"A teenager arrested on Remembrance Sunday on suspicion of posting a picture of a burning poppy on Facebook is being questioned by police."

"The 19-year-old was held after the image of a poppy being set ablaze by a lighter was reportedly posted online with the caption: 'How about that you squadey cunts.'"

"More Americans now commit suicide than are killed in car crashes as miserable economy takes its toll.”

That's the headline asserting causation based on correlation and... there actually isn't even correlation.

Quite apart from that, if car crashes decrease and suicides increase, maybe all that is really happening is that the car crash method of suicide is becoming less popular. That is, previously, some suicides were hidden within the car crash numbers. Suicide numbers will go up if the method used for a suicide makes it crushingly clear it wasn't an accident. I'll speculate that guns cause a high proportion of suicides in part for this reason.

"There's a special place in purgatory reserved for scientists who make bold claims based on tiny effects of uncertain origin..."

"... and an extra-long sentence is imposed on those who also keep their data secret, publishing only hard-to-interpret summaries of statistical modeling."

The flames that purify their scientific souls will rise from the lake of lava that eternally consumes the journalists who further exaggerate their dubious claims. Those fires, alas, await Drew P. Cingel and S. Shyam Sundar, the authors of "Texting, techspeak, and tweens: The relationship between text messaging and English grammar skills", New Media & Society 5/11/2012....

(Via Volokh.)

Google hires lawprof blogger Eugene Volokh to make the argument that Google search results are protected speech.

There's no pending case, but Google anticipates litigation... and regulation:

[Volokh's] argument, fundamentally, is that when Google assembles search results, it is communicating with its readers, and making selections about what to communicate. In that way, it is the same as a print newspaper that prioritizes news on its front page; a guidebook that selects local attractions to highlight; or an online news aggregator like the Drudge Report.
Yes, the decisions by those kinds of organizations are made by people, while Google’s search results are made by computers that apply a supersecret algorithm, but who created that algorithm? Mr. Volokh asks.



“All these speakers must decide: Out of the thousands of possible items that could be included, which to include, and how to arrange those that are included?” Mr. Volokh writes. He adds that “all these exercises of editorial judgment are fully protected by the First Amendment.”

Interestingly, these First Amendment protections as a speaker are unrelated to the so-called safe harbor protections that shield Web sites like Google from responsibility for content that is created by others.

In that sense, Mr. Volokh said, “Google was getting the best of both worlds,” meaning the company could argue one position — it is a connector — when it comes to safe harbor, but another position — it is a publisher — when it comes to anticompetitive issues. To Mr. Volokh they are not mutually exclusive....

"When should knowing lies be restrictable on the ground that they cause emotional distress?"

Eugene Volokh paraphrases the question the Supreme Court Justices were asking yesterday, as they considered whether the Stolen Valor Act violates the First Amendment. Volokh opines:

[T]he potential chilling effect on true speech of punishing the lies about oneself (a matter on which one should rarely fear an honest mistake that could be misinterpreted as a deliberate lie) is less than the potential chilling effect on true speech of punishing lies about others. So this is one of the things that leads me to think that the Stolen Valor Act should be upheld....

Those people who think Citizens United was wrong because it saw corporations as people with free speech rights...

... what do they think about Google's stand against SOPA? Google is a big old corporation with way too much money and power....

Gunfight.

At the Volokh corral.

Eugene Volokh finds evidence that Asians are now white.

On the occasion of Gov. Nikki Haley identifying herself as white (when her ancestors come from India), he says:

"I first noticed this effect 10 years ago, at a party where a friend of mine commented that the guests were all white. I responded by mentioning about a dozen Asians; oh, she said, that’s right, but you know what I mean. At a recent UCLA conference I attended, two speakers complained that everyone on the panel was white, without even realizing that one of the speakers was ethnically Chinese, and another was an Asian Indian with skin darker than that of many American blacks."

It's an old question, who's white? Did you know that back in 1879, the Supreme Court seriously considered an argument that a black man was a "white person"? There was a federal statute that granted Indians a remedy against the United States when a "white person" committed a crime in Indian territory.

It is contended... that the term "white person," as here used, means no more then "not an Indian"...

The Court rejected that interpretation, however, because the terminology dated back to slavery times and...

It was, no doubt, thought if the United States made themselves liable only for such depredations as were committed by the whites,... Indians would be less likely to tolerate fugitive blacks in their country. Hence, as a means of preventing the escape of slaves, the change in the law was made.

The case is United States v. Perryman.

"People are free to discriminate based on sex, religion, race, and so on in their wills..."

... but what if, instead of specifying how much specific individuals get, the will says to divide things up according to religious law? Is the court supposed to figure out what the religious law requires? Eugene Volokh has a very interesting post about a case in which the court decided that the sons should get twice as much as the daughters because the will said to follow "Islamic Laws and Sharia." Looking at a Supreme Court case from 1968, Volokh thinks the Establishment Clause requires the court to refuse to make such a religious decision. Volokh also thinks "this rule is right..."

...  even though it does make things difficult for religious people who want the religious terms of their wills and contracts enforced. The alternative, after all, is for courts to take sides in deciding which rival religious view — say, which understanding of Islamic law — is right and which is wrong...

Fortunately, religious observers who want their disputes settled according to religious law generally have a simple solution: They can provide for arbitration by some religious tribunal that they choose, and courts will generally then enforce the result of that arbitration. Civil courts will no longer be called to decide what Islamic/Jewish/etc. law “really” requires, yet religious believers can have their disputes adjudicated under religious principles.

ADDED: Here's a hypothetical with religion taken out of it. A man has 2 children by 2 different women, who are of 2 different races. The will says that his estate shall go to the child who is racially superior.

"MORE ON VIBRATORS, from Eugene Volokh."

Possibly the most absurd teaser ever from Instapundit. Anyway, Glenn's been going crazy with the vibrators lately.

Oh, my lord, I just looked over to see what Volokh is doing with the vibrators. He's got a 1357-word post! You know, if you guys can go on long enough, women might not need vibrators.

Now, I'll actually read what Volokh says:

This is... a family blog, and you can’t very well start a family if you’re too interested in your vibrator.

Well, hell! It depends on how you use it!

So here’s a circumstance I’ve wondered about. Imagine that a close single female friend (just a friend) mentioned to you that she has a vibrator that’s shaped like a highly stylized penis....

Oh! These lawprofs and their hypos! In this one, a female friend volunteers that she loves her vibrator. Volokh says most people would think that's okay. Then, he changes the hypo — this is what lawprofs do with hypos — and the friend expressing love for the sex appliance is male. Volokh says "many people will think it’s a bit icky, in some hard to pin down way." He then explores 5 theories. You can go over there and read them. They all assume solo use of the vibrator, so it's really more about why people would rather think about a woman masturbating than think about a man masturbating. That's a matter of the sexual preference of the person doing the thinking.

"And of course I run a veritable forced labor camp here...

"... where the authors of our million comments are (doubtless to their shock and horror) entirely unpaid, even though they drive up our page views and thus our income stream. And remember: Every comment you write in response to this post is just further oppression of you. Have you no self-respect?"

Says Eugene Volokh at the end of a post pooh-poohing the lawsuit against the Huffington Post, which made lots of money without paying its writers.

When a ridiculous law is proposed, I assume it was designed to address some specific problem...

... and the drafter simply (and stupidly) forgot to think about what other things would be covered by the text. But this law, making it a 1st degree felony to photograph a farm, has so many inappropriate applications that it's hard to imagine a drafter that oblivious.

And what was the original specific problem that fired him up in the first place? There's this:

Organizations such as PETA and the Animal Rights Foundation of Florida contend [Sen. Jim Norman, R-Tampa] drafted the legislation in response to a number of high-profile exposés that revealed horrific conditions on farms around the country, and worry that without whistleblowers the industry will operate with impunity....

Why is the New York Times just noticing this?

Liberals (including President Obama) think the Supreme Court was wrong in Citizens United to say that corporations have free speech rights, but newspaper and book publishers are corporations. For some reason, the NYT is acting like it took a year to notice this hitch (which has been perfectly evident since the Citizens United litgation began in the lower courts). I guess the excuse for pretending not to see what was obvious is that it has been hoping to rely on the notion that some corporations have more rights than others. This new piece — a column by Adam Liptak — begins to concede that is an unworkable argument.

“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” Justice Kennedy wrote in Citizens United....

Eugene Volokh, a law professor at the University of California, Los Angeles, has reviewed the historical evidence. The bottom line, he said, is this: “If ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.”

But Liptak's column peters out with a quote from a lawprof who calls it a "difficult question" and...

There good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.

Yes, yes, it's obvious what the answer needs to be, and yet the debate must go on and on because it's so important to restrict the speech of people who organize themselves into corporations. Some of them. The bad guys. Not the good guys, like the ones who take a year to getting around to half-conceding the crushingly obvious.

Pissed off prof...

... pissing.

How did Althouse get to be #1 on the ranking of law prof blogs?

(Here are the rankings.)

So, then, how did this happen? Instapundit would unquestionably be #1, but Glenn had to take his public Site Meter down because it was interfering with ads. If you look at my Site Meter, Instapundit boosts my traffic. The other thing is that the first chart ranks by the number of page views, but if you scroll down, there is a second ranking by the number of visitors. On that second chart, I'm second (to The Volokh Conspiracy ). That has something to do with clicking into the comments threads. Not that the comments at Volokh aren't good, but there's a bit more action in the comments here, so a special thanks to the commenters here — along with all the readers who don't comment. You make blogging great fun for me.

Justice Breyer responds to pushback.

Or something.

(Whatever happened to refusing to comment on issues that might reach the Court in real cases? Or is that just get-through-the-Judiciary-Committee blather?)

ADDED: What scares me is the thought that, if Justice Breyer had heard cheers at the hint that he might protect the feelings of Muslims over the free speech of Rev. Jones, he would have gone the other way.

"NOT the ‘whiteman’s bitch.'"

The Wisconsin law says the names of independent candidates shall appear on the ballot along with "the party or principle of the candidates, if any, in 5 words or less, as shown on their nomination papers."

Ieshuh Griffin chose "NOT the ‘whiteman’s bitch.'" Somehow the Wisconsin Government Accountability Board decided it could say no to that and Eugene Volokh agrees [or doesn't actively disagree] with the decision.

Free speech is a bitch.

"The word voluntary is a little complicated...." and it actually somehow includes forcing you to do what we think you should do.

Cass Sunstein in full Orwellian mode (back in 2001):



Text:

Sites of one point of view agree to provide links to other sites, so that if you're reading a conservative magazine, they would provide a link to a liberal site and vice versa, just to make it easy for people to get access to competing views. Or maybe a pop-up on your screen that would show an advertisement or maybe even a quick argument for a competing view. [break] The best would be for this to be done voluntarily, but the word "voluntary" is a little complicated, and sometimes people don't do what's best for our society unless Congress holds hearings or unless the public demands it. And the idea would be to have a legal mandate as the last resort, and to make sure it's as neutral as possible if we have to get there, but to have that as, you know, an ultimate weapon designed to encourage people to do better.

I got to the link from Jonah Goldberg, and I also heard the audio on the Rush Limbaugh show yesterday, and I took the text from Media Matters, which critiques Rush (for associating Elena Kagan with the idea and for botching the meaning of "net neutrality") and refers us to a 2008 Bloggingheads diavlog in which Sunstein calls his own idea "bad." Here's the Bloggingheads segment (with Eugene Volokh!). I have not listened through it to figure out how far Sunstein may have walked back from his idea (and why).

"Very bad news for constitutional federalism."

Says Ilya Somin about today's decision in Comstock...

The big problem is not just that the Court ruled that Congress had the power to detain “sexually dangerous” federal prisoners who have already completed their sentences. By itself, this is a relatively minor policy (except, of course, for the people detained). The really dangerous element of the majority opinion is that it adopts the highly deferential “rational basis” test for assessing assertions of power under the Necessary and Proper Clause, holding that “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”

Though "the statute involved here is somewhat peculiar,"  so that it might be distinguished in future cases, Eugene Volokh says that the Chief Justice's joining the majority suggests that the Court has lost its taste for striking down federal laws on the ground that they exceed Congress's enumerated powers.

To be sure, the facts of this case are unusual, because the law here applies only to people who had already been convicted of federal crimes. But the majority’s rationale seems quite broad; it concludes that federal power challenges should be upheld so long as they are “rationally related to the implementation of a constitutionally enumerated power” — that’s the famously extremely deferential “rational basis” test....

But, "the case has little or no import for the constitutional challenges to the individual health insurance mandate," says Randy Barnett:

Comstock involved whether ample connection existed between the law incarcerating sexual predators after their federal criminal sentence had been completed and an enumerated power....

With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is “necessary and proper” to execute its power under the Commerce Clause. Moreover, the argument for “necessity” is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court’s normal deferential approach, finding “necessity” won’t be hard.

The problem with the mandate is whether it is a “proper” means to achieve a constitutional end. ...

In Comstock, nothing about the incarceration of sexually dangerous persons was alleged to be an “improper” means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power....

"But the sort of bisexual erasure that takes place when we say 'X can't be lesbian, she's dated men' (or 'X can't be gay, he's dated women') strikes me as pretty unsound..."

"... and not fair to a group that makes up a pretty big chunk of the non-straight population."

Says Eugene Volokh.

And there are also all those non-bisexual gay individuals who dated members of the opposite sex before they became convinced of their homosexuality or even after. People who are not sexually interested in each other may go out together to keep each other company as friends, to deflect rumors that they are homosexual, or for any number of other reasons.