Wednesday, January 28, 2004
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
Comments:
Post a Comment
