higher than rats in the wild. People think of the government as omniscient, omnipotent, and omnibenevolent. Instead, government is a tumor, a cancer that may kill us all if it isn't stopped. The meme that the government has our best interests at heart is holocaust denial. < / rant >
Conspirator Bernstein here objects to a statement by mel gibson:
Yes, of course. Atrocities happened. War is horrible. The Second World War killed tens of millions of people. Some of them were Jews in concentration camps. Many people lost their lives. In the Ukraine, several million starved to death between 1932 and 1933. During the last century, 20 million people died in the Soviet Union."
Dictionary com offers these definitions of holocaust:
A sacrificial offering that is consumed entirely by flames
Great destruction resulting in the extensive loss of life, especially by fire.
The genocide of European Jews and others by the Nazis during World War II: “Israel emerged from the Holocaust and is defined in relation to that catastrophe” (Emanuel Litvinoff).
A massive slaughter: “an important document in the so-far sketchy annals of the Cambodian holocaust”
A sacrificial offering that is consumed entirely by flames. Middle English, burnt offering.
There are two forms of holocaust denial.
One is that the holocaust didn't happen.
The other is that it happened only to the Jews.
Bernstein comes close to engaging in this second form.
He's right, of course, that there was a systematic campaign by the nazis to exterminate Jews. I see no indication Gibson disagrees. My ex-wife lost a third of her family in France to the Nazis, because they were priests, labor activists, or french patriots. I'm ango-saxon and look Jewish, am queer, radical, mentally ill, and would have been the first to be sent to the camps.
It is fair to describe the atomic bombing of the persecuted Japanese Christian comunity in Nagasaki as part of the WWII Holocaust. It is unfair not to.
The holocaust continues.
< rant >
To make the false claim that it happened only to the Jews suggests that it's over, and it's not over. In the twentieth century, governments sought to alter or abolish the people.
100 million were killed. The killing hasn't stopped.
Government studies show that government studies are hazardous to your health. Rats in government studies developed cancer at rates far higher than rats in the wild. People think of the government as omniscient, omnipotent, and omnibenevolent. Instead, government is a tumor, a cancer that may kill us all if it isn't stopped. The meme that the government has our best interests at heart is holocaust denial. < / rant >
Thursday, January 29, 2004
I was chatting with this guy from some local chatroom, he called himself a poet which, generally, don't impress me much, but then afterwards i checked, and his poetry's actually good.
here or here. Not so much poetry as food porn.
Against Cilantro
Stinking herb, malodorous weed,
I loathe your very leaf and stem,
abhor your green and hate the stench
you suffer into dishes. I detest you down
to your dirty root, wicked kin of carrot
and sometime bitter guest at Hebrew feasts,
though I’ve made peace with your seed
once thought to keep bedbugs at bay
or cure the sterile Arab merchant,
granting him his fleet. I’ll take
a pinch for pork chop or pickle
but I’ll leave your putrid, rangy legs,
your shaggy fronds, for someone else’s
sorry tongue. I’d sooner chew the cords
of small appliances or clear my throat
with bleach than entertain your caustic sting....
Or this one is multimedia.
here or here. Not so much poetry as food porn.
Against Cilantro
Stinking herb, malodorous weed,
I loathe your very leaf and stem,
abhor your green and hate the stench
you suffer into dishes. I detest you down
to your dirty root, wicked kin of carrot
and sometime bitter guest at Hebrew feasts,
though I’ve made peace with your seed
once thought to keep bedbugs at bay
or cure the sterile Arab merchant,
granting him his fleet. I’ll take
a pinch for pork chop or pickle
but I’ll leave your putrid, rangy legs,
your shaggy fronds, for someone else’s
sorry tongue. I’d sooner chew the cords
of small appliances or clear my throat
with bleach than entertain your caustic sting....
Or this one is multimedia.
http://www.math-inst.hu/staff/erdos/c1.html
Nice story about Paul Erdos, mathemetician and coffee-user. From Brad delong out of conspirator Jacob Levy.
He fuelled his efforts almost entirely by coffee, caffeine tablets and Benzedrine. He looked more frail, gaunt and unkempt than ever, and often wore his pyjama top as a shirt. Somehow his body seemed to thrive on this punishing routine.
Because of his simple lifestyle, Erdos had little need of money.
That's the life for me.
Nice story about Paul Erdos, mathemetician and coffee-user. From Brad delong out of conspirator Jacob Levy.
He fuelled his efforts almost entirely by coffee, caffeine tablets and Benzedrine. He looked more frail, gaunt and unkempt than ever, and often wore his pyjama top as a shirt. Somehow his body seemed to thrive on this punishing routine.
Because of his simple lifestyle, Erdos had little need of money.
That's the life for me.
The blogoverse had been following Josh Marshall's blog-funded trip to New Hamster, and gets rewarded with a scoop:
Al Franken beats up critic
.January 27, 2004 -- EXETER, N.H. - Wise-cracking funnyman Al Franken yesterday body-slammed a demonstrator to the ground after the man tried to shout down Gov. Howard Dean...."I'm neutral in this race but I'm for freedom of speech, which means people should be able to assemble and speak without being shouted down" Franken said.
Or beaten up?
Al Franken beats up critic
.January 27, 2004 -- EXETER, N.H. - Wise-cracking funnyman Al Franken yesterday body-slammed a demonstrator to the ground after the man tried to shout down Gov. Howard Dean...."I'm neutral in this race but I'm for freedom of speech, which means people should be able to assemble and speak without being shouted down" Franken said.
Or beaten up?
Wednesday, January 28, 2004
This, a volokh rant against PCR, could use debunking, but I'm too tired after the rant below to write down my thoughts on it.
[Eugene Volokh, 1/28/2004 04:15:59 PM]
Does Lawrence v. Texas recognize a fundamental constitutional right to sexual autonomy? There was a hot debate about this following the Lawrence decision; I argued here that it does.
Today's Eleventh Circuit decision upholding Florida's statutory ban on adoptions by practicing homosexuals shows the importance of this question. The Eleventh Circuit correctly points out that the right to adopt is a creature of statute; there's no constitutional right to adopt.
I think this is (normatively) wrong, although it states current law. If the right to privacy is strong enough that mothers can kill their babies without state interference, the state may not then interfere with the arrangements people make so as not to have to kill their babies. Adoption, including gay adoption, is in that category.
Roe v. Wade (and see Casey) gets around this by distinguishing state interests in born and unborn kids, but i think that is unworkable, and probably a legislative rather than judicial prerogative.
For years i'd been saying it makes no sense to say there is a right of privacy so weak it doesn't protect gay sex in the bedroom but so strong it justifies baby-killing, and the couirt finaly fixed that in lawrence v texas, reversing Bowers v. Hardwick. I haven't read the 11th cir. op.
I'm not against Roe v. Wade per se. My big case, Majors v. Abell, upheld Roe on a minor procedural point about mootness. I'm saying there's a consistency problem.
Does Lawrence v. Texas recognize a fundamental constitutional right to sexual autonomy? There was a hot debate about this following the Lawrence decision; I argued here that it does.
Today's Eleventh Circuit decision upholding Florida's statutory ban on adoptions by practicing homosexuals shows the importance of this question. The Eleventh Circuit correctly points out that the right to adopt is a creature of statute; there's no constitutional right to adopt.
I think this is (normatively) wrong, although it states current law. If the right to privacy is strong enough that mothers can kill their babies without state interference, the state may not then interfere with the arrangements people make so as not to have to kill their babies. Adoption, including gay adoption, is in that category.
Roe v. Wade (and see Casey) gets around this by distinguishing state interests in born and unborn kids, but i think that is unworkable, and probably a legislative rather than judicial prerogative.
For years i'd been saying it makes no sense to say there is a right of privacy so weak it doesn't protect gay sex in the bedroom but so strong it justifies baby-killing, and the couirt finaly fixed that in lawrence v texas, reversing Bowers v. Hardwick. I haven't read the 11th cir. op.
I'm not against Roe v. Wade per se. My big case, Majors v. Abell, upheld Roe on a minor procedural point about mootness. I'm saying there's a consistency problem.
Comments on volokh article on crime-easing speech.
1) it's a pdf, makes it unduly burdensome to comment on.
2) burson v freeman as example of strict scrutiny:
the recent anderson case from the 6th circuit (notable for its math)
says that burson is not a strict scrutiny case after all. i haven't reread burson to check this.
re note 161: valeo did -not- purport to apply strict scrutiny; it described its test as 'exacting scrutiny' which in practice meant lax review.
exacting scrutiny meant a) legitimate (rather than compelling) interests and b) a good fit between ends and means. a similar test was used in a right-to marry case.
if the article uses the term strict scrutiny, it should rigorly define which strict scrutiny - does it include a prong about availabilty of alternatives? - oops - this point is addressed later in the article
summary of comment: illustrating strict scrutiny with cases which used other standards is a problem.
3) balancing - the article leaves out a third, and most common, meaning of balancing, that is,
using an articulated standard of review which is neither rational basis nor strict scrutiny.
the anderson v celebrezze test is one example,
buckley's exacting scrutiny is another.
4) minor quibble re note 185.
the court indeed said that false statements of fact have no constitutional value. but the court was wrong. e.g. a wrong answer to a hard math problem may help lead to the right answer, and be better than no answer.
5)
there's usually an argument that any speech is dual use. info that one's phone is tapped enhances privacy as to non-criminal conversations; drugs or guns may have have legimate self-defense uses.
there's a big jump between "user is likely to use info for illegal purpose" to "user is known to be going to use info only for illegal purpose"
(i see this concern is addressed, not very well, in note 192)
again, we don't know why person B wants to open the safe. the hypo lacks a key fact.
there's a slippery slope problem to say that dual use is ok but "virtually" single use is not ok.
i defer to the slope expert.
again the possible object is addressed; i am jumping to make comments too soon.
i can think of 8 legit uses of ssn's, althoughy ssn's still seem like a good example for the point you are making.
i do not see comparable uses for revealing passwords.
6) p.66 typo, should be "or computer passwords" not "of".
7) the discussion of intent is somewhat problematic.
does "purpose" work as well as intent for your, um, intentions? because as we learned in 1L torts, intent to batter is either purpose or knowledge, but you are sort of redefining it to mean purpose only, even though you carefully explain how you are now using it.
8) I'd like to suggest a footnote 308.5: "http://www.petermcwiliams.com."
My friend peter was judicially killed as a result of his medical marijuana activities/advocacy. the site contains books both on how to grow, and why the drug war is evil (and other stuff).
9) organizationally, the intent discussion might merit an article of its own, if you are roughly trying to cut this in half.
10) comment on the anarchist cookbook:
the book is worthwhile as an anarchist tract, but is not a valuable reference on bombmaking; the recipes tend to blow up in one's face. that at least is the word on the street: we anarchists reccommend the book, but always with a caveat about don't try this at home. you might consider such a caveat, since you are letting people know the book is online.
11) in addition to footnoting the progressive case, you might want to footnote the article, as subsequently published in the progressive. doing so makes the point that the world did not come to an end after all, suggesting the prior restraint may have been mistaken. ah, see note 416.
Update: Volokh responds.
RE: comment on facilitating speech draft
Date: Wed, Jan 28 10:43 PM
> 1) it's a pdf, makes it unduly burdensome to comment on.
Got it, thanks -- I attach a Word version, if you prefer.
> 2) burson v freeman as example of strict scrutiny:
> the recent anderson case from the 6th circuit (notable for
> its math) says that burson is not a strict scrutiny case
> after all.
Hmm, really? I read the case and didn't notice that. The
plurality
clearly does stress strict scrutiny.
> i haven't reread burson to check this. re note
> 161: valeo did -not- purport to apply strict scrutiny; it
> described its test as 'exacting scrutiny' which in practice
> meant lax review. exacting scrutiny meant a) legitimate
> (rather than compelling) interests and b) a good fit between
> ends and means. a similar test was used in a right-to marry
> case. if the article uses the term strict scrutiny, it should
> rigorly define which strict scrutiny - does it include a
> prong about availabilty of alternatives? - oops - this point
> is addressed later in the article summary of comment:
> illustrating strict scrutiny with cases which used other
> standards is a problem.
Given McConnell v. FEC, which pretty firmly holds that "the
Buckley
level of scrutiny" is a lower level, I agree that I need to revise this
in
some measure. But Austin and the Burson plurality still support the
claims
I make.
> 3) balancing - the article leaves out a third, and most
> common, meaning of balancing, that is, using an articulated
> standard of review which is neither rational basis nor strict
> scrutiny. the anderson v celebrezze test is one example,
> buckley's exacting scrutiny is another.
Interesting, thanks; let me think about that -- but it turns
out
that no-one is making that sort of argument about crime-facilitating
speech.
> 4) minor quibble re note 185.
> the court indeed said that false statements of fact have no
> constitutional value. but the court was wrong. e.g. a wrong
> answer to a hard math problem may help lead to the right
> answer, and be better than no answer.
Well, the Court didn't say no value at all -- it said no
constitutional value, which is to say that the value, such as it is,
doesn't
count for constitutional analysis purposes.
> 5)
> there's usually an argument that any speech is dual use. info
> that one's phone is tapped enhances privacy as to
> non-criminal conversations; drugs or guns may have have
> legimate self-defense uses. there's a big jump between "user
> is likely to use info for illegal purpose" to "user is known
> to be going to use info only for illegal purpose" (i see this
> concern is addressed, not very well, in note 192) again, we
> don't know why person B wants to open the safe. the hypo
> lacks a key fact. there's a slippery slope problem to say
> that dual use is ok but "virtually" single use is not ok. i
> defer to the slope expert. again the possible object is
> addressed; i am jumping to make comments too soon. i can
> think of 8 legit uses of ssn's, althoughy ssn's still seem
> like a good example for the point you are making. i do not
> see comparable uses for revealing passwords.
Sure, that's a risk, as I acknowledge -- as it is even for
person-to-person speech (of the burglar-helping-burglar variety). But
what
are the situations where people's social security answers are relevant
to
debates about politics, science, etc.?
> 6) p.66 typo, should be "or computer passwords" not "of".
Got it, thanks!
> 7) the discussion of intent is somewhat problematic.
> does "purpose" work as well as intent for your, um,
> intentions? because as we learned in 1L torts, intent to
> batter is either purpose or knowledge, but you are sort of
> redefining it to mean purpose only, even though you carefully
> explain how you are now using it.
Actually, the Model Penal Code defines "intent" and "purpose"
as
meaning true intent, not knowledge; that's also Holmes' point in Abrams.
As
I try to explain, that's how I'm using the term, too, and distinguishing
from knowledge.
> 8) I'd like to suggest a footnote 308.5:
> "http://www.petermcwiliams.com." My friend peter was
> judicially killed as a result of his medical marijuana
> activities/advocacy. the site contains books both on how to
> grow, and why the drug war is evil (and other stuff).
Interesting, thanks! Are the books on how to grow specifically
aimed at contributing to policy arguments about the proper legal rules
for
drug growing? Or are they merely aimed at helping people grow?
> 9) organizationally, the intent discussion might merit an
> article of its own, if you are roughly trying to cut this in half.
Yeah, I thought of that, but, boy, it really is pretty
important to
making the article persuasive; I'd probably have to mostly restate it in
the
process of summarizing it.
> 10) comment on the anarchist cookbook:
> the book is worthwhile as an anarchist tract, but is not a
> valuable reference on bombmaking; the recipes tend to blow up
> in one's face. that at least is the word on the street: we
> anarchists reccommend the book, but always with a caveat
> about don't try this at home. you might consider such a
> caveat, since you are letting people know the book is online.
Interesting, thanks -- any public criticisms that I can cite
to?
> 11) in addition to footnoting the progressive case, you might
> want to footnote the article, as subsequently published in
> the progressive. doing so makes the point that the world did
> not come to an end after all, suggesting the prior restraint
> may have been mistaken. ah, see note 416.
Hmm -- I thought I mentioned the article; but I'll have to
check.
Thanks! I'd like to thank you in the author's note; should I, and, if
so,
what's your name? [oops. -ed. No,no, not ed, it's robbin.]
Eugene
1) it's a pdf, makes it unduly burdensome to comment on.
2) burson v freeman as example of strict scrutiny:
the recent anderson case from the 6th circuit (notable for its math)
says that burson is not a strict scrutiny case after all. i haven't reread burson to check this.
re note 161: valeo did -not- purport to apply strict scrutiny; it described its test as 'exacting scrutiny' which in practice meant lax review.
exacting scrutiny meant a) legitimate (rather than compelling) interests and b) a good fit between ends and means. a similar test was used in a right-to marry case.
if the article uses the term strict scrutiny, it should rigorly define which strict scrutiny - does it include a prong about availabilty of alternatives? - oops - this point is addressed later in the article
summary of comment: illustrating strict scrutiny with cases which used other standards is a problem.
3) balancing - the article leaves out a third, and most common, meaning of balancing, that is,
using an articulated standard of review which is neither rational basis nor strict scrutiny.
the anderson v celebrezze test is one example,
buckley's exacting scrutiny is another.
4) minor quibble re note 185.
the court indeed said that false statements of fact have no constitutional value. but the court was wrong. e.g. a wrong answer to a hard math problem may help lead to the right answer, and be better than no answer.
5)
there's usually an argument that any speech is dual use. info that one's phone is tapped enhances privacy as to non-criminal conversations; drugs or guns may have have legimate self-defense uses.
there's a big jump between "user is likely to use info for illegal purpose" to "user is known to be going to use info only for illegal purpose"
(i see this concern is addressed, not very well, in note 192)
again, we don't know why person B wants to open the safe. the hypo lacks a key fact.
there's a slippery slope problem to say that dual use is ok but "virtually" single use is not ok.
i defer to the slope expert.
again the possible object is addressed; i am jumping to make comments too soon.
i can think of 8 legit uses of ssn's, althoughy ssn's still seem like a good example for the point you are making.
i do not see comparable uses for revealing passwords.
6) p.66 typo, should be "or computer passwords" not "of".
7) the discussion of intent is somewhat problematic.
does "purpose" work as well as intent for your, um, intentions? because as we learned in 1L torts, intent to batter is either purpose or knowledge, but you are sort of redefining it to mean purpose only, even though you carefully explain how you are now using it.
8) I'd like to suggest a footnote 308.5: "http://www.petermcwiliams.com."
My friend peter was judicially killed as a result of his medical marijuana activities/advocacy. the site contains books both on how to grow, and why the drug war is evil (and other stuff).
9) organizationally, the intent discussion might merit an article of its own, if you are roughly trying to cut this in half.
10) comment on the anarchist cookbook:
the book is worthwhile as an anarchist tract, but is not a valuable reference on bombmaking; the recipes tend to blow up in one's face. that at least is the word on the street: we anarchists reccommend the book, but always with a caveat about don't try this at home. you might consider such a caveat, since you are letting people know the book is online.
11) in addition to footnoting the progressive case, you might want to footnote the article, as subsequently published in the progressive. doing so makes the point that the world did not come to an end after all, suggesting the prior restraint may have been mistaken. ah, see note 416.
Update: Volokh responds.
RE: comment on facilitating speech draft
Date: Wed, Jan 28 10:43 PM
> 1) it's a pdf, makes it unduly burdensome to comment on.
Got it, thanks -- I attach a Word version, if you prefer.
> 2) burson v freeman as example of strict scrutiny:
> the recent anderson case from the 6th circuit (notable for
> its math) says that burson is not a strict scrutiny case
> after all.
Hmm, really? I read the case and didn't notice that. The
plurality
clearly does stress strict scrutiny.
> i haven't reread burson to check this. re note
> 161: valeo did -not- purport to apply strict scrutiny; it
> described its test as 'exacting scrutiny' which in practice
> meant lax review. exacting scrutiny meant a) legitimate
> (rather than compelling) interests and b) a good fit between
> ends and means. a similar test was used in a right-to marry
> case. if the article uses the term strict scrutiny, it should
> rigorly define which strict scrutiny - does it include a
> prong about availabilty of alternatives? - oops - this point
> is addressed later in the article summary of comment:
> illustrating strict scrutiny with cases which used other
> standards is a problem.
Given McConnell v. FEC, which pretty firmly holds that "the
Buckley
level of scrutiny" is a lower level, I agree that I need to revise this
in
some measure. But Austin and the Burson plurality still support the
claims
I make.
> 3) balancing - the article leaves out a third, and most
> common, meaning of balancing, that is, using an articulated
> standard of review which is neither rational basis nor strict
> scrutiny. the anderson v celebrezze test is one example,
> buckley's exacting scrutiny is another.
Interesting, thanks; let me think about that -- but it turns
out
that no-one is making that sort of argument about crime-facilitating
speech.
> 4) minor quibble re note 185.
> the court indeed said that false statements of fact have no
> constitutional value. but the court was wrong. e.g. a wrong
> answer to a hard math problem may help lead to the right
> answer, and be better than no answer.
Well, the Court didn't say no value at all -- it said no
constitutional value, which is to say that the value, such as it is,
doesn't
count for constitutional analysis purposes.
> 5)
> there's usually an argument that any speech is dual use. info
> that one's phone is tapped enhances privacy as to
> non-criminal conversations; drugs or guns may have have
> legimate self-defense uses. there's a big jump between "user
> is likely to use info for illegal purpose" to "user is known
> to be going to use info only for illegal purpose" (i see this
> concern is addressed, not very well, in note 192) again, we
> don't know why person B wants to open the safe. the hypo
> lacks a key fact. there's a slippery slope problem to say
> that dual use is ok but "virtually" single use is not ok. i
> defer to the slope expert. again the possible object is
> addressed; i am jumping to make comments too soon. i can
> think of 8 legit uses of ssn's, althoughy ssn's still seem
> like a good example for the point you are making. i do not
> see comparable uses for revealing passwords.
Sure, that's a risk, as I acknowledge -- as it is even for
person-to-person speech (of the burglar-helping-burglar variety). But
what
are the situations where people's social security answers are relevant
to
debates about politics, science, etc.?
> 6) p.66 typo, should be "or computer passwords" not "of".
Got it, thanks!
> 7) the discussion of intent is somewhat problematic.
> does "purpose" work as well as intent for your, um,
> intentions? because as we learned in 1L torts, intent to
> batter is either purpose or knowledge, but you are sort of
> redefining it to mean purpose only, even though you carefully
> explain how you are now using it.
Actually, the Model Penal Code defines "intent" and "purpose"
as
meaning true intent, not knowledge; that's also Holmes' point in Abrams.
As
I try to explain, that's how I'm using the term, too, and distinguishing
from knowledge.
> 8) I'd like to suggest a footnote 308.5:
> "http://www.petermcwiliams.com." My friend peter was
> judicially killed as a result of his medical marijuana
> activities/advocacy. the site contains books both on how to
> grow, and why the drug war is evil (and other stuff).
Interesting, thanks! Are the books on how to grow specifically
aimed at contributing to policy arguments about the proper legal rules
for
drug growing? Or are they merely aimed at helping people grow?
> 9) organizationally, the intent discussion might merit an
> article of its own, if you are roughly trying to cut this in half.
Yeah, I thought of that, but, boy, it really is pretty
important to
making the article persuasive; I'd probably have to mostly restate it in
the
process of summarizing it.
> 10) comment on the anarchist cookbook:
> the book is worthwhile as an anarchist tract, but is not a
> valuable reference on bombmaking; the recipes tend to blow up
> in one's face. that at least is the word on the street: we
> anarchists reccommend the book, but always with a caveat
> about don't try this at home. you might consider such a
> caveat, since you are letting people know the book is online.
Interesting, thanks -- any public criticisms that I can cite
to?
> 11) in addition to footnoting the progressive case, you might
> want to footnote the article, as subsequently published in
> the progressive. doing so makes the point that the world did
> not come to an end after all, suggesting the prior restraint
> may have been mistaken. ah, see note 416.
Hmm -- I thought I mentioned the article; but I'll have to
check.
Thanks! I'd like to thank you in the author's note; should I, and, if
so,
what's your name? [oops. -ed. No,no, not ed, it's robbin.]
Eugene
note to self: volokh on legal writing is on reserve at the law library (since i didn't get it for xmas)
Wednesday, January 28, 2004
Something about Mary
Ghastly colomn about a ghastly lady who met a ghastly fate. One of my clients has a Mary in his neighborhood, and it's killing him.
# posted by gt @ 10:48 AM
Sunday comics:
it's wednesday, and this isn't a comic:
Comics where room mates are furries who all go to the same school and work at the same place who are transported to a fantasy dimension where they sit around and play videogames and make sarcastic quips should be avoided.
-ghastly.
I miss my dexlives.keenspace.com, my ghastly, my monkeylaw.org. Keen having server problems maybe.
Something about Mary
Ghastly colomn about a ghastly lady who met a ghastly fate. One of my clients has a Mary in his neighborhood, and it's killing him.
# posted by gt @ 10:48 AM
Sunday comics:
it's wednesday, and this isn't a comic:
Comics where room mates are furries who all go to the same school and work at the same place who are transported to a fantasy dimension where they sit around and play videogames and make sarcastic quips should be avoided.
-ghastly.
I miss my dexlives.keenspace.com, my ghastly, my monkeylaw.org. Keen having server problems maybe.
Article on crazy libertarians, of which i am one.
Here’s the breakdown: On the negative side, Libertarians are crazy. Most became Libertarians because they have some social quirk that disallows them from participation in normal society — picture excessive drug use, Dungeons and Dragons play or fascination with the word “metrosexual,” for instance. They are strange. You can’t take them home to your parents, unless, of course, your parents are members of some druid cult. They frighten small children.
Funny, sad, true.
Here’s the breakdown: On the negative side, Libertarians are crazy. Most became Libertarians because they have some social quirk that disallows them from participation in normal society — picture excessive drug use, Dungeons and Dragons play or fascination with the word “metrosexual,” for instance. They are strange. You can’t take them home to your parents, unless, of course, your parents are members of some druid cult. They frighten small children.
Funny, sad, true.
Sunday, January 25, 2004
MikeRoweSoft. Hottie alert.
Friday, January 23, 2004
another curfew - this one's for adults.
Rambo's back. And he's twins.
wil writes:
jbay- I got to meet one of those guys who drives the rover. He's as excited as the rest of us are.
I think that's one of the reasons all these missions are so "personal" for people like us . . . the folks who are running the project could easily be part of our gaming groups, or science clubs, or whatever.
And the argument about the Constitution has no place in this thread. Please take it elsewhere.
Posted by wil at January 22, 2004 08:09 PM
in response to:maybe one of the WWdN readers can explain this -- what is the legal basis for the federal government's assertion of a power to conduct space exploration? I thought we had a federal gov't of enumerated powers, and launching space probes isn't in the Constitution, last I read it.
In a less legally technical vein, what is the moral justification for forcibly taxing people so the gov't can spend their money on space projects? why is this a legitimate government expense? how does it help secure our natural rights to have the gov't do these things? if there is a commercial benefit, why wouldn't private persons voluntarily fund such projects (other than, of course, the fact that the taxpayer has already picked up the bill)?
just curious.
Posted by ludwig at January 22, 2004 02:45 PM
ludwig -
Legal basis? It's in the Constitution. It goes like this:
You elect people to represent you in the government. You give them the power to decide for you how much tax you pay and what they can spend it on. If you don't like how they represent you, you vote for someone else next time around.
At some point in time, people who represented a majority of this country voted to create NASA and fund it with tax dollars, hence space travel as a government function.
There are a LOT of things that the government does that aren't in the Constitution. And you give them the power to do it.
Posted by Chris B at January 22, 2004 02:58 PM
I hope you are being ironic, Chris B. While I agree that is the way things work in practice today, that is positively NOT what our Constitution says. It says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." That means that the federal gov't can only do what it is empowered to do, and no more. In contrast, what you've described is the classic (and hideous) "tyranny of the majority" scenario, where we have no rights (or property) but what the almighty state graciously suffers us to have. That makes us a nation of grovelers, not free persons.
And, no, I gave them no such power to launch space probes. I gave them the power to maintain a post office, to coin money, etc. (it's all there in Article I). In 1868 (or so), I gave them the power to enforce the 14th Amendment. But, if it's not on the list, I did NOT give it to them, and no one else did, either. The arrogant federal government may have assumed these powers by force, or one part of the gov't may have pretended to "give" it to the other, but that's not exactly legitimate, now is it?
Posted by ludwig at January 22, 2004 03:21 PM
the Constitution because, in the words of Stanley Fish, one of the Left's darling academic postmodernists, everything is policital.
And, things get political really fast whenever a government program costs $15.5 billion (for fiscal 2004). That's $15.5 billion that we the people didn't get to choose how to spend. Washington decided for us.
I also thought it might be about the Constitution because I this site is openly geared toward people who think themselves "politically active and aware" (even if that doesn't include those who "passionately believe in progressive causes.") Unless, of course, being against "freedom from government intrusion" doesn't include opposing the annual seizure of $15.5 billion from the people to spend on projects of questionable and speculative value, especially high-dollar robot projects that never seem to have a money-back guarantee when they crap out in the first ten minutes, and especially those projects that plainly exceed the federal government's legal authority to begin in the first place.
That's how.
I won't presume to tell anyone what to do, but I think you will find the WWdN comments section to be a poor place for an arguement about constitutional law. Actually, argueing anywhere on the internet seems pretty fruitless. Now if you were to write your own essay and post it somewhere appropriate on the web, that might perhaps make people think or even persuade them of something. Just a humble suggestion. YMMV.
Posted
jbay- I got to meet one of those guys who drives the rover. He's as excited as the rest of us are.
I think that's one of the reasons all these missions are so "personal" for people like us . . . the folks who are running the project could easily be part of our gaming groups, or science clubs, or whatever.
And the argument about the Constitution has no place in this thread. Please take it elsewhere.
Posted by wil at January 22, 2004 08:09 PM
in response to:maybe one of the WWdN readers can explain this -- what is the legal basis for the federal government's assertion of a power to conduct space exploration? I thought we had a federal gov't of enumerated powers, and launching space probes isn't in the Constitution, last I read it.
In a less legally technical vein, what is the moral justification for forcibly taxing people so the gov't can spend their money on space projects? why is this a legitimate government expense? how does it help secure our natural rights to have the gov't do these things? if there is a commercial benefit, why wouldn't private persons voluntarily fund such projects (other than, of course, the fact that the taxpayer has already picked up the bill)?
just curious.
Posted by ludwig at January 22, 2004 02:45 PM
ludwig -
Legal basis? It's in the Constitution. It goes like this:
You elect people to represent you in the government. You give them the power to decide for you how much tax you pay and what they can spend it on. If you don't like how they represent you, you vote for someone else next time around.
At some point in time, people who represented a majority of this country voted to create NASA and fund it with tax dollars, hence space travel as a government function.
There are a LOT of things that the government does that aren't in the Constitution. And you give them the power to do it.
Posted by Chris B at January 22, 2004 02:58 PM
I hope you are being ironic, Chris B. While I agree that is the way things work in practice today, that is positively NOT what our Constitution says. It says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." That means that the federal gov't can only do what it is empowered to do, and no more. In contrast, what you've described is the classic (and hideous) "tyranny of the majority" scenario, where we have no rights (or property) but what the almighty state graciously suffers us to have. That makes us a nation of grovelers, not free persons.
And, no, I gave them no such power to launch space probes. I gave them the power to maintain a post office, to coin money, etc. (it's all there in Article I). In 1868 (or so), I gave them the power to enforce the 14th Amendment. But, if it's not on the list, I did NOT give it to them, and no one else did, either. The arrogant federal government may have assumed these powers by force, or one part of the gov't may have pretended to "give" it to the other, but that's not exactly legitimate, now is it?
Posted by ludwig at January 22, 2004 03:21 PM
the Constitution because, in the words of Stanley Fish, one of the Left's darling academic postmodernists, everything is policital.
And, things get political really fast whenever a government program costs $15.5 billion (for fiscal 2004). That's $15.5 billion that we the people didn't get to choose how to spend. Washington decided for us.
I also thought it might be about the Constitution because I this site is openly geared toward people who think themselves "politically active and aware" (even if that doesn't include those who "passionately believe in progressive causes.") Unless, of course, being against "freedom from government intrusion" doesn't include opposing the annual seizure of $15.5 billion from the people to spend on projects of questionable and speculative value, especially high-dollar robot projects that never seem to have a money-back guarantee when they crap out in the first ten minutes, and especially those projects that plainly exceed the federal government's legal authority to begin in the first place.
That's how.
I won't presume to tell anyone what to do, but I think you will find the WWdN comments section to be a poor place for an arguement about constitutional law. Actually, argueing anywhere on the internet seems pretty fruitless. Now if you were to write your own essay and post it somewhere appropriate on the web, that might perhaps make people think or even persuade them of something. Just a humble suggestion. YMMV.
Posted
Sunday, January 18, 2004
Coming soon:
A new comments section for blogs that don't have them.
It will be a .php forum,
sponsored by vesta mining company.
< H1>Index of /vesta< /H1>Index of /vesta
Name Last modified Size Description
--------------------------------------------------------------------------------
Parent Directory 18-Jan-2004 13:36 -
--------------------------------------------------------------------------------
Apache/1.3.27 Server at zorry.whyi.org Port 80
A new comments section for blogs that don't have them.
It will be a .php forum,
sponsored by vesta mining company.
< H1>Index of /vesta< /H1>Index of /vesta
Name Last modified Size Description
--------------------------------------------------------------------------------
Parent Directory 18-Jan-2004 13:36 -
--------------------------------------------------------------------------------
Apache/1.3.27 Server at zorry.whyi.org Port 80
Instapundit on global warming. He's for it. On Mars. Not a new idea, but well told.
Update on a post below: in addition to state con law, he has taught space law. Wonder if he's written a book.
I also liked this article on sodomy and state constitutions.
Update on a post below: in addition to state con law, he has taught space law. Wonder if he's written a book.
I also liked this article on sodomy and state constitutions.
merely amusing: 10 reasons philosophers don't make good shrinks. From: strange doctrines.
Lidster: finally got around to reading Lidster. The Supreme Court reversed the Illinois Supreme Court's ruling. Plaintiff erred in not relying on the state constitution.
Lidster involved a crime investigation roadblock. He drove drunk, putting an officer at risk. In contrast my roommate Joell Palmer was clean and sober when stopped in Edmonds v. Indianapolis.
Vice Squad blog suggests that guilty people lose 4th A. cases.
Glen Reynolds, the instapundit megablogger, is teaching a class in state con law in Tennesee, but I can't find anything online about it.
Lidster involved a crime investigation roadblock. He drove drunk, putting an officer at risk. In contrast my roommate Joell Palmer was clean and sober when stopped in Edmonds v. Indianapolis.
Vice Squad blog suggests that guilty people lose 4th A. cases.
Glen Reynolds, the instapundit megablogger, is teaching a class in state con law in Tennesee, but I can't find anything online about it.
Will's deeper lust .
I was at my club last night, and then the afterbar at my house, enjoying lust and ...what's the word for the sin of drunkenness.
Today I'll focus on sloth. See also Pure Lust by Mary Daly.
I was at my club last night, and then the afterbar at my house, enjoying lust and ...what's the word for the sin of drunkenness.
Today I'll focus on sloth. See also Pure Lust by Mary Daly.
Saturday, January 17, 2004
Woohoo! Just upgraded to a p3. bigger monitor, sharper text, sound, all that newfangled stuff. off to see how it handles video.
Wow. Sound. www.wilwheaton.net audio blog. I'll try the video after the old folks wander off - i'm hard put to think of video that's not pr0n.
Wow. Sound. www.wilwheaton.net audio blog. I'll try the video after the old folks wander off - i'm hard put to think of video that's not pr0n.
What would an immortal drive? The volokh conspirators have been discussing the following scenario: Driving entails risk. What if technology creates immortality, but does not create safer driving? The foreseeable risk that driving, sooner or later, will result in pedestrian fatality approaches certainty.
Does that make the driver a murderer?
My response: What's under discussion is how ethical systems need to respond to advancing lifespans.
Minor quibble: the driver is at most a manslaughterer - the accident, while foreseeable, is not immanently intentional. It is foreseeable that there will be some accident someday, but no plan to have this particular accident.
The hypo is a subset of the question about risk-aversity over time, where the timeframe is extended.
One observation: by extending the time frame, more situations can be characterized as a reiterated prisoner's dilemma. See Axelrod's seminal article on the evolution of cooperation.
Another: Ethics are survival strategies. Nothing more, nothing less.
A strategy that works in the short term may not work in the long term.
Past performance does not guarantee future results.
We live in a deathist culture which has not adjusted to the very real chance that those now living may live for hundreds of years.
My parents were methodists, following an ethic invented in the 1600s when lifespan averaged 40 years.
A few forward thinkers have adopted ethics that fit better in yesterday's world of 80 year lifespans. This is still far too short-sighted.
The singularity approaches. 2012, 2040, whenever, it is still within the lifespan of most of us.
Driving, along with smoking, swimming, and drunken swimming, is high risk.
The prospects of nuclear catastrophe seem more remote than they did in the 60s.
I want to live forever, via techniques such as AI and cloning.
I'm an extropian transhumanist.
I currently engage in risky behaviors:
I live in a city, smoke dope, ride my bike in traffic.
I've run over a pedestrian - a baby raccoon. I have guilt and angst over that.
Please join me in contributing to PETA and ALF.
I've totaled my car. I've fallen off my bike, waking up in the hospital.
My pal johnny was 25 when he died of lung cancer.
My circle of friends are in their early 20s and all smoke - I hate their deathism.
War, of the iraq variety, is deathist. Millions of arab and persian kids will grow up wanting revenge on bush. Personal wmd get cheaper every year.
Bush is very pro-deathist, as shown by his opposition to cloning research.
I tend to think that Libertarianism is a post-deathist ethic - live and let live.
I could be wrong, but it's no coincidence that extropians embrace anarcho-capitalism, and see democracy as ludicrously outmoded as belief in a divine right of kings.
It is frustrating for me as an extropian to live in a deathist culture.
I drive now and then, but I'm less plugged into the automotive culture, and tend to telecommute.
I recently relocated further out in the country because of immediate death risks at my home/office in the hood. I try to manage risk. I've had a bit of unsafe sex, been tested, try to remember to avoid such behaviors.
I have to make tradeoffs between my long term goals, which include getting off the planet, and the ever-present question of what shall i do today.
Staying home is not optimum. Most accidents happen at home in the kitchen.
You are greater risk from your spouse than from anyone else.
I've made a few of the points I wanted to make, although I sense I'm rambling a bit. I'm going to go take a bath. I hope I don't drown. Tonight I will drive back to my house and do illegal dangerous drugs with illegal dangerous people, because otherwise the loneliness and resulting depression could kill me. Life entails risk.
Long life requires managing that risk.
These days, I am somewhat optimistic that I will live to see the singularity and have access to life extension and intellegence enhancement. This has been the wave i've been riding since 1969: right now things are bad, but hold on, because it's getting better. On the other hand, recently a guy had a gun to my head, saying he was going to kill me, and I had a chance to think about my life so far, and I'm pleased. It's been a good ride, and if I have to get off at the next stop, that's ok.
Does that make the driver a murderer?
My response: What's under discussion is how ethical systems need to respond to advancing lifespans.
Minor quibble: the driver is at most a manslaughterer - the accident, while foreseeable, is not immanently intentional. It is foreseeable that there will be some accident someday, but no plan to have this particular accident.
The hypo is a subset of the question about risk-aversity over time, where the timeframe is extended.
One observation: by extending the time frame, more situations can be characterized as a reiterated prisoner's dilemma. See Axelrod's seminal article on the evolution of cooperation.
Another: Ethics are survival strategies. Nothing more, nothing less.
A strategy that works in the short term may not work in the long term.
Past performance does not guarantee future results.
We live in a deathist culture which has not adjusted to the very real chance that those now living may live for hundreds of years.
My parents were methodists, following an ethic invented in the 1600s when lifespan averaged 40 years.
A few forward thinkers have adopted ethics that fit better in yesterday's world of 80 year lifespans. This is still far too short-sighted.
The singularity approaches. 2012, 2040, whenever, it is still within the lifespan of most of us.
Driving, along with smoking, swimming, and drunken swimming, is high risk.
The prospects of nuclear catastrophe seem more remote than they did in the 60s.
I want to live forever, via techniques such as AI and cloning.
I'm an extropian transhumanist.
I currently engage in risky behaviors:
I live in a city, smoke dope, ride my bike in traffic.
I've run over a pedestrian - a baby raccoon. I have guilt and angst over that.
Please join me in contributing to PETA and ALF.
I've totaled my car. I've fallen off my bike, waking up in the hospital.
My pal johnny was 25 when he died of lung cancer.
My circle of friends are in their early 20s and all smoke - I hate their deathism.
War, of the iraq variety, is deathist. Millions of arab and persian kids will grow up wanting revenge on bush. Personal wmd get cheaper every year.
Bush is very pro-deathist, as shown by his opposition to cloning research.
I tend to think that Libertarianism is a post-deathist ethic - live and let live.
I could be wrong, but it's no coincidence that extropians embrace anarcho-capitalism, and see democracy as ludicrously outmoded as belief in a divine right of kings.
It is frustrating for me as an extropian to live in a deathist culture.
I drive now and then, but I'm less plugged into the automotive culture, and tend to telecommute.
I recently relocated further out in the country because of immediate death risks at my home/office in the hood. I try to manage risk. I've had a bit of unsafe sex, been tested, try to remember to avoid such behaviors.
I have to make tradeoffs between my long term goals, which include getting off the planet, and the ever-present question of what shall i do today.
Staying home is not optimum. Most accidents happen at home in the kitchen.
You are greater risk from your spouse than from anyone else.
I've made a few of the points I wanted to make, although I sense I'm rambling a bit. I'm going to go take a bath. I hope I don't drown. Tonight I will drive back to my house and do illegal dangerous drugs with illegal dangerous people, because otherwise the loneliness and resulting depression could kill me. Life entails risk.
Long life requires managing that risk.
These days, I am somewhat optimistic that I will live to see the singularity and have access to life extension and intellegence enhancement. This has been the wave i've been riding since 1969: right now things are bad, but hold on, because it's getting better. On the other hand, recently a guy had a gun to my head, saying he was going to kill me, and I had a chance to think about my life so far, and I'm pleased. It's been a good ride, and if I have to get off at the next stop, that's ok.
Three days of posts on volokh leave much to respond to.
It's an overwhelmingly amazing resource.
Among the topics:
what would an immortal drive?
new austrian journal at nyu
the rest of the story about the courthouse crawl - the plantiff Lane is a killer, a liar, and a habitual criminal, who staged the incident.
Speaking of liars (I saw part of big fat liar last night - frankie muniz is cute, but the movie will disapoint anyone over age 8.) here's a letter i just sent to national review's new deanism colomn:
This isn't exactly the kind of deanism you are looking for, but here's a meme i'd like to spread.
Dean's frontrunner status has been fueled by the internet.
I'd like each of those contributors and endorsers to take alook at American Booksellers v Dean. In that case, Dean's attempts to impose censorship on the internet were found unconstitutional for two reasons.
1) Commerce - Vermont is not in charge of the internet.
2) Freedom of speech - Dean can't compel adults on the internet to use babytalk, that is, to refrain from any speech that might be harmful to children.
There are several reasons people might object to Dean's stance as shown by that case.
1) the internet is a good thing, shutting down the internet via censorship is a bad thing.
2) he swore an oath of office to uphold the constitution,
and violated that oath by signing the internet censorship bill.
This country caan't afford another clintonesque compulsive liar.
(for the record, i find bush equally offensive; i am disapointed that no party seems to be able to find an honest man who will uphold the oath of office to support the constitution.)
neologism: if a dean comment is tagged as a deanism, can we say it's been byorked?
It's an overwhelmingly amazing resource.
Among the topics:
what would an immortal drive?
new austrian journal at nyu
the rest of the story about the courthouse crawl - the plantiff Lane is a killer, a liar, and a habitual criminal, who staged the incident.
Speaking of liars (I saw part of big fat liar last night - frankie muniz is cute, but the movie will disapoint anyone over age 8.) here's a letter i just sent to national review's new deanism colomn:
This isn't exactly the kind of deanism you are looking for, but here's a meme i'd like to spread.
Dean's frontrunner status has been fueled by the internet.
I'd like each of those contributors and endorsers to take alook at American Booksellers v Dean. In that case, Dean's attempts to impose censorship on the internet were found unconstitutional for two reasons.
1) Commerce - Vermont is not in charge of the internet.
2) Freedom of speech - Dean can't compel adults on the internet to use babytalk, that is, to refrain from any speech that might be harmful to children.
There are several reasons people might object to Dean's stance as shown by that case.
1) the internet is a good thing, shutting down the internet via censorship is a bad thing.
2) he swore an oath of office to uphold the constitution,
and violated that oath by signing the internet censorship bill.
This country caan't afford another clintonesque compulsive liar.
(for the record, i find bush equally offensive; i am disapointed that no party seems to be able to find an honest man who will uphold the oath of office to support the constitution.)
neologism: if a dean comment is tagged as a deanism, can we say it's been byorked?
Friday, January 16, 2004
Update on rand post:
Happy Night of January 16th, everybody.
The night of January 16th is one of my favorite Rand pieces, little known.
Happy Night of January 16th, everybody.
The night of January 16th is one of my favorite Rand pieces, little known.
Thursday, January 08, 2004
Freespace points to an ayn rand screenplay, love letters, that i'd never heard of. spoilers at amazon.
_________________
My pal wil has a friend who needs a lawyer.
Do we know any lawyers?
"retroCRUSH ripped off
RetroCRUSH is a pop culture website run my my friend Robert Berry.
On November 20, 2003, Robert wrote a humorous article called The Worst Sex Scenes Ever: A Look At The Most Unsexy Sex Scenes".
On December 30, 2003, his article was stolen by the UK Tabloid The Daily Star. Robert writes,
"The UK tabloid 'The Daily Star' printed the same feature, with the same movies I used (even failing to omit a joke entry for the film Deliverance that I also included in my feature). Instead of crediting my site, however, they credited a seemingly fictitious American magazine named FILM. Not only did they highlight the films I mentioned, but they lifted three separate quotes from my article and attributed them to FILM magazine readers who responded to a (apparently non-existent) poll."
It was subsequently syndicated to at least 30 other news organizations without crediting Robert, who is the author of the story.
Robert recounts his conversation with Kieran Saunders, the News Editor at the tabloid:
"He said, 'Well, if it's on the internet it's up for grabs. You can't copyright anything on the internet.' I told him that was untrue and he then refused to speak with me further, and said all future communication needed to be sent to their legal contact, Steven Bacon in London. I even tried to call back an hour later to speak with the actual author of the piece, Emily Rose, and Saunders answered the phone, stating, 'I told you never to call here again, speak to our legal group' before ending the call."
Robert is looking for a copyright attorney who is interested in handling this slam-dunk case. His contact info is at RetroCRUSH."
Do we know any lawyers?
"retroCRUSH ripped off
RetroCRUSH is a pop culture website run my my friend Robert Berry.
On November 20, 2003, Robert wrote a humorous article called The Worst Sex Scenes Ever: A Look At The Most Unsexy Sex Scenes".
On December 30, 2003, his article was stolen by the UK Tabloid The Daily Star. Robert writes,
"The UK tabloid 'The Daily Star' printed the same feature, with the same movies I used (even failing to omit a joke entry for the film Deliverance that I also included in my feature). Instead of crediting my site, however, they credited a seemingly fictitious American magazine named FILM. Not only did they highlight the films I mentioned, but they lifted three separate quotes from my article and attributed them to FILM magazine readers who responded to a (apparently non-existent) poll."
It was subsequently syndicated to at least 30 other news organizations without crediting Robert, who is the author of the story.
Robert recounts his conversation with Kieran Saunders, the News Editor at the tabloid:
"He said, 'Well, if it's on the internet it's up for grabs. You can't copyright anything on the internet.' I told him that was untrue and he then refused to speak with me further, and said all future communication needed to be sent to their legal contact, Steven Bacon in London. I even tried to call back an hour later to speak with the actual author of the piece, Emily Rose, and Saunders answered the phone, stating, 'I told you never to call here again, speak to our legal group' before ending the call."
Robert is looking for a copyright attorney who is interested in handling this slam-dunk case. His contact info is at RetroCRUSH."
http://justicethomas.tripod.com/ The justice Thomas appreciation page. Nice to know it's there. No sarcasm - Thomas has turned out to be an innovative and thoughtful defender of the constitution. Link via stuart buck, one of those bloggers I never read.
A link to an article about Thomas and McIntyre is unfortunately dead.
Another section of the site discusses Thomas' opinion in Edmonds v. Indianapolis. My housemate Joell was a plaintiff in that case.
A link to an article about Thomas and McIntyre is unfortunately dead.
Another section of the site discusses Thomas' opinion in Edmonds v. Indianapolis. My housemate Joell was a plaintiff in that case.
Note to self:
Moresi v. Department of Wildlife and Fisheries, 567 So. 2d 1081, 1093 (La. 1990) may speak to issue of damages under state constitution (Louisiana).
Moresi v. Department of Wildlife and Fisheries, 567 So. 2d 1081, 1093 (La. 1990) may speak to issue of damages under state constitution (Louisiana).
You can't find the california costitution's bill of rights by googling for california constitution bill of rights speech. But I found soemthing better - a discussion of when you can get or not get damages for violation of a state con right of free speech. Not in CA, but the case should link to other cases or have clues.
http://www.nsclc.org/federalrights/calconst123102.html
In Katzberg v. The Regents of the University of California, the California Supreme Court held that there was no implied private right of action to sue in damages for a violation of the due process clause of the California Constitution. 127 Cal. Rptr. 480 (2002). In DeGrassi v. Cook, 127 Cal. Rptr 508 (2002), it reached the same result in a damage action for violation of plaintiff's right to free speech under the State Constitution.
These cases are new enough I hadn't seen them before. Off to google for degrassi v cook.
related case -degrassi isn't very likeable, and raised some frivolous claims in related federal action, may have affected the court's approach.
Grr! since when do you need to register to view cases at findlaw? since they got bought by west or somebody evil? grr.
So the case does exist but i can't find it online, and am 10 miles from a law library. Ah here it is.
Full circle, the case contains the state free speech provision I was looking for:"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Ibid.)
Ok, bad example - that one, from California, where Eugene is, is not textually strong.
Let's compare, say, Illinois. Off for more googling.
SECTION 5. RIGHT TO ASSEMBLE AND PETITION
The people have the right to assemble in a peaceable
manner, to consult for the common good, to make known their
opinions to their representatives and to apply for redress of
grievances.
No weasel words there; it seems textually strong. The illinois speech clause, section 4, is weak but section 5 looks good.
Back to Degrassi: the california court declined to allow damages in her case, but did not forclose the issue of damages in a case with better facts and equities - degrassi was a somewhat frivolous plaintiff.
So the issue remains open. Unfortunately, the case did not list cases from other jurisdictions.
http://www.nsclc.org/federalrights/calconst123102.html
In Katzberg v. The Regents of the University of California, the California Supreme Court held that there was no implied private right of action to sue in damages for a violation of the due process clause of the California Constitution. 127 Cal. Rptr. 480 (2002). In DeGrassi v. Cook, 127 Cal. Rptr 508 (2002), it reached the same result in a damage action for violation of plaintiff's right to free speech under the State Constitution.
These cases are new enough I hadn't seen them before. Off to google for degrassi v cook.
related case -degrassi isn't very likeable, and raised some frivolous claims in related federal action, may have affected the court's approach.
Grr! since when do you need to register to view cases at findlaw? since they got bought by west or somebody evil? grr.
So the case does exist but i can't find it online, and am 10 miles from a law library. Ah here it is.
Full circle, the case contains the state free speech provision I was looking for:"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Ibid.)
Ok, bad example - that one, from California, where Eugene is, is not textually strong.
Let's compare, say, Illinois. Off for more googling.
SECTION 5. RIGHT TO ASSEMBLE AND PETITION
The people have the right to assemble in a peaceable
manner, to consult for the common good, to make known their
opinions to their representatives and to apply for redress of
grievances.
No weasel words there; it seems textually strong. The illinois speech clause, section 4, is weak but section 5 looks good.
Back to Degrassi: the california court declined to allow damages in her case, but did not forclose the issue of damages in a case with better facts and equities - degrassi was a somewhat frivolous plaintiff.
So the issue remains open. Unfortunately, the case did not list cases from other jurisdictions.
Eugene Volokh has an NRO article arguing that there is no historical golden age* of the first amendment. He contrasts pre-incorporation doctrine first amendment with state free speech clauses.
My point is that he underestimates the text of those state clauses, which are more absolutist than the first amendment. Those state clauses have too often been interpreted as conferring no rights, and being subject to the police power, but that isn't a textual problem.
The first amendment protects the freedom of speech, while the state clauses protect speech.
Update: the above was based on what he had blogged about feedback to his article. Volokh writes so much and so well that i'd forgotten i'd read the article already.
Minor quibbles:
Do people have a constitutional right to send death threats to the president, or publicly threaten other forms of terrorism?
Yes, yes they do. First mior quibble, "other" does not fit here; threatening the commander in chief is not terrorism, which by definition targets non-combatants.
One may need to review Fraiser's the golden bough (the one volume set is fine, not the 13 volume set) to understand that killing the king is a time honored tradition. Regicide is not murder; it is justifiable pest control. Sic semper tyrannus. (this is a general point of theory, and is not directed at any particular rex.)
Death threats, even if they aren't accompanied by any actual violence, aren't a valuable contribution to public debate, and are potentially very harmful. So we could ban those works of shakespeare which contain death threats? How about, give me liberty or give me death, is that a death threat? "Nobody move or the duck gets it." -obscure ducktales reference.
Again, minor quibble to fine article.
Likewise, restricting campaign contributions is not literally "abridging the freedom of speech." People are still free to speak. The law only limits their ability to give money to officeholders, candidates, and groups that are closely connected to them — just as federal rules have long limited people's ability to give gifts to officeholders, for fear that such gifts might be implicit bribes.
There's some word-play here. In the name of campaign finance reform, laws like BCRA do directly limit speech, criminalizing some statements.
E.g. "Robbin Stewart for Township board - Vote Tuesday." See Stewart v Taylor.
I think it is those restrictions on speech which conservatives are objecting to, as well as the restrictions on expressive spending.
I didn't actually find anything in the article about state speech clauses.
My point is that he underestimates the text of those state clauses, which are more absolutist than the first amendment. Those state clauses have too often been interpreted as conferring no rights, and being subject to the police power, but that isn't a textual problem.
The first amendment protects the freedom of speech, while the state clauses protect speech.
Update: the above was based on what he had blogged about feedback to his article. Volokh writes so much and so well that i'd forgotten i'd read the article already.
Minor quibbles:
Do people have a constitutional right to send death threats to the president, or publicly threaten other forms of terrorism?
Yes, yes they do. First mior quibble, "other" does not fit here; threatening the commander in chief is not terrorism, which by definition targets non-combatants.
One may need to review Fraiser's the golden bough (the one volume set is fine, not the 13 volume set) to understand that killing the king is a time honored tradition. Regicide is not murder; it is justifiable pest control. Sic semper tyrannus. (this is a general point of theory, and is not directed at any particular rex.)
Death threats, even if they aren't accompanied by any actual violence, aren't a valuable contribution to public debate, and are potentially very harmful. So we could ban those works of shakespeare which contain death threats? How about, give me liberty or give me death, is that a death threat? "Nobody move or the duck gets it." -obscure ducktales reference.
Again, minor quibble to fine article.
Likewise, restricting campaign contributions is not literally "abridging the freedom of speech." People are still free to speak. The law only limits their ability to give money to officeholders, candidates, and groups that are closely connected to them — just as federal rules have long limited people's ability to give gifts to officeholders, for fear that such gifts might be implicit bribes.
There's some word-play here. In the name of campaign finance reform, laws like BCRA do directly limit speech, criminalizing some statements.
E.g. "Robbin Stewart for Township board - Vote Tuesday." See Stewart v Taylor.
I think it is those restrictions on speech which conservatives are objecting to, as well as the restrictions on expressive spending.
I didn't actually find anything in the article about state speech clauses.
Important post over at ballots.blogspot.com
where i'm looking for proofreadig and feedback of a draft of a brief to judge posner on how McConnell v FEC impacts my ongoing disclaimer case.
where i'm looking for proofreadig and feedback of a draft of a brief to judge posner on how McConnell v FEC impacts my ongoing disclaimer case.
Wednesday, January 07, 2004
http://www.roadtosurfdom.com/surfdomarchives/001797.php
Great story about new orleans, a dwarf, the truth.
Also, unrelated, old friend duncan frissell is blogging at
http://technoptimist.blogspot.com/
Great story about new orleans, a dwarf, the truth.
Also, unrelated, old friend duncan frissell is blogging at
http://technoptimist.blogspot.com/
know your judges:
http://www.lawhaha.com/strange.asp#A0
“Judge Evans, it’s ESPN on the phone.” (New)
If Chris Berman ever leaves ESPN, I have the perfect replacement candidate: Judge Terence T. Evans of the U.S. Court of Appeals for the Seventh Circuit. Here’s a guy with such a deep love for sports that he began his opinion in Hunt’s Generator Committee v. Babcock & Wilcox Co. expressing the wistful sentiment that he would rather be getting ready to watch the World Series than writing an opinion about successor liability for a landfill cleanup. He asked forgiveness if his mind wandered a bit in the opinion.
And wander it did. Reciting the dates of the landfill’s operation sparked fond baseball memories for Judge Evans.
So what that the landfill began operating in September 1959. That date has much more important baseball significance, as Judge Evans explained in this footnote:
FN1. September of 1959 was an exciting time. The San Francisco Giants--who blew off Manhattan's Polo Grounds after the 1957 season--were leading the Dodgers and the Braves (Milwaukee, not Atlanta) by two games with eight to go in the race for the National League Pennant. But the Giants were playing in old Seals Stadium (a minor league park), a place not suited for World Series play. If they made it to the Series, they thought, they might want to play in the yet unfinished Candlestick Park. They were in a pickle--which way would they go? Fortunately, their old friends, the Dodgers (who, like the Giants, had broken hearts the year before by running away from Ebbets Field) came to the rescue. The Dodgers beat the Giants three straight times over the weekend of September 19-20, sending the Giants reeling into third place. There would be no need to choose between Candlestick Park and Seals Stadium. ...
Another party operated the landfill until September 1970, but again, Judge Evans was distracted by the date’s importance to the national pastime:
FN2. In September of 1970, the Milwaukee Brewers were drawing the curtain on their maiden campaign in Milwaukee. Despite the fact that they finished 65-97, 33 games out of the race, baseball was back in town and Milwaukee fans were loving it.
Other important dates included April 8, 1975, the day asset acquisition on the landfill was closed, but more significantly:
FN4. April 8, 1975, was the one-year anniversary of Henry Aaron's historical 715th dinger which broke Babe Ruth's lifetime record of 714.
In Olinger v. U.S. Golf Ass’n, Judge Evans demonstrated that his sports knowledge is not limited to baseball. Olinger was a suit by a disabled professional golfer seeking to be allowed to use a golf cart in the U.S. Open, in conflict with the rule that all participants must walk (the U.S. Supreme Court later decided in golfer Casey Martin's case that the rule must give way under the ADA).
Judge Evans’ defense of the tradition that players must walk is not only impassioned, but provides enough golf factoids to fill a Trivial Pursuit game dedicated solely to golf (fitting, since the activity is one of the quintessential trivial pursuits). For example, did you know that the official “Rules of Golf” provide a two-stroke penalty for asking an opponent how far away he thinks the green is?
Kudos to Judge Evans for giving us his scholarly bent on sports in these two entertaining and interesting opinions.
— Hunt’s Generator Committee v. Babcock & Wilcox Co., 863 F.Supp. 879 (E.D. Wis. 1994); Olinger v. U.S. Golf Ass’n, 205 F.3d 1001 (7th Cir. 2000). (Thanks to Cynthia Cohan.)
(Return to top of page)
http://www.lawhaha.com/strange.asp#A0
“Judge Evans, it’s ESPN on the phone.” (New)
If Chris Berman ever leaves ESPN, I have the perfect replacement candidate: Judge Terence T. Evans of the U.S. Court of Appeals for the Seventh Circuit. Here’s a guy with such a deep love for sports that he began his opinion in Hunt’s Generator Committee v. Babcock & Wilcox Co. expressing the wistful sentiment that he would rather be getting ready to watch the World Series than writing an opinion about successor liability for a landfill cleanup. He asked forgiveness if his mind wandered a bit in the opinion.
And wander it did. Reciting the dates of the landfill’s operation sparked fond baseball memories for Judge Evans.
So what that the landfill began operating in September 1959. That date has much more important baseball significance, as Judge Evans explained in this footnote:
FN1. September of 1959 was an exciting time. The San Francisco Giants--who blew off Manhattan's Polo Grounds after the 1957 season--were leading the Dodgers and the Braves (Milwaukee, not Atlanta) by two games with eight to go in the race for the National League Pennant. But the Giants were playing in old Seals Stadium (a minor league park), a place not suited for World Series play. If they made it to the Series, they thought, they might want to play in the yet unfinished Candlestick Park. They were in a pickle--which way would they go? Fortunately, their old friends, the Dodgers (who, like the Giants, had broken hearts the year before by running away from Ebbets Field) came to the rescue. The Dodgers beat the Giants three straight times over the weekend of September 19-20, sending the Giants reeling into third place. There would be no need to choose between Candlestick Park and Seals Stadium. ...
Another party operated the landfill until September 1970, but again, Judge Evans was distracted by the date’s importance to the national pastime:
FN2. In September of 1970, the Milwaukee Brewers were drawing the curtain on their maiden campaign in Milwaukee. Despite the fact that they finished 65-97, 33 games out of the race, baseball was back in town and Milwaukee fans were loving it.
Other important dates included April 8, 1975, the day asset acquisition on the landfill was closed, but more significantly:
FN4. April 8, 1975, was the one-year anniversary of Henry Aaron's historical 715th dinger which broke Babe Ruth's lifetime record of 714.
In Olinger v. U.S. Golf Ass’n, Judge Evans demonstrated that his sports knowledge is not limited to baseball. Olinger was a suit by a disabled professional golfer seeking to be allowed to use a golf cart in the U.S. Open, in conflict with the rule that all participants must walk (the U.S. Supreme Court later decided in golfer Casey Martin's case that the rule must give way under the ADA).
Judge Evans’ defense of the tradition that players must walk is not only impassioned, but provides enough golf factoids to fill a Trivial Pursuit game dedicated solely to golf (fitting, since the activity is one of the quintessential trivial pursuits). For example, did you know that the official “Rules of Golf” provide a two-stroke penalty for asking an opponent how far away he thinks the green is?
Kudos to Judge Evans for giving us his scholarly bent on sports in these two entertaining and interesting opinions.
— Hunt’s Generator Committee v. Babcock & Wilcox Co., 863 F.Supp. 879 (E.D. Wis. 1994); Olinger v. U.S. Golf Ass’n, 205 F.3d 1001 (7th Cir. 2000). (Thanks to Cynthia Cohan.)
(Return to top of page)
Saturday, January 03, 2004
I'm reading "My brother Lyndon" by Sam Houston Johnson,
who claims he (lbj) invented the space program.
US Mission to mars about to touch down.
update: it's landed, sending back nice pics.
info via bill gates:
1964 U.S. launches Mariner 3, which fails after liftoff.
1964 U.S. launches Mariner 4. First successful Mars fly-by in July 1965. The craft returns the first pictures of the Martian surface.
1964 Soviets launch Zond 2. Mars fly-by. Contact lost in May 1965.
1969 U.S. launches Mariner 6 and 7. The two spacecraft fly by Mars in July and August 1969 and send back images and data.
1971 Soviets launch Mars 2. Orbiter and lander reach Mars in November 1971. Lander crashes but orbiter sends back images and data.
1971 U.S. launches Mariner 8, which fails during liftoff.
1971 U.S. launches Mariner 9. Orbiter reaches Mars in November 1971, provides global mapping of Martian surface and studies atmosphere.
1973 Soviets launch Mars 5. Orbiter reaches Mars in February 1974 and collects data.
1975 U.S. launches Viking 1 and Viking 2. The two orbiter/lander sets reach Mars in 1976. Orbiters image Martian surface. Landers send back images and take surface samples.
1992 U.S. launches Mars Observer. Contact lost with orbiter in August 1993, three days before scheduled insertion into Martian orbit.
1996 U.S. launches Mars Global Surveyor. Orbiter reaches Mars in September 1997 and maps the planet. Still in operation.
1996 Soviets launch Mars 96, which fails after launch and falls back into Earth's atmosphere.
1996 U.S. launches Mars Pathfinder. Lander and rover arrive on Mars in July 1997, in the most-watched space event ever. Lander sends back thousands of images, and Sojourner rover roams the surface, sending back 550 images.
1998 Japan launches Nozomi. Orbiter suffers glitch in December 1998, forcing circuitous course correction. Mission fails in 2003.
1998 U.S. launches Mars Climate Orbiter. Spacecraft destroyed while entering Martian orbit in September 1999.
1999 U.S. launches Mars Polar Lander. Contact lost with lander during descent in December 1999. Two microprobes "hitchhiking" on lander also fail.
2001 U.S. launches Mars Odyssey. Orbiter reaches Mars in October 2001 to detect water and shallow buried ice and study the environment. It can also act as a communications relay for future Mars landers.
2003 European Space Agency launches Mars Express. Orbiter and lander to arrive at Mars in December 2003.
2003 U.S. launches Mars Expedition Rovers. Spirit and Opportunity rovers due to land on Mars in January 2004.
who claims he (lbj) invented the space program.
US Mission to mars about to touch down.
update: it's landed, sending back nice pics.
info via bill gates:
1964 U.S. launches Mariner 3, which fails after liftoff.
1964 U.S. launches Mariner 4. First successful Mars fly-by in July 1965. The craft returns the first pictures of the Martian surface.
1964 Soviets launch Zond 2. Mars fly-by. Contact lost in May 1965.
1969 U.S. launches Mariner 6 and 7. The two spacecraft fly by Mars in July and August 1969 and send back images and data.
1971 Soviets launch Mars 2. Orbiter and lander reach Mars in November 1971. Lander crashes but orbiter sends back images and data.
1971 U.S. launches Mariner 8, which fails during liftoff.
1971 U.S. launches Mariner 9. Orbiter reaches Mars in November 1971, provides global mapping of Martian surface and studies atmosphere.
1973 Soviets launch Mars 5. Orbiter reaches Mars in February 1974 and collects data.
1975 U.S. launches Viking 1 and Viking 2. The two orbiter/lander sets reach Mars in 1976. Orbiters image Martian surface. Landers send back images and take surface samples.
1992 U.S. launches Mars Observer. Contact lost with orbiter in August 1993, three days before scheduled insertion into Martian orbit.
1996 U.S. launches Mars Global Surveyor. Orbiter reaches Mars in September 1997 and maps the planet. Still in operation.
1996 Soviets launch Mars 96, which fails after launch and falls back into Earth's atmosphere.
1996 U.S. launches Mars Pathfinder. Lander and rover arrive on Mars in July 1997, in the most-watched space event ever. Lander sends back thousands of images, and Sojourner rover roams the surface, sending back 550 images.
1998 Japan launches Nozomi. Orbiter suffers glitch in December 1998, forcing circuitous course correction. Mission fails in 2003.
1998 U.S. launches Mars Climate Orbiter. Spacecraft destroyed while entering Martian orbit in September 1999.
1999 U.S. launches Mars Polar Lander. Contact lost with lander during descent in December 1999. Two microprobes "hitchhiking" on lander also fail.
2001 U.S. launches Mars Odyssey. Orbiter reaches Mars in October 2001 to detect water and shallow buried ice and study the environment. It can also act as a communications relay for future Mars landers.
2003 European Space Agency launches Mars Express. Orbiter and lander to arrive at Mars in December 2003.
2003 U.S. launches Mars Expedition Rovers. Spirit and Opportunity rovers due to land on Mars in January 2004.
Friday, January 02, 2004
gop porn via diotima
Thursday, January 01, 2004
Cres-cat Mr. Baude has been reminding me of the rules of scrabble.
These rules were compiled and agreed upon by the National SCRABBLE® Association Rules Committee, formed by Mr. John Williams in 1987. The current Committee members are as follows: Nick Ballard (San Francisco, CA), Chris Cree (Dallas, TX), Joe Edley (Greenport, NY), Paul Epstein (Ann Arbor, MI), Jan Dixon (Marietta, GA), Dave Johnson (Lafayette, LA), Sam Kantimathi (El Dorado Hills, CA) Robert Mulet (Miami, FL), Stan Rubinsky (San Diego, CA), Charlie Southwell (Arlington, CA), Ron Tiekert (New York City, NY) and Mike Wise (Willowdale, Ontario, Canada).
These rules were compiled and agreed upon by the National SCRABBLE® Association Rules Committee, formed by Mr. John Williams in 1987. The current Committee members are as follows: Nick Ballard (San Francisco, CA), Chris Cree (Dallas, TX), Joe Edley (Greenport, NY), Paul Epstein (Ann Arbor, MI), Jan Dixon (Marietta, GA), Dave Johnson (Lafayette, LA), Sam Kantimathi (El Dorado Hills, CA) Robert Mulet (Miami, FL), Stan Rubinsky (San Diego, CA), Charlie Southwell (Arlington, CA), Ron Tiekert (New York City, NY) and Mike Wise (Willowdale, Ontario, Canada).
