Why Bill Maher is the Wrong Target for a Commencement Speaker Protest

As part of the fallout from Bill Maher's comments about Islam, comments from which he finds no room for retreat, some individuals and groups are arguing that Berkeley should withdraw its invitation for Maher to speak at its fall commencement. On the issue of Islam, Maher relies almost exclusively on the spotlight fallacy and hasty generalization, plucking examples of horror from around the Islamic world and arguing that they prove that Islam is somehow worse than other religions. He stubbornly refuses to consider challenges to his position -- people pointing out that he conflates regional, cultural practices that arose and exist independently of Islam with the teachings of Islam, people pointing out that he draws his primary examples from Islamic nations without regard to whether those nations reflect what is typical in other Islamic nations or populations, or the practices of the majority of Muslims. He'll present Ayatollah Khomeini's 1989 fatwah against Salman Rushdie as if it reflected -- and reflects -- the views and wishes of every Muslim in the world.

On the most recent episode of Real Time, Bill Maher quoted his friend Reza Aslan, on the issue of whether or not he's a bigot, emphasizing that Alsan is Muslim and says he's not a bigot. Here's the larger quote:

I've done [Real Time] every season for four or five years. I love being on the show. And listen, I've said repeatedly that Bill Maher is not a bigot. I know him. We are friends. We hang out with each other, backstage. He loves having me on the show despite the fact that he disagrees with me on a lot of things and that shows the kind of person that he is.

What I have said, however, is that if people are constantly saying that the way you are talking about something is coming across as bigoted, you might want to stop and think about how you’re saying these things. Bill Maher says he's not a bigot, I absolutely believe him. So maybe he needs to reexamine why people keep talking about him as a bigot.

Aslan has also pointed out that Maher is not very sophisticated in his views of Islam. What I think Aslan is trying to say, in a somewhat gentle way, is that Maher is not advancing his position out of animus or intolerance, and thus is not guilty of that form of bigotry, but is instead advancing his position because he does not have a sufficient body of information, and has not applied a sufficient amount of thought to the subject. I believe Aslan is suggesting that if Maher were to do so he would likely reconsider his position. [Insert maxim about leading horses to water.]

From my perspective, Maher's position on Islam and the Arab world, notably including his positions on the Israel-Palestine conflict, reflect a cognitive insularity on those subjects, epistemic closure. At times he ridicules conservatives as living in the bubble -- these subjects are his bubble. He appears to have held consistent views on Arabs and Islam for much of his life, he's quite comfortable with those beliefs, and he sees no need to let facts get in the way. That doesn't mean that he completely avoids the facts -- to the contrary, as his mode of argument suggests, he is inclined to search for, interpret, and prioritize information in a way that confirms his existing beliefs -- confirmation bias. Maher is clearly more than smart enough to take a step back, review the evidence, and see what people like Aslan are trying to explain to him -- but, as occasionally happens to all of us, he isn't ready to let go of his preconceptions.

The funny thing is, all of Maher's leading critics, including those who were or are Muslim, share his perspective that there is something wrong with the practice of Islam in the Middle East and in some other parts of the world. They see Islam as being abused in the same manner that other religions have been historically abused, and in which they continue to be abused in some nations and cultures. It's an argument that Maher, an avowed atheist and critic of all religions, should find quite consistent with his other views -- it's not that there's something special about Islam that makes it particularly vulnerable to fundamentalism and extremism, but that there's something wrong with the political, cultural and economic contexts from which the fundamentalism and extremism emerge. Islam is a problem not because it's special, but because it's the dominant religion in those regions, and thus the one most easily exploited by fundamentalists and extremists. You speak the language of your audience.

Like Maher, his critics also rely heavily on the spotlight fallacy, plucking quotes out of Maher's past performances, speeches and monologs, where he has made some pretty outrageous statements. But what else would you expect? The man is a comedian who loves to jokingly scold his audience for groaning at the less outrageous of his jokes. He has made a career out of being politically incorrect, a term that you may recall was the name of the T.V. show that made him famous. I recently read one of his monologs in which, his sarcastic tone of voice being invisible on the printed page, he appeared to be endorsing birtherism. You will have absolutely no trouble finding quotes with which to condemn him, even if his presentation of the quoted material might suggest that he held a different opinion than the one he was ostensibly voicing. He's not Sarah Silverman, but he does sometimes go for the punch line that's going to shock, rattle, or even offend his audience -- and it's all too easy to inadvertently or deliberately misinterpret that sort of punch line.

If Maher were invited by Berkeley to participate in a panel discussion on Islam, where a variety of voices could be heard, I would hope that the students that are offended by the prospect of his giving a commencement address would welcome his participation. (Or perhaps criticize it from the standpoint of, "Can't we find a scholar instead of a comedian" -- although back when Bill Maher frequently had comedians participate in his Real Time panels, sometimes the comedians provided more interesting and thoughtful commentary than the experts.)

A compelling argument made about commencement addresses is that they're not like other forms of on-campus speech. If you want to participate in commencement, you are a captive audience for the commencement speaker and are expected to act with appropriate decorum. Also, commencement speakers are often paid very large sums of money for their presentations, money that is drawn from the students. It is fair to say that students should have a larger voice when it comes to objecting to the participation of certain controversial figures in their commencement ceremonies than in other campus activities, where in my opinion the focus should be on debate, not exclusion.

If Bill Maher were going to address graduating students with an exposition of his views of religion and Islam, the students would be justified in objecting to his speech. He's not an expert in those areas, his commentary on Islam is deeply flawed, and it would be an abuse of his platform to speak about his views of religion. However, it is more than safe to say that Maher has no intention of using his commencement presentation to speak about religion, gender relations, or any of the other issues that occasionally land him in warm to hot water. He's already said as much:

But let me say this to those students worried about that: I promise this will be your day. This is a commencement speech. The issue is you. My speech was, is, I hope, going to be about you and whatever tips I thought that could actually help you in life because I already lived through it. That and my funk about how Jewish women hate to have sex.

That last sentence, of course, is an example of the sort of punch line I previously mentioned. I'm not arguing that Maher's punch lines and groaners don't reflect his political views -- but I am pointing out that some of them quite obviously do not, and many others fall on a spectrum between what he believes and what he believes will generate the loudest laugh or groan -- with his being one of the nation's wealthiest comedians -- one of the nation's wealthiest people -- by virtue of his knowing how to go for the laughs and groans.

I am not sure that the students opposed to Maher's appearance ever thought that he was going to address religion in his speech. I think that their primary concern is that he is hostile to Islam, and that students should not be compelled to sit through a speech by somebody whose views they find troubling, or even odious. Ibraham Hooper of Cair pointed out that nobody is going to suggest that the Grand Wizard of the KKK is an appropriate commencement speaker -- that is, we can reach a point where there will be near-universal agreement that an individual should not speak at a college commencement even if he promises not to touch on subjects that his audience might deem offensive -- but there's an enormous distance between Maher and a KKK Grand Wizard. Inviting Maher to speak doesn't open the floodgates.

The exchange with Cooper illustrates how opportunists and demagogues can take a quote out of context to use it to bash the speaker. During the exchange, Cooper's debate opponent jumped on the reference to a KKK Grand Wizard, chortling, "So Bill Maher is the Grand Dragon of the KKK? I can’t until Bill Maher hears that. I think Bill will have a heyday with that." The host immediately pointed out the obvious -- that no such comparison had been made -- but that didn't stop hacks like Eric Bolling of Fox News or Alex Griswold at the Daily Caller from plucking the statement out-of-context and lying about what Hooper meant. I'm not sure what to make of the fact that after making his false characterization, Griswold quotes the exchange and thereby makes plain that his characterization is false.

Why let Maher speak?

• Protesting Maher reinforces his position - When Maher argues that Muslims don't do enough to object to the actions of extremists who claim to be acting in the name of their religion, he's not really being fair -- people have the right to live their ordinary lives without having to comment to anybody willing to listen, "That wackaloon you read about on the news doesn't represent my views." But when Muslims loudly protest Maher, they risk perpetuating the stereotype that Muslims want to shut down any criticism of their religion, while fueling the argument that "Those people find the time to protest Maher, but have nothing to say about the wackaloon I heard about on the news." I'm not arguing that Muslim students should never try to have an anti-Muslim speaker excluded from giving a commencement address, and it is appropriate to object to those who for example argue for the forcible conversion of Muslims to other religions, advocate bombing Muslim holy sites, advocate suppressing the speech and religious rights of Muslims. But when you target somebody like Maher, the more effective way to get your point across is not to try to shut him up, but to avoid playing to his stereotype.

• If You Look Hard Enough, You'll Find Something Offensive About Your Commencement Speaker - In the YouTube era, with news archives at students' fingertips, and with the long memory of the Internet, we're in an era in which it will be difficult for any celebrity to give a commencement speech, as if you look hard enough at any person you're likely to find a quote that can be presented (or misrepresented) as offensive to somebody. Finding offensive quotes is easy with somebody like Maher, as they're literally his bread and butter, but pretty much every famous person is going to have a gaffe or misstatement, or a political position they've long abandoned, preserved somewhere.

• You lay a foundation for exclusion of other speakers - Once you create a context in which a person can be excluded from giving a commencement speech based upon views that some students find offensive, even though those views will not be shared in the commencement address, you open the floodgates. It is far better to set a high standard for exclusion than to create what amounts to a heckler's veto. Sure, a great many commencement speakers may end up falling into the gray area between the tiny number who have immaculate public records and those virtually all would agree to be villanous, but free speech will fare better if we keep the line for exclusion as close to pure black as comfortably possible.

Maher's appearance presents the students of Berkeley with a tremendous opportunity to very publicly challenge Maher's positions on Islam. Rather than pressing forward with an effort to exclude Maher from giving a commencement address, I suggest taking advantage of the fact that the eyes of the world are now on Maher and Berkeley. Organize a symposium on Islam and fundamentalist violence, bring in some knowledgeable scholars, invite Maher to participate in a panel. You can't buy publicity like this -- if you want to take advantage of an opportunity to educate the public about Islam, run with it.

George Will's Question for the Wrong Candidate

George Will, who has long been an opponent of campaign finance reform, has penned a "questions for the candidates" column, in which he imagines asking the President,

President Obama, you deplore the court's Citizens United decision. What is your constitutional basis for rejecting the decision's principle that Americans do not forfeit their First Amendment rights when they come together in corporate entities (mostly nonprofit advocacy corporations such as the Sierra Club) to speak collectively? You say you would “seriously consider" amending the First Amendment to empower Congress to regulate political speech. Explain why you choose to make the Bill of Rights less protective.

As Will knows, the President would likely respond with a rather scholarly commentary on the history of corporations, corporate speech rights, and campaign finance jurisprudence, that historically there has been bipartisan support for restrictions on campaign spending by both individuals (something that doesn't appear anywhere near as bothersome to Will) an corporations, point out that the question was narrowly decided by the court in a decision that reversed recent precedent, and that there are valid reasons to be wary of excessive contributions from any interest group. The fact that the First Amendment, at least as interpreted for the greater part of the last century, would have us err on the side of speech rights does not change the fact that there are competing interests at play.

But although Mitt "Corporations are People" Romney might be superficially sympathetic to Will's argument, his actual thoughts on the subject turn out to be an incoherent mess.

Republican presidential nominee Mitt Romney said Tuesday that he thinks teachers unions should be banned from making political contributions because union leaders often negotiate contracts with Democratic politicians they’ve helped elect, a situation he called “an extraordinary conflict of interest.”

“I believe that we simply can’t have a setting where the teachers unions are able to contribute tens of millions of dollars to the campaigns of politicians, and then those politicians, when elected, stand across from them at the bargaining table, supposedly to represent the interest of the kids,” Romney told host Brian Williams in a 45-minute appearance at NBC’s Education Nation Summit in New York.

He said it is “a mistake” to allow unions to make such donations, which he argued represent “an extraordinary conflict of interest.”

“I think we’ve got to get the money out of the teachers unions going into campaigns,” he said. “It’s the wrong way for us to go. We have got to separate that.”

I doubt George Will needs to be reminded of this, but unions are corporations, which in the eyes of both Will and Romney makes them "people" with First Amendment rights. As posed to the President, Will's question comes down to how our nation should interpret legal precedents, apply constitutional language and weigh competing interests - and that's a discussion we should have.

For Romney, though, the question becomes, "Why do you want to completely shut down the speech rights of organizations that you have previously stated are 'people' who are entitled to constitutionally protected speech, including in the form of unlimited campaign contributions, based upon the content of their speech - what you believe they might say? Do you understand anything about First Amendment jurisprudence, content-based restrictions on speech, or equal protection under the laws? Does your defense of corporate free speech rights translate into a self-serving, unprincipled philosophy, "Speech should be free if it fills my campaign's coffers and helps me get elected, but if it might help my opponent it should be banned"?

(I'm also again left wondering, does George Will read his own newspaper?)

"Have You Drugged Your Kid Today?"

I guess this is what happens when a teacher comes down on the wrong side of the war on... no, make that for drugs. The admonition, "Don't use Adderall or Ritalin" is for DARE officers to give, not teachers.

I have sympathy for parents and teachers dealing with ADHD, but it does seem that the "diagnostic criteria" have devolved in many parts of the country to a school official saying to a parent, "You should consider an ADHD medication," followed by a general practitioner saying, "Let's try this one".

The teacher fired over her bumper sticker worked at a high school. You'll please forgive me, but I think high school students should be regarded as sufficiently capable to participate in a debate over ADHD drugs. But I suspect that the real issue wasn't so much a fear of a loss of order within the school or students refusing to take medication at the nurse's office, so much as it was their parents taking umbrage or fearing having to justify to their kids why the teacher is wrong.

Where's Limbaugh's Impassioned Defense of Limbaugh?

Or his scathing criticism of Clear Channel?

I understand why Clear Channel or the radio station would want to pull down the "straight shooter" sign for Limbaugh, given recent events, just to avoid the possibility of controversy. But the very act of doing so lends credence to the argument that the rhetoric of certain right-wing rhetoric political and opinion leaders has been over-the-top. Further, the sign doesn't, in my opinion, constitute the type of speech that's under discussion:

It isn't a call for violence, an expression against democratic traditions, or really, anything more than a pretty obvious visual representation of the "straight shooter" slogan.

Rush, you keep arguing there's nothing wrong with the use of violent rhetoric and imagery, so start living up to your own words. Stop trying to flush imagery that you purport to be defensible, let alone imagery that most people would agree is defensible, down the memory hole. And certainly, don't sit silent while people scrub the record on your behalf.

The Corporation as a "Speech Tool"

In the latest in a series of silly posts by the law professors at The Volokh Conspiracy, defending the Supreme Court's treatment of corporations as if they're living, breathing human beings, Ilya Somin contends that we need not look at corporations as exercising independent speech - that they're tools used by real people to advance their arguments.

When corporations “speak,” they are just a means that individuals use to exercise their rights of free speech — often a more effective means than the available alternatives. And just as the right protected in Griswold actually was a human right rather than a right belonging to the contraceptives, property rights are rights of human owners, not rights belonging to tracts of land or objects.

That's a decent public policy argument for allowing corporations to have some speech rights, and you know what? Virtually no one contends that corporations should have no protected speech rights. But that doesn't mean they are persons entitled to the full protection of the First Amendment. It's similar to Somin's prior post that the owners of corporations are real people. Well, duh. I personally own a corporation... but when it turns 18 I don't get to vote twice.

I have yet to see a compelling answer from advocates of corporate free speech absolutism for corporations as to why a corporate entity that exists only by virtue of a license from the state can't be limited by that state in the extent of its "personhood". We actually do restrict the speech of certain entities that want to qualify for tax advantages - churches, charitable organizations - why is that constitutional? Given that corporations pay a different tax rate than real, living breathing human beings, would those tax advantages justify similar limits on their speech rights? Or are we going to strip away the restrictions on political lobbying and advocacy for political candidates that we impose on some corporations but not others?

Justices like Scalia and Thomas praise themselves for staying within the confines of the language of a statute or the Constitution. (They don't always do that, but we're not supposed to notice.) Justices and judges who follow their school of interpretation will tell you that if it's not in the statute it's not their job to insert new language - that's the job of the legislature. There's nothing in the Constitution that would suggest that references to the People are meant to encompass fictitious persons. To the extent that legislatures have chosen to grant rights to corporations, for good public policy reasons, there's nothing in the constitution that says "they can't limit those rights" or "they can't offer substantially fewer rights than the Constitution grants to living, breathing human beings." It's pure judicial activism to rewrite the Constitution in the manner of the Citizens United majority.

If they believed their own words, Justices like Scalia and Thomas would apologize that although they think it would be a good idea to amend the Constitution to grant full (or near-full) rights to Corporations, but that it's not their job to judicially rewrite our nation's founding document. But... they don't. (But when it comes to the rights of real people, particularly people who aren't sufficiently deferential to authority, broad limits on speech are easily rationalized. Stupid kid was 18 - he should have formed the "Bong Hits for Jesus Corporation" and held up a constitutionally protected advertisement.)

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen

I think Apple, born in California and now 34 years old, would be an excellent Member of Congress. And it's almost old enough to become President!

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

So why does the census discriminate against states like Delaware and Nevada by not including their corporations? Those states deserve more Members of Congress! Shenanigans!

This is every inch the type of activism that "conservatives" claim to hate. Having failed at the ballot box, they went to court to get legislation from the bench. (I would call my examples, above, reductio ad absurdem, except it could be a mere four years from now that President Halliburton dispatches Vice President Xe to detain me for having such dissident thoughts. Presidents, after all, should be able to indefinitely detain anybody they deem a threat to the nation, right?)
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Update: Somin adds,

I should clarify that in this post, as before, I’m not arguing that corporations themselves are “persons” with constitutional rights. Rather, I’m asserting that their owners and employees are such persons and that that status enables them to use corporations to exercise their constitutional rights.

Given that he's defending the Citizens United decision, that just doesn't ring true. The issue is not, and has never been, "Can Joe Smith give $100 to support a Member of Congress". Of course he can. The issue is whether the corporation, apart from Joe Smith, can give money and support in its own right. I accept that a public policy argument can be made to protect certain forms or levels of "corporate speech", and that there are times when individuals could point to corporations and other similar entities and say that speech limits on those entities violate their personal Constitutional rights, but it's not the Supreme Court's role to ignore the actual language of the Constitution - that, again, is legislation from the bench.

Further, if it's the individual right that is being burdened, why is the plaintiff a corporation seeking protection of its rights rather than owners or shareholders complaining that limits on corporations negatively affect their individual, constitutionally protected rights? If Joe Smith wants to give $100 to his corporation then direct his corporation to give the money to a Congressional campaign, he can leave out the middle man - Joe Smith don't need an activist decision giving the corporation additional rights to give his money to the campaign.

It's only if the corporation is making an independent assessment, even by virtue of the collective actions of the people who control it such that they diverge from what Joe could do individually, that Joe's personal speech rights are affected. In terms of monetary contributions, it's only when the contribution reflects corporation's independence from shareholders and owners with a minority interest (such that the same money could not flow directly from them, individually), or the distribution of funds vastly beyond what the owners would produce from their own pocket (this isn't about "mom and pop" firms) that it becomes necessary to find it "unconstitutional" to limit the corporation's "right" to shower money on political candidates and causes - because in the other contexts the money can still be contributed in equal volume.

It's not enough to say that some corporations, such as media corporations, are viewed as important tools to advance free speech. Again, if an individual has his rights affected by government restrictions on business entities, the individual can bring a lawsuit under the First Amendment - and nobody is disputing that living, breathing people enjoy full protections under the First Amendment.

Again, why is it that lawprofs like Somin get their noses bent out of shape when the nation's largest corporations are restricted in their "political speech", but don't even raise an eyebrow about the restrictions imposed on charitable organizations, churches... how about lobbyists representing foreign governments? The money may be foreign, but if it's a domestic non-profit owned by citizens, doesn't Somin's argument strip away any Constitution-based reason for treating it differently than any other for-profit enterprise?

Compromises End With Being Compromised?

Google has announced a new approach to China, that may end its operations in that country.

Thought Police Unite!

No surprise here:

A United Nations agency is quietly drafting technical standards, proposed by the Chinese government, to define methods of tracing the original source of Internet communications and potentially curbing the ability of users to remain anonymous.

But who's teaming up with China?

The U.S. National Security Agency is also participating in the "IP Traceback" drafting group, named Q6/17, which is meeting next week in Geneva to work on the traceback proposal. Members of Q6/17 have declined to release key documents, and meetings are closed to the public.

Don't get me wrong, as there are legitimate national security interests involved in being able to track Internet activity back to its source, not just communication between criminals, but also attacks on computer systems and networks. But does anybody here think that China's primary focus is on fighting terrorism or DDOS attacks, as opposed to dissident thought? And who believes that even U.S. law enforcement will use this for "fighting terror" - the excuse used to get the camel's nose under the tent for an wide range of law enforcement tools since used primarily to target "ordinary" crime. Also, just as stolen or disposable cell phones are used by criminals who expect to be targeted through those technologies, criminals who wish to use the Internet will find ways to continue.

I don't personally try to erase my Internet tracks, so nobody would have to work very hard to track me down from my activity. Anonymous proxies are a bane to my Internet activities, as they contribute significantly to spamming. But regrettably I don't expect either Chinese or U.S. legal authorities to focus their energy on that particular form of Internet abuse. But people who have legitimate reasons to try to shield their identity - dissident thinkers - can thank the NSA for teaming up with China to help ensure that the Internet is not a safe place for freedom of thought.

Contempt For Free Speech

The Times editorializes in relation to Joseph Lieberman's attempts to coerce Google into deleting "videos produced by Islamist terrorist organizations or their supporters" from YouTube, and his apparent anger that they only removed videos that were not consistent with their terms of service,

While it is fortunate that Mr. Lieberman does not have the power to tell YouTube that it must remove videos, it is profoundly disturbing that an influential senator would even consider telling a media company to shut down constitutionally protected speech. The American Civil Liberties Union has warned that the “Homegrown Terrorism” bill and related efforts “could be a precursor to proposals to censor and regulate speech on the Internet.”

Not only do these efforts contradict fundamental American values, it is not clear if they would help fight terrorism. Even if YouTube pulled down every video Mr. Lieberman did not like, radical groups could post the same videos on their own Web sites. Trying to restrain the Internet is a game of “whack-a-mole” that cannot be won, says John Morris of the Center for Democracy and Technology. Having the videos on YouTube may even be a good thing, because it makes it easier for law enforcement officials, the media and the public to monitor the groups and their messages.

The Times seems to be missing the forest for the trees. The issue here probably isn't so much Lieberman's fear of terrorism. It's likely more a manifestation of Lieberman's ignorance of and contempt for the First Amendment.

Because Nothing Protects American Values Better Than Prior Restraints On Speech

I wish I were surprised by all of the fuss over Mahmoud Ahmadinejad's request to lay a wreath at "Ground Zero" and his appearance at Columbia University. It's all too predictable. (When I heard some of the reaction to the "Ground Zero" proposal, I was reminded of the narrow distance between "things that could never happen here" and things that could.

I also can't say that I am suprised that Anne Appelbaum among those who would have preferred that Ahmadinejad be denied the opportunity to speak.

Ahmadinejad's agenda, though, differs from that of the traditional autocrat.

Wait... Ahmadinejad is an autocrat? He's the (sort of) popularly elected front man for the government, and his position carries real power, but he doesn't call the shots. Perhaps Applebaum hears the word "President" and assumes that nobody could possibly hold a higher office, but actually there's a guy called Grand Ayatollah Ali Khamenei who is the "Supreme Leader" of Iran, and who has ultimate control over the armed forces, foreign policy and domestic policy.

His goal is not merely to hold power in Iran through sheer force, or even through a standard 20th-century personality cult: His goal is to undermine the American and Western democracy rhetoric that poses an ideological threat to the Iranian regime.

Well, if that's true, then denying him a platform would do what? Give him the opportunity to state, "They say they believe in free speech. They say they believe in open debate and a 'marketplace of ideas'. They say 'sunlight is the best disinfectant' for bad ideas. Yet when I challenged their ideas, they hid in the shadows." And Anne Applebaum could declare victory.

This week, he declared that his visit to New York would help the American people, who have "suffered in diverse ways and have been deprived of access to accurate information."

That should have telegraphed to Applebaum that he would not see denial of a platform as a loss, but as a basis for the type of criticism I just described. She would be playing into his hands.

Thus the speech at Columbia: Here he is, the allegedly undemocratic Ahmadinejad, taking questions from students! At an American university! Look who's the real democrat now!

Well, darned if you do, darned if you don't. But if you don't, nobody gets to jeer or laugh at him. (Or grandstand and berate him in introductory comments.)

But the most peculiar thing about columns like Applebaum's is her presumption that it is somehow horrible, and somehow undermine's free speech, that we periodically debate the scope and limits of free speech:

Instead of debating freedom of speech in Iran, here we are once again talking about freedom of speech in America, a subject we know a lot more about. Which is exactly what Ahmadinejad wanted.

You will note that it is not the proponents of free speech, or those who say, "I wouldn't personally invite him to speak, but it's Columbia University's right to do so", who are behind this "talk" Applebaum finds so troubling. It's people like Applebaum.

And what an idea....

Perhaps Columbia could even have insisted on an appropriate exchange: Ahmadinejad speaks in New York; Columbia sends a leading Western atheist - Richard Dawkins, Christopher Hitchens or, better still, Ayaan Hirsi Ali - to Qom, the Shiite holy city, to debate the mullahs on their own ground.

This would accomplish all of... what? Does she fancy that Christopher Hitchens would win over the crowds by insulting the Mullahs, opining that God doesn't exist, blaming most of history's bloodshed on organized religion, and revealing that he understands little of Christian theology (let alone Islamic theology). Surprise - you don't have to have a deep grasp of theology to be an atheist. And guess what - a debate between a devout theologian and an atheist on the subject of religion is a nonstarter, because the two sides are arguing from different premises. Save Hitchens for Ahmadinejad - I'm sure they can both come up with witty ways to insult the other - but send a scholar to debate the Mullahs.

Darn The Censorious Government

Perhaps somebody can explain this to me. Over at the Volokh Conspiracy, Professor Bernstein rails against censorious public employers, concluding,

Yes, I'm troubled by the fact that the government, acting as employer, has such censorious powers. In the case of the prosecutor, it's pretty much unavoidable. In Mr. Gray's case, it provides another reason to support privatization of peripheral government functions.

Leaving Emerson aside for the moment, isn't that a non sequitur? Does Professor Bernstein really think that private employers are more tolerant of employee speech than public employers?

Returning to Emerson, is running a law school a peripheral government function, or is Prof. Bernstein's concern limited to peripheral functions that don't pay his salary?

Peaceable Assembly In Scotland?

According to Jan Witold Baran, "a lawyer and former general counsel of the Republican National Committee",

There is irony here. The same constitutional provision that ensures the press may proclaim a lobbyist's guilty plea also protects the act of lobbying. The First Amendment is well-known for guaranteeing freedom of speech, freedom of press, freedom of assembly and freedom of religion. Often overlooked in its litany of fundamental civil liberties is the right "to petition the Government for a redress of grievances." It is this distinct clause that prevents Congress and the president from enacting a law that bans lobbying. It is a right that should not be taken lightly and that should not be eroded by the fraudulent acts of a single lobbyist.

You have to love these Republican strict constructionists, with their slavish devotion to original intent.

Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I'm sure the Founding Fathers had Abramoff-style golf outings to St. Andrews in mind when they thought of a peaceful assembly to petition for the redress of grievances. Aren't you? (Or did they have such trips in mind, but to less expensive venues to be better in keeping with the loosely enforced rules limiting the size of gifts to House members?)

Or is this yet another of those areas where originalism and textualism must quietly cede to modernity. It is somehow good in this context that the Supreme Court takes a much broader view of what constitutes protected conduct under the First Amendment than either original intent or the plain language of the Constitution would permit, so we'll turn a blind eye?

I'm approaching Mr. Baran's argument as if he takes the party line on constitutional interpretation, which may be unfair to him. But I don't hear the leaders of the Republican Party lamenting the liberal Supreme Court whose expansionist interpretations of plain language forced them to accept gifts and contributions from the likes of Abramoff.

There may be others who bend the rules, but Abramoff retired the cup for outrageous conduct in the name of lobbying.

There may be others who bend the rules? Oh, I think we can safely say that there are others.

Shielding the Press

The New York Times today editorializes in favor of a federal "shield law" to allow reporters to "guarantee that journalists are allowed the right to protect the names of confidential sources in most circumstances." And certainly, the public interest can be advanced by having certain information made public, where the source might not be forthcoming if not for the shield.

Here's my challenge, though, for the New York Times: Compose a "shield law" that you believe would serve the interests of reporters and the public, without encouraging criminality or jeopardizing national security. Then ask yourself two questions: First, would Judith Miller's source be protected under the law? And second, if not (or if a judge found that she was not shielded), would she testify? Because if, at the end of the day, we end up back where we started, what's the point of the exercise?

To the extent that the New York Times endorses language that permits forced disclosure "to prevent imminent and actual harm to the national security", is the naming of a covert CIA operative, and associated identification of her nominal "employer" as a CIA operation, not an actual harm to the national security? Or is the Times only concerned about the effect on national security after the leak is published, and not the harm to national security that results from the leak itself? Somebody leaks battle plans - but you can only force the identification of the leak before the battle is lost. And if the battle is won despite the leak, hey - no harm, no foul, right? That would be a curious rule.

In bringing up, "privileges already granted to doctors, psychiatrists, lawyers and spouses," it is important to note that the privilege requested by reporters is of a different nature. When somebody tries to pierce the attorney-client privilege, for example, they do so with knowledge of the identity of the holder of the privilege. That is, the client. The same is true with regard to medical privilege and spousal privilege - the identity of the patient or spouse is known. States as a rule hold that a client's identity is not covered by attorney-client privilege, just the confidential communication. And it should go without saying, for any of those privileges, that if the holder of the privilege instructs the lawyer, doctor, or spouse to broadcast the confidential communication to others, a later attempt to assert the privilege would fail.

That is to say, traditional privilege protects the information, even though the source is known. Reporters claim a privilege which protects the source, even when the information is known. The effect of such a privilege, and its public policy implications, are quite different than those implicated by other forms of privilege.

The Bush Administration hates leaks, except when it is orchestrating them, and is thus adamant that there should be no law protecting reporters, even as it is quietly rejoicing in Miller's decision not to reveal or, probably more accurately, confirm the identity of her sources. Would you fall on your sword for somebody who is simultaneously knifing you in the back?

Word Games

William Raspberry, addressing the First Amendment, tells us:

"There's nothing in common sense - and certainly nothing in the First Amendment - that requires government hostility to publicly expressed religion, which is where the requirement that government be 'secular' takes you," he says. "I think it's better to say 'temporal' rather than secular. Temporal means the here and now, without reference to the hereafter. Our government was designed to be temporal, but you have only to look at the words and actions of the Founders to understand that they had no interest in the sort of secularity the court now seeks to enforce."

But it's not just in impossibly arcane Supreme Court decisions that "secular" plays us false, says Hasson. "It gets us in needless trouble internationally as well. The Arabic word for secular is almehni, meaning godless. So when Muslim fundamentalists hear us talk about secular government, they think we mean, quite literally, a godless government. Temporal translates into another Arabic word entirely, dunyawi, or worldly.

Hasson is not just playing word games.

Well, yes. He is.

Take for example somebody who argued that the Elbonian word for "Godly" is "ignorant". While it is fair to respond that the Elbonians, a fictional ethnicity featured in Dilbert cartoons, are famous for their ability to get pretty much everything wrong, the better response would be to point out that if "ignorant" is the best word in the Elbonian language to describe the concept of Godliness, the Elbonians in fact have no word for Godliness. Further, as we are not applying the inaccurate Elbonian definition of Godliness within our nation - we use the English language, after all - the deficits of the Elbonian language have no relevance to our domestic debates.

If I were to add to this that the Elbonians translate the word "Cotton Candy" as "Worldly", you would probably find it ridiculous if I were to suggest that we call our government a "Cotton Candy government" in order to convey a more accurate meaning to the Elbonians. "But," you would assert, "Cotton candy in English means 'a candy made by spinning sugar that has been boiled to a high temperature'." And you would be right. While "temporal" is a closer match to "worldly" than is "cotton candy", it still carries a different meaning (particularly in its most common uses) than worldly.

This ultimately raises some questions for Mr. Hasson: What is the Arabic word for "worldly"? Because if it is something other than "dunyawi", which you say means "worldly", we're engaging in some pretty peculiar contortions. And if "worldly" (which you suggest to be a word which properly conveys the nature of our government to other cultures) translates to "dunyawi", why do you prefer the term "temporal" to the term "wordly"? Perhaps, to confuse the English language debate?

There He Goes Again

I know some people are enamored with Joe Lieberman. I even know of an ostensibly "center left" blog whose proprietors were dreaming a few months ago about a Democratic "McCain/Lieberman" ticket. (Yes - they do seem to qualify as "people unclear on the concept".)

But I've never cared for Lieberman. When he speaks about an issue, his comments usually betray a surprising lack of acumen - he doesn't seem to know the facts, nor does he seem to understand the issues. The alternative explanation is that he does know what he is talking about, but rather than advancing a sensible approach based on fact, logic, and law, he instead panders to the "family values" crowd, railing against immorality in a manner that, for somebody sworn to uphold the Constitution, is reckless and irresponsible.

Case in point: "JFK Reloaded. Lieberman starts with righteous indignation - and surely, if anything is offensive, it is that particular video game. "I hope somebody in a position of authority will review whether this game has gone over the line." But then this:

"I hope somebody in a prosecutor's office will take a look at this," said Sen. Joseph Lieberman, D-Conn., referring to "JFK: Reloaded," a game by the Scottish video-game company Traffic in which players peer through a rifle scope and attempt to re-create Lee Harvey Oswald's assassination of the 35th president.

"You can get arrested for threatening presidents and any behavior that suggests you are contemplating taking violent action against an elected official. The line between this and this 'JFK: Reloaded' game is, in my mind, close," said Lieberman, who has led earlier Senate decency campaigns involving movie, video and music ratings.

So is he that ignorant of the law and Constitution? Or is he engaged in mindless, irresponsible pandering? A little of both? A lot of both?

Scalia v. Sound Bite News Coverage

Justice Scalia has a long and well-known policy of not permitting his public speeches to be recorded. The reasons for this go beyond the controversy over his statements about the Pledge of Allegiance case, and his recusal from that case - the fact is, it is difficult for a Supreme Court Justice to speak on any subject of public interest without somehow suggesting how he might ultimately rule on a matter or controversy that may ultimately come before the Court.

The latest controversy surrounding Scalia involves the seizure of tape recordings made by members of the news media, of a speech Scalia made at a high school. Apparently the reporters who made the recordings were informed before a morning presentation that no tape recording was permitted, but no similar announcement was made prior to an afternoon presentation. (Now, due to the legalities involved, there is disagreement over whether the tapes were seized and erased, or whether the Marshal who approached the reporters simply made a polite request for the tapes.)

While I do think the manner of seizure was heavy-handed, and I am a strong advocate of a free press and of the distribution of this type of information, I have to wonder what the reporters were thinking. Were they naive of Scalia's long-standing policy on recording, such that even after the morning's announcement they honestly believed that he would not object to their recording his afternoon presentation? Or were they hoping that the failure to give a second announcement in advance of the afternoon presentation would allow them to avoid what they knew to be the case - that Scalia would not approve of their recording his presentation? I would have a lot more sympathy for the reporters if I thought this was an innocent mistake, but my suspicion is that they were trying to avoid Scalia's well-known policy on what some might call a "technicality".

It seems that all parties involved in this latest controversy could have acted more responsibly.

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Freedom of Speech

Public figures - typically celebrities and politicians - in the United States sometimes complain about the Times v Sullivan standard for slander actions, pursuant to which they must demonstrate "actual malice" before they can recover damages for false statements printed about them. ("Actual malice" means that the statements are made despite "knowledge that statements are false or in reckless disregard of the truth".)

Other nations don't follow the same rules. In fact, few other nations offer publishers similar protections, and most offer far less. This has resulted in what is now referred to as "libel tourism", where the rich and famous seek out a nation where a work is published or distributed, but which offers few protections to publishers, and brings suit in that nation.

The United Kingdom has been the subject of such "libel tourism" in recent years and, according to the London Guardian, this has resulted in a decision by the U.K. subsidiary of Random House not to carry House of Bush, House of Saud by Craig Unger, a book about the connections between the Bush family and the Saudi royal family.

Unger's thesis is that the eagerness of US politicians to tap into Saudi money over the years may have compromised Mr Bush's determination to fight terrorism: "Never before has an American president been so closely tied to a foreign power that harbours and supports our country's mortal enemies."

How far Unger's thesis is credible is something that the US reading public will be able to decide for themselves. The book is becoming a bestseller in US election year. In Britain, however, the deputy chairman of Random House denied that the decision to suppress it was "pusillanimity or unnecessary self-censorship".

The article includes some complaints from the Deputy Chairman of Random House, criticizing the U.K.'s libel laws as "draconian" and "disgraceful", "stifling legitimate freedom of speech".

The principle behind the U.S. approach to "public figures" is that a public figure is in an excellent position to respond to any criticism, fair or unfair, and thus needs fewer protections than a similarly situated private citizen. This has certainly been borne out in practice. A "defamed" celebrity can appear on several, perhaps dozens, of talk shows and conduct similar numbers of interviews to respond to accusations. A private citizen has no similar opportunity to reply. And despite the fact that some nefarious rumors get published, celebrities seem to weather the occasional storm quite well.

Meanwhile, the U.S. public gains access to information which, when true, can be quite valuable - and when false or misleading, can nonetheless trigger important public debate and discussion. No, not the nonsense in the Enquirer, but books like Unger's. Given the societal costs and benefits, perhaps other nations should consider sending the tourists back home.

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The Sky Is Falling?

Let's take two entirely hypothetical federal court decisions:

1. Congress passes a law which inserts language into a pledge which is recited daily by many schoolchildren. The new language, "under God", is inserted as a reaction against "godless" communism, with statements both by Congress and the President which reflect an intention to insert religiosity into the otherwise secular pledge. Critics claim that this flies in the face of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Ultimately, a federal court holds the insertion of the language to have been unconstitutional. With near unanimity, "conservative" pundits condemn this as an example of a federal judiciary run amok, defying the will of the people, Congress and the President.

2. Congress passes a law which restricts the manner in which certain groups can endorse candidates for federal office within thirty or sixty days of an election - the groups may still run issue ads which do not endorse a candidate, but if they wish to actually endorse a candidate they must do so through a PAC (which could also result in the identification of those who donate $1,000 or more to any such ad campaign). This law is passed by Congress and signed by the President on the basis of a perceived need for "campaign finance reform." Critics claim that this flies in the face fo the First Amendment: "Congress shall make no law ... abridging the freedom of speech, or of the press". Ultimately a federal court holds the law to be constitutional. With near unanimity, "conservative" pundits condemn this as an example of a federal judiciary run amok, even though the court acted in accord with the will of the people, Congress and the President. References are made to this being a "sad day for freedom of speech", or even as the "death" of the First Amendment.

Can the reason for the different reaction be boiled down to pure hypocrisy? Courts are evil and activist when they overturn unconstutional laws which don't accord with the values these pundits wish to impose on society? Yet courts are also evil and activist when they sustain laws which sit on the fence - good arguments can be made both for upholding and overturning the campaign finance reform provision - if the decision doesn't accord with the immediate short-term goals of the pundits (or their constituencies)?

I don't recall even one "conservative" pundit who complained when Scalia authored an opinion which increased "sovereign immunity" to unprecedented levels - even though there is absolutely no constitutional basis for "sovereign immunity". (Is this the same Scalia who routinely complains that courts don't follow the text and original intent of the constitution, and instead impose their own values? It sure is.)

In contrast, "conservative" pundits routinely complain that "there is no constitutional right to privacy", usually in the context of attacks on abortion rights or the overturning of state sodomy laws. (If we turn to original intent, weren't the federalists expressly concerned about this possibility - that various factions would try to undermine any right not specifically enumerated in a "Bill of Rights" - when arguing against such a Bill of Rights? Wasn't this supposedly resolved by the Ninth Amendment?)

Let's face it - modern "conservatives" love judicial activism, and the new breed of "conservative" judges seems to enjoy smashing decades or centuries of precedent in order to achieve a particular political end.

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Welcome to 1925

According to The Associated Press:

A seventh-grade social studies teacher in Presque Isle who said he was barred from teaching about non-Christian civilizations has sued his school district, claiming it violated his First Amendment right of free expression.

Perhaps he should call Clarence Darrow.

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Proud To Be Unamerican?

(Apologies, of course, to Lee Greenwood.)

Dear Tony,

As you know, I'll soon be visiting your country, and I hear rumor that some of your subjects may be contemplating peaceful assembly for the purpose of petitioning the government for redress of grievances. I would very much appreciate it if you would make sure that doesn't happen - particularly within my earshot or line of sight.

Your friend,

George.

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