The Volokh Conspiracy

My local Borders confirmed it.

please include the entire text of the post as well as the particular post's URL: This makes it much easier for us to read the post -- and thus much more likely that we will read it and consider linking to it.

A CBS News poll reports that women favor Bush 49-42; since the total margin for Bush is 50-41, this suggests that the margin for men must be around 51-40 or thereabouts, which means there's really no gender gap. A Newsweek poll from Sept. 9-10 showed likewise showed no gender gap (there, the gap was 0%, but the 2% gap is statistically indistinguishable from 0%).

On the other hand, a July 29-30 Newsweek poll showed a 10% gender gap (48-37 vs. 43-53); a July 8-9 Newsweek poll showed a 5% gender gap. I don't know why the results are different now, and I'm not sure whether it's a fluke or part of a trend. Still, it seems worth noting.

Thanks to InstaPundit for the pointer.

Conservatives often accuse liberals of "moral relativism." Now I surely disagree with most liberals on many specific moral issues. But I'm puzzled about exactly what the commonly heard charge of moral relativism in general, as opposed to a charge of moral error on a particular issue, means.

I take it that it can't be that liberals don't believe in moral principles. They surely do: Most liberals, for instance, believe that race discrimination is wrong, rape is wrong, murder is wrong, legal interference with a woman's right to get an abortion (at least until a certain gestational age) is wrong, and so on.

Now it's true that, to liberals, some of these principles admit of exceptions — but surely this is true of conservatives, too. Liberals, conservatives, and libertarians all agree, for instance, that killing is generally bad, but the definition of when killing is evil and when it's permissible (or even laudable) necessarily has to be pretty nuanced, so that it properly treats killing in self-defense, killing in war, and the like. In fact, some liberals of the pacifist stripe may employ a more nearly absolute prohibition on killing (at least of born humans) than conservatives do — in my view, that's their moral error, but it's not an error of moral relativism.

Likewise, liberals, conservatives, and libertarians endorse what one might call "situational ethics" at least in the banal sense that the morality of certain actions turns not just on the simple three-word summary of the act ("X killed Y") but also on aspects of the situation: Did X have moral justification to kill Y? Did X have some excuse, for instance that he sincerely believed that Y was about to kill him, though he was regrettably mistaken? Are there other reasons why we would say that X's actions aren't as evil as some other similar actions, for instance because X is a 5-year-old who couldn't really understand what he was doing? (Many liberals might set the threshold for when a child is too young to be fully tasked with the moral weight of his actions differently than conservatives, but I take it that all of us would have some such threshold.) Or might there be something significant about X's motives that diminishes, even if it doesn't eliminate, his moral culpability, for instance because X beat someone up because of a genuine provocation (e.g., the beating victim had insulted X's daughter) as opposed to for money or because of a cold-blooded desire to inflict pain?

It's true that some people do employ a sort of cultural relativism, in which actions are made right or wrong by the country or culture in which they happen. This is far from a purely liberal principle, though; in fact, sometimes it's liberals who are most universalist in their calls for human rights. Moreover, while I'm generally not wild about this approach, it seems to me that at least as to some things it does make sense: Separation of church and state is a good principle (at least in some interpretations) for the U.S., but I'm not sure that it should necessarily be equally applied to other countries (for instance, to require England to entirely disestablish Anglicanism). But in any event, this is too tangential a matter, and a matter too divorced from the liberal/conservative divide, to be what the "moral relativism" claims are all about.

So is there anything to this charge about liberals being "moral relativists," or at least being so materially more often than conservatives? (I'm not asking whether isolated liberals have at times made truly moral relativist arguments, whatever they may be, but rather whether liberals generally are more likely to endorse such views.)

Or is this just a neutral-sounding allegation that really masks disagreement on specific contested moral issues? And if it's the latter, wouldn't it be more candid and more helpful to specifically say "I think liberals make this moral error on this subject for this reason," rather than levying empty accusations of "moral relativism"?

A couple of days ago I posted something responding to a Les Kinsolving column that criticized Cheney's support for his lesbian daughter. My post, which was just a titch sarcastic, explained that though Mr. Kinsolving was suggesting that this sort of thing could lead to sadomasochists having the right to get married, too, it turns out that sadomasochists are already entirely free to get married. So are people who want to engage in sodomy (a term that Mr. Kinsolving used pejoratively, but which can include oral and anal sex, and sex within opposite-sex couples as well as same-sex couples).

I then got into this interesting e-mail exchange:

[A reader:] Sexual depravity is ruining America morally. Why are you supporting that?

[Me:] What kind of sexual depravity? Husbands and wives having oral sex (which is indeed part of the definition of sodomy)? Can you give me any evidence that this is ruining America morally? . . .

[The reader:] Sodomy as commonly understood by probably over 95% of native English speakers: "anal sex between two men". You may be right in saying the current definition includes other sexual acts, but those are not what Sodom was famous for, and the act it gave its name to. Homosexuality is debasing to all who take part in that perversion. The finer sensibilities that distinguish humans from animals, these are partly benumbed by this debasing act. All society suffers proportionately.

[Me:] (1) Well, Mr. Kinsolving doesn't seem to take this view, since he seems to oppose lesbianism, too. [Recall that the Kinsolving column began with a criticism of Cheney's lesbian daughter, not of male homosexuals.]

(2) You make assertion after assertion, but you give no support for them. Why is it exactly that I suffer because two friends of mine decide to have sex in a particular way in the privacy of their own home? Why does it even debase them? Why does it erode the finer sensibilities that distinguish humans from animals? Again, you just say these things — why should I believe them?

[The reader:] The fact that you cannot determine that sexual perversions such as sodomy are debasing is in itself evidence that you are unable to determine what the truth is at this time. When you begin to search for truth with the aim to live the truth, you will find it.

God made us for a reason.

Well, that's logic for you! God made us for a reason. That reason (isn't it obvious?) must be "to avoid having anal sex." The people who seem to have a pretty strong urge to have anal sex with each other — what about them? Well, God obviously made them for the same reason, which is that they should avoid having anal sex. (Whatever you may think about whether homosexuality is genetic, it does seem that there are some people who do have a pretty strong desire to engage in homosexual conduct, about as strong as heterosexuals' presumably God-given desire to have genital sex.)

What's more, you don't even need quotations from the Bible any more to prove this: The very fact that the listener doesn't agree is just evidence of how foolish he is. QED. Hey, I'm persuaded — how can one resist the force of an argument like that?

Slate's Explainer has a pretty good explanation of what assault weapons are and they aren't (for instance, it turns out that they aren't fully automatic -- have I ever mentioned that?). One flaw, though, comes in the perennial attempt to explain how "assault weapons" are different from the tens of millions of other semiautomatic guns out there (other than, for instance, in having bayonet lugs):

The law's authors had to be as precise as possible in crafting the ban, since the phrase "assault weapon" isn't really part of the gun-making vocabulary. Rather, it's a catchall term that gun-control advocates define as covering any firearm designed for rapidly firing at human targets from close range.

The trouble is that nearly all handguns are designed for rapidly firing at human targets from close range. They're mostly intended for self-defense, not hunting (hence human targets). They're relatively short-range weapons, as opposed to rifles. And they're designed for rapidly firing, since if someone is attacking you, you'd like to shoot at him several times before he shoots you (or knifes you or clubs you).

If I recall correctly, about half the 80 million or so handguns in civilian hands in the U.S. are semiautomatics. To my knowledge, "assault weapons" don't fire materially faster than semiautomatic handguns; certainly rate of fire isn't part of the definition of "assault weapon." Most of the other half are revolvers, which to my knowledge have a theoretical rate of fire that's less than that of semiautomatics. But all of them can easily fire a round every second or two; and the main constraint is the time it takes to aim again, which means that practically speaking semiautomatics and revolvers have a comparable effective rate of fire.

So if the definition Slate gives is accurate, then virtually all handguns (except the few single-shot pistols that have to be reloaded after every round, and that thus aren't very effective for self-defense) would be "assault weapons" to gun control advocates. I don't know whether most gun control advocates do think so. But if they do, then that's further reason for gun rights advocates to worry about calls for banning assault weapons.

I'm pleased to report that this article will be published in the Stanford Law Review, volume 57, issue 4, next February.

Reader John Griffin asks:

I though the Internal Revenue Code prohibited political endorsements by religious institutions and religious organizations. Yet, here is a link to an article in The Philadelphia Inquirer about competing endorsements from two religious organizations concerning the US Senate race in Pennsylvania. Curious that they chose opposite candidates, but problematic, are they not?

It's hard to tell for sure without knowing more details, but it might well be entirely unproblematic — and rightly so.

There's nothing illegal about religious institutions or organizations as such endorsing political candidates. In fact, if religious organizations were specially banned, because of their religiosity, from endorsing candidates, that would violate both the Free Speech Clause and the Free Exercise Clause (the latter because it would constitute impermissible discrimination against religion).

Organizations, religious or not, that receive tax-deductible charitable contributions may not engage in electioneering using those funds. There are accounting requirements aimed at making sure that tax-deductible funds aren't used for such purposes, and that endorsements are indeed done only using non-tax-deductible funds. (That's why many organizations have a 501(c)(3) branch that collects tax-deductible contributions and doesn't engage in direct electioneering, and a 501(c)(4) branch that collects non-tax-deductible contributions and does engage in direct electioneering.) Sometimes people have charged that various religious groups have violated those rules.

But this story suggests simply that a bunch of ministers have come together into a couple of groups, and then used those groups make whatever endorsements they like. So long as the groups don't take tax-deductible funds — and there's no reason why they should, since they probably don't need much money to fulfill their very narrow role — the groups are free to express their members' views.

offers help with writing a certain kind of document.

Oh, what a tangled web we weave When first we practice to deceive But when we've practiced quite a while How vastly we impove our style.

I just learned that Randy Kozel, who was a student in my Thorny Problems of Free Speech Law seminar last Fall at Harvard, has accepted an offer to publish his seminar paper (on government employee speech) in the Northwestern Law Review. He had circulated it a few weeks ago, three months after he graduated, and got offers not just from Northwestern but also from another Top 20 law review.

I mention this to encourage other students who are afraid that they can't get their pieces published anywhere, or at least anywhere good. Yes, there is some prejudice against non-lawprof submissions (and even more against submissions from people who are still law students). But this shows that even Top 20 journals take such papers seriously, of course if they're good (and Randy's is very good).

Moreover, as I've mentioned before, other people I know have had pieces published even while they were still law students -- with one exception not in the Top 20 main journals, but still in Top 50 main journals or specialty journals at the Top 10 schools. (Sasha had his n Guilty Men piece published in the University of Pennsylvania Law Review before he even started law school, but oddly enough there might be a little less discrimination against non-lawyers than against current law students. And, besides, he's Sasha.)

Incidentally, I should also mention that many lower-ranked journals are as professional, diligent, and helpful as the higher-ranked journals; and publishing in those journals will still provide a very good credential. But, let's face it, the pecking order is out there, whether you like it or not, and it's good to know that quality work can find a place in journals near the top of that order.

The Selectric computer museum shows in pictures part of what I said in words yesterday.  People forget what even proportional spacing looked like ca. 1972.

This Selectric typewriter museum has put up examples of both IBM Selectric and IBM Executive typing, the latter with proportional spacing.  Retyping one line from the forged memos, they quite dramatically show the differences between modern computer fonts and even proportional spacing in the 1960s and early 1970s.

Although the examples don't show the Times New Roman font, they do illustrate that, even with proportional spacing, these typewriters looked NOTHING like MS Word.  In particular, proportional spacing then had discrete, non-overlapping characters, not the "pseudo-kerning" present in the forgeries and MS Word.    In the lines typed at the museum, note particularly the "fr" in "from," where (unlike modern versions of MS Word) the "r" is not tucked under the "f." Also, note the point I made yesterday that proportional spacing then left a full two spaces between sentences, unlike Times New Roman in MS Word and the forgeries.

This illustrates that Mr. Glennon, the former IBM typewriter repairman now relied on by CBS, is not remembering things accurately (assuming that he is trying to be truthful).  Not all versions of "proportional spacing" are created equal, the version available in 1972 was so crude that no one who sees it could mistake it for the MS Word version apparently used in the forgeries.

As Adobe font expert Mr. Phinney reported yesterday in the Washington Post, none of the possible 1972 era office machines (including presumably the IBM Selectric, Executive, and Composer), which he fairly extensively tested, could have produced the CBS forgeries, in part because of the different character widths that are shown in the Selectric museum's examples and their lack of "pseudo-kerning."

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Yesterday Slate posted this item, with the front-page teaser "Sorry, Hoss: You Have No Right To Bear Arms":

Wake Up, Little Uzi Is there an individual right to carry a gun? Posted Monday, Sept. 13, 2004, at 10:44 AM PT

With the 10-year-old ban on assault weapons set to expire tonight, debate rages yet again about the rights of gun owners under the Second Amendment of the Constitution. Three years ago, this "Explainer" attempted to answer this narrow legal question: Does the Second Amendment confer a personal right to bear arms upon American citizens?

The earlier Explainer, dated July 10, 2001, reported that, though there's a hot academic and public debate about the meaning of the Second Amendment, "virtually every lower court has accepted the state militia/collective rights test as a settled point of law" — fair enough as of July 10.

But in October 2001, the Fifth Circuit court of appeals held that there is indeed an individual right to keep and bear arms (though far from an unlimited one), see United States v. Emerson. This still leaves a lopsided split against the Fifth Circuit's position: There are probably seven or eight circuits on the states' right side, all dating back from the era where the states' right side was largely unchallenged orthodoxy in the courts of appeals (though the Ninth Circuit's Silveira v. Lockyer decision did provide a spirited and detailed defense of the states' right view, though over spirited and detailed dissent).

Still, it seems pretty clear that something has changed — the issue is now clearly a matter of judicial debate as well as academic and popular debate, and in fact quite a few judges on other circuits have also spoken up in favor of the individual rights position. The law has shifted from settled to at least somewhat unsettled. Judges on other circuits are debating the matter anew. It seems to me a mistake for Slate to recycle pre-Emerson summaries as if nothing at all had happened.

Jonathan Rowe points to this column by Les Kinsolving (WorldNetDaily), complaining about Vice President Cheney's support for his lesbian daughter:

[W]hat if Mr. One-Heartbeat-Away in the White House had a daughter who was a masochist who fell in love with a sadist? (And she loved being beaten, as much as her lover enjoyed beating her.)

Would Mr. Cheney have announced in Davenport his support of weddings with leather dresses, whips and chains?

A later Kinsolving column elaborated:

If sodomists and sadomasochists should be allowed to obtain marriage licenses, what other happiness-pursuers should be denied? . . .

[Gay rights advocate Franklin] Kameny concludes his e-mail by affirming:

"No persuasive or credible justification or proof has been presented for limiting or forbidding marriages between sadists and masochists, or between two men or two women. Therefore such couples have the right to have their marriages formally and legally recognized by what are THEIR governments also."

Marriage licenses for sadomasochists.

It's interesting, however appalling, to see what's next on the agenda of the Sodomy Lobby.

Sounds pretty shocking, no? Well, I'll tell you something worse: Doubtless due to the sinister machinations of the Sodomy Lobby, sadomachosists are already allowed to obtain marriage licenses. Celebrating weddings with leather dresses, whips and chains has already been legalized. In every state in the union. Ever since the Sodomy Lobby took over the nation, in the 1990s, if I recall correctly.

Oh, whoops, it turns out I didn't recall correctly — such depraved weddings have, to my knowledge, always been legal. I'm unaware of any law, past or present, regulating the amount of leather or metal at weddings. (Social norms, sure, but somehow no laws.)

No Marriage Police monitor couples' bedrooms so they can swoop down and strip husbands and wives of their marriage licenses for consensual sadomasochism. What's more, if a man and a woman walked down to their local courthouse and asked for a marriage license while proudly announcing their sadomasochistic preferences, I doubt they'd be denied such a license. And if they would be, I suspect such a denial would itself be illegal, since to the best of my knowledge clerks have a legal obligation to issue licenses once certain objective prerequisites are met, and lack of intent to engage in sadomasochism isn't one of those prerequisites.

But wait, it gets still more depraved. There are probably tens of millions of married couples in which the parties regularly practice sodomy. Sodomy is sometimes defined only as anal sex, but sometimes also as oral sex, which is surely the definition Mr. Kinsolving must be using, since his objection was prompted by Dick Cheney's lesbian daughter, who presumably wasn't having much anal sex. It's also sometimes defined as purely homosexual, but generally as either heterosexual or homosexual; and since Mr. Kinsolving condemns sadomasochistic marriages without any mention of the sex of their partners, I take it he'd likewise disapprove of marriages of any sort that include that hideous crime of sodomy.

Yet no-one does a thing about these marriages. No marriage licenses are revoked. None are denied. Shameful. Shameless. A shame. Why don't people realize that we all have to make sure that none of our fellow married couples are having sex the wrong way?

Geitner Simmons (Regions of Mind) remembers some Cold War-era forgeries.

 I've generally avoided the substantive question of whether the CBS documents were forged, because I have no special expertise on it, and because others already have it well in hand. But I do want to pass along something that Jim Lindgren, a lawprof at Northwestern whom I very highly respect, sent to me. These are his views, not mine, but they seem to me to be much worth listening to:

The CBS forgeries are in part a generational thing.

While we may never know who forged the documents, it is highly likely that the forger was not an adult in the early 1970s. The forgers, the younger producers at CBS, and some of the younger bloggers who still aren't sure about the documents' authenticity are too young to remember what non-typeset documents looked like in 1972. I remember marveling at how beautiful documents typed on IBM Selectrics looked in the 1970s, but their typefaces and spacing did not come close to approaching traditional typesetting, modern computer fonts, or the forged documents in the flow and spacing of the letters. Many of us can remember when two spaces between sentences were usually typed as two spaces, before computers compressed them (as in MS Word and the forgeries).

The "pseudo-kerning" that is present in MS Word and the forged documents was not available in any IBM machine in the early 1970s. As font expert Joseph Newcomer explains, MS Word Times New Roman tucks some letters under parts of other letters. For example, open MS Word in Times New Roman and type "fr" (go ahead, try it). According to Newcomer, no IBM typewriter or office machine of any brand could do that in 1972. If Newcomer is right about this fact alone (and it certainly fits with my lay recollections of the era), then the documents are "proved" to be forgeries. End of story--CBS has the proof it says it wants. CBS needs only the additional time necessary to establish Newcomer's factual assertion (unless they can find such a nonexistent pseudo-kerning typewriter) before they retract their story and abjectly apologize to Bush and its viewers. And this is only one item in the now extensive evidence of forgery.

In response, there are the statements of new CBS expert Bill Glennon, "an information technology consultant" who repaired IBM typewriters from 1973 through 1985. In its devastating critique of CBS's position, the Washington Post evaluates Glennon's argument:

He [Glennon] said that IBM electric typewriters in use in 1972 could produce superscripts and proportional spacing similar to those used in the disputed documents. . . . Thomas Phinney, program manager for fonts for the Adobe company in Seattle, which helped to develop the modern Times New Roman font, disputed Glennon's statement to CBS. He said "fairly extensive testing" had convinced him that the fonts and formatting used in the CBS documents could not have been produced by the most sophisticated IBM typewriters in use in 1972, including the Selectric and the Executive. He said the two systems used fonts of different widths.

This makes a point that younger commentators in particular have underappreciated. Some have argued that it is not surprising that the purported 1972-73 memos would match modern MS Word pretty closely because both use Times New Roman. Yet as Mr. Phinney explains, he has tested the 1972 machines in question and the spacing is different. Proportional spacing, even with expensive machines in the 1970s, was not the same as the fluid versions in MS Word, as I well remember from working with fancy proportional spacing machines while practicing law in 1979 (machines that were not available in 1972).

It almost goes without saying, as the Washington Post points out, that none of the dozens of other authentic documents that have surfaced from the Texas Air National Guard generally and from Killian himself used proportional spacing of any kind, let alone the kind found in MS Word.

If you doubt that two fonts with the same name line up differently, try this experiment: type and print out a paragraph from one of the CBS forgeries in Times New Roman font in both MS Word and WordPerfect 10 (2002). The CBS forgeries match the MS Word version but not the WordPerfect version. The lines in WordPerfect, using supposedly the exact same font as in MS Word--Times New Roman--do not line up with the lines in the forgeries, not even close. WordPerfect 10 could not have been used to put together the forgeries, but MS Word could have.

Even if Joseph Newcomer were wrong and there were office machines that did pseudo-kerning in 1972, the chances are astronomical that the proportional spacing, superscripts, curved apostrophes, and letter widths would match almost exactly a font that was refined to its present form two decades later.

I think that it was the forger's youth that made him think that he could get away with not even bothering to buy a 1970s era typewriter to do the forging. Imagine what would have happened if CBS hadn't had the decency to post the documents online. Yet if in the next day or two CBS can't admit that they were scammed, then the problems at CBS go much higher up the corporate ladder and much deeper in the news division than we know.

(if the memos were indeed forged): As I'd mentioned a few days ago, it's surprisingly hard to find laws that prohibit this sort of forgery. Using false statements, including forgeries, to get money or many other valuable things is surely illegal. But the law generally does not criminalize lies as such, when what you're trying to get using the lies is a change in another's political opinion, or for that matter likely vote. Maybe that's right and maybe it's wrong, but there it is. I noted a couple of state misdemeanor statutes that bar certain false statements during election campaigns, but they seem like the exception rather than the rule (though perhaps they could be used against this very forger).

Matt (Stop the Bleating!) points to one possible alternative, 18 U.S.C. sec. 912, which says that "Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money . . . or thing of value, shall be [punished]." But this requires not just impersonation but also "act[ing]" as the officer, and lower court decisions, the Justice Department's interpretation, and an inference from the text of the statute (the "demands or obtains" clause, which would be superfluous if any impersonation was per se punishable as "act[ing]") suggest that impersonation isn't enough. (Matt talks more about this, and also explains why the statute covers more than just in-person impersonation.)

Troy Hinrichs points to Texas Penal Code sec. 32.21, which forbids "forg[ing] a writing with intent to defraud or harm another" (emphasis added); Texas Penal Code sec. 1.07 defines "harm" to mean "anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested." Reputational harm would probably qualify, but harm in the sense of becoming deluded about some historical fact and voting the wrong way might not. I doubt therefore that if the writing were forged outside Texas, the forgery would be a crime in Texas, even if Bush (the harmed party) is still a Texas citizen.

Markham Pyle and Simon Stevens point to Texas Penal Code sec. 37.10, which seems to be more clearly on point, since it criminalizes (among other things) "mak[ing], present[ing], or us[ing] any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record." That probably covers things, so long as the memos are treated as "governmental record[s]," though again it's not clear whether Texas would have jurisdiction simply because the records purport to be Texas records (probably, but I'm not sure).

Another reader pointed to this OpinionJournal story, which discusses a seemingly similar incident:

In 1997 ["60 Minutes"] broadcast a report alleging that U.S. Customs Service inspectors looked the other way as drugs crossed the Mexican border at San Diego. The story's prize exhibit was a memo from Rudy Comacho, head of the San Diego customs office, ordering that vehicles belonging to one trucking company should be given special leniency in crossing the border. The memo was given to "60 Minutes" by Mike Horner, a former customs inspector who had left the service five years earlier. When asked by CBS for additional proof, he sent another copy with an official stamp on it.

CBS did not interview Mr. Camacho for its story. "It was horrible for him," says Bill Anthony, at the time head of public affairs for the Customs Service. "For 18 months, internal affairs and the Secret Service had him under a cloud while they established that Horner had forged the document out of bitterness over how he'd been treated." In 2000, Mr. Horner admitted he forged the memo "for media exposure" and was sentenced to 10 months in federal prison. . . .

Sounds on point, but a 2000 news story reports that Horner "pleaded guilty to conspiracy to obstruct a U.S. Senate investigation and to lying to the FBI agents who investigated the memorandum's origin" — what got him wasn't the forgery itself, but the interference with a particular government investigation.

So forgery for purposes of a political hoax (rather than to get money) seems safer than one might have at first thought, though, kids, don't try it at home . . . .

An interesting category used by a law school to classify its professors (alongside more traditional ones such as "Criminal Law," "Family Law," and "Litigation/Dispute Resolution"). I'd have thought that all law (yes, even animal law) involved, at bottom, human issues . . . .

Lee Smith (Slate) has an interesting piece on the subject.

Glen Whitman has a very good post on this, going into considerably more depth than the item below does.

The BBC reports:

Brazil's federal police force says a government campaign to cut gun crime by offering to buy back weapons is going twice as well as expected.

Police said they had met their target of collecting 80,000 guns in under three months, rather than six months. . . .

Actually, that means that a "government campaign to . . . buy back weapons is going twice as well as expected." In the absence of other data (and the story gives no data), it doesn't remotely prove anything about how the "government campaign to cut gun crime by offering to buy back weapons" is going, no?

Say that the memos are indeed a hoax. Could CBS be civilly liable in various ways? A bunch of readers asked me this, so I'll try to answer, in several posts. (Please note that I'm getting even more than the usual amount of e-mail on these issues, so some will end up being discarded, or put on the back burner where it will cogneal into a grimy mental mush that I'll eventually throw in the sink rather than trying to rescue and turn into something edible.)

First, as to shareholder lawsuits, I can free ride off the work of others who are much more knowledgeable than I am. My friend and colleague Professor Bainbridge, who is a leading corporate law expert, has all about this. Short answer: CBS will win on this, and it should win on it — do you really want to have huge lawsuits every time someone claims (rightly or wrongly) that some media outlet botched a story?

[NOTE: After posting this post and the three that now appear below, I reordered them so they make more sense when read from top to bottom.]

A reader writes: "Is it in the public interest for a television station owner to use forged documents to try to remove a sitting politician? . . . Personally, I'd think that if CBS knew or should have known that the documents were forged, license forfeiture for the CBS owned and operated stations would be appropriate."

Yow! Do we really want political bodies, appointed by politicians, stripping broadcasters of licenses because the broadcasters were supposedly negligent (the "should have known" test is a negligence test) in distributing supposedly false documents? If you're a Republican, let me put it this way: Would you have wanted, in the late 1990s, to have an FCC dominated by Clinton appointees stripping TV stations of licenses because they supposedly negligently spread inaccurate information about Clinton?

I think the answer has to be no: This would deter even serious, responsible broadcast news reporting, because broadcasters would be afraid that the FCC would strip their licenses if the FCC concluded that the allegations were false and ngeligent.

That's the logic of New York Times v. Sullivan as to libel lawsuits, which are much more historically established than any such FCC power, and are less likely (though by no means entirely unlikely) to be politically abused. It should certainly apply to license revocations, too. I'm pretty sure that the FCC wouldn't act this way (it may have the statutory authority, under the vague "public interest" standard, but I'm pretty certain they don't exercise this authority this way), and shouldn't act this way.

What about libel lawsuits against CBS, some ask — for instance, by Bush himself, by Killian's heirs, or by General Staudt, who was accused in one of those memos of leaning on Killian?

The Killian lawsuit is easy to dispose of: Dead people can't sue for libel; that's the libel rule in all 50 states, to my knowledge (though a few have long-unused criminal libel statutes that cover libels of the dead). Also, it's not clear that the falsehoods (if they are falsehoods) about Killian are defamatory or constitute false light invasion of privacy (an alternate tort), but in any event it doesn't much matter because he's dead.

Bush is obviously a public official. Staudt was once a high-level military officer, which made him a public official and thus a public figure. There's some suggestion in the cases that public figure status might dissipitate after enough time; but the cases that I've seen all point towards the conclusion that former public officials remain public figures indefinitely as to things they allegedly did while public figures. (I think this would apply even if the alleged pressure by Staudt allegedly took place at a time when Staudt had already retired — that goes to the likely falsehood of the statement, but the statement is still an allegation of misconduct while in office.)

So as to both Bush and Staudt, CBS is not liable unless they knew the statements were false, or were aware that the statements were likely false and proceeded in any event (the misnamed "actual malice" standard). I find that extremely unlikely. Even setting aside the moral questions, journalists and news executives must know how horrific for their careers and reputations this sort of scandal might be; and if they knew the statements were likely false, surely they would have been a bit more self-conscious about how suspicious the memos' formatting would look.

That's why, if the memos are forgeries, I strongly suspect that everyone at CBS (or conceivably everyone except one or two highly reckless low-level people who were in on the forgery) simply screwed up. It's a screw-up that might well have been abetted by their political predilections or by a tunnel-vision chase for a hot story. But it was likely an honest, even if unreasonable, error, and that doesn't suffice for liability in a case involving public officials or public figures and matters of public concern.

What about General Hodges, as Eric Rasmusen asks?

The Washington Times says

One retired Guard official, who was Mr. Killian's immediate supervisor, Maj. Gen. Bobby Hodges, was offered up by Mr. Rather as one who would substantiate that the memos were real. But yesterday Gen. Hodges told the Los Angeles Times he thought the memos were fake. One CBS executive said the general, a known Bush supporter, had changed his story.

. . . CBS is saying that the General verified forged documents. Moreover, he is a known Bush supporter, which makes him look pretty stupid and treacherous if he validated documents that were forged to hurt Bush. The General says he didn't do it, though. . . .

The allegation that the General verified the documents, even if false, is likely not defamatory; the allegation that he had changed his story, though, likely is defamatory. They wouldn't be the strongest claims of defamation, since he'd probably have to persuade the jury that he suffered some specific damage as a result of the statements.

But more broadly, even if the General is no longer a public figure (the statements being made about him are not statements about his alleged conduct when he was still serving), he's likely a limited purpose public figure. If he talked to CBS News about the documents, he injected himself into this controversy. Even if he was later misquoted by CBS News itself, he'd still be a public figure for purposes of this debate, so that to recover he would have to prove the CBS knew its statements about him were false (or at least knew the statements were quite likely false). Maybe he could prove such knowing falsehood (e.g., they knew that I hadn't changed my story, so they lied when they said I did change it) plus damages; but that's what he would indeed have to prove, and showing negligence isn't enough.

UPDATE: Someone asked what the chances are of getting an emergency injunction in a libel lawsuit against CBS, to make them stop spreading the alleged libel. The answer is that the probability is much zero -- see the discussion on prior restraints in this article.

The posts above all assume that the people at CBS were at worst negligent (again, assuming they were wrong, which has not been proven but which I'm just assuming for purposes of the legal analysis). But what if someone -- for instance, the forger, or even someone in the media -- does lie in a public debate? What would and should happen then, legally?

As I've mentioned above, some states do criminalize certain kinds of knowingly false statements in public debate. Also, libel law does allow recovery, including punitive damages, for knowingly or recklessly false defamatory statements about public figures on matters of public concern. ("Recklessness" here refers not to being grossly negligent, but to knowing that the statements are likely false and proceeding in any event without adequate checking -- it's closer to knowledge than to negligence.)

Nonetheless, I think we should be wary of prosecution and even litigation even in such situations. Unfortunately, the judicial process is a highly imperfect means of getting at the truth, especially on politically charged questions. Historical matters are best decided, I think, in public debate (for all its flaws) rather than in a courtroom.

Obviously, false statements in political campaigns are harmful to the voters and to our political system. But prosecution seems to me to be a remedy that's worse than the disease -- especially since of course it won't just be the obvious liars who are prosecuted, but potentially anyone who a prosecutor (who often himself has political alliances and political ambitions) thinks is a liar. We all know how often charges of lying are batted about over what ends up being an honest disagreement. And if such prosecutions became routine, lots of people would understandably be deterred from saying even things that are true (or that are opinions).

In some limited situations, where there's a smoking gun -- and there may be classes of cases like that, for instance when people misdescribe their own military record, see, e.g., Pittsburgh Post-Gazette, Dec. 17, 1996, at A10 (discussing prosecution of former Rep. Wes Cooley for supposedly lying to Oregon voters in a ballet pamphlet about his Korean War experience), or when someone forges a document -- the arguments against criminal prosecution might be weaker. Perhaps one could come up with a crisp legal principle, or a crisp political norm for prosecutorial behavior, that would limit prosecutions to such open-and-shut cases. But I'm not sure that this is so, and I wouldn't like the norms to evolve towards using prosecutions as a routine tool whenever prosecutors think that some candidate is lying.

The case for allowing libel lawsuits is stronger, because in addition to the harm to the voters and the political process, there could also be harm to a particular person's reputation and livelihood. Moreover, such lawsuits are certainly firmly historically rooted, and New York Times v. Sullivan, for all its concern about protecting speech both against wrongful punishment and against deterrence by the fear of wrongful punishment, nonetheless preserved such lawsuits in cases where the plaintiff has evidence that the defendant was knowingly lying. (Three dissenters, Justices Black, Douglas, and Goldberg would have completely eliminated libel lawsuits over statements related to matters of public concern, precisely because of a fear that the judicial process will often err in such cases; but the majority, including Justice Brennan and Chief Justice Warren, disagreed.) I can't say that such lawsuits are, or even should be, unconstitutional. Still, I'm not wild about them, because I don't have great confidence in the abilities of juries to decide historical questions.

Finally, note that historically sitting government officials (especially high officials) don't file libel lawsuits even when they think someone has been lying about them. It's often seen as beneath the person's dignity. It's likely to focus the public's attention on the false charges. It's likely to waste a lot of the official's time and attention. And while it may let the official get access to the defendant news organization's internal documents, and force the reporters and managers to testify about what they knew when -- something that might well be quite embarrassing to the news organization, and that might strengthen the official's case -- it also lets the news organization get discovery against the official. The organization might, for instance, require the official to give depositions about other matters related to the controversy (since that would be relevant to whether the charges were substantially accurate even if some aspects of them were clearly literally false), a prospect that many officials might not relish.

So the bottom line: For all these reasons, I think that public criticism, for all its flaws, is a much better remedy for media negligence and even for media, candidate, or commentator lies than is either civil litigation or criminal prosecution.

"[B]ad policy, bad politics, and extraordinarily trivial as a substantive matter." Thanks to InstaPundit for the pointer.

Several days ago, the Chicago Sun-Times ran an editorial that begin with this paragraph:

How ridiculous is the notion that private citizens should be able to tote machine guns? It takes someone with extreme positions like Alan Keyes to righteously argue that cause. Most Americans — Democrats and Republicans — are against claiming Second Amendment protections for these guns and support the federal assault weapons ban. . . .

I wrote that this was a pretty serious error: By its explicit terms, the assault weapons ban doesn't cover machine guns, but covers certain kinds of semiautomatic guns -- guns that are actually closer to the typical semiautomatic gun that tens of millions of people own, rather than to machine guns. The argument with which the editorial begins is thus based on an error (the implied claim that the assault weapons ban is about machine guns).

I called and e-mail the Sun-Times about this; they at first told me they'd run my point as a letter to the editor, but I suggested that, if I was right, the situation called for a correction and not just a response. They told me they'd run a clarification, and here it is, from the bottom of the Sunday letters to the editor page:

Clarification

An editorial in the Sept. 7 editions about the need to extend the assault weapons ban included a reference to machineguns. The assault weapons ban covers semiautomatic weapons.

I leave it to readers to decide how apt the Sun-Times' response is.

Thanks to Michael Demmons and the Spoons Experience for the pointer. Note that their response might have well been prompted also by other people's letters -- I refer to my correspondence with them simply because that's all I know about.