The Volokh Conspiracy

Those who want a sense of what the self-described pedophile blogger's site has looked like in the past can see archived pages here. The blogger is obviously a disturbed and disturbing man -- at best someone who has fun scaring the wits out of parents, and at worst a child molester -- but I think it's necessary to see his work to get a sense of what legal responses would be permissible or impermissible.

Most of the pictures aren't included in the archive, which is good for the pictures' subjects but makes it a little harder to evaluate. The one picture I saw, which was purportedly taken in South America, does fit with the media reports that the pictures on his sites have not themselves been pornographic (though obviously they are disturbing and menacing in context).

if this Asheville Citizen-Times report is correct:

A couple who said they were protesting the state of the country by flying the U.S. flag upside down with signs pinned to it found themselves in jail following a scuffle with a deputy Wednesday morning.

Mark and Deborah Kuhn were arrested on two counts of assault on a government employee, resisting arrest and a rarely used charge, desecrating an American flag, all misdemeanors....

Arrest reports show Buncombe County Sheriff’s deputy Brian Scarborough went to the Kuhns’ home on 68 Brevard Road about 8:45 a.m. Wednesday to investigate a complaint of an American flag on display after being desecrated.

State law prohibits anyone from knowingly mutilating, defiling, defacing or trampling the U.S. or North Carolina flags. Lt. Randy Sorrells of the Buncombe County Sheriff’s Office said the Kuhns desecrated the flag by pinning signs to it, not by flying it upside down....

The assault and resisting arrest charges may be proper, depending on what the facts are. But the Constitution does not allow punishment for desecrating the flag. U.S. v. Eichman so held as to a federal law punishing anyone who "mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States." And the North Carolina law, "It shall be unlawful for any person willfully and knowingly to cast contempt upon any flag of the United States or upon any flag of North Carolina by public acts of physical contact including, but not limited to, mutilation, defiling, defacing or trampling," is indistinguishable for First Amendment purposes from the law struck down in Eichman.

Thanks to Matt Caplan for the pointer.

If you support a reintroduction of the Fairness Doctrine — which is to say a rule under which broadcasters are obligated to give "each side of [the debate on public] issues ... fair coverage" — how would you envision its being enforced?

1. Multiple sides: For instance, say that a talk show host argues in favor of legalization of drugs. The broadcaster would then have to give time to the pro-drug-war perspective. But what if someone demands time for an intermediate proposal, such as keeping drugs illegal but ratcheting down penalties? Should the broadcaster be obligated only to carry some rival views (i.e., the broadcaster could choose), the most opposed views (i.e., the broadcaster would have to take the hard-core pro-drug-war advocate but not the mid-course advocate), the most popular rival views, all rival views, or all credible-seeming rival views? How should this be decided?

2. Broadcaster choice aimed at discrediting rival views: In particular, if the broadcaster has discretion about which views to choose, what if the broadcaster deliberately chooses the most extremist rival speakers — or for that matter, rival speakers who are just inarticulate or foolish — to present the contrary views?

3. Amount of time: How much time must the broadcaster devote to presenting contrary views — as much time as was given to the original views? Just some modest amount of time?

4. Extremist views: Would the KKK have to be given time to respond to pro-racial-tolerance views? Would jihadists have to be given time to respond to insults of al Qaeda?

Of course, these problems arose before 1987, while the Fairness Doctrine was in operation. The general answer was apparently this, according to Krattenmaker & Powe's Regulating Broadcast Programming:

[A station] can determine largely as it pleases how much time to devote to the differing viewpoints and who and what materials to use in presenting each side. To reduce the need for close and sustained agency supervision of broadcasters, the Commission built into the doctrine a remarkable amount of broadcaster discretion. As a result, surprisingly little balance is necessary to meet the obligation to cover all significant sides of an issue.

Would that approach, in your view, suffice? Would you prefer something more demanding, and, if so, how would you define it, and how would you answer the questions I gave above?

More broadly, I take it that things have changed since the 1980s. Most importantly, the Internet has made it much easier for activists to organize. If a broadcaster broadcasts some anti-gun presentation, I take it that gun rights activists can within hours learn about it, file many demands for time to respond, and even create striking video responses (or perhaps edit them from existing materials).

Where before a broadcaster might have gone only a few demands for response time, now a broadcaster may find itself getting multiple demands daily for nearly every controversial issue it covers. And if a broadcaster appears to be providing only "surprisingly little balance," these same well-organized groups can arrange the filing of multiple complaints with the FCC — again, every time a broadcaster is accused of not promptly responding as to any controversial issue it covers.

There would certainly be lots of incentive for activists in a wide range of fields to get aggressive about demanding response time, and complaining about perceived inadequacies in response time: The activists will feel that they are fighting back against the Bad Biased Media (whichever way they think the media is biased). They will get a chance to get extra airing for their views. And they will suspect that their actions may in some measure deter the Bad Biased Media from expressing those views that trigger the activists' aggressive response.

In any case, perhaps I'm wrong about the changing environment; but in any event surely any reinstituted Fairness Doctrine would have to confront the questions I raised above in items 1 through 4. If you support the Fairness Doctrine, how would you answer those questions?

A colleague of mine wants examples that would go in these paragraphs (paragraphs that are broken up here for easier reading online):

Businesses often seek to find new applications for existing products. Hummers, the transport of choice of the Governor of California, began as a multipurpose military vehicle known as Humvees. And the commonly prescribed drug for erectile dysfunction, Viagra, was initially designed to treat hypertension. [** Here is where the examples should go, either to supplement or to supplant the Hummers / Viagra examples. **]

Here, we examine whether the dual income tax regimes (that is, the explicit separate taxation of income from capital and income from labor) found in the Nordic countries might provide a useful model for developing countries. We appreciate that transplanting legal regimes or using prescription drugs for other purposes — known as “off-label uses” in pharmaceutical jargon — is often misguided and may result in undesirable and unintended consequences. And the economic, political, and tax environment in the Nordic countries differ greatly from the circumstance in most developing countries.

Nonetheless, while the dual income tax regimes in the Nordic countries were designed specially to address a problem that does not exist in many developing countries, the approach of explicitly providing separate tax regimes for income from capital and income from labor in developing countries may substantially improve the tax regimes of those countries....

Any suggestions? Again, we're looking for examples of products that originally served market or application A, looked like they wouldn't work well for market or application B, but, to many people's surprise, worked just fine for B, though perhaps different reasons than the ones that made them work in A. Please post them in the comments. Thanks!

Many comments on the recent child custody thread point out that judges are supposed to decide based on the best interests of the child, and that they may therefore evaluate parents' childrearing decisions in ways that government officials normally don't. And I agree that this is in considerable measure true.

But there should remain, I think, constitutional limits on what judges can do. The Supreme Court's 1984 Palmore v. Sidoti decision is an excellent example: The Equal Protection Clause bars a judge from granting custody to one parent instead of another based on the other parent's having entered into an interracial relationship (or marriage). And this is so even if the judge sincerely (and perhaps even reasonably) believes that a child might face more social problems if the child is reared in a mixed-race family.

Likewise, many state courts have held that judges can't restrict a visiting parent's exposing his children to his own religion, even when the custodial parent is teaching a different religion, at least in the absence of a showing of likely serious harm to the child. A judge may theorize, perhaps even plausibly so, that it's better for children to learn one religion rather than two rival ones. But he can't implement his theory through an order restricting one parent's teachings, since that would violate the Free Exercise Clause.

Several state courts have similarly held that judges can't hold a parent's lack of religion against him in a child custody proceeding -- again, even if the judge sincerely believes that it's in a child's best interests to grow up in a more religious home. The Establishment Clause bars such preferences.

It seems to me these courts are quite right. Indeed, a parent's Due Process Clause right to have custody of the child may have to give way in divorce cases, since both parents can't live apart and at the same time live together full time with the children, and since even joint legal decisionmaking for the child may be impossible when the parents are unable to get along; but this reason for restricting parental rights generally doesn't justify restrictions on Equal Protection Clause, Free Exercise Clause, Establishment Clause, and Free Speech Clause constraints on the government.

Likewise, perhaps even these constitutional constraints must give way when genuinely necessary to prevent likely serious harm to the child, on a sort of "compelling government interest" rationale; I'm skeptical of that in many instances (see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006)), but I see the force of the argument. But I don't think that a simple desire to serve the child's best interests slightly better (in the family judge's view) justifies departing from the constitutional constraints.

That's why I'm so troubled when some family courts do prefer the more religious or churchgoing parent over the less religious or churchgoing parent, in my view a blatant violation of the Establishment Clause. That's why I'm troubled when some family courts restrict parents' teaching their children various disfavored ideologies, whether racism, Communism, support for the propriety of homosexuality, hostility to homosexuality, support for the propriety of polygamy, Wiccanism, and so on. And that's why I'm troubled when family courts suggest that parents could be penalized because they don't teach their one-quarter Korean children things that all-white children needn't be taught, or because they don't live in sufficiently "divers[e]" neighborhoods.

A family court judge necessarily has broad power over children's (and therefore parents') lives. It doesn't follow, though, that this power should be entirely free of the Equal Protection Clause, Establishment Clause, Free Exercise Clause, or the Free Speech Clause.

From the Albany Times-Union:

Some of the 5,000 prospective lawyers who took the essay portion of the state bar exam online this week fear their efforts have been lost because of a computer glitch....

John McAlary, executive director of the state Board of Law Examiners, said a small number of candidates were affected by the glitches. He was unable to say exactly how many.... The

He said he is confident every essay will be recovered because multiple backups were in place....

Let's hope so. Oh, and speaking of lawyering, note the last two sentences of this paragraph: "Software Secure posted a statement to its Web site Thursday saying the problem was identified and that a tool was created to recover backup files saved during the examination. A company official who refused to identify himself said he was not prepared to comment early today. He would not even confirm the online statement."

Thanks to Tom Klotzbach for the pointer.

Ward Farnsworth, a friend of mine who teaches at Boston University law school, has just published a new book, The Legal Analyst. It's an excellent book, especially for law students and incoming law students — thoughtful, well-written, and useful.

I'm delighted to say that Ward will be guest-blogging about the book next week. For now, here's a brief summary from the Preface:

The book is a user’s guide to tools for thinking about legal questions. It divides up the world of law according to techniques for thinking about it, then gives lots of examples of how the techniques work — a bit of criminal or tort law here, a bit of contract or constitutional law there, and so forth. In essence I’ve tried to take the most interesting ideas one learns about in law school — or should learn, or might wish to have learned --­ and explain them in ways that are clear and that convey why thinking about legal questions is an exciting, intellectually satisfying activity (or why some of us think so, anyway).

This might sound like a book for law students, or for people heading to law school, and it is indeed meant to help them; when a new recruit asks me what they might find helpful to read during the summer before law school, I’ve never been sure what to suggest, and this book should be a help to them. But it is also meant for anyone else interested in law, professional or amateur. This is the book I would have liked before I went to law school, when I understood almost none of what it explains. It also is the book I would have liked when I got out of law school, at which time I understood about half of it. It even is the book I’d like to have had at various earlier points during my teaching career, as when I wasn’t sure about the meaning of a stag hunt or the conjunction paradox.

See also the Table of Contents and these three sample chapters, all available at The Legal Analyst site.

Disclosure: One of the chapters is adapted from my The Mechanisms of the Slippery Slope.

I quoted and criticize below an Iowa appellate decision that said (paragrpah break added):

Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage.

However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.

My view is that courts ought not take the view that children with some Korean blood ought to be taught Korean culture, or ought to live in places that have "diversity." These factors should not be considered in the best interests of the child analysis, absent extraordinary circumstances (which I briefly discussed in the original post).

Some commenters criticized my criticism, reasoning along these lines: "My reading of the opinion is that the parties argued the issue of being able to expose the child to her ethnic background (including martial arts instruction) and the court simply referred to these arguments in a summary fashion. I strongly doubt the court would have included that reference in its opinion if the parties hadn't made it an issue in their briefs and/or oral arguments." "Everyone is over-reacting. This would be a different matter altogether if the Court's ruling actually had been based on the heritage factor. But it wasn't. The trial court just used a factual finding (i.e., both sides would help foster Korean heritage) to neutralize an argument raised by the losing side (i.e., Korean heritage must be fostered). The bottom line is that the 'heritage' argument failed on its facts, thus rendering moot any discussion of its legal significance."

I agree that courts are often guided by what the parties argue. But it seems to me that if a court discusses a particular fact, it implicitly suggests that the fact is legally relevant, and that the case might have come out differently — not would surely have come out differently, but might have come out differently — had this fact been absent. And if it would be improper (or even unconstitutional) for a court to make such a fact relevant, then the court should be careful not to recite the fact in way that suggests that the fact is relevant.

Consider two analogous passages from hypothetical Iowa Court of Appeals opinions. First:

Harold argues that Anjela is an American and it is important for her to be taught a maximum of patriotic values. He contends that Anjela's paternal grandmother, Song, is a patriot and can expose Anjela to the glory of American greatness. We recognize the importance of Angela's patriotic upbringing.

However, Casey is very supportive to Anjela's relationship with Song and Anjela's patriotic education. At the time of trial, Casey was planning to enroll Anjela in the local Daughters of the American Revolution children's education classes. In addition, the areas where Casey and Harold live have approximately the same amount of strong pro-American feeling. We believe Anjela would have sufficient opportunities to learn patriotism under Casey's care.

Second:

Harold argues that Anjela is a grandchild of Christians and it is important for her to be raised Christian. He contends that Anjela's paternal grandmother, Song, is a Christian and she can expose Anjela to Christianity. We recognize the importance of Angela's being raised in the faith of her ancestors.

However, Casey is very supportive to Anjela's relationship with Song and her interest in Christianity. At the time of trial, Casey was planning to take Anjela to church often. In addition, the areas where Casey and Harold live have approximately the same amount of Christian population. We believe Anjela would have sufficient opportunities to be involved with her religious heritage under Casey's care.

I take it that we'd treat these hypothetical decisions as strongly suggesting that a parent's lack of patriotism and lack of willingness to raise a child Christian (or at least to raise a child in the child's ancestors' religion) would count against the parent in the custody decision. In this particular case, the parent avoided this by being suitably patriotic and suitably open to raising the child Christian. But we'd read this opinion as strongly suggesting that in another case, a parent might lose custody from being insufficiently patriotic or insufficiently willing to raise the child in the right religion.

If you were a lawyer who saw a court decision like this, would you advise your client, "Oh, never mind, if you're raising your child not to value patriotism [or religiosity], and your ex-spouse argues that this is against the child's best interests, a local court would just ignore that. Sure, in this decision the court mentioned these factors, but only in a summary fashion, and only to rebut one side's argument. If Casey hadn't been raising Anjela patriotic or Christian, the court would still have ruled for Casey, and dismissed Harold's arguments as irrelevant."?

Or would you believe that you should say, "It's hard to tell for sure, but it looks like this court thinks that whether a parent is giving the child a patriotic [or religious] upbringing is potentially relevant. After all, it did discuss these facts, rather than just dismissing Harold's arguments as irrelevant; and it ruled for Casey on the grounds that she was teaching the child patriotism [or religion], rather than on the grounds that it doesn't matter whether she was teaching the child this way. So if you want to improve your chances of keeping custody, you'd best show a willingness to teach the child patriotism [or religion]."?

I would say the latter: The court's decision would signal to me that there's a substantial likelihood that a court would prefer parents who are providing patriotic or religious upbringings over those who aren't. And if I'm right, then the same should be said about the real Iowa Court of Appeals decision that I quoted at the start of this post.

One could still argue that it's proper for the court to suggest that parents who teach their quarter-Korean children about their Korean "ethnic heritage" should be preferred (all else being equal) over those who don't want to teach their children this way, though I disagree (for reasons I mentioned in the earlier post). But I don't think the court's discussion can be dismissed as a merely passing reference to the parties' arguments, with no suggestion about the way the court might rule in future cases.

From what is otherwise a pretty standard "best interests of the child" analysis in a child custody case, Foster v. Waterman, 2007 WL 2119125 (Iowa App. July 25):

Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage. However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.

Seems to me that courts have no business deciding, whether in a child custody case or elsewhere, how much and what sort of a connection a child should have "with her ethnic heritage." Some parents want their children to be closely connected to the culture of the child's ancestors (or of some of the child's ancestors). Others don't much care, because they reject the notion of bonds with ancestral ethnic groups; or they may even want to deliberately sever a link with a culture of which they disapprove. A court ought to remain agnostic between these approaches.

There may be some rare exceptions to this principle (though I'm not positive even about these): Perhaps in some situations there might be some serious evidence that one parent's approach to the child's racial background is against a child's best interests, for instance if a child who looks very different from other children is having serious social troubles as a result, but one of the parents isn't doing anything to try to deal with that. If an older child has herself developed some emotional connection with her ethnic background, and wants to continue that connection, a court might count in a parent's favor that parent's willingness to accommodate the child's preferences. And it may well be in a child's best interests to learn a foreign language, though learning Spanish (even in Iowa) is probably more in the child's interests than learning Korean.

But in general, a court shouldn't take the view that the ethnically quarter-Korean (or for that matter that the full-blooded Korean) should get more (or less) in touch with her heritage, or should live in a more (or less) "divers[e]" neighborhood. And it's just zany for a court to view a parent's willingness to enroll the quarter-Korean child in a martial arts class as remotely relevant to the child's best interests.

A few weeks ago, I posted about whether credit card providers should be liable for knowingly facilitating sales of infringing materials. A Ninth Circuit decision said that this did not constitute contributory infringement; Judge Kozinski dissented, saying it did, and I generally endorsed his position, at least as a matter of current law.

Many commenters disagreed, making various arguments. Among other things, they argued that we shouldn't "in effect, force credit card companies to become copyright police ... who have an affirmative duty to expend massive resources surfing the web verifying complaints of copyright infringement"; that the law shouldn't take the view that "preventing infringement should be a primary concern for all unrelated businesses"; that such contributory liability shouldn't exist at least until there's a judicial finding that the recipient of the money is indeed an infringer; and that the credit card companies shouldn't be liable unless they know that the specific transaction they're facilitating is infringing (as opposed to just that the target site is engaged in massive infringement).

These are all plausible arguments, but I wanted to revisit the question by asking a broader question: When should someone be held legally liable for helping others commit crimes or torts? In criminal law, the question is when someone should be guilty of the crimes of "aiding and abetting" or (in some jurisdictions) "criminal facilitation." In tort law, the question is when someone should be liable as an accessory; contributory copyright infringement law is in large measure the application of this general tort law principle.

The theory is that at some point helping someone commit a wrong -- especially a wrong to an identifiable innocent third party -- is itself the commission of a wrong. By threatening to hold you liable we aren't asking you to become the "police," in the sense of someone who is expected to actively try to catch wrongdoers. Rather, we're asking you not to participate in others' wrongdoing. The question is when this is a reasonable demand.

1. Majority criminal law view: Oddly enough, the matter is not fully settled even as to criminal law. The dominant view seems to be that you are liable as an aider or abetter if you (here I quote the Model Penal Code, which isn't far from the majority rule on this point) solicit, aid, agree, or attempt to aid another in committing a crime, with the purpose -- the "conscious object" -- of promoting the crime. This means that if you give a gun, a knife, gasoline, a rope, or whatever else to a criminal with the purpose of helping him commit a crime with the gun, you're committing a crime. But if you simply know that he will likely commit a crime, but don't have the conscious object of helping him (perhaps, for instance, you're selling the goods just like you'd sell them to anyone else, with the sole object of making money from the sale), then you're not guilty.

2. Minority criminal law view: But quite a few jurisdictions do allow punishment even if you merely know that you're helping someone commit a crime, or even if you know that there's a high probability you're helping someone commit a crime. Some jurisdictions do this for all serious crimes, others just for some crimes; and some treat this as aiding and abetting, punishable the same way the aided crime is punished, while others impose a lower sentence. For instance, consider New York Penal Law § 115.00: "A person is guilty of criminal facilitation in the fourth degree [a class A misdemeanor] when, believing it probable that he is rendering aid ... to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony." Or consider Indiana Code Ann. § 35-41-2-4: "A person who knowingly or intentionally aids ... another person to commit an offense commits that offense." Or see the dictum in People v. Lauria, 59 Cal. Rptr. 628, 633-35 (Ct. App. 1967), which suggests aiding and abetting liability based on mere knowledge that one is aiding a crime would be proper if the crime were serious enough.

Of course, if you have a credible claim that you were forced into this ("I had to sell the knife to the gangster, or else he'd have attacked me himself"), you'd have a duress defense. And this liability would not apply if you're selling a product to the public at large, and you merely know that some fraction of the population -- and you don't know who -- are misusing the product (whether the product is a gun, a knife, a bottle of vodka, a photocopier, or whatever else).

But as a general matter under this view you have an obligation not to help anyone commit a crime, if you know that your actions would help that criminal commit the crime (and knowledge of very high likelihood is probably enough), or maybe even if you just know that it's "probable" your actions would help the criminal.

3. Tort law: The tort law view, as best I can tell, mirrors what is reported by the Restatement (Second) of Torts § 876: "[O]ne is subject to liability if he ... knows that [an]other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other." That's the knowledge-is-enough view that's very close to what Judge Kozinski was urging as to aiding copyright infringement (which is after all itself a tort).

Now note that under all these doctrines, one can be liable even thought there's been no judicial finding that the person you're helping is committing a crime or tort. True, if you're genuinely not sure that the person you're helping will use your help for criminal or tortious purposes, then the "knowledge" requirement isn't satisfied. But you often will be pretty sure -- sure enough to qualify for knowledge. Note that even the criminal law, which is usually more demanding than tort law, tends to conclude that "knowledge is established if a person is aware of a high probability of [the] existence [of a fact], unless he actually believes that it does not exist," Model Penal Code § 2.02(7). "'[K]nowingly' in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously [i.e., deliberately] avoided it." United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc).

I also suspect that you wouldn't have to be certain that every single weapon you sell to a tortfeasor is going to be used for tortious purposes. (Maybe that one gun I sold is the one gun he'll keep for purely defensive purposes.) So long as you know that the person to whom you're constantly providing services is routinely using them for tortious or criminal purposes, I expect you'd be liable under either tort law (#3) or the minority criminal law rule (#2; for liability under #1 you'd have to have the purpose of helping commit the crime).

So that's the big picture, far outside the current debates about copyright infringement. You are generally required by the law not to knowingly helping others commit torts. You are even criminally punishable in some jurisdictions for knowingly helping others commit crimes.

You thus have a duty in all these jurisdictions to organize your affairs so that once you are aware that your conduct is helping particular criminals or tortfeasors, you stop. This imposes some burden on you, including some burden of checking things further once you become aware of a high probability that you're helping someone commit a crime or tort.

Let me then ask people, both at this big-picture level and in the context of financial intermediaries -- such as credit card companies -- who are given very solid evidence that their dealings with someone are helping that person commit a crime or tort. Should entities that help in the commission of such crimes and torts then be liable (civilly or criminally) for so helping? Should it vary materially depending on the crime and the tort? Or should the test turn on something else?

Egypt's Grand Mufti Ali Gomaa — described by Agence France Press as "Egypt's official religious advisor" wrote last week in a Newsweek/Washington Post "On Faith" forum:

The essential question before us is can a person who is Muslim choose a religion other than Islam? The answer is yes, they can, because the Quran says, “Unto you your religion, and unto me my religion,” [Quran, 109:6], and, “Whosoever will, let him believe, and whosoever will, let him disbelieve,” [Quran, 18:29], and, “There is no compulsion in religion. The right direction is distinct from error,” [Quran, 2:256].

These verses from the Quran discuss a freedom that God affords all people. But from a religious perspective, the act of abandoning one’s religion is a sin punishable by God on the Day of Judgment. If the case in question is one of merely rejecting faith, then there is no worldly punishment. If, however, the crime of undermining the foundations of the society is added to the sin of apostasy, then the case must be referred to a judicial system whose role is to protect the integrity of the society. Otherwise, the matter is left until the Day of Judgment, and it is not to be dealt with in the life of this world. It is an issue of conscience, and it is between the individual and God. In the life of this world, “There is no compulsion in religion,” in the life of this world, “Unto you your religion and unto me my religion,” and in the life of this world, “He who wills believes and he who wills disbelieves,” while bearing in mind that God will punish this sin on the Day of Judgment, unless it is combined with an attempt to undermine the stability of the society, in which case it is the society that holds them to account, not Islam.

All religions have doctrinal points that define what it is to be an adherent of that religion. These are divine injunctions that form the basis of every religion, but they are not a means for imposing a certain system of belief on others by force. According to Islam, it is not permitted for Muslims to reject their faith, so if a Muslim were to leave Islam and adopt another religion, they would thereby be committing a sin in the eyes of Islam. Religious belief and practice is a personal matter, and society only intervenes when that personal matter becomes public and threatens the well-being of its members.

In some cases, this sin of the individual may also represent a greater break with the commonly held values of a society in an attempt to undermine its foundations or even attack its citizenry. Depending on the circumstances, this may reach the level of a crime of sedition against one’s society. Penalizing this sedition may be at odds with some conceptions of freedom that would go so far as to ensure people the freedom to destroy the society in which they live. This is a freedom that we do not allow since preservation of the society takes precedence over personal freedoms. This was the basis of the Islamic perspective on apostasy when committed at certain times and under certain circumstances.

Unfortunately, the Gulf News now reports something different:

Egypt's top cleric yesterday denied in a statement that he had said a Muslim can give up his faith without punishment.

Ali Goma'a, the mufti of Egypt, was quoted as saying in a posting on a Washington Post-Newsweek forum that Muslims are free to change their faith and this is a matter between an individual and God.

"What I actually said is that Islam prohibits a Muslim from changing his religion and that apostasy is a crime, which must be punished," Goma'a said.

The alleged fatwa coincides with an uproar over the case of 12 Egyptians who converted to Islam from Christianity and now want to re-embrace Christianity....

Commentator Ali Eteraz (a fairly left-wing lawyer, if I read his profile correctly) tries to reconcile the two at The Guardian's site:

Conversation with Gomaa's people reveals that his actual quote given to the [Gulf News] newspaper was: "This disobedience can, in some of its manifestations, embody a departure from the general norms ... and a kind of crime that would necessitate punishment."

This direct turn-around, (or guarded qualification if one accepts Gomaa's version of what he said), appeared curious to many. What happened? Does Dr Gomaa think that an apostate should be punished, or does he not?

A close read of Gomaa's Newsweek opinion shows that the answer is "both". The opinion is a serious bit of legal reasoning. On one hand Gomaa indeed eliminates the death penalty for apostasy in Islamic law (by citing Quranic verses dealing with freedom of conscience), which is a major event. However, on the other hand, he grants to the Egyptian "judicial system" the authority to prosecute certain apostates — those that leave Islam in "public" — for the "crime of undermining the foundations of society". He ends up proposing a new criminal cause of action called "sedition against one's society". Sedition is not an Islamic term. It is a secular term that does not exist in the Quran.

Is it the case that Gomaa found a way to affirm penalising public apostasy via the back door? Yes, he did. The question is, why did he use a back door at all? Like thousands of Islamic jurists in the past, he could have easily said that Islam requires punishing apostates and be done with it. Yet he didn't do that. He first said that Islam was against penalising private apostasy, and he then moved to penalise public apostasy because it was a social (and not religious) problem.

Why go to all these lengths?

Simple: Muslim leaders are no longer relying upon religious law — "because God said so" — to justify their religious ends. Instead, they are coming up with what we western lawyers call "value-neutral terminology." I saw this in Pakistan's Women's Protection Bill last year. In order to pull rape cases out of the Shariah courts, reformers created new secular crimes to replace what used to be Shariah crimes. They did so even though the new secular crimes did not qualitatively differ from old religious crimes (ie "fornication" was renamed "lewdness"). This was smart. "Fornication" is a Quranic term backed by Islamic law but "lewdness" is a value-neutral term with no fixed meaning except what a contemporary criminal court decides (and in Pakistan's case, the criminal courts are secular). If, and when, a law against "lewdness" is abolished, abolition wouldn't be considered an assault on religion as it was never a religious term to begin with.

This sort of transubstantiation of religious ideas into secular terminology is the west's original contribution to government, and the backbone of liberalism. Starting at the Enlightenment, western leaders took their appeals to God or religious law, out of lawmaking (even if they secretly did wish to satisfy God or religious law). Even at the height of conservatism in the US, when proposing legislation, the most fundamentalist Christian Congressperson will not invoke Jesus. His or her faith might certainly inform his positions but the Congressperson will seek non-religious ways of winning the argument: patriotism, commerce, public health, or social good. This is what Gomaa is doing with apostasy.

Certainly none of us agree with Gomaa that apostasy be classified as sedition, or even be punished at all; but we must at least appreciate that he tried to assert his position in an explicitly non-religious manner.

Gomaa's Newsweek opinion does not directly advance the rights of apostates as western newspapers initially thought. In political terms it doesn't help apostates at all. It is, however, an opinion that starts, just barely, to separate religion from state. Such a trend will lead to Muslim fundamentalists in the future having to justify their imposition on non-Muslims in "secular" or "value-neutral" terms. That creates a much more even playing-field for non-Muslim minorities in Muslim countries. Further, by taking the imprimatur of Islam out of the discussion, and leaving the crime to be defined by the state, Gomaa, one of the top Islamic scholars in Egypt, has deferred a religious question to Mubarak (and in the future, one hopes to Egyptian democrats). In other words, he has "rendered unto Caesar" - which is a nascent version of separation of religion from state.

Muslims like Gomaa, by pulling Islam out of political debates, can, and are, creating the conditions for liberalism. We should celebrate that while remembering that they will not work at a pace dictated by us in the west.

The complaint is here; it alleges that Deputy PTO Director Margaret Peterlin lacks the statutorily required "professional background and experience in patent or trademark law."

I can't speak to whether the deputy director in fact lacks such background and experience. Her biography doesn't stress much of it, though it points to quite substantial general legal credentials; but according to the Washington Post, patent office spokeswoman Brigid Quinn reported that "Peterlin has 'had direct involvement in oversight of the USPTO and every piece of patent, trademark and copyright-related legislation considered on the House floor over the past five years.'"

I'm more interested in the institutional question here: What should courts do with vague criteria such as "shall ... [have] a professional background and experience in patent or trademark law," criteria that give no instructions about the level of background and experience required? I'm not an administrative law expert, but I'm inclined to say that this is the sort of judgment that is left to the Director (and, indirectly, to the Secretary of Commerce and the President, who can decide to remove the Deputy Director), not to courts. But I'd love to hear what administrative law experts have to say about this, and about other procedural questions that this lawsuit raises.

Thanks to Michael Hall for the pointer.