Hate:

Ezra has this defense of hate crime statutes. He argues that hate crimes are like domestic terrorism (that's the justification for treating them differently from other similar crimes) and that they aren't really "thought control" since the government already punishes people extra if they commit murder that is, for example, premeditated.

I don't buy it. First, as one of the commenters points out, it's not at all clear that the 9-11 hijackings would have been any less horrendous if they had been done on a lark rather than a jihad. Secondly, hate crimes statutes are punishment for bad thought. And it's not just like punishing premeditated murder harsher than on-the-spot murder; people are being punished for having unpopular political thoughts. There's one punishment for those who committed plain old murder, and another, harsher, punishment for those who committed murder while also harboring racist thoughts. (Supposedly one has to prove that the hate was actually the motivation for the murder, but that's not how it pans out. Can you imagine a jury taking a defendant seriously who said, "oh, yes, I hate blacks, and he was black, but I would have killed him anyway even if he wasn't!"?

Ezra writes:

So, in effect, you add more punishment to those who perpetrate hate crimes because the crime targets and effects[sic] more than the immediate victim.

A rose by any other:

I'm going to be writing an opinion column next fall for the Chicago Maroon, but I need to think of a short title for it. If you have any suggestions (preferably involving pretensious literary illusions) please send them to me.

Blog Chicago:

Introducing a new project. At the bottom of our blogroll, below our individualized links, I'm trying to collect links to all University of Chicago blogs. As you can see, it's horribly incomplete at the moment (not the least because a lot of the U of C bloggers I know go only by their first names....). So, I'm asking everybody who reads this for a favor. If you currently list bloggers at the University of Chicago -- professor, grad, undergrad-- in your blogroll (or are one yourself), check to see if they're on the list at the sidebar. If not, send me an email with their first and last names. You don't have to give me their blog address, just your own (and I can grab the address myself). Any assistance will be much appreciated.

UPDATE: As several readers have pointed out, a lot of U of C bloggers don't like to blog under their real or full names (c.f. Another 1-L, Theophrastus, and many more). So I've been asked to rethink the fullname scheme below. To the extent that a person's full name or U of C email address is on their blog, I'll use it. Otherwise, you'll find them by their first name, blog name, or other indentifier. If you're linked by your real name and don't want to be, let me know. If you're not linked by your real name and do want to be, let me know.

Oxblog demands, we deliver:

David Adesnik wants the zone flooded concerning Aung San Suu Kyi of Myanmar, the Peace Nobelist, currently imprisoned by the Myanmar army. Spread the word.

Blame Canada:

Reader Chris Jones wrote in last week with two comments on some posts, and I've only now gotten around to posting his letter. It's far more eloquent than it would be if I paraphrased, so I'll just post it in its entirety, plus added links.

First, on your post from Friday the 16th about the ability of the courts to overturn regulations and legislation that are unconstitutional, my understanding is that the Canadian court system now has near-identical powers in this, although it developed from a rather different context.

Under the Constitution Act 1867 (Canada's original constitution), the courts were able to determine only whether power was intra or ultra vires a province or the feds under sections 91 (federal powers) and 92 (provincial powers). Any power ultra vires a province was thus automatically federal, and vice-versa, since the legislative power was absolute as in the UK at the time, although obviously divided between two levels of government. An attempt could also be made to claim that legislation was unconstitutional on the basis that it violated sections 12 (executive powers to be those held at time of Union), 18 (federal legislative powers not to exceed those held by the Commons of the UK), 64 and 65 (provincial legislative powers) or a few other minor provisions (e.g. 54 on money votes), but these were largely inconsequential: the majority of Canada's constitutional law was decided on questions of provincial / federal jurisdiction and UK precedent.

Fast-forward to the 1960s, when the Canadian Bill of Rights was introduced by the Diefenbaker government: while an ordinary piece of legislation, it set forth a set of rights (life, liberty, equality before the law, religion, speech, etc.) and took precedence above any other legislation that didn't explicitly reject the Bill's operation. The Bill of Rights was used on occasion, though rarely, to overturn other legislation (e.g. R. v. Drybones). However, the Bill only applied to federal legislation.

Next, in 1982, the Constitution Act itself was amended with the patriation of the Constitution from the UK, to include a constitutional Charter of Rights which contains an explicit mandate for courts to apply a wide range of remedies (including overturning legislation) to both provincial and federal acts. The courts, both at the provincial and federal levels (a note --- Canada has a unified court system, so a province's highest courts are appointed by the feds, and appeals go through the province's appeals court, and then to the Supreme Court of Canada), have made extensive use of this power, including (as someone noted in the replies to Matthew Yglesias' post) striking down the federal abortion law as being unconstitutional under the Charter.
Second, on schools and school choice: in your post from the 14th, you have a number of steps for a market-driven school system. You might want to take a look at Edmonton Public Schools, which is set up somewhat along these lines: you can go to whatever school you want, provided there's space and for some schools (e.g. the arts-focus school) you meet the qualifications. A wide range of specialized programs (aboriginal, AP, arts, ASL/Arabic/Chinese/German/Hebrew/Ukrainian bilingual, Christian, French Immersion, homeschooling, IB, etc.) are offered. Interestingly, this has essentially killed the market for charter schools in Edmonton.
Some interesting articles are at http://www.aasa.org/publications/sa/2001_05/contents_2001_05.htm.

Owning Up:

So last March, I made it to the final interviews for a scholarship, and lost. I've been thinking about various things I said, and concluded that an alarming number of them were simply wrong (or poorly thought out). But the question that I perhaps got the most wrong was "What do you think of Clarence Thomas? Do you think he was the most qualified person for the job at the time that Bush appointed him?"

Out of some semblance of shame, I won't even try to paraphrase what I said, but my answer amounted to "no" and I said it from thoughtlessness and ignorance. This speech by Justice Thomas is one of many examples of why I was wrong. In any case, for my ignorance, I clearly deserve not to have won.

Hypocrisy, Consistency, and Federalism:

Apropos of The Corner's raging debate (scroll up) about whether the House's Partial Birth Abortion Ban is unconstitutional, (not on abortion-rights grounds, but rather on states-rights grounds) Sara Butler asks:

Roe federalized abortion policy; is it fair to expect pro-lifers not to fight their battles on the level that the Court has placed the debate?

Bushisms:

Well, this is usually taken care of by Oxblog and Eugene Volokh, but here's Slate's "Bushism" for today:

I'm the master of low expectations.

Q. Mr. President, in the events of the last two days, have they exceeded what you expected coming over here? . . .

MR. BUSH -- I'm the master of low expectations. I think we did what we wanted to -- we accomplished what I hoped we would accomplish -- but I don't think we necessarily exceeded expectations. I think met expectations is a better way to put it.

I'm also not very analytical. You know I don't spend a lot of time thinking about myself, about why I do things.

Q. Could you -- could you dwell for a moment on your personal style of diplomacy and how you see it working?

A. [After answering. . . ] Condi and the secretary of state, Colin, can give you a better sense of what my style is like. I'm also not very analytical. You know I don't spend a lot of time thinking about myself, about why I do things. The meetings are informal, they're kind of relaxed. I think one of my styles is trying to relax people.

Closing In:

Just a drama paper and the LSAT stand between me and escape. Incidentally, I'm going to be working in Washington D.C. for the summer (from mid-June to mid-August) so if you're going to be in the capital this summer, drop me an email.

"Anti-bully" = "pro gay rights"?:

According to this rather elusive article from the Baton Rouge Advocate, "A bill to ban bullying in public schools cleared the House Education Committee on Wednesday, despite charges that the plan promotes gay rights." It was a narrow pass, 7-5, after the bill's author Cedric Richmond, D-New Orleans, tried to calm reluctant committee members into voting for it: " "I wouldn't bring you this bill if it was a tough vote in an election year."

HB1482 is controversial because it bans harassment motivated by "any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, gender identity, sexual orientation, basis of association with others identified by any of these categories." It applies on school property, at school functions, and on school buses. (full text available here)

Opponents to the bill say:
1) The state already has an anti-bullying bill from 1999.
At worse it will be redundant. Like that hasn't happened before. The law wouldn't be controversial if the previous bill had included orientation and identity. Richmond also claims the older bill is "too vague and excludes several parishes, including East Baton Rouge."
2) The bill "would pave the way for pro-homosexual activities, trigger lawsuits and unfairly give gay students special protection."
Unfairly give special protection? In Roemer v. Evans , the Court struck down an amendment to the Colorado state constitution that forbade any jurisdiction within the state from adding sexual orientation to the list of suspect classes (ie, race, religion...); Justice Kennedy kinda fuzzily insinuated that sexual orientation was a suspect class without really saying it. Is that what the opponents are alledging -- that despite the Court's hedging, sexual orientation is not a suspect class and therefore it can't be added to this list? Do I think the bill's opponents are likely to present sophisticated constitutional arguments? Movin' on now... I'm not sure about this, but my hunch is that within the school context, it's ok to add things to the list of reason you can't harass even if those reasons aren't suspect classes. Thus the last clause -- being a friend of a member of a class.
3) Representative A.G. Crowe, R-Slidell (outside of New Orleans) wanted to just ammend the current anti-bullying bill so that it applied to all parishes but his changes were rejected. "He said the original bill will spawn lawsuits and would discriminate against students with biblical values."
Yeah. . . given the backlash the last time I was less than 100% fully and completely reveretial to people expounding their religious views. . . oh, nevermind, I'll just go ahead and announce it. Ya got no sympathy from me if your values (and I don't care where ya got them from, religion, literature, TV, aliens) teach you to go bully someone. I'd get leary of government getting its hands in everywhere if they tried to legislate this law outside of the school context, but this is legit and sorely needed. When two students at McKinley High in Baton Rouge tried to form a Gay-Straight Alliance, they were met with religious groups protesting loudly across the street from the school, insults, threatened violence... this article will give you some idea.

And this is on a somewhat different issue, but one of the subparts of the definition of harassment is "harassment. . . (1c) has the effect of substantially disrupting the orderly operation of the school." At schools, does something have to be a substantial disruption before it can be ended? One of the things I found most disrupting at a school I used to work at in Chicago was the way students, even in the lower elementary grades, addressed their teachers by their first names. Louisiana passed a law about four years ago requiring students to address teachers and staff by Dr./Mr./Mrs./Ms./Miss as appropriate, and respond with a "ma'am" or a "sir" to yes and no questions. My reaction now is "yeah, it's a free speech violation, come bother me when you have something worth complaing about." I'm oddly not incensed. What if the law didn't exist, and it were just a policy a school enforced as part of its orderly conduct, just the same as no shouting in the halls and no obscenity? Would the school's policy be a free speech violation? I don't know. It seems almost ridiculous if a school couldn't.

Corking Redux:

Kathleen weighs in on the physics of corking (explaining why it probably helps).

Regime Change:

So Indiana University has a new president, Adam Herbert, The Volokh folks have yet another ally, the illustrious Randy Barnett, and The New York Times has dumped Gerald Boyd and Howell Raines, re-appointing former executive editor Joseph Lelyveld.

Afterthought-- to what extent should the political bent of a University President be relevant to his appointment to a state university? (Herbert is a Republican who has spoken out against affirmative action. Indiana is a Republican state, but Bloomington, the heart of Indiana University, is not.)

Selling Out:

The United Network for Organ Sharing is studying the possible effects of financial incentives for organ donation. They seem to be looking mostly at non-replaceable organs, not kidneys, and at the possibility of paying people after they're dead. I think this is a great idea, though it would be nicer if the money could get to you while you were still alive, or at least go to defray funeral and burial costs or some such. But imagine you could get $5-10,000 off of your college tuition bill for agreeing to sacrifice your liver and the like when you died. A lot of people might be tempted.

I haven't heard much opposition to this lately, though I'm sure I will. I just want to point out that it's important to note that there's an intermediate realm between full-on organ-markets (where impoverished people in Africa sell their kidneys to firms in Israel who have doctors in Argentina transplant them into customers from New York) and nothing. The current proposal seems to be to add market incentives to organ collection, just not to organ distribution. For those who oppose organ distribution markets because they will merely send the organs to those who can pay the most, I hope the market-collection idea is still palatable. I think it would be wise to finance this by making 5% of organs available by auction rather than our current system, which would probably provide more than enough money to cover the costs of buying organs, and dramatically increase the organ supply available to everybody. This is pretty much the same philosophy under which universities admit the children of major donors or future donors, since the donor's beneficence to the university will likely benefit everybody else immensely. (I've always wondered if maybe universities should formalize this system and simply auction off twenty spots, but I suppose the risk that this information wouldn't be kept secret and a stigma would be attached would ruin the whole system).

Sosa II:

Slate's explainer more-or-less verifies my suspicion that corking bats isn't actually that effective for a slugger. He might be right that conservation of momentum is a more appropriate equation than conservation of energy (since some energy is lost in the crack of the bat, and even its breaking), but I'm not positive. Kathleen?

Meanwhile, the Matthew Yglesias commenters are a good read (not that Matt isn't himself!). Apparently Sosa's bat was marked "C" which pretty much acquits him in my book. A commenter alleges that corking does help because the extra control increases a sluggers chances of full-on connecting with the ball rather than merely clipping it. Now, it's certainly possible that that's true, but I'm not sure how much control a batter gains by having his bat be marginally lighter. He isn't fencing with the thing, he's swinging it in a fairly smooth arc. I guess a lighter bat lets you swing later and see a little bit more about where the ball is going, though I wonder how large the effect really is. . .

Finally, the Slate article raises an interesting point. If it's the lightness of the bat that's at stake, then why do the rules that outlaw corking fail to provide rules about bat-weight?

Spam:

(via Joe Gratz), from the House of Lords debate on Spam:

Will the Minister explain how it is that an inedible tinned food can become an unsolicited email, bearing in mind that some of us wish to be protected from having an email?

Aimster:

When Judge Posner gets assigned to hear oral arguments in the AIMster copyright infringement case, you begin to suspect that panel assignment on the 7th circuit isn't entirely random. I had a final, so I couldn't go watch the argument, but the 7th circuit records arguments and you can listen to them at the link above. It sounds to me like Judge Williams is the other judge on the tape, and I didn't hear a third. Gold stars to any readers who can tell me for sure who is on the panel.

I'd blog thoughts on the case itself, but I don't actually know much about the laws of contributory infringement that seem to stem from a Supreme Court case about VCRs. The lawyer for AIMster certainly sounded like he didn't have a clue what he was talking about, but I know that's just one of many factors.

Looks like I was right about Judges Williams and Posner, and the third judge was Judge Ripple.

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Erp:

I've just read Eugene Volokh's colloquy on blogging, and now I'm a bit nervous.

Question from Invisible Adjunct:

A question from someone who is a liberal, and thus by definition a moderate: Since Professor Volokh is a legal scholar, I wonder if he could comment on the legal status of blogs in terms of libel law. Given the fact that a blog can easily and quickly reach an international readership, is it possible that someone could file suit against a blogger (say a blogger who posts from the US), from another country with stricter libel laws?

Eugene Volokh:

They could file the suit, but U.S. courts probably wouldn't enforce such a foreign judgment. So if you live part of the time in the U.S. and part of the time in Britain, you might worry about people suing you in British courts and enforcing the judgment when you go back to Britain. You might even worry about that if you sometimes visit Britain, depending on how British jurisdictional rules work on this. . . .

Sammy Sosa:

So as many of you may have heard, Cubs great Sammy Sosa, the only player in major league baseball history with three seasons of at least 60 home runs a piece, may have been cheating. His bat broke and the umpires found out that it was "corked", hollowed out and had the inside replaced with cork, which is lighter and supposedly allows him to swing the bat much faster. The Chicago Tribune talked to some physicists who were dubious about whether "corking" one's bats actually helps. (My tentative thoughts, based on the conservation of energy, are that it shouldn't make too much of a difference on total distance-- you swing the bat faster, but it's lighter, so the total kinetic energy is the same . . . maybe the elasticity of the cork core helps send the ball a little farther but I'm not at all convinced. Finally there's the possibility that you get just a second longer to decide how to hit the ball, which could have some effect on avoiding strike-outs, but seems less important in maximizing power).

The New York Times has a report, and the Chicago Tribune's initial story is here, a later story is here, and a series of other opinions is here.

The tough question: what to do? Sosa says that he accidentally used a bat meant for practice (when showing off for the fans). The MLB intends to investigate his other bats, and he assures them that no other bats will be corked. This is much the same dilemma as sports drug use. The League wants to enforce rules mostly to avoid inefficient competition in attempts to modify one's bat. I suspect in the future umpire's will occasionally inspect bats before or after the game (by weighing them perhaps?) but I don't know how effective that will be. Because it's so hard to catch violators of the no-corking rule, I think it makes sense to have a policy of harsh punishments when we do catch them (though they should be announced in advance). Occasionally, mistakes will be made, but the higher the costs imposed, the more careful batters will be to keep any illegal bats clearly marked or segregated from their legal bats. (Why couldn't Sosa have scrawled "practice" on his practice bat, one wonders?)

Sex:

The Guardian carries an interesting piece by David Aaronovitch about sex education among 10-year olds, gay marriage, the "no-sex rule" at Wellington College, and finally a list of what women want in a man.

His basic argument is that it's colossally dumb to pretend that kids, even young kids, haven't thought about sex long before you think to bring it up to them. And that it's even more dumb to have public concern about homosexual promiscuity on the one hand, and not want homosexuals to marry on the other.

I think much of this depends on how much one adopts a practical approach to laws and rules, and how much one thinks that a rule can make sense as a way of "making a statement," even if it also has an undesirable side effect.

Radio Silence:

Suppose that the U.S. Department of Defense (DoD), the Chicago Police Department (CPD), and the U.S. State Department (USSD), all have adopted "don't ask, don't tell" (DADT) policies, forbidding anybody who announces or otherwise reveals that he or she is homosexual from being employed by the DoD, CPD, or USSD.

Now suppose that a public university law school, say, the University of Illinois Law School, adopts a policy forbidding the DoD, the CPD, and the USSD from recruiting on campus or through the law school's Career and Placement Services (CAPS). Suppose that the law school also employs an affirmative action program which grants substantial weight (20 points on a 180 point scale) to Law School applicants who have former military service. Suppose further that a recent university endowment has created a position for an instructor in international law, and the Law School Hiring Committee (LSHC) has posted the job listing, announcing a preference for hiring an instructor who is a law school graduate with prior experience both in teaching and in work for the USSD.

Discuss the constitutional claims.

Hell and Handbaskets:

I think I'm going to have to respectfully disagree with Howard Bashman. He wrote an excellent op-ed piece complaining about Judge Pregerson, a lower court Judge who has refused to apply clear Supreme Court precedent because he finds it unconscionable. However, several of his readers have pointed out that Judge Pregerson more or less admitted he would do this at his Senate Judiciary Hearing.

Bashman says that this isn't enough-- that a candidate's oath of office and general obligation to follow higher courts should supersede this rule, no matter what the Judge said. He writes:

assume that a nominee to a U.S. Court of Appeals tells the Senate Judiciary Committee that he intends to decide appeals based on a Ouija board. Even if the Senate is undaunted by that prospect and thus nevertheless votes to confirm the nominee, I do not think that the nominee would then be acting properly if he proceeded to decide cases based on a Ouija board rather than based on the traditional sources of the law that bind judges in the discharge of their duties.

Tucker Max:

Kathleen wants my thoughts on the Tucker Max story. Essentially, Tucker Max had an affair with Katy Johnson, two-time Miss Vermont and defender of sobriety and abstinence, then wrote about it on his website. Both Max and Johnson sell various things on their websites, and a judge in Florida made a ruling prohibiting him from "'disclosing any stories, facts or information, notwithstanding its truth, about any intimate or sexual acts engaged in by' Ms. Johnson. That prohibition is not limited to his Web site."

Ms. Johnson seems to raise two claims, one about invasion of privacy and the other about commercial speech. The fact that Max has been prohibited from telling the truth about his sex life even off of his website belies the commercial speech claim. That is, the decision couldn't have been made on the grounds that he was appropriating information about Johnson for commercial purposes because the ruling applies to him regardless of whether he takes the t-shirts for sale off of his website. (Interesting question, by the way, about whether a blog becomes commercial just because I have a book for sale at the bottom of it. Another interesting question about whether commercial speech should be less protected than non-commercial speech).

The other claim, the invasion of privacy claim, is more interesting. (For a nice article on the subject, click here. For my less informed thoughts, read on). Firstly, notice that this isn't a question of Libel/Slander, which only applies to statements that are knowingly false, or made with reckless disregard for the truth, or so on. Although Ms. Johnson's lawyer denies Max's account, she did not prove that in court. Indeed, the judge decided she didn't care whether the story was true or not. That is, a judge has ruled that a man who has had sex with a semi-public figure can't talk about it, and indeed, can't even link to Katy Johnson's site or use her name.

Now, I hope that the patent absurdity of that speaks mostly for itself. But what makes this even worse is it's nature as a prior restraint. Mr. Max has not only been prohibited from saying things that "invade Ms. Johnson's privacy," he's been forbidden from saying anything about her at all, whatever he says. If tomorrow she were shot, or nominated in the Green party primary for Governor, or arrested for adultery, or if she filed another lawsuit against Max, Tucker Max couldn't put any of these things on his website. In fact, he isn't even allowed to say anything about "Miss Vermont," no matter what Miss Vermont he is referring to.

If the judge had only decided that Ms. Johnson deserved damages for the invasion of her privacy, that would be an interesting question, though I think the answer ought to be no, at least not without showing that Max's statements were false. When weighing Max's right to talk about his sex life vs. Ms. Johnson's right not to have hers talked about, it is very difficult to ignore that there is a First Amendment right to talk about things (within some limits) but no similar right not to be talked about. At any rate, nothing so sane as that has happened here.

But if all of this is egregious and terrible and so on, the requests that the judge has not granted Ms. Johnson's lawyer are worse-- he has requested that the judge seal the record on the case (to protect Ms. Johnson's privacy of course) and also prohibit Max from talking about the case. The judge has not yet decided whether to seal the record, but has thankfully rejected the request to forbid Max from talking about the case.

There's something terribly wrong with forbidding somebody to give truthful statements about another person-- no matter what he says. But it would have been even worse to forbid him from telling the truth about what the government had done to him. Ms. Johnson's lawyers requested an abortion of justice, but thus far, they've only managed to get themselves a travesty.

POLITICAL THEORY PICK-UP LINES (YOU'VE BEEN WARNED): Josh Chafetz at Oxblog throws down the gauntlet, looking for the worst political theory/philosophy pick up lines. Kevin Drum, Matthew Yglesias, and Kieran Healy take their shots. Believing, with Yglesias, that one can't go wrong with Locke, I just can't resist:

Baby, in the state of nature with me, you'll soon find yourself making an appeal to heaven.

As much as I'd love to grant you first possession, I'm afraid that just wouldn't leave as much and as good left in common for others, now would it?

Ari Excerpts:

Also in today's New York Times, an interview with newly-retired Ari Fleischer.

NYT: ...you yourself have become something of a cultural icon. Women have set up Ari fan clubs, there are Web sites devoted to you and so on.

AF: That just proves that Robert Bork and Bill Bennett were right, that our culture is in trouble.
NYT: How do you feel about that?
AF: I wouldn't know. I don't get out much. I will one day, and I'm looking forward to it.

Godzilla and Puff:

Tom Friedman is in top form today.

Hence, 9/11. This is where the story really gets interesting. Because suddenly, Puff the Magic Dragon — a benign U.S. hegemon touching everyone economically and culturally — turns into Godzilla, a wounded, angry, raging beast touching people militarily. Now, people become really frightened of us, a mood reinforced by the Bush team's unilateralism. With one swipe of our paw we smash the Taliban. Then we turn to Iraq. Then the rest of the world says, "Holy cow! Now we really want a vote over how your power is used." That is what the whole Iraq debate was about. People understood Iraq was a war of choice that would affect them, so they wanted to be part of the choosing. We said, sorry, you don't pay, you don't play.

SPAM, one more time:

So this will probably be my last post in the ongoing argument with The Conservatism Blog over spam.
(my previous post is here, his previous posts are here, and here. My first post is here.)
He supplies the following new arguments that Spam out to be regulated and regulable. First, private networks ought to be allowed to get government relief against spammers just as private homeowners can get government relief against trespassers. Second, spam is a problem on a huge scale, like oil spills. Third, my suggestion would ruin the "open spirit" of the internet. Fourth, I am philosophically obliged to ask the U of C to turn off my spam filters.

One at a time:

First, I think the private-network argument is the most compelling. But it's important to remember that we characterize "speech" (broadly defined) differently in a trespass context. I live in an apartment on the street, for example, and I don't have the right to demand that people be quiet because of what they are saying on the street, even if I have a right to some sort of noise ordinances. Similarly, I probably couldn't ask the government to outlaw all pop-up ads that appear on my computer, even though my network and my monitor are privately owned. In other words, the architecture of the internet probably shouldn't permit the notion that private network providers can push for legislation that outlaws any communication they don't wish to receive. That would ruin the "open spirit" of the internet.

Second, the large scale of spam does indeed change the importance of the problem, but I'm not sure how much it should change our philosophy in dealing with the problem. Even if large-scale problems do call for large-scale solutions, that steal leaves us at an impasse over what the large-scale solution ought to be.

Third, I disagree that allowing users to get email for free from their friends and charge a negligible amount of money for unsolicited emails (say, half a cent) would ruin the "open spirit" of the internet. Firstly because the costs imposed would be so small to those who aren't sending email en masse. Secondly, charging spammers and non-spammers alike is a good idea, because it's important not to have the government make a decision about what kinds of emails are "bad" and what kinds are not. Thirdly, because personal technological filters strike me as the right solution to the problem, rather than legal ones. As Stephen acknowledges, lots of servers have spam filters already. I'm proposing nothing more than a big, highly-personalized version of that.

Which brings us to his fourth point. I don't like getting SPAM. I do wish that SPAMmers would stop SPAMming me. For that reason, I think private measures like filters, white-lists, blocking, and the delete button are the appropriate response to the SPAM problem. Asking the government to determine which emails are commercial and unsolicited, and then asking it to penalize anybody who sends such email, strikes me as a problem. If Spammers were using force or fraud to invade my inbox and force me to turn off my filters, government intervention would be appropriate. But Spammers are doing precisely what an un-filtered email address invites them to do-- email it.

So when dealing with problems of speech, I think we should rely on private solutions rather than public ones. Your right to technologically exclude people from your inbox should be pretty much absolute, since there's no risk of the suppression of ideas or a chilling effect on speech. But the government's power to impose criminal sanctions on people who don't tread on eggshells should be sharply circumscribed, because the last thing any of should want is the government deciding who does and who doesn't get punished for sending email.

(Is there a right to send email? I certainly think so, and I'm sort of appalled that Stephen doesn't think so.)

Data:

Intriguing graph here (via The Private Intellectual), showing the aggregates of all of the approval rating polls of President Bush, across time.

Super-Libertarians:

So according to Jon Ryan Quinn (spelling corrected), our blog comprises "super-libertarians." I'm flattered, I really am, but I do have to protest that the characterization isn't entirely accurate. I certainly think Peter and I might qualify, but I'd be hesitant to apply the label to any of our four co-bloggers, and I'll let them speak up for themselves about their own political bents.

For that matter, I'm not precisely a libertarian myself. (Oh come on, Will! Bullshit.--ed.) Instead, I prefer a sort of balance between libertarianism and utilitarianism, recognizing that on a macroscopic level, some curtailing of liberty may simple by right. Of course, figuring out a hard-and-fast rule for when these things should occur is very difficult, and I'll let y'all know if I ever figure them out. I've quoted from David Friedman a lot on this question in the past, so I'll just direct you to his short chapters on "Problems", "Where I Stand" and "Answers: The Economic Analysis of Law," which are much worth reading for anybody interested in the topic.

But back to Mr. Quinn. A portion of his post reads:

(this is mostly addressed to you, super-libertarians): dating between men is MUCH different than dating between men and women, or dating between women, no matter how you try and slice it or "consider it objectively." Men and women are, hello, DIFFERENT creatures, and GAY men and straight men are, too. And, despite their affinities, straight women and gay men are different, too.

A very straightforward Op-ed by Howard Basman (How Appealing mogul) is in today's LA Times. He's complaining about the trouble on the Ninth circuit, where a lower court judge has been refusing to apply direct Supreme Court precedent on the grounds that he finds it "unconscionable and unconstitutional." As Mr. Bashman points out, the rule of law is a good thing no matter which side of the judiciary aisle you generally sit on.

There's plenty of reason to wonder whether horitzontal stare decisis (adherence of a court to precedents past) is a good idea. But I've never heard a good criticism of vertical stare decisis (the adherence of a lower court to current higher court decisions). As Mr. Bashman points out, if this idea doesn't scare you sufficiently, ponder what would happen if Texas decided that Roe v. Wade was "unconscionable and unconstitutional" and they just didn't feel like applying it, thank you very much.

Humanity:

And further complaints have come from two more readers who say they can't "find the humanity of the writers within the posts."

I'm not quite sure what to do with that. Does that mean that the things we've been saying seem so bizarre, implausible, or immoral that it's hard to believe any of have souls, or does that merely mean they'd like to see more things along the lines of "I went to see the Matrix Reloaded last night," and "I'm looking for my dream-girl"?

At any rate, I'm less eager to fix this problem than the context problem, because for various reasons I think the flotsam of my daily life is pretty darn boring. Furthermore-- and more importantly-- I don't want my blogging (I don't speak for anybody else) to serve as a substitute for actual interactions with people I know. Nothing rankles me more than: "Hey man, what's up?" "Oh, I cut my lip open last week, but I don't feel like retelling the story. Go read my livejournal."

So I, at least, am probably going to remain relatively inhuman for the near future, unless I've misunderstood this complaint, which is certainly possible.

UPDATE: It's been suggested that maybe they want to know more about what the bloggers on this site read, and less political-legal rambling. Hmm. I find this improbably but possible. If that's the case, it's easy enough. To see my reading list, go here. To see the quotes accumulated from said reading, go here. Now back to rambling.