The Volokh Conspiracy

Very bad, not just for the victims, but for public debate more broadly; I very much hope that it remains an aberration, or else the consequences will be bad for speakers with a vast range of views. From CNN:

Authorities have charged an Owosso, Michigan, man with two counts of first-degree premeditated murder in the Friday shooting deaths of an anti-abortion activist and another man, a prosecutor's office said.

Authorities say the suspect, Harlan James Drake, was offended by anti-abortion material that the activist had displayed across from [a local high] school all week.

Drake, 33, is accused of shooting anti-abortion activist Jim Pouillon, 63, and Michael Fuoss, 61, who were killed in separate locations Friday morning, the prosecutor's office in Shiawassee County said.

Authorities also have charged Drake with a felony firearm count and carrying a dangerous weapon with unlawful intent, the prosecutor's office said.

Drake also is suspected of "attempting to locate a third victim without success," the office said....

I've labeled killings and threats against abortion providers as anti-abortion terrorism before (see here, here, and here). This likewise appears to be a domestic terrorist attack, though as I said I hope that it will remain a rare isolated incident. (I say "appears to be" simply in case the initial accounts prove incorrect, or in case the defendant turns out to be legally insane or some such.)

The statement:

2009 has been a year of deep reflection — a chance for Britain, as a nation, to commemorate the profound debts we owe to those who came before. A unique combination of anniversaries and events have stirred in us that sense of pride and gratitude which characterise the British experience. Earlier this year I stood with Presidents Sarkozy and Obama to honour the service and the sacrifice of the heroes who stormed the beaches of Normandy 65 years ago. And just last week, we marked the 70 years which have passed since the British government declared its willingness to take up arms against Fascism and declared the outbreak of World War Two. So I am both pleased and proud that, thanks to a coalition of computer scientists, historians and LGBT activists, we have this year a chance to mark and celebrate another contribution to Britain’s fight against the darkness of dictatorship; that of code-breaker Alan Turing.

Turing was a quite brilliant mathematician, most famous for his work on breaking the German Enigma codes. It is no exaggeration to say that, without his outstanding contribution, the history of World War Two could well have been very different. He truly was one of those individuals we can point to whose unique contribution helped to turn the tide of war. The debt of gratitude he is owed makes it all the more horrifying, therefore, that he was treated so inhumanely. In 1952, he was convicted of ‘gross indecency’ — in effect, tried for being gay. His sentence — and he was faced with the miserable choice of this or prison — was chemical castration by a series of injections of female hormones. He took his own life just two years later.

Thousands of people have come together to demand justice for Alan Turing and recognition of the appalling way he was treated. While Turing was dealt with under the law of the time and we can’t put the clock back, his treatment was of course utterly unfair and I am pleased to have the chance to say how deeply sorry I and we all are for what happened to him. Alan and the many thousands of other gay men who were convicted as he was convicted under homophobic laws were treated terribly. Over the years millions more lived in fear of conviction.

I am proud that those days are gone and that in the last 12 years this government has done so much to make life fairer and more equal for our LGBT community. This recognition of Alan’s status as one of Britain’s most famous victims of homophobia is another step towards equality and long overdue.

But even more than that, Alan deserves recognition for his contribution to humankind. For those of us born after 1945, into a Europe which is united, democratic and at peace, it is hard to imagine that our continent was once the theatre of mankind’s darkest hour. It is difficult to believe that in living memory, people could become so consumed by hate — by anti-Semitism, by homophobia, by xenophobia and other murderous prejudices — that the gas chambers and crematoria became a piece of the European landscape as surely as the galleries and universities and concert halls which had marked out the European civilisation for hundreds of years. It is thanks to men and women who were totally committed to fighting fascism, people like Alan Turing, that the horrors of the Holocaust and of total war are part of Europe’s history and not Europe’s present.

So on behalf of the British government, and all those who live freely thanks to Alan’s work I am very proud to say: we’re sorry, you deserved so much better.

Geoffrey Pullum (Language Log) elaborates:

Turing did indeed deserve so much better. He created modern theoretical computer science; opened fundamental new areas of mathematical logic; made very important contributions to other areas of mathematics (e.g., the technique known as Good-Turing frequency estimation in statistics); and most importantly, he gave up his academic work during the Second World War to work at Bletchley Park on the extremely difficult task of decrypting German communications encrypted with the Enigma machine. The Bletchley Park team did succeed, and thus the Royal Navy became able to read the content of all the Nazis' messages to U-boats in the North Atlantic. It was a crucial turning point in the war. But a mere seven years later, a young man shared Turing's bed for the night in Manchester, and later helped someone burgle the house, and Turing naively reported the theft to the police. The police reaction was to arrest Turing, because they guessed what had been going on. "Gross indecency" was the charge (it is the British legal euphemism for cocksucking). Turing had a choice between serving prison time or agreeing to chemical castration, a medicalized "cure" for his presumed abnormality. He bore the latter for two years and then took cyanide. The way British mid-20th-century sex law drove him to suicide was genuinely something for the country to be ashamed of. It was good to see the official apology (which hundreds of eminent scientists had asked the Prime Minister to express).

Plus, as Pullum says, "That's how to say it ...: not a bunch of evasive mumbling about how unfortunate it all was, but a simple 'We're sorry.'"

For an example of how this works in the U.S., see Easterly v. Heritage Christian Schools, Inc. (S.D. Ind. Aug. 26, 2009). As the case name suggests, this involved Christian arbitration, but the secular legal principles would be the same for Muslim arbitration as they would be for Jewish arbitration.

Certainly some matters might by law not be subject to arbitration; I believe that's the rule for child custody decisions in many states. Some arbitration provisions may be set aside if there's evidence that they were entered into under threat of violence or some such (though economic need or social pressure is generally not a reason for that, I think, especially since many businesses enter various contracts because of economic need or pressure from business community norms). Some remedies couldn't be implemented through arbitration. Some sorts of procedures -- perhaps including the application of procedural rules that discriminate based on the parties' sex -- might be prohibited even despite the broad deference to arbitration decisions.

But that's true for all forms of arbitration, whether secular or religious. There's certainly nothing alien to American law in having arbitration tribunals apply religious law (or for that matter the laws of foreign countries with legal systems quite different from ours). Nor is there any constitutional authorization for distinguishing Jewish and Christian arbitration from Muslim arbitration based simply on the denominations involved (though again all these arbitrations are subject to various relatively deferential but not toothless secular constraints, which may of course play out differently to the extent that different arbitral bodies operate differently).

A few relevant passages:

Easterly ... argues that “the arbitration provision in the parties’ contract provides for a process by which Ms. Easterly must forego vindication of her substantive rights guaranteed by the ADEA and ADA and Indiana contract law, and instead rely on biblical scripture to define her rights.” Easterly points to the fact that the RPCC [Rules of Procedure for Christian Conciliation] provide that “Conciliators shall take into consideration any state, federal, or local laws that the parties bring to their attention, but the Holy Scriptures (the Bible) shall be the supreme authority governing every aspect of the conciliation process.” While it is true that “a substantive waiver of federally protected civil rights will not be upheld,” Easterly does not explain how this provision constitutes a waiver of her rights under the [Americans with Disabilities Act] and the [Age Discrimination in Employment Act]. [Substantive rights under antidiscrimination law, as opposed to rights under many other kinds of law, generally cannot be waived up front by contract. -EV] The provision requires the arbitrator to take into consideration the applicable law, and Easterly fails to articulate how biblical principles might conflict with that law to her detriment. In the absence of such a showing, the Court declines to find that submission to arbitration under the RPCC will deprive Easterly of her right to vindicate her statutory rights.

Easterly also argues that “[t]he agreement to biblically-based arbitration in Ms. Easterly’s teaching contract cannot be enforced because the processes are structurally biased and procedurally inadequate.” However, Easterly again fails to articulate how this is so. “The Supreme Court has repeatedly counseled that the FAA leaves no room for judicial hostility to arbitration proceedings and that courts should not presume, absent concrete proof to the contrary, that arbitration systems will be unfair or biased.” She further objects to the fact that the RPCC differ from the Indiana Alternative Dispute Resolution Rules with regard to confidentiality. However, again, “under the FAA the parties are free to agree to any governing rules, and the courts will enforce whatever system they choose.” ...

The FAA “is a congressional declaration of a liberal federal policy favoring arbitration agreements,” and “that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Easterly has pointed to nothing about the arbitration agreement in this case that would override this policy.

Ami Angelowicz (The Frisky) theorizes on this. I'm not sure whether she's right, but it struck me as amusingly put, especially as to item 2. Then there's always the "crazy enough to sleep with me" option.

Thanks to InstaPundit for the pointer.

Here's a passage from Doe v. Reed, the opinion I criticized below. I don't think the court needed to reach this issue, because I think there's no need for strict scrutiny when state law chooses to disclose the names of people who take legally operative steps such as signing initiative, referendum, or recall petitions. But I want to set that aside here, and focus on the argument the court made -- an argument with a structure that I often hear (especially from law students), and that bears a bit of explicit analysis:

In the alternative, Defendants assert that there exists a second “compelling” interest in favor of disclosure. Defendants argue that the electorate is entitled to know “who is essentially lobbying for their vote, and thus, who likely will benefit from the measure.” But this argument is unavailing because neither the Court nor the parties have the ability to identify whether an individual who supports referral of a referendum to the next ensuing general election actually supports the content of the referendum or whether that individual simply agrees that the referendum should be placed before the voting public. In other words, the identity of the person who supports the referral of a referendum is irrelevant to the voter as the voting public must consider the content of the referendum and be entitled to a process by which it can ensure that the petitions are free from fraud.

Note how the court argues here: (1) A person could sign a petition simply because he "agrees that the referendum should be placed before the voting public," and not because he "supports the content of the referendum." (2) "In other words," the identity of the petition signers "is irrelevant" to the voter who seeks to figure out "who is essentially lobbying for" the proposal.

But statement 2 is not at all just "other words" for statement 1. Statement 1 correctly asserts that signing a petition is not dispositive evidence of the signer's views on the merits. Some people do sign petitions because they think the public is entitled to vote on the question, even though they'll vote against the proposal; some people might expect the proposal to lose, and might sign the petition precisely because they want a statewide vote in which the proposal loses; some people might have deeper political reasons for signing, perhaps because they think the proposal's presence on the ballot will bring out voters who will vote the right way on some other measures or in candidate races; some people might just have been buffaloed into signing something; and so on.

But this hardly means that the identity of the signers is irrelevant to determining who is lobbying for the proposal. If, for instance, it turns out that 60% of a petition's signers are registered Democrats and 10% are registered Republicans, in a state that's generally split 50-50, voters can reasonably conclude that the petition is probably a project of Democrats, and would thus be more likely serve the interests of traditionally Democratic interest groups -- relevant information to many voters, especially if there's a dispute on what the law's effects likely will be.

Now if the argument were simply that the connection isn't strong enough to pass muster under strict scrutiny (the test that the court is applying here), that would be plausible. Likewise, if the argument were that the interest in getting such information about the initiative's backers wasn't compelling enough to satisfy strict scrutiny, that would be plausible, too. (My disagreement with the court on the bottom line stems from my view that strict scrutiny shouldn't apply here.) But this leap from (1) the signature being an imperfect proxy for backing the merits of the petition to (2) its being irrelevant to deciding who is backing the merits of the petition is not sound.

The decision, in Doe v. Reed, was just handed down yesterday, and is based on the signers' First Amendment rights to speak anonymously; the decision basically keeps in place the temporary restraining order handed down July 29, but is accompanied with a detailed opinion containing the court's reasoning.

That reasoning strikes me as unpersuasive, for the same reasons I mentioned in late July; I don't think that secrecy of signatures is constitutionally mandated by the First Amendment, just as I don't think that a secret ballot is constitutionally mandated by the First Amendment. True, the anonymous speech precedents bar the government from requiring that people sign their political statements. But political statements are just speech. Signing an initiative, referendum, or recall petition is a legally operative act — it helps achieve a particular result not just because of its persuasiveness, but because it is given legal effect by the state election law.

The government is surely entitled to require that people who want their signature to have such a legally operative effect must disclose their identities to the government. And I see no reason why the government might not then disclose those identities to the public, who after all are in charge of the government. To do that is to inform the people about who is taking legally operative steps to change the state's laws (or the state's elected representatives, in the case of a recall).

Informing the public about this might well deter such legally operative acts, though of course leaving people free simply to engage in persuasive speech, which can indeed generally be done anonymously rather than in legally significant signing of petitions. But I don't think that deterrence is unconstitutional, especially since the legal significance of the signature is there only because state law creates it. Even overt government condemnation of certain speakers is not a First Amendment violation, though such condemnation might deter speakers. The same is even more true, I think, of a simple release of over 100,000 names, though again I can't deny that there would be a deterrent effect.

I agree that there are plausible plausible arguments that voter signatures shouldn't be publicly released by the government. Just as we have a secret ballot for the ultimate votes, we could have at least a quasi-secret signature system for the signing of referendum, initiative, recall, and candidate nomination petitions. Both an election and a threshold signature requirement to put something on an election are generally aimed at accurately measuring public opinion. Such an accurate measurement is much more likely if the measurement is undistorted by people's fear of being attacked, fired, ostracized, or even annoyed by those who disagree with them.

To be sure, unlike with a secret ballot, a petition signature would not be fully secret -— for instance, the government would know what you signed, though it doesn't know how you voted, and it's possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there's just one signature per page, and each page is concealed after it's signed). But there are good reasons why we might choose to make it as close to a secret ballot as possible.

Still, the judgment about how secret signatures or even ballots should be is a judgment that should be made legislatively (or by voter initiative). The First Amendment and First Amendment caselaw does not preclude either option, and the court's opinion here doesn't persuade me to the contrary.

The Jerusalem Post reports, apparently relying on this German-language source:

A local district court in the West German city of Bochum fined a student 300 Euros on Wednesday for displaying an Israel flag at a demonstration organized by Muslim organizations against the IDF Operation Cast Lead in January. According to Der Westen, a regional paper in Bochum, the public prosecutor termed the Israeli flag as "provoking" within a special situation....

According to Der Westen, the local district court judge deemed the protest of the five activists expressing solidarity with Israel as a "dangerous situation."

A spokesman for the district court, Volker Talarowski, told the Post that there was a "violation of the right to assembly" and the court's decision was issued "independent of a political motivation." Talarowski added that the pro-Israel demonstrators failed to register their protest 48 hours before the event.

Yet the student, who is appealing the fine, said a special regulation permits "spontaneous" demonstrations without a pre-registration. In response to a hardcore anti-Israeli demonstration in Bochum attended by 1,600 protesters on January 17, the student, along with four pro-Israeli activists, displayed a banner stating "Against anti-Semitism and fascism: Solidarity with Israel" as well as the Israel flag....

I'd much appreciate any translation of the source, or correction or amplification of the Jerusalem Post article, from people who know German. Naturally, if anyone can find the court decision, and the relevant regulations, I'd also much appreciate seeing those. Thanks to Avi Bell for the pointer.

Please note the UPDATE to the Hunting Violation Checkpoints post below, since it brings up lower court caselaw that may well affect the bottom line analysis of the case.

So holds a unanimous Ninth Circuit panel opinion, authored by Judge Reinhardt, in United States v. Juvenile Male (handed down today). As the panel said,

Congress in 2006 enacted the Sex Offender Registration and Notification Act and applied its registration and reporting requirements not only to adults but also to juveniles who commit certain serious sex offenses at the age of fourteen years or older. The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders convicted of qualifying offenses before its enactment, including juvenile delinquents.

The panel said such retroactive application violates the Ex Post Facto Clause. Smith v. Doe, 538 U.S. 84 (2003), held that a similar requirement applied to adult offenders didn't violate the law, because it was a civil regulatory scheme and not something tantamount to criminal "punishment." (Since 1798, the Supreme Court has held that the Ex Post Facto Clause applies only to criminal and punitive retroactive legislation, and not to civil legislation or various regulatory disabilities.) But the panel distinguished Doe on the grounds that as to juvenile adjudications -- but not adult convictions -- the retroactive registration and reporting requirement "serves to convert a rehabilitative judicial proceeding, sheltered from the public eye, into a punitive one, exposed for all to see."

The decision is not implausible, especially in light of how mushy the Court's description of the civil/criminal line in Ex Post Facto Clause cases has been. Nonetheless, given that the decision holds unconstitutional some applications of a federal statute (as implemented by the Attorney General's regulations), and given that the decision is also not clearly correct, it seems likely that the U.S. Supreme Court would agree to hear the case even in the absence of a circuit split -- if, that is, the Solicitor General petitions the Court for certiorari.

It will be interesting to see what the SG's office does here. In Smith v. Doe, Justices Stevens, Ginsburg, and Breyer dissented, and Justice Souter concurred in a way that suggested that he thought Smith was a very close case. Their views on the issue even as to notification for adult convicts, and the views of the liberal panel in this case as to notification for people who had been found guilty as juveniles, suggests that the liberal decisionmakers in the SG's office are likely to sympathize with the result below. The question is both the extent to which they'll feel some obligation to defend the wishes of a past Congress (as implemented by the Department of Justice of a past Administration), and the extent to which the current Administration feels some pressure to back the application of the registration and reporting law in cases like this.

Thanks to How Appealing for the pointer.

[UPDATE: Analysis, and, in some measure the bottom line, substantially revised.] The Sacramento Bee reports:

The California Department of Fish and Game will stage three roadside checkpoints in Placer County on Sunday in an effort to catch hunting violations....

"The checkpoint is there to find violations of the Fish and Game Code," said Placer County Game Warden Brian Moore. "It could be anything — out of season hunting or animals that are fully protected — that could come through." ...

Wardens will stop vehicles to inquire about hunting and fishing activity and check licenses.

That's pretty clearly a Fourth Amendment violation, under the Supreme Court's decision in City of Indianapolis v. Edmond (2000), which held that similar checkpoints aimed at uncovering drug couriers were unconstitutional. Here's a relevant excerpt from Edmond:

The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308 (1997). While such suspicion is not an "irreducible" component of reasonableness, we have recognized only limited circumstances in which the usual rule does not apply.

For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve "special needs, beyond the normal need for law enforcement." ... We have also upheld brief, suspicionless seizures of motorists ... at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). In addition, in Delaware v. Prouse, 440 U.S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing....

In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitz checkpoint involved brief suspicionless stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. Motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State's interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional....

We further indicated in Prouse that we considered the purposes of ... a hypothetical [license and registration verification] roadblock to be distinct from a general purpose of investigating crime. The State proffered the additional interests of "the apprehension of stolen motor vehicles and of drivers under the influence of alcohol or narcotics" in its effort to justify the discretionary spot check. We attributed the entirety of the latter interest to the State's interest in roadway safety. We also noted that the interest in apprehending stolen vehicles may be partly subsumed by the interest in roadway safety. We observed, however, that "[t]he remaining governmental interest in controlling automobile thefts is not distinguishable from the general interest in crime control." Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control....

So highway checkpoints aimed at interdicting threats to highway traffic themselves are generally constitutional (which may also help explain airport searches). But suspicionless highway checkpoints aimed at catching people who commit other crimes, whether drug trafficking or illegal hunting, are generally not constitutional (unless some other exception kicks in, and none of those would apply here).

UPDATE: But while that is still my view of the best reading of Edmond, Orin pointed out to me that other cases have generally upheld hunting checkpoints. Some of these (State v. Sherburne, 571 A.2d 1181 (Me. 1990), and People v. Layton, 552 N.E.2d 1280 (Ill. App. Ct. 1990)) are pre-Edmond, and strike me as inconsistent with Edmond's reasoning. But the Ninth Circuit's decision last month in United States v. Fraire likewise upheld a hunting checkpoint at the entrance to a national park:

We first address whether the checkpoint was unconstitutional as a general crime control device. In Edmond, the city of Indianapolis operated vehicle checkpoints on city streets in an effort to discover and interdict illegal drugs. The Court held that the checkpoint program violated the Fourth Amendment because the “primary purpose” was to “uncover evidence of ordinary criminal wrongdoing.” The Court distinguished two prior cases permitting checkpoints, Martinez-Fuerte and Sitz, on the grounds that the checkpoints in those cases served purposes other than ordinary crime control. In Martinez-Fuerte, the Court upheld the constitutionality of an immigration checkpoint near the U.S.-Mexico border. In Sitz, the Court upheld the constitutionality of a sobriety checkpoint that examined all drivers passing through for signs of intoxication. In Edmond, the Court explained why the primary purpose of the checkpoints in Martinez-Fuerte and Sitz were not the detection of ordinary criminal wrongdoing. The Court acknowledged that “[s]ecuring the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals.” However, the checkpoint program in Sitz “was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue.” As for Martinez-Fuerte, the objective there was to “intercept illegal aliens” and “to serve purposes closely related to the problems of policing the border[.]”

We must now determine whether the checkpoint in this case is a general crime control device, as in Edmond, or whether it serves a different purpose, as in Sitz or Martinez- Fuerte. The district court found that the checkpoint’s purposes included “catching violators, ... deterrence, education and in turn wildlife protection.” This finding is supported by Ranger Schifsky’s testimony at the evidentiary hearing, who testified that the checkpoint was aimed at mitigating the effects of the illegal taking of animals in the park. That the checkpoint accomplished this goal through the use of law enforcement techniques does not automatically transform it into a crime control device for Fourth Amendment purposes.

The checkpoint in this case is analogous to the checkpoint upheld in Sitz and is distinguishable from the checkpoint in Edmond. A critical factor in Sitz was the close connection between the checkpoint and the harm it was seeking to prevent. Sitz (describing the “obvious connection between the imperative of highway safety and the law enforcement practice at issue” in Sitz); id. (emphasizing the “close connection to roadway safety”). Likewise, here, the checkpoint was situated at an entrance to the park and sought to counter illegal hunting within that park. Unlike the drug crimes addressed by the Edmond checkpoint, which occur throughout the nation, the wildlife offenses here are specific to national parks. Further, just as the Sitz checkpoint prevented an immediate harm to motorists, the checkpoint here prevents hunters from destroying a precious natural resource. It does so by catching poachers before they can kill additional animals, by deterring would-be poachers, and by educating the park-going public about the hunting prohibition. The goal was prevention, not arrests.

I confess that I do not find this argument persuasive, even taking into account Martinez-Fuerte (which Edmond treated as being closely linked to the special "border context"). Among other things, the goal of much criminal law is "prevention" via "deterr[ence]" and not just "arrests" when deterrence fails; and one could equally well say that the checkpoint in Edmond was aimed at preventing the "destr[uction of] a precious natural resource," which is to say the health of Americans.

At the same time, this might just reflect how unclear the administrative search/law enforcement search line is; perhaps there is no crisp line to be drawn here, and the Ninth Circuit's and California's position is as well-founded -- or as ill-founded -- as mine. And certainly in light of the Ninth Circuit decision, California is entitled to treat the checkpoint as constitutional, at least if it is "situated at an entrance to the park," as opposed to far enough away from the entrance (query how relevant this should be, but the Ninth Circuit seems to suggest that it is relevant enough to be worth mentioning).

Thanks to Gregory Broderick for the pointer, and to Orin for pointing me to the lower court caselaw on this.

in last week's Annex Books, Inc. v. City of Indianapolis, a unanimous panel decision written by moderate conservative Judge Frank Easterbrook.

A city ordinance imposed a midnight closing time for all businesses -- including ones with no on-premises video viewing or live sexual displays -- that "devote[] 25% of more of [their] space or inventory to, or obtain[] at least 25% of its revenue, from adult [i.e., sufficiently sexually themed] books, magazines, films, and devices." The city argued that such an ordinance was constitutional under the relaxed City of Renton standard of review applicable to "erogenous zoning" ordinances. But all it offered as support was speculation that the ordinance will indeed prevent crime or other secondary effects (such as lower property values), coupled with generalizations from past decisions upholding restrictions on where sexually themed businesses can locate.

The panel concluded that more evidence was necessary to support the ordinance, and the evidence had to be specifically focused on (1) the supposed effects of businesses that had no on-premises video viewing or live sexual displays, and on (2) the supposed benefits of closing time ordinances rather than location restrictions. It then remanded to the trial court "for an evidentiary hearing consistent with this opinion."

From Newsday:

At first glance, the break-in at the Iglesia Evangelica Refugio de Salvacion looked like another sign of anti-immigrant sentiment on Long Island. [The article later notes some incidents, including an alleged murder and robbery. -EV]

The trespasser left behind three angry notes Wednesday on the altar of the Latino church, including one that said, "Hispanics don't rule, whites do."

But ... Saturday ... a Hispanic man with ties to the congregation was charged in the incident.

Suffolk County police said Christhian Munguia Garcia, 25, turned up at the church late Friday and tossed a log and a bottle at people leaving the building.

Parishioners gave chase, grabbed Garcia and held him until police arrived.

Patchogue Mayor Paul Pontieri Jr. told Newsday the altercation appeared to be the result of a dispute between Garcia and the church pastor. The pastor, the Rev. Roberto Sanchez, told the newspaper Garcia had previously been kicked out of a service because of bad behavior....

Police spokesman Tim Motz said authorities still considered the incident at the church a bias crime because it was directed at religious practice....

An attorney for Garcia ... said his anger at the church concerned "economic practices," not religion....

UPDATE: Title changed from "... to vandalize a church" to "... to commit crimes at a church."

From Helsingin Sanomat:

Jussi Halla-aho, an independent member of the Helsinki City Council elected to the council on the True Finns ticket, ... [was] convicted ... of violating the sanctity of religion ... [and] fined ... EUR 330.

Soon after the sentence was passed, Halla-aho ... repeated the view that got him fined. “In my opinion Islam really is a religion that sanctifies paedophilia, and the Prophet Muhammad is a paedophile”, Halla-aho wrote. He wrote similar ideas in his blog in June last year. He said that he reached his conclusion as the result of a logical chain of thought, noting that the Prophet had a spouse who was underage.

In the view of the court Halla-aho’s arguments were not sincere, even though they appeared logical. The court also stated that logic has no significance when religious questions are involved. According to the court, Halla-aho had no intention of holding a proper discussion on negative aspects of the Islamic faith, but to desecrate the sacred values of the religion under the guise of freedom of speech. According to the court, the statement has a tendency to feed religious intolerance.

Halla-aho was also charged over another statement he made in the same blog article, according to which robbing passers-by and scrounging on taxpayers’ money might be a genetic characteristic of Somalis. In the view of Deputy Prosecutor-General Jorma Kalske, this constituted incitement against an ethnic group, but the court acquitted Halla-aho on the charge. The court found that Halla-aho was simply trying to use satire to criticise authorities for not reacting to a newspaper editorial, which suggested that killing people was a “national, and possibly downright genetic special characteristic” of the Finnish people. The court concluded that Halla-aho was seeking to indicate that immigrants can enjoy better protection from officials than the native population....

Halla-aho says he plans to appeal; the prosecution says it's considering appealing as well. This site claims to reprint an English translation of the post based on which Halla-aho was convicted; this site, which appears to be Halla-Aho's, is said to contain the Finnish original; what is said to be an interview an English translation of an interview with Halla-aho is here.

If anyone can point me to an English translation of the court's opinion, I'd be very much obliged; likewise, if any Finnish speakers can confirm the accuracy of the relevant parts of the translation, or provide their own, that would be excellent. Many thanks to Religion Clause for the pointer. No word on whether the councilman's supporters chanted "Halla-aho Akbar" in his defense.

UPDATE: Just to make it clear, I strongly oppose laws suppressing such speech, for the reasons that I've discussed often and at length in other contexts (such as my commentary on the Mohammed cartoons, and on calls for an emerging international law norm of suppressing anti-religious speech). They would surely be unconstitutional in the U.S., and I think that other democracies shouldn't enact them, either.

David Smallberg asks:

Every day, millions of people see six colored items in the order blue, red, yellow, blue, green, and red. What are they?

His live-blogging of the audio release is here, and his predictions are here:

As I noted, I cannot with confidence make predictions about the outcome of the Citizens United case based on oral argument questions, given the recent experience in NAMUDNO in which CJ Roberts and Justice Kennedy seemed sure votes to overturn section 5 of the Voting Rights Act but did not. But there was absolutely nothing in the Citizens United oral argument questions of the two likely "swing justices" in this case to give any comfort to those who believe that Congress should have the power to limit corporate spending in candidate elections.

Rick is one of the top election law scholars in the country, and is generally a supporter of restrictions on corporate speech about candidates, so he isn't just hearing what he hopes to hear. Rick also reports that "Justice Sotomayor asked the questions I would have asked" -- high praise from any law professor! -- "and seems likely to be a very strong replacement for Justice Souter on campaign finance issue."

Who are the historical figures who are (1) best known in the Western world, and (2) did most or much of what made them famous while what is now Morocco, Algeria, or Tunisia was their home? I have one person in mind for each country, though there might of course be important rivals in each country, and for all I know there could be some who did much of their work in two or more of the countries.

Note that I ask here about people who are most well known in the Western world. I can't speak to who is most known within those countries, or in the Middle East. Also, of course many of these people are well known in the Western world despite not being widely known to have lived in those countries (or else what would be the point of the puzzle?). Rick doesn't count.

TaxProf in quoting Undergraduate Degree Ranking by Starting Salary (plus median mid-career salaries). Yes, it is.

Sounds delicious. No smoking — and no added water, a deletion that the author (my friend Kristina Johnson, who is a former chef) reports is quite valuable — but garlic, pepper, cumin, thyme, juniper, anise, and bay leaves, plus the usual salt, sugar, and of course Homer Simpson's and Pliny the Elder's favorite meat. It's the sort of thing I would have gladly tried before the arrival of my energetic sons caused me to put most of my cooking interests on the back burner. Yum.

BBC reports:An Arab organisation [the Arab European League] is to be put on trial in the Netherlands over its publication of a cartoon deemed offensive to Jews, prosecutors say....

Dutch prosecutors said the AEL cartoon was "discriminatory" and "offensive to Jews as a group ... because it offends Jews on the basis of their race and/or religion".

The cartoon shows two men standing near a pile of bones at "Auswitch" (sic). One says "I don't think they're Jews".

The other replies: "We have to get to the six million somehow."

A spokeswoman for the prosecuting authority said the group could be fined up to 4,700 euros (£4,100), though in theory a prison sentence was also possible....

Naturally, the AEL is complaining about how this is supposedly inconsistent with the Dutch prosecutors' decision not to prosecute Geert Wilders for making the movie Fitna, which initially included the Mohammed cartoons. And the complaint seems plausible: Though one could distinguish Holocaust denial cartoons from the Mohammed cartoons on the theory that the former convey false historical statements of fact and the latter convey moral judgments or evaluative opinions, that doesn't seem to be a distinction that the quoted law draws, or that most general "hate speech" laws draw.

But beyond this, even if subtle distinctions can be drawn, at least a nation like the U.S. can respond to those who demand censorship of the Mohammed cartoons with a simple principle: We protect religiously and racially offensive ideas and images because that's what our constitutional law demands, and Jews, Christians, and Muslims all have to deal with that. But once one starts to draw subtle distinctions about which racially and religiously offensive ideas and images are sufficiently "hate speech" or sufficiently "offensive to ... a group" and "discriminatory," one sows more racial and religious discord than one avoids: Groups either fall into censorship envy, or resent the legal system and other groups more for the freedom that those others are seen as possessing.

It seems to me quite clear that many ideas can be quite harmful. That includes many racially or religiously bigoted ideas, but also advocacy of Communist revolution, most other advocacy of violence, historical conspiracy theories, and a wide range of other ideas. The particular harm caused by each such statement can be hard to identify. But much harmful behavior, such as the 9/11 attacks, race riots, and many other crimes would not have taken place without speech that made such behavior seem permissible and even laudable to the criminals. Some crimes, such as crimes of rage or sexual jealousy or greed might happen largely independently of ideological advocacy, and likely happened even before language evolved; but ideological crimes have ideological advocacy as an important cause.

I support protection for such ideas, though, because it seems to me that trying to suppress them through the force of law on balance tends to be more harmful than helpful. That's partly because the government is likely to abuse such suppressive powers, by suppressing the valuable speech as well as the harmful. But beyond that, attempts at such suppression -- which will rarely be particularly effective in any event, especially given modern technology -- are likely to arouse many of the same hostilities that the suppression is aimed at abating. This sort of prosecution strikes me as an excellent example of that phenomenon.

Thanks to First Amendment Law Prof Blog for the pointer.

Others have pointed out that having offices called "czars" is an odd naming choice for a democracy. But czars weren't just authoritarians. They were ultimately authoritarians who left their country far poorer than their more democratic counterparts, lost a world war, and of course paved the way for an even worse system of government. The label "czar" thus doesn't historically connect to a model of strongman effectiveness -- it connects to a model of strongman failure.

(Of course, I recognize that czars in the federal government don't have even a fraction of the truly dictatorial power of their namesakes. But the label was used for a reason, presumably to evoke the positive connotation of strong authority that Gets The Job Done. Yet the specific strong authority that the label evokes proved to be unable to get the job done, at least under anything approaching modern conditions -- under any sensible definition of "job," possibly with the significant but narrow exception of the job of defeating Napoleon -- and unable in a way that culminated with a disaster of historic proportions.)