Saturday, January 30, 2010

Question Time

How'd you like that debate between President Obama and House Republicans? Pretty cool, huh? Republicans members of the House of Representatives got to ask any question they wanted, straight to the President of the United States, and the President answered. And the whole thing was televised. That was the unprecedented part. Presidents have gone to meetings of the opposition party and answered questions before, but ususually the Q&A session is secret. This time the whole country got to see a lively debate between the President and opposition party members. Here's some video.

Well, if you liked that, how would you like it if we had a similar session once a week? That's right, how about the President of the United States, appearing before the House of Representatives, or maybe before the Senate, once a week, with opposition members asking him questions. And why limit it to opposition members? Let's allow any member to ask the President a question, with special attention given to opposition leaders, but bringing in rank-and-file members on both sides. And the whole thing on television. The public would get a lively, weekly debate on the issues of the day.

Well, if we lived in Britain, that's exactly what we would have. Every Wednesday at noon, the prime minister appears before the House of Commons and takes whatever questions about public issues that any member of Parliament cares to ask. If the Prime Minister is out of town, the Leader of the House (equivalent to our Majority Leader) answers instead.

The Speaker of the House (who, unlike the Speaker of our House of Representatives, is a neutral, non-partisan official) moderates the debate. The Speaker calls first on a member chosen at random, then, if the first member was from the opposition, on a random member of the majority, and then on the leader of the opposition -- at which point all the opposition members chime in, "Hear, hear." The leader of the opposition gets to ask about five or six questions, then another random majority party member gets a turn, and then the leader of the largest third party (currently the Liberal Democrats) gets a couple of questions, and then it's just random "backbenchers," as rank-and-file members are called in Britain, for the remainder of the time. The Prime Minister has to answer -- well at least he has to say something, he doesn't always answer the question asked. Throughout, members chime in with cheers, hoots, catcalls, and other outbursts, which the Speaker has to repress from time to time, with his signature cry of "Order, order."

To see the weekly show, go to the House's website's video section, choose any Wednesday, and go to about 30 minutes in. You'll see a lively debate, and you'll also see how much better Parliament's website's video is than the C-SPAN archive. C-SPAN's archive is appallingly difficult to watch. With the House of Commons, you have easy access to the whole day's proceedings in one click.

Friday, January 29, 2010

News Flash -- It's Illegal to Kill People

After a mere 37 minutes of deliberation, a jury convicted Scott Roeder first-degree murder for killing George R. Tiller.

The defendant had been permitted to testify that, in his mind, the killing was justified because the victim was a doctor who performed abortions. Ultimately, however, the judge didn't give the jury the option of finding the defendant guilty of voluntary manslaughter.

Thank you, jury. Abortion is controversial, but if we allowed people to get out of murder charges on the ground that they really thought it would be a public good to kill the victim, society would completely break down. It can't be a defense to murder that you didn't like the lawful activities the victim was engaged in.

Wednesday, January 27, 2010

Festina Lente

Who'll be the first to decry jumping to hasty conclusions about the arrest of James O'Keefe, the young videojournalist whose undercover videos posed such problems for ACORN last year, for allegedly plotting to do something (it's not clear exactly what) to the telephones in the office of Senator Mary Landrieu?

How about Scott W. Johnson, a co-founder of the conservative blog, "Power Line"? In response to the arrest, he said, "It sounds like it was another kind of journalism project, maybe a misguided one — I'm open minded — but there's so little information it's impossible to say anything intelligent about it."

An excellent attitude. I'm sure all of O'Keefe's defenders took the same open minded, cautious approach when O'Keefe's ACORN videos first broke. One wouldn't want to jump to any hasty conclusions. Festina lente -- an excellent rule for all pundits on either side of a debate to follow.

Tuesday, January 26, 2010

Fantasy Prisoners

The Seventh Circuit has upheld a prison's decision to ban the game "Dungeons and Dragons" among inmates. The prison adopted a rule against the game because it "promotes fantasy role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling.”

Sheesh. As Ilya Somin points out over at the Volokh Conspiracy, The Count of Monte Cristo could give rise to escape behaviors. Football encourages organized, competitive hostility.

Without necessarily disagreeing with the court's decision that there is no constitutional right to play Dungeons and Dragons in prison, I would have to say that this prison rule seems over the top and also seems to be a continuation of standard, unverified cliches about the dangers of this form of game. I haven't played D&D for decades, but I used to play when I was in high school and certainly my group never had any difficulties confusing the advisability of fantasy violence with that of real violence.

Of all things, the prison said it was concerned about D&D, not just because of the fantasy violence involved, but because the game involves cooperative behavior: the prison was concerned "about cooperative activity among inmates, particularly that carried out in an organized, hierarchical fashion." Such organized, cooperative activity can be the basis of forming a prison gang, the prison officials said.

My goodness, what if one of the prisoners organizes a book group and instructs the members on which book to read for the next meeting? Does the prison forbid that?

Maybe it does, but I doubt it.

Saturday, January 23, 2010

I'll Take Half

I guess I feel sorry for Conan O'Brien's losing his job hosting the Tonight Show -- it was a great gig, he really wanted it, and it can't be fun to be fired. I met Conan during college -- he was a year below me -- and he seemed like a great guy and very funny. And he ended his show with a very gracious speech thanking NBC for the opportunities it's given him over his 20 years there. So I have some sympathy for him.

Still, let's not forget that he's getting paid $32 million to do nothing. And he's free to earn whatever he can at any other job starting in September.

I can confidently say that I would do nothing for half that amount. In fact, probably less.

I am reminded of the time, a few years after I started teaching at GW, that our basketball coach left the school in the midst of scandals (it was reported that he had failed to notify the school of criminal charges against one of the players and that the players had made $1400 worth of phone calls using his son's long-distance code). Even though the school appeared to have good cause to fire the coach, GW announced that it would "honor" the remaining three years of his contract, which meant that it would pay him a reported $450,000 a year to do nothing. (And he wasn't barred from working elsewhere either.) I wanted to let the university know that, if they really needed someone to do nothing, I would do it for half.

(And by the way, this happened not long after our university's then-President made a big fuss about how the law school needed to teach students that improper actions have consequences. Yeah, the consequence is that you get paid to do nothing.)

Of course, Conan hasn't done anything bad, except get bad ratings. But the element of getting paid not to work is common to both stories.

So while I do feel bad for Conan, I don't feel all that bad. Getting paid tens of millions to do nothing is nice work, if you can get it.

Thursday, January 21, 2010

Emphatic Justice Stevens

I obviously haven't had time to read all 183 pages of today's landmark decision in Citizens United, but here's just a quick take on how important it is: Justice Stevens said, "Although I concur in the Court’s decision to sustain BCRA’s disclosure provisions and join Part IVof its opinion, I emphatically dissent from its principal holding."

I added the italics, but even without them, Justice Stevens's statement is stunning. One thing I noticed long ago about Justice Stevens is that he always, always, always dissents "respectfully." For a long time I wondered whether he was saving himself up for the great case, the ultimate case, in which he would just dissent, and not respectfully dissent.

Then along came Bush v. Gore. Even in that case, where the majority opinion perhaps deserved less respect that in any other, Stevens's dissenting opinion concluded with "I respectfully dissent." So I kind of decided that he wasn't saving himself up for the ultimate case. He would always respectfully dissent.

But not today. Today Justice Stevens emphatically dissents. He thinks this case is worse than Bush v. Gore. Wow. It must be quite a case.

Chill a Little, Dudes

Someone really needs to get the Supreme Court Justices to tone down their rhetoric a little. Snarky sniping has become the norm in politics, but one might hope for judges to be a bit more bland and respectful.

On Tuesday, the Supreme Court vacated and remanded an Eleventh Circuit decision that, all nine Justices agreed, including a holding that was erroneous in light of a subsequently decided Supreme Court case. But they disagreed (5-4, naturally) as to whether vacatur was necessary, inasmuch as four of them believed that the Eleventh Circuit's opinion contained an alternative holding that would have supported the judgment notwithstanding the erroneous holding. The majority thought that the alternative holding at least might have been infected by the erroneous holding and decided that the better option was to remand to the Eleventh Circuit to make sure.

Oh, and by the way, the Eleventh Circuit's decision affirmed a death sentence.

Look, as faithful readers know, I don't have the strongest feelings either way on the death penalty. But I don't think I'm going too far out on a limb to suggest that where a man's life is at stake, the judicial system should act carefully. If there's even some possibility that the ultimate judgment is erroneous, it won't kill anyone (one might say) to take a careful look at the matter before executing the defendant.

So I can't understand why the dissenters feel the need to complain about the Court's "flabby standard," to say that "the Court outdoes itself," and to create snarky and degrading acronyms for the Court's action ("the SRIE, Summary Remand for Inconsequential Error—or, as the Court would have it, the SRTAEH, Summary Remand to Think About an Evidentiary Hearing").

This kind of rhetoric doesn't serve anybody well. If you disagree, go ahead and dissent, but at least do so respectfully. The Court is asking the Eleventh Circuit to take another look at the case before the defendant is executed. Let's not rush him to his death with jeers and bad jokes.

Wednesday, January 20, 2010

The Future of Health Care Reform

Does Scott Brown's victory in Massachusetts kill health care reform? Not necessarily. First of all, as I pointed out yesterday, the Democrats still have a 60-vote majority in the Senate until the election results are certified, which will probably take at least ten days. So they could pass the bill if they moved fast enough.

But there's another, even more important way forward: make the bill so popular that even some Republicans have to vote for it. President Obama can do that with the kind of rhetorical and leadership skills he displayed so well during the election campaign.

If I had President Obama's ear, here's what I would say:

Under President Bush, the Republicans never had more than 55 seats in the Senate and Bush got pretty much everything he wanted. Heck, he got us to go to war against Iraq, on the ground that terrorists from other countries had attacked us! And that was when the Republicans had just 49 seats in the Senate.

How did he do it? Well, for one thing, when Bush wanted something, you sure knew what it was, and he mentioned it every day. Every day, President Bush, and Donald Rumsfeld, and Condaleeza Rice, and Paul Wolfowitz were out there telling us that it was essential that we invade Iraq. Their case was totally weak, but they talked it up so much that the Senate was compelled to vote for it.

So why not try the same strategy? Talk about health care every day. You, and Kathleen Sebelius (the Secretary of HHS), and Regina M. Benjamin (the Surgeon General), and other appropriate senior officials should explain every day why America needs health care reform.

You certainly have a stronger case than Bush did for the Iraq war. You also have the rhetorical gifts to make that case. You can make the public demand health care reform. And then the Senate will have to vote for it.

Just remember: Yes we can!

Tuesday, January 19, 2010

Top Story

Today's biggest news? It's the weather in Massachusetts, and it's not good: rain, snow, and cold.

That's bad news for Martha Coakley, and it's just the latest in a string of bad, bad, bad news she's been getting. She's not out of the race, but she needs a big turnout to win, and bad weather depresses turnout. The unbelievable may happen today: a Republican taking over Ted Kennedy's Senate seat.

Does that mean the end of the health care bill? Not exactly. The winner of today's election can't take his or her seat until the election is certified, which should take at least ten days or so. In the meanwhile, Senator Kirk would continue to occupy the seat and vote in the Senate. There's nothing wrong with that; lame ducks always vote in a post-election period.

So even if Brown wins, Democrats would continue to have 60 votes in the Senate for a precious few days, and if they could get the health care bill through during that period, it's a law like any other. But boy, the Republicans would stage the filibuster to end all filibusters. The clock would really mean something.

Would it be dastardly and underhanded for the Democrats to push the health care bill through as fast as possible while Kirk is still in office? I would say no. First, as noted above, lame ducks get to vote until their term is over; that always happens. Second, remember that Democrats have a big majority in the Senate, even if Brown wins! They just wouldn't have enough votes to defeat a filibuster on their own. But as I've observed repeatedly, the filibuster is an absurd impediment to democracy anyway. It's hard for me to see what's so underhanded about saying, "we got a bill through the properly apportioned House of Representatives, and now we'd like to move it through the Senate, where we legitimately control at least 59% of the vote."

It sounds like democracy to me.

Sunday, January 17, 2010

Network Kerfuffle

Of all the innumerable and embarrassingly public details of the infighting at NBC over its late-night lineup, the most curious to me is that Leno's poor ratings at 10 p.m. are unnaceptable to affiliates because they cause affiliates to lose viewers for their 11:00 news shows.

Are Americans really so lazy, are they such sorry slobs, that they choose their 11:00 local news based on which network had a better show on at 10:00? Can they not conjure up enough energy to click their remote controls when the news comes on? Presumably this means that most Americans will watch one local news show on Tuesday and a different one on Thursday, if they like different network fare on the different nights. Do they not develop preferences in news shows too?

I guess local news shows are just a commodity, like wheat or ibuprofen -- the product must be so standardized that it doesn't matter whom you buy it from. Which raises the even bigger question, why watch the local news anyway? Do you really need to know about every local crime and fire?

Saturday, January 16, 2010

All You Need Is . . .

As faithful readers know, we get to relax from serious topics on weekends.

Blackberry commercials are generally pretty annoying, and it's somewhat dispiriting to see the Beatles' music used to hawk cell phones, but I will say that their latest commercials at least remind me what a great song "All You Need Is Love" is.

And here's the thing -- it all comes down to one note. It's the note on "need" the third time "all you need is love" comes around. The first two times the whole phrase is a monotone, but then the third time, it's different: "Need" is a half-step higher. Just half a step, but what a difference it makes, as a leading tone into the whole step up on "love." And it's a nice cover too, apparently by someone named Grayson Matthews.

I'm sticking with my Treo, but take a listen and appreciate the beauty of leading tones.

Friday, January 15, 2010

Another Dreary 5-4

A snappy little per curiam from the Supreme Court this week on the question of whether to stay the decision of a district court in California to broadcast the current trial on the question of whether the state's ban on same-sex marriage is unconstitutional.

Now, look. You may or may not like same-sex marriage. You may or may not like broadcasting trials. But that isn't even what the Court's decision is about. The question was whether the district court followed proper procedures in amending its rules, which previously prohibited broadcast of trials, to allow the broadcast of this trial as part of a "pilot program."

But before reading further, see if you can guess which five Justices thought it hadn't and which four thought the change was OK?

The question of whether federal trials and other federal judicial proceedings should be broadcast has gotten a fair bit of attention over the last few years. The national Judicial Conference (a body that represents the whole federal judiciary) has been steadfastly against it. Congress has been considering some bills to permit it, but they haven't gotten very far yet. At the moment, broadcast is generally banned but it's open to federal courts to change that by rule.

But there are procedures that have to be followed to change federal court rules. In particular, the Rules Enabling Act requires a court that wants to make or change a rule to give "appropriate public notice and an opportunity for comment," unless there is an "immediate need" to make the rule change without such notice and opportunity.

Did the district court in this case do that? You decide. As early as September 25 of last year, the district court informed the parties that there was interest in having the trial broadcast. One month later, the court of appeals's chief judge appointed a committee to consider changing court rules to permit such broadcast. On December 17, the Ninth Circuit's Judicial Council announced that it had approved a limited pilot program to test broadcasting of judicial proceedings.

On December 23, the district court announced that it had changed its local rule, which had prohibited broadcasts, to permit broadcasts in connection with the pilot program. But then on December 31, the district court withdrew that announcement and instead announced that it was proposing a revision of its local rule, and that public comment was solicited, with a deadline of January 8. Then on January 4, 2010, the district court again changed the announcement, to state that it had changed its local rule, effective December 22, based on the "immediate need" to make the rule change.

Well. As the Supreme Court ruled this week, it sure seems like the district court didn't know what it was doing. Speaking as an administrative law professor, I would say that this sounds rather like an agency that discovered only at the last minute that it was subject to procedural requirements and that scrambled around to try to justify procedurally what it had already decided to do. The Supreme Court suggested -- rightly, in my opinion -- that an agency that tried to pull this kind of stuff would get slammed by a reviewing court.

The district court proposed a public comment period that lasted a whopping five business days -- and it didn't even hold the comment period open for that long before acting. Most agency public comment periods last at least 30 days. Also, when agencies claim an emergency need to avoid a public comment requirement, it's usually for something really important, not something like, "we have a particular case that we'd like to get into the new program." I mean, let's face it, federal trials have been not broadcast for hundreds of years; it won't kill anyone it this particular trial isn't broadcast and the new pilot program only takes effect after it's over.

So it seems to me that the district court was engaged in absurd procedural shenanigans and it rightly deserved to get smacked.

Now, I recognize that there are arguments the other way. As the dissenting opinion in the Supreme Court pointed out, the parties to the particular trial involved had sufficient notice (3 months or so) of the possibility of broadcast. There was some period of public comment -- and apparently there was a huge response; over 130,000 comments were received, almost all favorable. In addition, the Supreme Court isn't supposed to act on just anything that gets filed with it; its jurisdiction is discretionary and it's supposed to reserve its time for really important matters, which this isn't. So there's a good argument that the Court should have declined to act.

So I think I agree with the Court's action, but it's not entirely one-sided.

But here's the thing: the vote was 5-4, and it was the five conservatives against the four liberals, as usual.

Sheesh! Does everything have to be politicized and ideologized? Just because the hot-button issue of same-sex marriage is involved, does every small procedural detail of the trial have to be split along liberal/conservative lines? Couldn't just one of the liberals have decided that, as an administrative law matter, it's wrong for government bodies to ignore procedural constraints because they're in a hurry on a particular case? Couldn't just one of the conservatives have decided to follow the Supreme Court's usual practice of not bothering with piddling matters?

Sigh. I find it increasingly depressing that no one seems to be able to break out of their ideological cocoons. This case was primarily a procedural issue. But everyone's so focused on the hot-button background that no one can (one might say) think straight.

Thursday, January 14, 2010

Ed Brown, Down for Good

And speaking of tax protestors, I know no one else cares about this, but I have to note that Ed Brown, possibly the champion chump of all the tax protestors, has finally been sentenced for the weapons and other offenses he committed while holing up in his fortress-like home for months to avoid being taken to jail after his conviction for his actual tax offenses.

Ed Brown and his wife Elaine, faithful readers will recall, were charged with tax offenses after failing to file returns for several years on the usual absurd grounds (no law requires payment of taxes), stopped attendning their trial halfway through, were convicted, and were sentenced to 63 months in prison. To avoid arrest, they barricaded themselves in their New Hampshire home, replete with weapons, explosives, and nonperishable food. The standoff lasted for months, during which they repeatedly threatened a violent end if the Marhsals moved against them. But at last, in October 2007, the Marshals took them peacefully by sneaking in under the guise of being supporters.

If only Ed and Elaine had surrendered peacefully when sentenced, they would already be more than halfway done serving their time. But their armed resistance got them charged with numerous weapons and other offenses, and they were found guilty again. Earlier this week, Ed was sentenced. After blaming his problems on "Freemasons, Zionists, Jesuits, Knights Templar, the Fraternal Order of Police, [and] the Moose Lodge" and treating the court to statements such as "I am the government," Ed decided he'd rather be back in his cell when the judge pronounced sentence. So he didn't hear Judge Singal setence him to 37 years in prison -- which doesn't even start until he's done with his current 63 months.

Sad case, really. The court psychiatrist concluded that Ed did not suffer from a mental illness, and I presume there's some legalistic sense in which that is true, but to me, someone who believes the court is a fiction, that the Jesuits run everything, and that there's no law requiring payment of income tax, certainly has a geranium in the cranium. The man is not normal, and it's sad that his mental issues (even if they don't amount to a recognized mental illness) have led him to engage in so much self-destructive behavior that he will almost certainly now die in prison.

Tuesday, January 12, 2010

Not a Bad Day's Work

The Federal Reserve trades government bonds -- and, more recently, other things -- primarily with a view to implementing policy. For example, it buys government bonds when it wants to expand the money supply and it sells them when it wants to contract the money supply. Its main goal is not to make a profit. But it acts with such skill that it usually does make a profit, and it's such a big operation that the profit is usually in the billions.

What happens to that profit? It goes back to the U.S. Treasury. And as the Post reports today, this year's profit is especially impressive: $45 billion, the highest amount in the bank's 96-year history.

Of course, part of the reason is that the Fed has been investing in riskier things over the last year. It's not just into humdrum U.S. government bonds anymore. So as would be true for any investor, higher risk can produce a better return. But it's still a higher risk, which might hurt the Fed (and therefore us) in future years. Still, a $45 billion return right now is pretty nice -- beats a sharp stick in the eye, as my father likes to say.

But why is Law Prof on the Loose caring about this? Faithful readers, this post is not really for you, but for that other, stranger part of my fan base, tax protestors. As you know, I am oddly fascinated with these unusual people who deny that any law actually requires payment of income tax. And recently, I have noticed that tax denial is increasingly linked to another set of strange beliefs, focused on the Federal Reserve. An increasing percentage of tax protestors also believe that there is something truly evil about the Fed -- that it's a cabal of bankers who secretly run our country (and the whole world, too) and are calling all the shots. And it's somehow responsible for the income tax -- income tax and the Fed were created at about the same time, and tax protestors somehow think that you couldn't have one without the other.

I'm not really expert on the Fed and I'm not in a position to say whether, on the whole, it is a good or a bad institution. But the tax deniers are into some truly ridiculous claims about it, the main one being that 100% of income tax revenues are used to pay interest on the national debt and therefore just go straight to the Fed. That is totally not true, as can be determined by just looking up the figures (unfortunately, looking things up is a skill many tax protestors lack): last time I checked, about 20% of income tax revenues got eaten up by debt payment, not 100% (it's probably more now, given how much extra borrowing the government is doing lately, but still a lot less than 100%), and besides, the Fed only owns a small percentage of U.S. debt anyway; most of it is in private hands.

Tax protestors also believe that the Fed is just a privately owned bank, that it charges interest on all U.S. currency, and that it is never audited. These myths are out of my realm, but a good web page on them can be found here.

Anyway, today's news story is primarily for the tax protestors. That Fed that you hate so much? It just handed $45 billion over to the U.S. Treasury. While Ben Bernanke, its CEO, pulled down a whopping salary of $199,000. Not a bad day's work.

Monday, January 11, 2010

Correcting my Mistakes

Some lawyer has an op-ed in the NY Times today arguing against filibusters. He makes a couple of silly arguments -- such as that the Supreme Court would declare filibusters unconstitutional, when in fact the Court wouldn't touch the issue with a 10-foot gavel -- but he makes the correct point that filibusters are an undemocratic impediment to lawmaking and have gotten worse in recent years. Of course I've been making the same point for a long time.

But I have to correct one thing I said previously. I suggested that Harry Reid should take his 60-vote supermajority and use it to change the 60-vote filibuster rule. I correctly pointed out that the rule is not in the Constitution, but is just Rule XXII(2) of the Senate rules and could be changed at any time by majority vote -- if debate on the motion to change the rule could be brought to a close, that is.

But here's what I got wrong: I said that the necessary vote to close debate on the rule change would be 60 votes, as with any other cloture motion. I should have read rule XXII more carefully. Normally, the rule requires "three-fifths of the Senators duly chosen and sworn," which in a fully staffed Senate would be 60, to end debate on any motion. But there is a special exception for motions to change the Senate rules. To end debate on those requires "two-thirds of the Senators present and voting." So if everyone shows up to vote, that would require 67 votes, not 60.

So the filibuster rule is extra specially entrenched and will be extremely difficult to change. It seems unlikely that either party would ever agree to give it up while they are in the minority.

The only plausible proposal I have seen recently is that the Senate might agree now to end the filibuster at some distant time -- say 8 or 10 years down the road -- so that no one could tell, during the debate on the proposal, which side would benefit from it. That way, we could all focus on the fact that allowing the filibuster is bad public policy, without worrying so much about who benefits from this bad policy right now.

But let's get started! If we can only eliminate filibusters a decade from the time we decide to do so, we want that time to be right away.

Friday, January 8, 2010

What's the Problem?

The conventional wisdom is that Democrats should be upset at the announced retirements of Senators Chris Dodd and Byron Dorgan. I was going to blog about this but the Votemaster has already said it better than I would have. Bottom line: it's too bad about Dorgan, but would we be happier if Dodd were running, given all the trouble he's in? His retirement saves the seat, rather than probably losing it.

Thursday, January 7, 2010


It is easy to smile at the new Irish blasphemy law, which apparently imposes a whopping fine of 25,000 Euros (over $35,000) for "publishing or uttering matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby intentionally causing outrage among a substantial number of adherents of that religion." A group of Irish athiests is attempting to challenge the law by breaking it with a posting of famous blasphemous quotes.

But did you know that some American states also prohibit blasphemy? Oh, yes, they do. And it's not even the states you're thinking of.

A 1931 Michigan state law, still in force, provides "Any person who shall wilfully blaspheme the holy name of God, by cursing or contumeliously reproaching God, shall be guilty of a misdemeanor." (And the next section says, "Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor.")

A Massachusetts statute (apparently going back to 1697, but still in force) provides, "Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior."

Oklahoma law (sorry, no ready link) provides that "Blasphemy consists in wantonly uttering or publishing words, casting contumelious reproach or profane ridicule upon God, Jesus Christ, the Holy Ghost, the Holy Scriptures or the Christian or any other religion," and that "Blasphemy is a misdemeanor," although it exempts words used in the course of "serious discussion."

Sure, these laws are probably unconstitutional. But they're on the books. So Ireland isn't the only one limiting free speech in the name of protecting God from verbal abuse.

Wednesday, January 6, 2010

Falsely Accused

Faithful readers, the new term has started (on January 4!), but I am still finishing up my grades from last term, so expect minimal blogging for a while longer.

For today, though, let's consider the now-dismissed Supreme Court case of Pottawattamie County v. McGhee. The plaintiffs, some 20 years ago, were convicted of murder, apparently on the basis of false testimony deliberately procured by prosecutors. They brought suit claiming that deliberately procuring false testimony violates their constitutional rights. The case turns on complicated issues of prosecutorial immunity -- sometimes, the law lets prosecutors off even when they do something awful and wrong, because otherwise prosecutors would spend their whole life getting sued -- but among other things, the prosecutors have claimed that there is no constitutional right not to be framed.

The case has been settled, so we won't find out the answer soon, but sheesh, of course there's a constitutional right not to be framed. The Supreme Court decided over 40 years ago, in Brady v. Maryland, that prosecutors have a constitutional duty to turn over exculpatory evidence to the defense. If prosecutors have framed the defendant by deliberately procuring false testimony against him, they have exculpatory evidence in their possession that they have not turned over -- namely, the fact that they have framed the defendant by deliberately procuring false testimony against him. So framing a defendant necessarily violates his constitutional rights under Brady.

Thank you. Next case.