I signed up for my first law class, which has started me down this whole journey, because I was interested in school desegregation. It was only fitting that I went to see the exhibits on Brown v. Board at the American History Smithsonian, Separate Is Not Equal (mediocre), and the Library of Congress, "With an Even Hand" (good).

At the Smithsonian, I followed around a lecturing docent through part of the exhibit to see how he taught the material. The exhibit mainly focused on how segregation and integration impacted people at the time, particularly the families and communities involved in the suits that were consolidated as Brown. Before that, though, context was needed, so the the exhibit sketched out facts of widely disparate schools across the nation and some relevant court cases (Roberts v. Boston, Plessy v. Ferguson, Missouri v. ex rel Gaines, Sweatt v. Painter, a few others). Brief biographies of influential leaders during these cases and later one were also provided. The NAACP's role in carefully directing litigation, starting with legal education on the theory justices and the communities would be most sympathetic (or least annoyed) there, was barely hinted at. I don't recall a mention of the scramble, towards the end, by some segregated school districts to replace easily-attacked disparities with actual equality.

When the exhibit focused on what I thought should be its strength, the people who brought the consolidated cases, it lacked personality. The docent was very proud that the museum managed to borrow photos and furniture from the families and descendants, but it still didn't really humanize the struggles and risks they took.

Some of the commentary on the walls was just odd. Next to a photo of Chief Justice Vinson is a short text about how his death left Court-watchers with 'great uncertainty' as to how Brown would turn out. I guess they want to make his death sound suitably tragic, but it's not the words I would pick to indicate that the integrationists mood swung dramatically from negative to positive. Or, in Justice Frankfurter's words (quoted by the docent; not found in the exhibit): "the first indication that I have had that there is a God." Touches like that were missing.

At the Library of Congress, on the other hand, I was well-pleased with the exhibit. Part of it's a difference in the style of the two museums: the LOC tends to assume that people like to look at typed pages with handwritten notes and original copies of important publications; then-current newspaper articles and political cartoons are significant parts of displays. The Smithsonian had an original drawn picture of white and black children used in psychological tests on the stigma of segregation on black children; the LOC had the notebook in which those results were recorded. It's harder for me to describe this exhibit, though I liked it well. One headline on Brown I do remember, roughly, was "Court's decision may prove stronger than a mint julep, in South." The next newspaper page featured an article that quoted from various newspapers across the South, all talking of how the decision must be respected but many noting it could be respected slowly.

A close friend of Crescat (and also a blogger) once asked how I dealt with the fact that when you post on a blog, people can see that you've been working on blog posts instead of doing other stuff you were supposed to do. Since I was supposed to go to over 4 hours of class and have dinner with a friend this evening, and I'm pretty sure both professors and the friend read this blog, I should announce that the relatively prolific posting today comes courtesy of the fact that like Terry Teachout, I'm rather ill. So if I shirked an obligation to you today, it's probably because it was one that I couldn't accomplish lying in bed.

[Curiously, Teachout has already posted two posts tomorrow about how he's not recuperated from his illness yet, which hardly gives one confidence in the project.]

I have never been comfortable with the notion of an omnipotent God, or an omnipotent anything, really, without some further explanation of what it is to be "all-powerful." Obviously it can't really mean that one has the power to do "Anything" because there are sets of things whose doing necessarily obstructs the doing of other things. (It's not enough to say that God isn't bound by the normal notions of logical contradiction. Even if that's so, the below problem remains.)

The classic example of this problem is the question-- Could God create a rock he couldn't lift? If yes, then God can't lift certain hypothetical God-created rocks. If no, then God can't create certain hypothetical un-liftable rocks.

I don't mean to suggest that this quandary disproves the existence of a super-powerful God. It most certainly does no such thing. But it is a special case of what I think is the broader choice one has to make when defining omnipotence-- does omnipotence include the power to bind one's future omnipotence?

Another more general case of the question might be-- Can God make a promise that he won't be able to break? We could coherently answer either yes or no. If the former, then we have an omni-contracting God, one who can be hemmed in by physical, legal, or moral, rules, so long as those rules are of his own making. If the latter, then we have an omni-breaching God, one whose immediate powers are always unlimited, but who lacks the ability to put checks on his own future power.

It seems to me that an omni-breaching God is closer to my instinctive idea of omnipotence (and if God is so all-knowing and all-good, why would he ever need to bind his future self, except perhaps to make life more interesting?). But an omni-contracting God would certainly be more appealling to me, if I were looking for a God to believe in. This would be a God who could be trusted, who could set up rules and promises that even He would have to stick to. I suppose it's revealing that I would worry about things like whether God could be trusted, but at the very least, in the case of other very powerful entities (like governments, or multi-national corporations) I think the ability to make binding future contracts is a very good one.

Anyway, I think that one's answer to this question-- whether an omnipotent God is or ought to be omnicontracting or omnibreaching-- probably sheds a great deal of light on one's relationship or non-relationship to God.

First things first. Spence at Mediocrity's C.-P. writes:

"I assumed that she thought dance to be protected because, frankly, I've never met a lawyer who doesn't." Later on, he calls me an originalist.

Alright, fine, so why is art speech? And once that's asked, why is nude dancing speech (is it art?)? Curtis at Singing Loudly helpfully points to Justice Souter's dissent in NEA v. Finley, 524 U.S. 569, 602-603 (1998):

It goes without saying[1] that artistic expression lies within this First Amendment protection. See, e.g., Hurley v. Irish-American GLB, 515 U.S. 557 (1995); Ward v. Rock Against Racism, 491 U.S. 781 (1989); Schad v. Mount Ephraim, 452 U.S. 61 (1981); Kaplan v. California, 413 U.S. 115 (1973). The constitutional protection of artistic works turns not on the political significance that may be attributable to such productions, though they may indeed comment on the political, but simply on their expressive character, which falls within a spectrum of protected "speech" extending outward from the core of overtly political declarations. Put differently, art is entitled to full protection because our "cultural life," just like our native politics, "rests upon [the] ideal" of governmental viewpoint neutrality. Turner Broadcasting v. FCC, 512 U.S. 622 (1994) (internal cites shortened).

But the best clue I've found of what's going on in the courts' jurisprudences comes from Judge Posner. He wrote a concurring opinion for the Seventh Circuit's rehearing en banc of the two cases that were consolidated before the Supreme Court under the name Barnes v. Glen Theater. I can't find a free copy of 904 F.2d 1081 (1990) online, so please see the extended quotes from Lexis below the fold.

The answer, as best as I understand it, to why the expressive acts and displays are protected by the First Amendment's guarantee of free speech, is not that the expressions are speech, but that they are necessary inputs into the system so that we may have free speech. As John of Examined Life reminded all of us, "she who wills the end must will the means." The problem with banning nude dancing isn't that the dances themselves are speech, but that they convey ideas, emotions, and feelings that would not be present in the marketplace of ideas in the same way were the strippers wearing a few stamps.[4]

DARLENE MILLER and JR's KITTY KAT LOUNGE, INC., an Indiana Corporation; and GLEN THEATRE, INC., an Indiana Corporation, GAYLE SUTRO, and CARLA JOHNSON, Plaintiffs-Appellants, v. CIVIL CITY OF SOUTH BEND, et al. [Citations are sometimes omitted or shortened. All the quotes are from Posner.]

[1090-1091] "If the district judge had said that the dances in issue are not classy, he would have been on sound ground. The record contains a videotape of the dances that the proprietor of the "Kitty Kat Lounge" would like to exhibit. The name of the establishment does not promise high culture, nor the fact that it is a bar rather than a theater, nor (a related point) that the compensation of the dancers depends on the number of drinks they induce appreciative customers to buy after the dance. The dancers are presentable although not striking young women. They dance on a stage, with vigor but without accomplishment, to the sound of a jukebox, and while dancing they remove articles of clothing (beginning, for example, with a glove) until nothing is left. Thirty years ago a striptease that ended in complete nudity would have been thought obscene. No more. It is worth pausing a moment to ask why. Nudity as titillation or outrage is relative rather than absolute. In a society in which women customarily go about in public bare-breasted, there is no shock value in a bare breast, while in Victorian England, where decent women were expected to wear dresses that reached from the top of the neck to the floor -- where even the legs of furniture were sometimes clad for the sake of decency -- a bare ankle was a sensation. Since then female dress has become progressively less modest, and today many decent women appear in public in states of undress (mini-skirts, hot pants, slit skirts, body stockings, see-through blouses, decolletage becoming outright topless evening wear) that would have been considered nakedness, or the garb of prostitutes, thirty years ago. A striptease that ended in a degree of nudity no longer suggestive of preparations for sex -- a striptease that left the stripper garbed as she might be for an expedition to the supermarket -- might lack erotic punch today.

In any event there is no contention that the stripteases of the "Kitty Kat" dancers are obscene. It would be difficult to make such a contention with a straight face at a time when a career respectable in the eyes of many people can be founded on posing in the nude for men's magazines. Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985). The contention, rather, is that the dances are not expressive, so the First Amendment does not protect them, so there is no obstacle to enforcing the Indiana statute against the dancers and their accomplice, the proprietor of the Kitty Kat Lounge. If this reasoning is correct, the arts are in jeopardy.

Dance, as Judge Flaum emphasizes with pertinent references, is a medium of expression, of communication. What it expresses, what it communicates, is, like most art -- particularly but not only nonverbal art -- emotion, or more precisely an ordering of sights and sounds that arouses emotion."...[continuing at length on the emotions associated with a striptease]

[1094] "The reason we think that art is an intellectual medium and therefore has nothing important in common with striptease is that most of us obtain no enjoyment from art. It requires an educated taste to distinguish Venus With a Mirror from a camp photo of a fat woman. Knowing that it is a cultural monument we assume that its significance must be intellectual, since it is dead to most of us emotionally. But the painting is not an intellectual statement; there are no ideas in the painting."

[1095-1096] "One can argue from the text and background of the First Amendment that the constitutional protection of freedom of speech is limited to the discursive and the didactic, that nondidactic art should be totally excluded, or at the very least that low-grade erotic entertainment should be -- the Founding Fathers would writhe in their graves if they knew that the nude dancers of the Kitty Kat Lounge could unwrap themselves with the First Amendment.  And one can reply that such arguments merely demonstrate the inadequacy of original understanding as a guide to constitutional interpretation; that they would if accepted change the Constitution from a living document into a petrified reminder of the limits of human foresight; that a conception of free speech which privileges the burning of the American flag (Texas v. Johnson , (1989)) but permits government to ban performances of twelve-tone music is more absurd than one that protects flag burning, twelve-tone music, and striptease; and that if the purpose and scope of the First Amendment's speech and press clauses are exhausted in the protection of political speech, because freedom of political speech is all that is necessary to preserve our democratic political system, this implies the exclusion from the amendment's protections not only of all art (other than the political) but also of science. For one can have democracy without science, just as one can have democracy without art.

The debate has been resolved -- for judges at our level anyway, and for now anyway -- by the decisions anatomized in Judge Flaum's opinion, particularly the Supreme Court's decision last term in Ward v. Rock Against Racism , 491 U.S. 781, (1989): 

Music is one of the oldest forms of human expression. From Plato's discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. The Constitution prohibits any like attempts in our own legal order. Music, as a form of expression and communication, is protected under the First Amendment. In the case before us the performances apparently consisted of remarks by speakers, as well as rock music, but the case has been presented as one in which the constitutional challenge is to the city's regulation of the musical aspects of the concert; and, based on the principle we have stated, the city's guidelines must meet the demands of the First Amendment."

[1099-1100] "The true reason I think for wanting to exclude striptease dancing from the protection of the First Amendment is not any of the lawyers' classification games that I have been discussing, such as expression versus nonexpression, ideas versus emotions, art versus entertainment, or speech versus conduct. It is a feeling that the proposition, "the First Amendment forbids the State of Indiana to require striptease dancers to cover their nipples," is ridiculous. It strikes judges as ridiculous in part because most of us are either middle-aged or elderly men, in part because we tend to be snooty about popular culture, in part because as public officials we have a natural tendency to think political expression more important than artistic expression, in part because we are Americans -- which means that we have been raised in a culture in which puritanism, philistinism, and promiscuity are complexly and often incongruously interwoven -- and in part because like all lawyers we are formalists who believe deep down that the words in statutes and the Constitutions mean what they say, and a striptease is not a speech. But the element of the ridiculous is not all on one side. Censorship of erotica is pretty ridiculous too. What kind of people make a career of checking to see whether the covering of a woman's nipples is fully opaque, as the statute requires? (These statutes are full of absurd locutions, such as: "'Wholly or substantially exposed to public view,' as it pertains to breasts, shall mean. . . ." Chattanooga Ord. No. 7420, § 25-28.2(b), quoted in City of Chattanooga v. McCoy, supra , 645 S.W.2d at 401.) Most of us do not admire the Islamic clergy for their meticulous insistency on modesty in female dress. Many of us do not admire busybodies who want to bring the force of law down on the heads of adults whose harmless private pleasures the busybodies find revolting. The history of censorship is a history of folly and cruelty."

[Humphf, after all that, I see my co-blogger has quoted from that case after I emailed him a case. Well, I'm too lazy to redo my post. See if I email him quotes he might find interesting again. He's usefully created an online full-text of the 7th Circuit case, though.]

* * *

[1] If this isn't a phrase designed to raise suspicions, I don't know what is. "'This is your day,' she retorted, adding, like the old gaffer demonstrating to Henry James that circumlocution did not coincide with circumvention, at least as far as the High Street of Windsor was concerned, 'You're in it.'" - A. S. Byatt, The Virgin in the Garden, Part II, Ch. 35.

[2] Scalia complained about this standard in his concurrence to Barnes v. Glen Theater, 501 U.S. 560, 577 (1991)[3]:

But virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose -- if only expressive of the fact that the actor disagrees with the prohibition. See, e. g., Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 609 (CA11 1984) (nude sunbathers challenging public indecency law claimed their "message " was that nudity is not indecent). It cannot reasonably be demanded, therefore, that every restriction of expression incidentally produced by a general law regulating conduct pass normal First Amendment scrutiny....

[3] Really astute readers might notice who filed briefs for the respondants.

[4] "Christ, you're wearing nothing but stamps!" It was an item in Scavhunt's Scavolympics in 2001.

UPDATE: Feddie at Southern Appeal chimes in with his favorite Seventh Circuit nude dancing opinion: no, you don't have a right to have your nude dancing and drinks at the same time.

It is a popular myth around here that University of Chicago professors are properly addressed not as "Professor X," or "Dr. X," but "Mr/Ms. X". Brian at That's News to Me points out that this is not at all adhered to in the law school and asks:

Do the undergrads follow this rule? "Professor" is definitely the term of choice at the law school, but then most of us came from other institutions.

Anthony Rickey directs blog-readers towards the fascinating Supreme Court nude dancing cases [incidentally, I agree with his commenter that the question of whether nude dancing is bound up with the question of whether paintings and sculpture are speech; I don't express an opinion on that as an original matter, just note that where one goes, goes the other]. But Mr. Rickey doesn't mention my own favorite-- Barnes v. Glen Theatre. The 7th Circuit opinion, featuring dueling concurrence/dissent by Judges Posner and Easterbrook, is a must-read, and the Supreme Court opinion (reversing the 7th Circuit) is also great fun.

The Supreme Court opinion is here but I cannot find the lower court opinion online, so I've stuck it here. A few choice quotes follow.

Judge Posner:

[T]his case may be something of a freak; but it is a fascinating freak.

The reason we think that art is an intellectual medium and therefore has nothing important in common with striptease is that most of us obtain no enjoyment from art. It requires an educated taste to distinguish Venus With a Mirror from a camp photo of a fat woman. Knowing that it is a cultural monument we assume that its significance must be intellectual, since it is dead to most of us emotionally.

if the purpose and scope of the First Amendment's speech and press clauses are exhausted in the protection of political speech, because freedom of political speech is all that is necessary to preserve our democratic political system, this implies the exclusion from the amendment's protections not only of all art (other than the political) but also of science. For one can have democracy without science, just as one can have democracy without art.

The true reason I think for wanting to exclude striptease dancing from the protection of the First Amendment is not any of [*1100] the lawyers' classification games that I have been discussing, such as expression versus nonexpression, ideas versus emotions, art versus entertainment, or speech versus conduct. It is a feeling that the proposition, "the First Amendment forbids the State of Indiana to require striptease dancers to cover their nipples," is ridiculous. It strikes judges as ridiculous in part because most of us are either middle-aged or elderly men, in part because we tend to be snooty about popular culture, in part because as public officials we have a natural tendency to think political expression more important than artistic expression, in part because we are Americans -- which means that we have been raised in a culture in which puritanism, philistinism, and promiscuity are complexly and often incongruously interwoven -- and in part because like all lawyers[**68] we are formalists who believe deep down that the words in statutes and the Constitutions mean what they say, and a striptease is not a speech. But the element of the ridiculous is not all on one side. Censorship of erotica is pretty ridiculous too. What kind of people make a career of checking to see whether the covering of a woman's nipples is fully opaque, as the statute requires? . . . The history of censorship is a history of folly and cruelty.

At oral argument the lawyer for the state said that the statute[**82] applies not only to live performances whether in theaters or [*1104] in bars but also to movies with nude scenes, unless of course the movie is "expressive" in the sense in which "established" works of art are expressive. . . . Belly dancing, he added, could be banned, presumably on the same theory -- it is not certified high art. He reassured us that the nude paintings that hang in museums are safe, although he would acknowledge only a limited acquaintance with such museums.

Pervading this opinion is a belief that states may draw no lines where art is concerned. Sophisticates go to the museum and see Renoir's Olympia or to the opera and see a soprano strip during the Dance of the Seven Veils in Strauss' Salome. If the First Amendment protects these expressions, the argument goes, Joe Sixpack is entitled to see naked women gyrate in the pub. . . . Why does this follow? That a dance in Salome expresses something does not imply that a dance in JR's Kitty Kat Lounge expresses something, any more than the fact that Tolstoy's Anna Karenina was a stinging attack on the Russian social order implies that the scratching of an illiterate is likely to undermine the Tsar.

Why is it important that the plaintiffs dance? The court uses a definition of dancing ("moving the body in a rhythmical way, usually to music", at 1085) broad enough to cover most physical activity. Swimmers, roller skaters, ice skaters, walkers, skateboarders, matadors, and construction workers using jackhammers move rhythmically, [**164] often to music. . . . Imagine an organized flasher, shucking his coat in a booth next to the hot dog vendor and adding a boom box and hip motions. This is "dance" as my colleagues use that word. If dance is "inherently" expressive then the flasher's act is speech; it can't matter that the display takes place outdoors, or that the customers gawk for free. Flashers affront an unwilling audience, yet speech is protected even when listeners are revolted

Speech versus conduct is not only the First Amendment's line but also a distinction essential to democratic governance. People act for reasons. Acts therefore imply the virtue or import of these reasons. And if some people, such as the dancers in JR's Kitty Kat Lounge, believe that their autonomic nervous systems are in charge, so that they have no message, Sigmund Freud will correct them. Even in a quantum-mechanical universe there are reasons, and clever observers can infer messages having nothing to do with the id and the superego. A driver doing 90 in a school zone makes an implicit proposal to change the speeding laws, or comments on the dominance of man over machine, or declaims the low value of children's lives, or advertises the capabilities of the car. So too we attribute to nude dancing a belief in the value of Eros, or a retelling of the Genesis story, or a burst of lustful emotion. If that strains credulity we may consult the books. Persons wanted[**175] to sleep in the national parks in CCNV to show that the high price of housing bred homelessness; strippers protest the high cost of clothing.

This is clever invention, too clever for constitutional adjudication. Neither the dancers nor their lawyers came up with a message in five years of litigation. That well -read judges can tease out of dancers' acts thoughts the dancers never had, and divine in a rule requiring opaque covering of the nipples a threat to the display of Aubrey Beardsley's prints, shows the importance of drawing lines rather than the need to obliterate them.

The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an of fended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores," i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them) there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate "morality." See Bowers v. Hardwick . . .

In an effort to shake up and breathe some life into things, the folks at De Novo are planning a Blog-Survivor contest to find a 5th co-blogger for the summer. If you're looking for a nice little mouthpiece, will have little to do this summer, and like responding to strange requests, I would go for it.

Note that this is a much different proposal than the group-blog-survivor that one of my co-bloggers asked me to propose last November.

In a post where he generally suggests that those with libertarian sympathies might be wise to actually vote Libertarian this time around, Matthew Yglesias also notes the trouble with getting libertarians to vote at all:

[T]he libertarians I know are all hyper-rational individualists who look on the whole "voting" thing as crude, superstitious behavior roughly on a par with reading tarot cards as a means of political action. I'd like to convince them of the merits of communitarian obligedness and solidarity, but if I could do that they probably wouldn't be libertarians anyway.

Thanks to all (four) of you who wrote in about the near-stalemate I posted on last weekend. Extra thanks to James Shearer who directed me to this database of all end games with five pieces or less. It turns out that the position I posted can give black a mate in 27 moves. The secret is essentially that the black rook can push the white bishop around until it is forced to let the black king occupy d3 or f3, which I had wondered about. It takes a long time to get there, but you can plug the position into that database and it will show you the various mates.

I'm glad to have that resolved. So, I'm sure, are my roommates since I'll now clear the chessboard out of the living room and stop sitting there playing it constantly.