Tag Archives: Eugene Volokh

The Asteroid Can Hit If It Means We No Longer Have To Listen To Bad Aerosmith Songs

Mark Kleiman:

When I saw that Rand Paul (R-Comedy Central) had voted against a bill outlawing the use of lasers to blind airline pilots on the grounds that “the states ought to take care of it,” I was reminded of this week’s best Onion story imagining an effort by Republicans to repeal a law providing for the destruction of an asteroid coming at the Earth.

The Onion story didn’t mention lawsuits seeking to have asteroid-destruction declared unconstitutional as a violation of the limited, delegated powers of the Federal government. But I’d be grateful if one of our libertarian-leaning readers could point me to the specific provision of the Constitution under which the Federal government could spend money on asteroid destruction. It’s not, properly speaking, defense, unless the asteroid was deliberately launched at us by the Klingons. The asteroid isn’t “in commerce” at all, so it can’t be covered by the Commerce Clause.

No doubt some socialists would assert that the reference to “the General Welfare” in the first sentence of Art. 1, Sec. 8, plus the Necessary and Proper clause at the end of that section, would cover asteroid destruction. And I might agree with them. But of course from the libertarian perspective that proves way, way too much.

So I offer this as a challenge: If you think that the doctrine of limited powers forbids much of what the federal government currently does, please explain why that same argument wouldn’t forbid spending money to shoot down an asteroid.

Footnote If your objections to “big government” are based on economics rather than constitutional law, please explain why the public-goods argument that justifies shooting down the asteroid doesn’t apply to the programs you don’t like.

Pejman Yousefzadeh:

As a libertarian-conservative, I am glad to help resolve this question. Of course, it should be noted from the outset that the framing of these kinds of questions is a common Kleimanian tactic; he tosses out an appealing public policy approach, and then dares readers to conclude that the approach may not be constitutional. I certainly agree with Kleiman that asteroid defense cannot be covered by the Commerce Clause (thank goodness that there are some limits recognized by the Left on the reach and scope of the Clause), but I don’t see why he is so quick to dismiss asteroid destruction as a defense measure merely because the asteroid was not “deliberately launched at us by the Klingons.”Original public meaning jurisprudence assists us in showing how asteroid destruction can be justified by Art. I, Sec. 8 of the Constitution as being “for the common Defence.” I am indebted to Professor Larry Solum for his excellent and comprehensive definition of original public meaning jurisprudence, which is excerpted below:

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism.  The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.”  Balkin has called his position on the relationship between originalism and living constitutionalism “comptibilism,” but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

Per Professor Solum’s definition, we have to ask how “the common Defence” would “have been understood by an ordinary adult citizen at the time it was adopted.” Specifically, we have to demonstrate that the notion of “Defence” against a threat does not depend upon that threat being initiated by a sentient being, or group of beings. This entails showing Kleiman that the non-presence of Klingons or any other sentient beings in a scenario which features an asteroid threatening life on Earth does not prevent the necessary countermeasures from being considered constitutional as acts of “Defence.”

In order to proceed along this line of inquiry, a definition of “defence” or “defense” (however one wishes to spell it) is needed. I can think of no better lexicographical authority than Samuel Johnson’s A Dictionary of the English Language. Consider especially the following bit of information: In his book Dr Johnson’s Dictionary: The Extraordinary Story of the Book that Defined the World, the writer Henry Hitchings quoted Joseph Emerson Worcester as saying that “[Johnson’s] Dictionary has also played its part in the law, especially in the United States. Legislators are much occuped with ascertaining ‘first meanings,’ with trying to secure the literal sense of their predecessors’ legislation . . . Often it is a matter of historicizing language: to understand a law, you need to understand what its terminology meant to its original architects . . . as long as the American Constitution remains intact, Johnson’s Dictionary will have a role to play in American law.”

So, Johnson’s Dictionary was/is quite useful when it comes to analyzing bodies of American law. Now, we have to ask what Johnson wrote about the definition of the word “defence.” Well, it just so happens that we can look. Feel free to examine the definitions of “defence,” “defenceless,” “to defend,” and “defendable.” One will find that none of the definitions in question make it necessary for a threat to have been launched by some form of sentient being, or group of beings, before one can be said to organize and implement some kind of “defense/defence” against that threat via preventive measures. Absent any competing definitions of similar or greater influence, one may reasonably conclude that “an ordinary adult citizen” would not have understood “defence” to mean a countermeasure against a threat set into motion by a sentient being, or group of beings–like Klingons, for example. A “defence” can therefore be mounted against a threat that appeared or emerged sua sponte, without any sentient beings or higher intelligence having brought that threat into being, and/or having directed that threat against us.

Indeed, if Kleiman wanted to get a libertarian legal analysis regarding this issue, he might have done well to ask Glenn Reynolds, whose blog is full of posts regarding the need for asteroid defense. I recognize that Kleiman loathes Reynolds, and has nothing but contempt for him, but it perhaps would not have been a bad idea for Kleiman to put his loathing aside and consider that Reynolds’s example might indicate that there are plenty of libertarians who (a) are concerned about defending the Earth against extinction-causing asteroids, and (b) might be able to justify it (as I have) constitutionally. As a general matter, it might be best for Kleiman to consult actual lawyers regarding constitutional or statutory interpretation, before trying to navigate legal thickets on his own. I mean, it’s his blog, and he can do what he wants, but it is worth noting that past Kleimanian efforts to play lawyer have ended quite poorly.

Jonathan Adler:

This post by Mark Kleiman is a good example, in that it puts forward a laughable caricature of libertarian and originalist constitutional thought that would have been discredited with but a moment’s investigation into the question (as I noted here, and Pejman Yousefzadeh discussed here).  To Prof. Kleiman’s credit, he backed off (a little) when other took the time to respond, but that a prominent, thoughtful academic would post something like this as an ostensibly thoughtful critique of right-leaning ideas says quite a bit about the state of much academic discourse.

Sasha Volokh:

I agree with Jonathan below that the Constitution (through the spending power) allows Congress to spend tax money to protect the Earth from an asteroid.

On the other hand — and at the risk of confirming Mark Kleiman in his belief that libertarians are loopy — I don’t speak for all libertarians, but I think there’s a good case to be made that taxing people to protect the Earth from an asteroid, while within Congress’s powers, is an illegitimate function of government from a moral perspective. I think it’s O.K. to violate people’s rights (e.g. through taxation) if the result is that you protect people’s rights to some greater extent (e.g. through police, courts, the military). But it’s not obvious to me that the Earth being hit by an asteroid (or, say, someone being hit by lightning or a falling tree) violates anyone’s rights; if that’s so, then I’m not sure I can justify preventing it through taxation.

Bryan Caplan once suggested the asteroid hypo to me as a reductio ad absurdum against my view. But a reductio ad absurdum doesn’t work against someone who’s willing to be absurd, and I may be willing to bite the bullet on this one.

On the other hand, if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.

This does make me uncomfortable, much like my view that patents are highly useful but morally unjustifiable, so I’m open to persuasion

Matthew Yglesias:

I think this is a mistake about how a reductio works. The mere fact that Volokh is willing to bite this bullet has no real bearing on the fact that the conclusion is clearly false, and so the argument is either logically invalid or else proceeds from false premises. I’d say “false premises.” The best liberal thinking—classical, modern, whatever—proceeds from broadly consequentialist ideas about making human beings better off.

Brad DeLong:

So not only does Sasha Volokh claim that it is immoral to tax people to blow up an asteroid (or install lightning rods, or mandate lightning rods, or pay for a tree-trimming crew on the public roads), but it is immoral to tell people of an approaching asteroid so they can scramble to safety because it will cause violations of rights through looting.

Wow.

Ilya Somin:

That said, I don’t think that Sasha’s view is necessarily ridiculous or “insane.” Any theory based on absolute respect for certain rights necessarily carries the risk that it will lead to catastrophe in some instances. Let’s say you believe that torture is always wrong. Then you would not resort to it even in a case where relatively mild torture of a terrorist is the only way to prevent a nuclear attack that kills millions. What if you think that it’s always wrong to knowingly kill innocent civilians? Then you would oppose strategic bombing even if it were the only way to defeat Nazi Germany in World War II. How about absolute rights to freedom of political speech? If you are committed to them, that means you oppose censorship even if it’s the only way to prevent Nazi or communist totalitarians from coming to power and slaughtering millions.

Many such scenarios are improbable. But over the long sweep of human history, improbable events can and do happen. Had Kerensky suppressed the Bolsheviks in 1917 (as he easily could have that summer) or had the Weimar Republic done the same with the Nazis, the world would be a vastly better place, even though most political censorship (even of evil ideologies) causes far more harm than good. A civilization-destroying asteroid attack during the next few hundred years is also a low-probability event.

Thus, the potential flaw in Sasha’s view is one that it shares with all absolutist rights theories. Scenarios like the above are one of the main reasons why I’m not a rights-absolutist myself. But I don’t believe that all the great moral theorists who endorse such views from Kant to the present are either ridiculous or “insane.”

It’s also worth noting that Sasha’s approach would in fact justify asteroid defense in virtually any plausible real world scenario. As he puts it, “if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.” It’s highly unlikely that news of an impending asteroid impact whose onset was known to the government could be prevented from leaking to the general public. Even if it could, “all hell” would surely break loose after the asteroid impact, resulting in numerous violations of libertarian rights by looters, bandits, people stealing food out of desperation, and so on. Either way, Sasha’s analysis ends up justifying asteroid defense.

If I understand Sasha correctly, he’s only partially a rights absolutist. He doesn’t believe that you can ever sacrifice rights for utilitarian benefits, even truly enormous ones. But he does think that you can justify small rights violations as a way of forestalling bigger ones. Sasha is an absolutist when it comes to trading off libertarian rights for other considerations, but a maximizer when it comes to trading off rights for greater protection of those same rights in the future. Effective defense against a massive asteroid impact easily passes Sasha’s rights-maximizing test.

Obviously, I welcome correction from Sasha if I have misinterpreted his views.

Mark Kleiman:

I’m glad that Adler agrees with me – and disagrees with many Tea Party lunatics, including some recently elected to the Senate and the House – that there’s no actual Constitutional question about funding the Department of Education or National Public Radio. That, of course, was my point.

I’m also glad that Sasha is standing by his guns, thus demonstrating that my argument was not directed at a mere straw man, though his objection to spending is philosophical rather than Constitutional.

Sasha worries that his honest and forthright response might confirm me in my belief that “libertarians are loopy.” That’s certainly a reasonable concern. But I would have thought that a bigger concern would be that the conclusion is, in fact, obviously loopy, and – like any good reductio ad absurdum argument, ought to lead to a re-examination of the premises that would lead to such a loopy conclusion.

Ilya Somin is right to point out that any theory that puts an absolute constraint on action runs into problems when inaction has catastrophic consequences. But if he really can’t see the difference between torture and income taxation – can’t understand why absolute opposition to torture is not analogous to absolute opposition to public spending on public goods – then “loopy” is entirely too weak a word.

Eugene Volokh:

I leave it to others to debate the constitutional and moral merits of government spending on asteroid defense (my view is that such spending is both constitutionally permissible and morally proper, but I have nothing original to add on the subject). I just wanted to add that one side of the debate is an unusually near-literal application of the saying, “Let justice be done, though the heavens fall.”

Noah Millman at The American Scene:

An impending catastrophe – asteroid strike – threatens to kill everyone in the society. That doesn’t violate anyone’s “rights” because you don’t have a “right to life” but rather a right not to have your life taken away by somebody else against your will. Therefore, the government has no right to tax you to protect you – and everybody else – from the asteroid.

So how is the asteroid to be stopped?

Presumably, everyone in society would agree voluntarily to cooperate to stop the asteroid. That is to say: we could still have collective action, but it would have to be voluntary, not coerced.

But would everyone participate?

The government goes around, passing the hat for contributions to stop the asteroid. A certain percentage of people, though, don’t believe in asteroids. Another percentage believe that the asteroid will bring the Rapture and so must not be stopped. These people are crazy, though, and crazy people are not interesting to talk about. Let’s hope there aren’t too many and ignore them.

Some people, though, notice that there are wealthier people than them in the society, and figure those other people should shoulder the burden of saving society. These are the “free-riders.”

Now, so long as this group is relatively small, no problem. Enough people will still put up enough money to stop the collective catastrophe. But so long as that is the case, free-riding is the economically rational thing to do. Indeed, in any large enough society, free-riding is always the rational thing to do: in a society with enough people putting up enough money voluntarily to stop the asteroid, free-riding is costless; in a society without enough such people, contributing is pointless.

The salvation of this ultra-libertarian society, then, depends upon the existence of a sufficient number of irrationally self-sacrificing people, people who ignore their rational self-interest in order to procure a social good for the group, without regard for the amount of “free riding” going on around them.

On the assumption – which I don’t think is pushing it at all – that there are a whole lot of communal problems that require collective action to address, libertarianism is only practical in highly communitarian societies.

I don’t know that that’s a knock-down argument against libertarianism. Wikipedia is a highly communitarian activity that grew up in a highly libertarian environment (the Internet), and most of the world is free-riding.

But it’s worth stressing nonetheless, because libertarians tend to talk as if rationality will lead to the necessary level of cooperation. But it won’t. In any case of communal threat where attempted free-riders cannot independently exposed to the threat, while contributors are protected, the rational thing to do is free-ride.

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Some Dead Fish With Your Deep Dish Pizza

Eli Rosenberg at The Atlantic with the round-up

Chicago Tribune:

With startling arrogance and audaciously twisted reasoning, two appellate judges ignored more than 100 years of legal precedent, invented a new definition of “residency” and ordered Rahm Emanuel off the Feb. 22 mayoral ballot.

With the election just four weeks away, the appellate panel voted 2-1 to reverse the decisions of the Chicago Board of Elections and a Circuit Court judge. It’s an adventurous, flawed ruling that has immediate and profound consequences. The case is headed to the Illinois Supreme Court, but the ballots are headed to the printer — without Emanuel’s name. Early voting begins Monday.

In a blistering dissent, Appellate Justice Bertina E. Lampkin accused her colleagues, Thomas E. Hoffman and Shelvin Louise Marie Hall, of “careless disregard for the law,” and harshly criticized them for refusing to ask the Supreme Court for an expedited review.

Lampkin accused the majority of ignoring case law that clearly supported Emanuel’s argument —including a significant case in which Hoffman prevailed.

“The majority’s new standard is ill-reasoned and unfair to the candidate, voters and those of us who are charged with applying the law,” Lampkin wrote. The decision “disenfranchises not just this particular candidate but every voter in Chicago who would consider voting for him.”

Richard Hasen at Slate:

Illinois, like many states, requires anyone running for a municipal office to be a resident of the municipality. This sensible rule ensures that elected officials understand the interests and desires of their constituents. Emanuel long lived in Chicago and was a congressman representing part of the city for many years before he became President Obama’s chief of staff. At that point he moved his family to Washington, D.C., and rented out his house. But he kept family heirlooms and other items locked in the Chicago basement, indicating a plan to return. It was well known that Emanuel hoped to come back and run for mayor whenever Mayor Richard M. Daley decided to step down from that office.

When Daley announced his retirement and Emanuel filed to run in the race, his opponents challenged his residency—and lost before the elections board, which found that Emanuel had intended to return to Chicago after his D.C. stint for the president. A trial court affirmed the board. Now this intermediate appellate court says that’s wrong. Because Emanuel did not have a regular physical presence in Chicago in the year before the election, he is ineligible to run.

Ed Morrissey:

Emanuel moved to Washington DC and stayed there for 21 months, only returning when Richard Daley announced he wouldn’t seek another term.  Under that definition, the statute becomes essentially meaningless; anyone who lived in Chicago for any period of time could return and run for office on the shortest of notice and dare anyone to prove that returning wasn’t the intent all along.  The majority ruled that the legislature intended this requirement to apply to physical residence — which makes sense, because one wants a mayor who’s actually familiar with the city’s issues.

Eugene Volokh

Michelle Malkin:

Rahm gave a short statement to the press (no profanity delay buttons were necessary today). An appeal is on the way. He brushed off suggestion that politics played a role in court decision and said: “I have no doubt in the end we will prevail.”

Then, he cackled.

Ed Driscoll:

Just another day in the life of David Brooks favorite “Warmhearted Machiavellian.” But given that it’s Chicago, who know what will happen with the appeal. We’ll know it’s over if and when President Obama’s office Fed Exes Rahm another Luca Brasi-style dead fish.

Garance Franke-Ruta at The Atlantic:

If he is not granted that stay and the Illinois Supreme Court does not overturn the lower court’s opinion, it seems unlikely he would want take the Lisa Murkowski route and run as a write-in candidate, because the residency ruling would lead to a legal challenge to his being sworn into office.

On the one hand, there is no legal process to stop Emanuel from running a write-in campaign, according Ken Menzel, a legal counsel with the Illinois State Board of Elections.

“We don’t have a challenge process for write-in candidates in Illinois,” he explained. “You can’t prevent a person from being a write-in candidate.”

According to James Allen, a spokesman for the Chicago Board of Elections, Emanuel would have until Feb. 15 to file a write-in bid for the Feb. 22 Chicago mayoral primary election.

On the other hand — and more importantly — the state residency statute in question in the case decided today governs eligibility to hold public office, not eligibility to be on a ballot.

“The basis of the challenge is the allegation he’s not eligible for office,” Menzel said.

The finding that Emanuel failed to meet the state’s strict residency requirement, if not reversed, means a write-in campaign would begin in environment of uncertainty as to whether Emanuel could assume office, were he to win.

“I think you’re getting into uncharted waters if you get into a write-in campaign,” Menzel added. “This is the sort of thing that perhaps, if he were to try, we’d see some case-law made.”

Abdon Pallasch at Chicago Sun-Times:

The Illinois Supreme Court has ordered the Chicago Board of Election Commissioners to put Rahm Emanuel’s name back on the mayoral ballot, attorneys for Emanuel said Tuesday.

The court has not decided whether to hear Emanuel’s appeal of Monday’s Illinois Appellate Court ruling that tossed him out of the race to replace Mayor Daley. The Supreme Court granted Emanuel’s motion for a stay of the ruling, Emanuel attorney Mike Kasper said Tuesday.

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There Are Cordoba Guitars And Cordoba Houses, Part II

John McCormack at The Weekly Standard:

The Anti-Defamation League, which describes itself as “the world’s leading organization fighting anti-Semitism through programs and services that counteract hatred, prejudice and bigotry,” released a statment this morning opposing the building of the 13-story mosque near Ground Zero.

“In our judgment, building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain – unnecessarily – and that is not right,” says the ADL. Full statement here:

We regard freedom of religion as a cornerstone of the American democracy, and that freedom must include the right of all Americans – Christian, Jewish, Muslim, and other faiths – to build community centers and houses of worship.

We categorically reject appeals to bigotry on the basis of religion, and condemn those whose opposition to this proposed Islamic Center is a manifestation of such bigotry.

However, there are understandably strong passions and keen sensitivities surrounding the World Trade Center site.  We are ever mindful of the tragedy which befell our nation there, the pain we all still feel – and especially the anguish of the families and friends of those who were killed on September 11, 2001.

The controversy which has emerged regarding the building of an Islamic Center at this location is counterproductive to the healing process.  Therefore, under these unique circumstances, we believe the City of New York would be better served if an alternative location could be found.

Marc Tracy at Tablet:

The Anti-Defamation League has issued a statement opposing the construction of the Islamic community center a couple blocks from Ground Zero in lower Manhattan. (Earlier this week, a community board recommended that the Landmarks Preservation Commission allow the project to go through.) The release goes out of its way to grant Cordoba House’s organizers good intentions and to condemn the bigotry of some who oppose it. So what is the problem? “The controversy which has emerged regarding the building of an Islamic Center at this location,” the ADL argues, “is counterproductive to the healing process.”

It adds:

Proponents of the Islamic Center may have every right to build at this site, and may even have chosen the site to send a positive message about Islam. The bigotry some have expressed in attacking them is unfair, and wrong. But ultimately this is not a question of rights, but a question of what is right. In our judgment, building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain—unnecessarily—and that is not right.

Founded in 1913, the ADL, in its words, “fights anti-Semitism and all forms of bigotry, defends democratic ideals and protects civil rights for all.” Except when it does the precise opposite.

Jeffrey Goldberg:

I have explained my support for the Lower Manhattan mosque project before, but let me restate two points:

1) The organization behind the project, the Cordoba Initiative, is a moderate group interested in advancing cross-cultural understanding. It is very far from being a Wahhabist organization;

2) This is a strange war we’re fighting against Islamist terrorism. We must fight the terrorists with alacrity, but at the same time we must understand that what the terrorists seek is a clash of civilizations. We must do everything possible to avoid giving them propaganda victories in their attempt to create a cosmic war between Judeo-Christian civilization and Muslim civilization. The fight is not between the West and Islam; it is between modernists of all monotheist faiths, on the one hand, and the advocates of a specific strain of medievalist Islam, on the other. If we as a society punish Muslims of good faith, Muslims of good faith will join the other side. It’s not that hard to understand. I’m disappointed that the ADL doesn’t understand this.

Greg Sargent:

This is basically a concession that some of the opposition to the mosque is grounded in bigotry, and that those arguing that the mosque builders harbor ill intent are misguided. Yet ADL is opposing the construction of the mosque anyway, on the grounds that it will cause 9/11 victims unnecessary “pain.”

But look: The foes of this mosque whose opposition is rooted in bigotry are the ones who are trying to stoke victims’ pain here, for transparent political purposes. Their opposition to this mosque appears to be all about insidiously linking the mosque builders with the 9/11 attackers, and by extension, to revive passions surrounding 9/11. To oppose the mosque is to capitulate to — and validate — this program.

On this one, you’re either with the bigots or you’re against them. And ADL has in effect sided with them.

Paul Krugman:

So let’s try some comparable cases, OK? It causes some people pain to see Jews operating small businesses in non-Jewish neighborhoods; it causes some people pain to see Jews writing for national publications (as I learn from my mailbox most weeks); it causes some people pain to see Jews on the Supreme Court. So would ADL agree that we should ban Jews from these activities, so as to spare these people pain? No? What’s the difference?

One thing I thought Jews were supposed to understand is that they need to be advocates of universal rights, not just rights for their particular group — because it’s the right thing to do, but also because, ahem, there aren’t enough of us. We can’t afford to live in a tribal world.

But ADL has apparently forgotten all that. Shameful — and stupid.

Update: Times staff briefly removed the link to the ADL statement, because it seemed to be dead — but it was apparently just a case of an overloaded server, and I’ve put it back.

Charles Johnson at Little Green Footballs:

Humorist Will Rogers once said about the repeal of Prohibition, “Repeal is all right, but the wrong people are for it.” In this case, the wrong people are against Park51, and if Abe Foxman and the ADL can’t keep their personal feelings out of the issue, they should have just kept quiet instead of handing the Bigot Brigade a public relations gift. What a disgrace.

Adam Serwer at American Prospect:

Let’s be clear. This is not about the proposed Islamic Center. There is already a masjid in the neighborhood, and it’s been there for decades. This is about giving political cover to right-wing politicians using anti-Muslim bigotry as a political weapon and a fundraising tool. By doing this, the ADL is increasingly eroding its already weakened credibility as a nonpartisan organization.

I learned a very important lesson in Hebrew School that I have retained my entire life. If they can deny freedom to a single individual because of who they are, they can do it to anyone. Someone at the ADL needs to go back to Hebrew School.

J Street:

Today, J Street President Jeremy Ben-Ami released the following statement:

The principle at stake in the Cordoba House controversy goes to the heart of American democracy and the value we place on freedom of religion. Should one religious group in this country be treated differently than another? We believe the answer is no.

As Mayor Bloomberg has said, proposing a church or a synagogue for that site would raise no questions. The Muslim community has an equal right to build a community center wherever it is legal to do so. We would hope the American Jewish community would be at the forefront of standing up for the freedom and equality of a religious minority looking to exercise its legal rights in the United States, rather than casting aspersions on its funders and giving in to the fear-mongerers and pandering politicians urging it to relocate.

What better ammunition to feed the Osama bin Ladens of the world and their claim of anti-Muslim bias in the United States as they seek to whip up global jihad than to hold this proposal for a Muslim religious center to a different and tougher standard than other religious institutions would be.

Joe Klein at Swampland at Time:

During the high-tide of anti-semitism, and then again during the civil-rights movement, and often since, the Anti-Defamation League transcended its Jewish origins to stand as a courageous American voice against prejudice. But now, it’s making a mockery of its original mission and, in the process, it has sullied American Judaism’s intense tradition of tolerance and inclusion.  I miss the old ADL and so does America. Foxman should be fired immediately. (Meanwhile, hooray yet again for Michael Bloomberg.)

Peter Beinart at Daily Beast:

Had the ADL genuinely tried to apply its universalistic mandate to the Jewish state, it would have become something like the Association for Civil Rights in Israel (ACRI) or B’Tselem (full disclosure: I’m on B’Tselem’s American board): Israeli human rights organizations that struggle against all forms of bigotry, and thus end up spending a lot of time defending Muslims and Christian Palestinians against discrimination by Jews. But the ADL hasn’t done that. Instead it has become, in essence, two organizations. In the United States, it still links the struggle against anti-Semitism to the struggle against bigotry against non-Jews. In Israel, by contrast, it largely pretends that government-sponsored bigotry against non-Jews does not exist. When Arizona passes a law that encourages police to harass Latinos, the ADL expresses outrage. But when Israel builds 170 kilometers of roads in the West Bank for the convenience of Jewish settlers, from which Palestinians are wholly or partially banned, the ADL takes out advertisements declaring, “The Problem Isn’t Settlements.”

For a long time now, the ADL seems to have assumed that it could exempt Israel from the principles in its charter and yet remain just as faithful to that charter inside the United States. But now the chickens are coming back home to America to roost. The ADL’s rationale for opposing the Ground Zero mosque is that “building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain—unnecessarily—and that is not right.” Huh? What if white victims of African-American crime protested the building of a black church in their neighborhood? Or gentile victims of Bernie Madoff protested the building of a synagogue? Would the ADL for one second suggest that sensitivity toward people victimized by members of a certain religion or race justifies discriminating against other, completely innocent, members of that religion or race? Of course not. But when it comes to Muslims, the standards are different. They are different in Israel, and now, it is clear, they are different in the United States, too.

More Goldberg

Mark Thompson at The League:

I don’t have any real problem with those who take offense at the decision to build this project a few blocks from Ground Zero, and particularly those who take such offense having had deep ties to New York on 9/11/01.

What I do have a problem with is those who have determined that this is an appropriate issue for political activism, and particularly those supposed advocates of “small government” who view it as appropriate that government would step in here to restrict the property rights of a private organization.  What I do have a problem with is those who claim to advocate for “states rights” and federalism insisting that it is the job of the federal government to make sure that what is effectively a zoning decision of the New York City government is overruled.  What I do have a problem with is those who are using this proposed building to stir up anti-Muslim sentiment by branding it a “9/11 Victory Mosque,” and who presume to know more about Muslims than Muslims themselves and in the process create an “inescable trap” wherein all Muslims are either lying about not being jihadi terrorists or are just “bad Muslims.”

Jennifer Rubin at Commentary:

The left continues to feign confusion (it is hard to believe its pundits are really this muddled) as to the reasons why conservatives (and a majority of fellow citizens) oppose the Ground Zero mosque. No, it’s not about “religious freedom” — we’re talking about the location of the mosque on the ash-strewn site of 3,000 dead Americans. The J Street crowd and the liberal defenders of the mosque seem very bent out of shape when Americans want to defend the sensibilities of their fellow citizens and when they look askance at an imam whose funding appears to come from those whose goal is anything but religious reconciliation. Again, no one is telling Muslims not to build or pray in mosques; we on the right are simply asking them not to do it in the location where Islam was the inspiration for mass murder.

It is interesting that the word mosque is not employed by those excoriating the mosque opponents. As a smart reader highlights, why is it described as a “cultural center”? Pretty dicey to articulate exactly what position the left clings to — namely, that we must allow a mosque at Ground Zero. Well, when you are that precise, it does highlight the vast gulf between the left’s perspective and that of average Americans.  (And for the record, my objections to J Street obviously aren’t limited to the Ground Zero mosque. And I certainly do believe “you are either for us or you are for them” — when it comes to Israel and to America. That this notion disturbs the left tells you precisely why it is estranged from the vast majority of Israelis and Americans.)

Dan Senor is not confused in the least. He pens an open letter to the Ground Zero mosque imam, which gets to the heart of the matter. Recalling the 9/11 attack “committed in the name of Islam,” he explains:

We applaud and thank every Muslim throughout the world who has rejected and denounced this association. But the fact remains that in the minds of many who are swayed by the most radical interpretations of Islam, the Cordoba House will not be seen as a center for peace and reconciliation. It will rather be celebrated as a Muslim monument erected on the site of a great Muslim “military” victory—a milestone on the path to the further spread of Islam throughout the world. …

Rather than furthering cross-cultural and interfaith understanding, a Cordoba House located near Ground Zero would undermine them. Rather that serving as a bridge between Muslim and non-Muslim peoples, it would function as a divide. Your expressed hopes for the center not only would never be realized, they would be undermined from the start. Insisting on this particular site on Park Place can only reinforce this counterproductive dynamic.

This is not some right-wing, extremist view. It represents the views of a large majority of Americans and of mainstream Jewish leaders like Malcolm Hoenlein — as well as Juan Williams. But the left – which has become obsessed with universalism and finds particularism and nationalism noxious – thinks it unseemly for Americans to look after the interests of Americans, and Jews to look after Jews (as to the latter, we can only be grateful that so many pro-Zionist Christians do as well).

Peter Wehner at Commentary

Jonathan Chait at TNR:

Joe Lieberman comes out against building an Islamic Center in lower Manhattan:

“I’ve also read some things about some of the people involved that make me wonder about their motivations. So I don’t know enough to reach a conclusion, but I know enough to say that this thing is only going to create more division in our society, and somebody ought to put the brakes on it,” he said. “Give these people a chance to come out and explain who they are, where their money’s coming from.”

Sounds like he’s deeply troubled by the hilariously elongated chain of guilt-by-association constructed by critics.

Meanwhile, former Bushie Dan Senor writes:

9/11 remains a deep wound for Americans—especially those who experienced it directly in some way. They understandably see the area as sacred ground. Nearly all of them also reject the equation of Islam with terrorism and do not blame the attacks on Muslims generally or on the Muslim faith. But many believe that Ground Zero should be reserved for memorials to the event itself and to its victims. They do not understand why of all possible locations in the city, Cordoba House must be sited so near to there.

A couple things are striking about this argument. First, Senor claims that “Ground Zero should be reserved for memorials.” But the Muslim center is not being built on Ground Zero. It’s being built two blocks away, in a site that doesn’t feel especially connected to Ground Zero. Senor is suggesting that nothing but memorials should be built within (at least) a two block radius of Ground Zero. Forgive me for feeling skeptical that such a standard is being applied to any other proposed construction.

Second, there’s a very weaselly relativism at work here in his not-prejudiced plea to relocate the center. Senor is arguing, I support freedom of religion, and I believe that your group doesn’t support terrorism, but other Americans don’t feel this way. Of course this is an argument for caving in to any popular prejudice or social phobia whatsoever. Hey, I’m happy to let a black family move into the neighborhood, but other people here think you’re probably crackheads who spray random gunfire at night, so in order to prevent racial strife you should probably live somewhere else.

Justin Elliott at Salon:

Mayor Michael Bloomberg, who has emerged as the unlikely but passionate defender of the planned Muslim community center near ground zero, today traveled to Governors Island off the tip of Lower Manhattan to deliver a stirring plea for sanity in what he called “[as] important a test of the separation of church and state as we may see in our lifetimes.”

The Daily News’ Adam Lisberg reports that Bloomberg choked up at one point as he delivered the speech surrounded by religious leaders of different faiths, with the Statue of Liberty in the background.

Rather than attack the bigotry of the opponents of the so-called “ground zero mosque,” Bloomberg made several positive arguments for building the center. He traced the struggle for religious freedom in New York and affirmed the rights of citizens to do as they please with their private property:

The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question: Should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries, but we should never allow it to happen here.

It’s worth noting that three Jewish leaders  — Rabbi Bob Kaplan from the Jewish Community Council, Rabbi Irwin Kula from the National Jewish Center for Learning and Leadership, and Cara Berkowitz from the UJA Federation — were present with Bloomberg during the speech, despite the Anti-Defamation League’s opposition to the project

Chris Good at The Atlantic:

Few events in recent memory have called up the resonant ideological debates of 9/11 as forcefully as the mosque being planned near the former site of the World Trade Center in Manhattan. It appears these are debates we will keep having, as New York City’s Landmarks Preservation Commission has voted to let the Cordoba Initiative and the American Society for Muslim Advancement proceed with their plans. Along with those plans will come more discussion of religious freedom, taste, and the specter of a Western/Muslim cultural World War

Ann Althouse:

Writes the NYT, reporting the city’s 9-0 vote against designating the building on the site a landmark. Now, as a matter of freedom of religion, it really was crucial not to let religion (or political ideology) affect the question whether that building should be classified under the law as a landmark, thus limiting the property rights of the owner. The requirement of neutrality in decisionmaking like that is fundamental to the rule of law.

One by one, members of the commission debated the aesthetic significance of the building, designed in the Italian Renaissance Palazzo style by an unknown architect.

That is clearly the way it had to be done. But what should not be lost, in understanding that, is that the owner’s freedom means that the owner has a choice. The owner is certainly not required to build a Muslim center and mosque on that site. Because it is a choice, it’s not wrong for the community to ask: Why are you making this choice? Why are you doing something that feels so painful to us? The community isn’t wrong to plead with the owner to choose to do something else with that property. It’s not enough of an answer to say we are doing it because we have a right to do it.

UPDATE: Will Wilkinson

Allah Pundit

Greg Sargent

William Kristol at The Weekly Standard

UPDATE #2: Dorothy Rabinowitz at WSJ

Alan Jacobs at The American Scene

Conor Friedersdorf at The American Scene

Joshua Cohen and Jim Pinkerton at Bloggingheads

Mark Schmitt and Rich Lowry at Bloggingheads

David Weigel and Dan Foster at Bloggingheads

UPDATE #3: Alex Massie here and here

UPDATE #4: Fareed Zakaria in Newsweek, his letter to Foxman

Abe Foxman writes a letter to Zakaria

Steve Clemons

UPDATE #5: Christopher Hitchens at Slate

Eugene Volokh

UPDATE #6: Jillian Rayfield at Talking Points Memo

UPDATE #7: Charles Krauthammer at WaPo

Jonathan Chait at TNR

John McCormack at The Weekly Standard

UPDATE #8: Joe Klein on Krauthammer

Michael Kinsley at The Atlantic on Krauthammer

UPDATE #9: More Krauthammer

Kinsley responds

UPDATE #10: Adam Serwer at Greg Sargent’s place

Steve Benen

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Filed under Religion

Maybe If They Hire Joss Whedon Or J.J. Abrams…

Squid314 (Scott):

But then there are some shows that go completely beyond the pale of enjoyability, until they become nothing more than overwritten collections of tropes impossible to watch without groaning.

I think the worst offender here is the History Channel and all their programs on the so-called “World War II”.

Let’s start with the bad guys. Battalions of stormtroopers dressed in all black, check. Secret police, check. Determination to brutally kill everyone who doesn’t look like them, check. Leader with a tiny villain mustache and a tendency to go into apopleptic rage when he doesn’t get his way, check. All this from a country that was ordinary, believable, and dare I say it sometimes even sympathetic in previous seasons.

I wouldn’t even mind the lack of originality if they weren’t so heavy-handed about it. Apparently we’re supposed to believe that in the middle of the war the Germans attacked their allies the Russians, starting an unwinnable conflict on two fronts, just to show how sneaky and untrustworthy they could be? And that they diverted all their resources to use in making ever bigger and scarier death camps, even in the middle of a huge war? Real people just aren’t that evil. And that’s not even counting the part where as soon as the plot requires it, they instantly forget about all the racism nonsense and become best buddies with the definitely non-Aryan Japanese.

Not that the good guys are much better. Their leader, Churchill, appeared in a grand total of one episode before, where he was a bumbling general who suffered an embarrassing defeat to the Ottomans of all people in the Battle of Gallipoli. Now, all of a sudden, he’s not only Prime Minister, he’s not only a brilliant military commander, he’s not only the greatest orator of the twentieth century who can convince the British to keep going against all odds, he’s also a natural wit who is able to pull out hilarious one-liners practically on demand. I know he’s supposed to be the hero, but it’s not realistic unless you keep the guy at least vaguely human.

So it’s pretty standard “shining amazing good guys who can do no wrong” versus “evil legions of darkness bent on torture and genocide” stuff, totally ignoring the nuances and realities of politics. The actual strategy of the war is barely any better. Just to give one example, in the Battle of the Bulge, a vastly larger force of Germans surround a small Allied battalion and demand they surrender or be killed. The Allied general sends back a single-word reply: “Nuts!”. The Germans attack, and, miraculously, the tiny Allied force holds them off long enough for reinforcements to arrive and turn the tide of battle. Whoever wrote this episode obviously had never been within a thousand miles of an actual military.

Probably the worst part was the ending. The British/German story arc gets boring, so they tie it up quickly, have the villain kill himself (on Walpurgisnacht of all days, not exactly subtle) and then totally switch gears to a battle between the Americans and the Japanese in the Pacific. Pretty much the same dichotomy – the Japanese kill, torture, perform medical experiments on prisoners, and frickin’ play football with the heads of murdered children, and the Americans are led by a kindly old man in a wheelchair.

Anyway, they spend the whole season building up how the Japanese home islands are a fortress, and the Japanese will never surrender, and there’s no way to take the Japanese home islands because they’re invincible…and then they realize they totally can’t have the Americans take the Japanese home islands so they have no way to wrap up the season.

So they invent a completely implausible superweapon that they’ve never mentioned until now. Apparently the Americans got some scientists together to invent it, only we never heard anything about it because it was “classified”. In two years, the scientists manage to invent a weapon a thousand times more powerful than anything anyone’s ever seen before – drawing from, of course, ancient mystical texts. Then they use the superweapon, blow up several Japanese cities easily, and the Japanese surrender. Convenient, isn’t it?

…and then, in the entire rest of the show, over five or six different big wars, they never use the superweapon again. Seriously. They have this whole thing about a war in Vietnam that lasts decades and kills tens of thousands of people, and they never wonder if maybe they should consider using the frickin’ unstoppable mystical superweapon that they won the last war with. At this point, you’re starting to wonder if any of the show’s writers have even watched the episodes the other writers made.

I’m not even going to get into the whole subplot about breaking a secret code (cleverly named “Enigma”, because the writers couldn’t spend more than two seconds thinking up a name for an enigmatic code), the giant superintelligent computer called Colossus (despite this being years before the transistor was even invented), the Soviet strongman whose name means “Man of Steel” in Russian (seriously, between calling the strongman “Man of Steel” and the Frenchman “de Gaulle”, whoever came up with the names for this thing ought to be shot).

So yeah. Stay away from the History Channel. Unlike most of the other networks, they don’t even try to make their stuff believable.

Noah Millman at The American Scene:

So I Guess Maeby Was Right To Pass On That History Text

H/T pretty much everybody in the universe, but yes, I, too thought this was pretty funny.

Eugene Volokh

Charlie Jane Anders at I09:

If you think your favorite science fiction TV show is full of nonsensical plot twists and lazy writing, you should check out the World War II documentaries, suggests Squid314 on Livejournal, in the funniest blog post you’re likely to read this week. Who on Earth would believe that the Allies could actually win the Battle of the Bulge? It’s total nonsense, and “Whoever wrote this episode obviously had never been within a thousand miles of an actual military

[…]

I’m convinced. We should start a write-in campaign to get the writers of the twentieth century fired. Who’s with me? More incredible brilliance at the link.

Joe Carter at First Things:

There have been some great television shows that have explored the theme of war and combat (M*A*S*H, Battlestar Galactica, F-Troop). But I have to agree with the brilliant TV critic Scott that the ongoing series that runs on The History Channel isn’t one of them

[…]

Read the rest. You won’t want to miss the part about the “unstoppable mystical superweapon” the never appears in the sequels.

Ed Driscoll at Pajamas Media:

Part of the problem is that in the 1970s, television writers were a crazed, psychedelic lot, a bunch of stoner sixties retreads more into scoring controlled substances than scripting controlled plotting.

Take this rock star wannabe who appeared in several segments of the World at War, and his seriously seventies mullet:

Don’t recognize him? I only knew who he was because his voice preceded his image, but I did a double take when he finally appeared:

Yes, it’s Stephen Ambrose in the early 1970s, back when he was in his mid-thirties, decades before the plagiarism scandals, and prior to that, his more sober C-SPAN and PBS-friendly look:

So yes kids, World War II was pretty cliched, but back in the 1970s, when it came time to watch TV, it was either that or Maude and Adam-12. We made do, somehow.

Robert Farley at Lawyers, Guns, And Money

Matthew Yglesias:

These are all fair points. In terms of gritty realism and morally complex drama, you can make mine the Napoleonic Wars. The anti-hero at the center of the action has a great plot arc, the horses look cool, and the whole metric system conceit is so clever I’m surprised people don’t use it in practice. Even the North American spinoff is pretty interesting. It’s just too bad they didn’t let well enough alone after Elba—the TV movie special felt pointless and tacked on.

Doug Mataconis:

Just goes to show you that reality rarely makes good television.

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Filed under Bloggy Funnies, History, TV

Man Lied To Get A Woman Into Bed. In Other News, The Sky Is Blue.

Max Fisher at The Atlantic with a round-up.

Jo Adetunji and Harriet Sherwood at The Guardian:

A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.

Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left.

When she later found out that he was not Jewish but an Arab, she filed a criminal complaint for rape and indecent assault.

Although Kashur was initially charged with rape and indecent assault, this was changed to a charge of rape by deception as part of a plea bargain arrangement.

Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not “a classical rape by force,” the woman would not have consented if she had not believed Kashur was Jewish.

The sex therefore was obtained under false pretences, the judges said. “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” they added.

The court ruled that Kashur should receive a jail term and rejected the option of a six-month community service order. He was said to be seeking to appeal.

Segal said: “The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims – actual and potential – to protect their wellbeing. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price.”

Al-Jazeera:

The Israeli criminal code mentions “deceit” as a possible aggravating factor in sexual assault cases and the verdict in Kashur’s case is not the first time an Israeli court has sentenced a man for “rape by deception,” according to several Israeli lawyers.

The most notable case was in 2008, when Israel’s high court of justice upheld the conviction of Zvi Sleiman, a man who impersonated a housing ministry official and promised women apartments and benefits in exchange for sex.

A rape conviction sentence could be upheld, the court ruled, when “a person lies does not tell the truth regarding critical matters to a reasonable woman”.

Several other men have been convicted of “rape by deception” since that ruling.

But the Kashur case appears to be the first time a person’s race has been used as the determining factor.

“In this case, the ruling seems to say that if a ‘reasonable’ Jewish woman knew a man was an Arab, then she would not make love to him,” Abeer Baker, an attorney with Adalah, an organisation that advocates for Arab rights in Israel, said.

Baker called it a “dangerous precedent,” saying it would allow the Israeli government to interfere in the private lives of citizens.

“It’s interfering in a very intimate, personal decision,” she said. “That should be made between two people. The court should not interfere.”

Open hostility

Similar laws have been controversial in other countries, as well. A man in the United States was convicted in 2007 of impersonating his brother in order to have sex with his girlfriend. That conviction was overturned on appeal, though, after an appellate court ruled that rape laws apply only to non-consensual sex.

Kashur’s case also highlights the open hostility with which many Israeli Jews view mixed relationships with Arabs, who make up one-fifth of the population of Israel.

A poll conducted in 2007 by Israel’s Geocartography Institute found that more than 50 per cent of Israeli Jews thought marrying an Arab was “equal to national treason”. Jews are legally forbidden to intermarry in Israel.

The Sunday Times reported in 2009 on a squad of “vigilantes” in the Jewish settlement of Pisgat Zeev. The group has patrolled the streets for more than a decade looking for mixed couples.

And in 2009, the town of Petah Tikva established a team of counsellors and psychologists to “rescue” Jewish women from relationships with Arab men.

The Israeli daily Maariv reported in February that Tel Aviv had launched a similar programme.

Eugene Volokh:

Such “fraud in the inducement” would not suffice for a rape conviction under the law of most American states (see, e.g., this case), though it’s an interesting question why it’s a crime to get money by fraud but not to get sex by fraud. There are good answers to that question, I think, but they’re not so obviously right as to keep the question from being interesting.

For some thoughts from last year on a proposal in Massachusetts that might have allowed liability in such a situation, see here. Also, it appears that a few American rape statutes might already criminalize sex procured through false statements. State v. Tizard, 897 S.W.2d 732 (Tenn. Ct. Crim. App. 1994) holds that Tennessee law rejects the distinction between “fraud in the inducement” and “fraud in the fact,” which is what has prevented rape prosecutions in cases such as the Israeli one; the facts of Tizard, though, are rather different — the defendant was lying about the supposed medical reason of the sexual act (there, the defendant’s masturbation of the victim, though the analysis would be the same for intercourse) rather than about the defendant’s identity. And some states generally provide that “assent does not constitute consent if … [i]t is induced by force, duress, or deception” (to quote Colo. Rev. Stats. Ann. § 18–1-505), which would in principle apply to rape cases as well.

If anyone can point me to the written opinion in the case, I’d be much obliged, both so I can blog about it and so I can use it in my Criminal Law class this Fall (I have a unit on fraud in the section on the law of rape). Thanks to Mike Sheridan for the pointer.

UPDATE: Several commenters raise a point that was also made by one of the source cited in the article: “Gideon Levy, a liberal Israeli commentator, was quoted as saying: ‘I would like to raise only one question with the judge. What if this guy had been a Jew who pretended to be a Muslim and had sex with a Muslim woman? Would he have been convicted of rape? The answer is: of course not.’”

It’s certainly possible that a court would have — and still would in the future, even given this decision — acquit this hypothetical Jew-pretending-to-be-a-Muslim defendant. But I’m just not sure that one can categorically assume this, especially in light of the judges’ rhetoric. It seems to me that Jewish judges might well think the lying Jew’s behavior is as deceptive, manipulative, and injurious to “the sanctity of [victims’] bodies and souls” as a lying Muslim’s, and that the deceived Muslim woman should be as protected as a deceived Jewish woman. And this is so even given the undoubted psychological reality that judges, like other people, generally tend to empathize more with people who are like themselves. Despite this reality, judges may still empathize enough with people who are less like themselves.

Now I’m certainly not an expert on Israeli judges’ attitudes, and I’d be happy to hear the views of people who have lived in Israel and have a sense of how the Israeli legal system would deal with this situation. But I’m reluctant to accept the assumptions of the one Israeli commentator who was quoted, at least unless I hear a broader range of people confirming his judgment.

Jonathan Turley:

That reads uncomfortably close to old miscegenation cases where judges sought to protect women from “smooth-taking” black men.

Even in cases where women have been falsely told that a lover does not carry an STD, the matter is addressed in the United States as a matter of civil not criminal battery. Does this mean that any false fact used in a one-night stand is now a criminal matter deserving of jail or it is only Arab status that gets that level of punishment? For example, if a Israeli man says he is unmarried and looking for a lasting relationship, can he be jailed? If so, the Israeli jail would be stuffed to over-capacity.

We have been following a crackdown on Israeli women dating Arab men recently.

Richard Lawson at Gawker

The Jawa Report:

Frankly, one has to wonder about this case. I suspect it’s somewhat common for a man to tell a woman lies while trying to bed her.

In fact I heard about one case where a woman sued a man for lying because he said he would take her to Florida if she went to bed with him. The case was thrown out after the man explained that he never said he was going to take her to Florida, rather he said he was going to tamper with her.

Heh.

Robert Stacy McCain:

Obtaining sex “under false pretences” is a crime in Israel? It’s against the law in Israel to get sex by feigning interest in “a serious romantic relationship”? OK, you bachelors out there, let’s have a show of hands: How many of you guys have ever lied to get some nookie?

Everybody? I thought so.

Just don’t try that in Jerusalem, buddy. And let this be a lesson to you Israeli ladies: Just because a goyim tells you it’s kosher . . .

UPDATE: Tracy Clark-Flory at Salon

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Filed under Crime, Families, Israel/Palestine

Not-So-Sweet Charity

Erin Miller at SCOTUSBlog:

In Holder v. Humanitarian Law Project (08-1498; 09-89), the Court affirms in part, reverses in part, and remands on a 6-3 vote.  Chief Justice Roberts writes the Court’s opinion, while Justice Breyer dissents, joined by Justices Ginsburg and Sotomayor.

  • Holding: The federal material-support statute is constitutional as applied to the particular kinds of support that the parties in this case seek to provide to foreign terrorist organizations.  The Court concludes that, as applied to these individuals and groups, the statute does not violate the free speech clause of the First Amendment.
  • Note: On the bench, Justice Breyer read from his dissent.

The full texts of the four opinions, and the briefs in the granted cases, appear after the jump.

American Constitution Society:

The Supreme Court, voting 6-3, upheld a federal law that bars “material support” of groups the government deems are terrorist organizations.  The Associated Press reports that the majority opinion, written by Chief Justice John Roberts, finds that the government “may prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities.” Roberts wrote that the “material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future.”In Holder v. Humanitarian Law Project a group of individuals and nonprofit organizations, including the Los Angeles-based Humanitarian Law Project challenged the constitutionality of the material support provision. The groups sought to provide financial support and legal and political training to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Both of those groups had been designated by the State Department as foreign terrorist organizations. Roberts wrote that the government “has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens.”

The groups and individuals who wanted to provide financial support and training for peaceful political purposes to the PKK and LTTE argued that the material support law violated their free speech rights and association rights, and that the law is unconstitutionally vague.

Ed Morrissey:

Hamas would be one such example.  It conducts terrorist attacks against Israel with one part of its organization while running charitable endeavors with another.  Fundraising for Hamas to support its outreach programs would allow Hamas to use the money elsewhere, or even if the specific money was applied to the charitable work, it would allow Hamas to not have to dip into the charity funds for its terrorist activities.

That has long been accepted legal theory in the US, but until now it hasn’t been applied to non-monetary support.  It’s a murkier question, as “advice” is not a fungible commodity.  Assistance in building a proposal to the UN doesn’t translate into terrorist activity as easily as money does, mainly because it’s specific to the task.  However, the Supreme Court has wisely decided that the basic issue is one of terrorist intent on the organization as a whole, and not the subordinate intentions of its internal agencies.  Supporting a designated terrorist group in anything is in essence material support for terrorism.

Justice Stephen Breyer, the AP reports, read his dissent aloud in a show of frustration with the majority opinion, rather than just release the written brief.  Breyer was joined by Sonia Sotomayor and Ruth Bader Ginsburg, in what would be no great shock.  The report fails to mention that John Paul Stevens, soon to retire from the Court, joined the conservative majority on this question.  That seems rather newsworthy, and the AP’s failure to mention it seems equally newsworthy.

Jacob Sullum at Reason:

Today the Supreme Court upheld the federal ban on providing “material support” to groups identified as “foreign terrorist organizations” by the secretary of state. The activists challenging the statute feared prosecution for encouraging the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam, both of which appear on the State Department’s list, to pursue their goals through nonviolent means. As described by the district court, the plaintiffs wanted to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,” “engage in political advocacy on behalf of Kurds who live in Turkey,” “teach PKK members how to petition various representative bodies such as the United Nations for relief,” and “engage in political advocacy on behalf of Tamils who live in Sri Lanka.” The Supreme Court’s ruling (PDF) says the activists were correct to worry that such projects, though speech aimed at promoting lawful activities, would be considered “material support,” which includes the broad categories of “training,” “expert advice or assistance,” “personnel,” and “service.” But in the view of six justices, this restriction on freedom of speech is justified as part of the fight against terrorism. While not ruling out the possibility that future applications of the law might violate the First Amendment, the majority opinion by Chief Justice John Roberts says the Constitution allows Congress to criminalize the speech contemplated by the plaintiffs in this case, based on the premise that any assistance to terrorist groups, no matter its nature or aim, helps legitimize them and continue their violent activities.

Eugene Volokh:

Let’s look at the general problem: American speakers can do many things that help foreign terrorist organizations, both those that are directly fighting us, such as al Qaeda, and those that aren’t, such as the Kurdish separatist PKK and the Tamil separatist LTTE. They can train them to more effectively engage in terrorism. They can train them to deal with international bodies (one of the issues involved in the Humanitarian Law Project case). They can coordinate publicity campaigns with them.

Speakers can also independently write newspaper editorials or op-eds praising the PKK and the LTTE, and arguing that they should be taken off the foreign terrorist organization list, or even be supported by the U.S. government. They can independently organize demonstrations making the same arguments. They can independently write academic papers making the same argument, or appear on television making it. Politicians and candidate for office can make the same arguments.

And all these things, both those coordinated with the groups (the first paragraph) and those done entirely independently will undermine “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.” The undermining will be indirect, and will happen through means such as increasing the groups’ perceived legitimacy, helping them acquire more resources to engage in terrorism, and letting them reroute their already-acquired resources to terrorism. (It might even embolden the groups to keep fighting, in the hopes that if they hold out long enough, the politicians who praise them might gain power and change American foreign policy in a way that supports the groups.) But as the Court pointed out in Holder v. Humanitarian Law Project, such indirect threats to the compelling government interest may nonetheless be real threats. Therefore, if one really takes seriously the Court’s assertion — which has often been made in other cases — that content-based speech restrictions are constitutional if they are “narrowly tailored to serve a compelling state interest,” all this speech, including the independent advocacy, could be criminalized.

But this can’t be so, it seems to me — which is why the majority (1) took pains on several occasions to note that the law didn’t apply to independent advocacy, (2) said that “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” and (3) stressed that, “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” We Americans must have the right to try to persuade our fellow citizens, and our government, that our government is on the wrong side in various foreign policy controversies, that groups that the government says are bad guys are actually good guys (or at least less bad than the really bad guys), or that we should change our policies about which kinds of support to the bad guys are barred and which are allowed. To do that, we need to be able to make arguments defending or even praising those groups, even when such arguments help designated foreign terrorist organizations, and thus interfere with “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.”

If I’m right, then this means that in this situation speech can’t be restricted even when the restriction is indeed necessary to serve a compelling government interest. The free speech rule there isn’t that the restriction is valid only if it passes strict scrutiny — it’s that the restriction is per se invalid. That’s the argument I make as to other restrictions in my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997); and I think that the majority’s ruling in Holder v. Humanitarian Law Project is not inconsistent with that argument. To be sure, the majority doesn’t hold that a ban on independent advocacy would be unconstitutional even though such a ban might be necessary to serve a compelling government interest; it expressly reserves that question. But I think that the majority’s repeated stress that the law doesn’t restrict independent advocacy suggests that the Court would indeed strike down such a ban that applied to independent advocacy. And I think it would have to do that, if it takes seriously the importance of speech to democratic self-government (which I think the Court has indeed done in recent decades).

The Jawa Report:

Good on them! Now add IHH to the list, the so called Humanitarian aid group that sponsored, along with the backing of the Turkish Prime Minister, the Jihadi Flotilla of hate.

Digby:

The bottom line is that money is now considered equivalent to speech in more ways than just electioneering. If you believe that multi-national corporations are exercising a right to free speech by spending unlimited funds to influence elections to their benefit, then you would naturally assume that exercising your right to free speech to influence organizations is equivalent to giving them money. The consistent concept for this court isn’t free speech at all, it’s their belief that money equals speech. I don’t find this outcome surprising in the least. Once you make the leap then this is the logical outcome. And I would guess it won’t be the last time we see this.

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I’m Shocked, Shocked To Find Mean Things On This Twitter

David Kravets at Wired:

An anonymous blogger critical of Pennsylvania Attorney General Tom Corbett plans to challenge a grand jury subpoena ordering Twitter to reveal the blogger’s identity.

“It doesn’t really matter why we are criticizing him,” said ”Signor Ferrari,” one of the two Twitter users targeted in the subpoena from Corbett, who won the Republican gubernatorial primary Tuesday. ”It’s our First Amendment right to criticize him no matter who we are,” said Signor Ferrar said in a telephone interview Wednesday. He uses that pen name on the CasablancaPA blog.

The bloggers received an e-mail from Twitter on Tuesday evening saying the micro-blogging service would respond to the subpoena (.pdf) in a week “unless we receive notice from you that a motion to quash the subpoena has been filed or that this matter has been otherwise resolved.”

The subpoena follows a string of similar efforts to unmask anonymous writers, with mixed results. A Louisiana politician dropped a defamation suit Tuesday against 11 anonymous commenters on The Times-Picayune website after the outlet refused to release their identities. In August, however, Google unmasked the operator of the “Skanks in NYC” blog after being subpoenaed by an Australian model who claimed the site defamed her. And on Monday, a federal judge prevented Yahoo from revealing the identity of a message-board poster critical of USA Technologies.

While those efforts involved civil subpoenas, Corbett is apparently treating his online critics as potential criminals, using his power as the state’s top law enforcement official to issue a grand jury subpoena. The subpoena does not state what kind of crime the grand jury is investigating.

The subpoena to Twitter was dated May 6 and required Twitter to respond by May 14 with all identifying information it has on the Twitter accounts of bfbarbie andCasablancaPA, which is also Signor Ferrari’s handle on Twitter. The deadline had been extended, Signor Ferrari said.

The account @CasaBlancaPA, whose owner is identified as ‘Signor Ferrari’ (a criminal in the film Casablanca, played by Sydney Greenstreet) on Twitter, links to this blog in the bio section. The blog, hosted on Google’s Blogger service, is dedicated to “exposing the hypocrisy of Tom Corbett” according to its subtitle.

Some choice tweets that may have gotten the @CasaBlancaPA account owner in trouble:

– “Is it wrong to mix campaign work with taxpayer business? Apparently not when Tom Corbett does it bonusgate #pagovrace” (tweet, blog post)

– “Corbett erupts at campaign event; security tries to eject questioner #bonusgate #pagovrace” (tweet, blog post)

– “Quiz! Who sputters with indignation over failure to recuse from cases involving contributors? #bonusgate #pagovrace” (tweet, blog post)

In 2008, a lawsuit was filed by a former state employee against the Pennsylvania Attorney General’s office that alleges public dollars were “illegally paid out to vendors” and contends wrongful termination. However, there have been no charges filed or evidence of criminal wrongdoing by Corbett.

We’re digging further into this.

Update: ‘Ferrari’ writes:

We believe this is more about the blog than the Tweets. We have not received notification of a subpoena to Blogger, so we really don’t know. We are seeking legal representation and plan to ask Twitter not to comply.

Although the subpoena was to appear last week, we believe Twitter asked for additional time because we received notification last night. We believe in the constitutionally-protected right of Americans to criticize public officials anonymously.

Update 2: Timothy Yip, Legal Counsel for Twitter issued this statement:

We protect and do not disclose user information except in limited circumstances. We notify a user, if we believe we are allowed to by law, when we receive any request for their information that we may be required to comply with. This policy is designed for maximum transparency and gives users an opportunity to object.

Robert Quigley at Geekosystem:

Even if Tom Corbett has the legal authority to do this, which is open to debate, it doesn’t seem as though it could possibly be a good idea. Whoever is behind the two accounts criticizing him, they have fairly tiny followings — which is likely to change now that they’re the subject of the wrath of the Attorney General’s office. It’s a classic case of Streisand Effect, and it’s all the more a head-scratcher for the relative tameness of the Tweets in question: You could do a lot worse in most corners of the political blogosphere.

Eugene Volokh:

The striking thing is that this is a subpoena to provide evidence in a criminal investigation. If it had been a subpoena related to a civil libel lawsuit, then either Twitter or the anonymous poster could try to quash the subpoena, and then the court would have to decide whether the plaintiff had, at least, a legally sufficient libel case (i.e., the statements were factual allegations and not opinions, and there was some reason to think the factual allegations were false). If the plaintiff did have such a case, then the plaintiff would indeed be able to discover the identity of the defendant, so he could know whom to sue, and so he could get further factual information relevant to the case (such as what the defendant knew about whether the statements were true or false). That’s the emerging rule in many states (though there are important variations in detail). There are no Pennsylvania appellate cases on the subject, but I expect that Pennsylvania courts will follow this rule, as several Pennsylvania trial courts in fact have.

But this is a grand jury subpoena, so presumably the theory is that the subpoenas are relevant to some criminal investigation. My sense is that one should be able to quash such a subpoena as well, if there is no legally sufficient basis for the investigation, or for the conclusion that the information would be relevant to the investigation. Yet that requires us to know what is being investigated. It can’t be an investigation of libel, since Pennsylvania doesn’t have a criminal libel statute. In principle, since some tweets from the relevant twitterers might be read as accusing Corbett of criminal misconduct, the twitterers’ identities might be relevant so they could be asked for further evidence of such misconduct. But I have no reason to think that Corbett is indeed being so investigated.

So this looks like an interesting case; I hope Twitter does move to quash the subpoena, so we can get some better sense of whether the subpoena indeed has a legal basis. And if you have any further information you can share about the underlying investigation, please let me know. Thanks Steve Piercy for the pointer.

Jed Lewison at Daily Kos:

Corbett’s office hasn’t yet responded to inquires from TechCrunch or Smith to explain why on earth he’d subpoena Twitter to unearth the identity of his anonymous critics. Corbett will face Democratic nominee Dan Onorato, the chief executive of Allegheny County.

More Kravets at Wired:

Pennsylvania prosecutors are dropping their grand jury subpoena to Twitter demanding the identity of two account holders who used the microblogging service to criticize Attorney General Tom Corbett, a spokesman said Friday.

Corbett, the Republican candidate for governor, was seeking to unmask the account holders ahead of Friday’s sentencing of Brett Cott, whom Corbett targeted in a political corruption investigation.

Corbett wanted to know if Cott was the one anonymously disparaging Corbett and the ongoing probe, Corbett spokesman Kevin Harley said in a telephone interview. Prosecutors believed that linking Cott to one of the Twitter accounts criticizing Corbett would show the defendant had a bad attitude that should earn him a higher sentence, Harley said.

Harley said they wanted to unmask the account holders “to show the court Cott was demonstrating a lack of contrition and remorse.”

On Friday, Cott was handed up to five years in prison for his role in the political corruption scandal known as Bonusgate. Dauphin County Judge Richard Lewis said he did not consider any online criticism in his sentencing decision.

The grand jury subpoena targeted Twitter accounts CasablancaPA and bfBarbie. Both received an e-mail from Twitter on Tuesday saying the company would respond to the subpoena (.pdf) in a week “unless we receive notice from you that a motion to quash the subpoena has been filed or that this matter has been otherwise resolved.”

The subpoena demanded “all subscriber information” regarding the two Twitter accounts, including “name, address, contact information, creation date, creation Internet Protocol address, and any and all login Internet Protocol addresses.”

The two had enlisted Public Citizen and the American Civil Liberties Union to fight the subpoena. They said it was an abuse of power by Corbett to use the power of a criminal grand jury to unmask his critics.

“It’s clear they were on a fishing expedition to see if these Twitter users were Cott,” Witold Walczak, legal director for the ACLU of Pennsylvania, said in a telephone interview. “That’s not only an abuse of the grand jury process but a real affront to political speech rights … The government just can’t go on fishing expeditions like that to unmask critics because it might be helpful on sentencing.”

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