J-SPAN

I've been subscribing to the filings and postings in the Perry v. Schwarzenegger case. Of late there have been a lot of requests by the media to broadcast the arguments (which will be a week from today). The Court has been granting all of them. Why are these motions even necessary? Courts are public places. They are operated for the benefit of the public and the Constitution guarantees that trials are to be public. There are exceptions for certain kinds of proceedings but for the most part, if you're a news reporter, you can walk in to a courtroom, plop down in the gallery, and observe and report on whatever goes on. You can comb through whatever anyone has filed in any case.

Modern technology is such that cameras and microphones are generally very unobtrusive. The fear of having cameras in the courtroom is that they will turn the proceedings into a circus, that lawyers will start playing to the cameras rather than to the jury, that public opinion will sway or alter the results of a trial and make it unfair. But juries can be sequestered and cameras can be turned off. Deciding which kinds of cases are appropriate for that sort of treatment is inherently the job of a judge. And I'm not proposing that there be news coverage, commentary, opinion, analysis, or reference to excluded evidence. I'm just talking about broadcasting what happens in the courtroom itself, without commentary, the way C-SPAN broadcasts proceedings of Congress.

So why aren't there cameras in every courtroom? Why isn't there a live feed going on from each and every court in the state, in the country even, and why aren't they turned on by default? Back in the day, that would have seemed like a daunting thing to do, but now, it's just more 0's and 1's going in to the Intertubes and there is a functionally infinite capacity for that sort of thing. You should be able to go to YouTube and tune in to streaming and recorded video of everything that happens in every courtroom, everywhere in the country, on any date. Yes, if there is a reason to turn the cameras off, the judge should have the ability to do that (and the reason should be announced to the public). But they should be on as a default and it should take a special finding of the Court that a case ought not to be broadcast in order to do that, in all cases ranging from traffic tickets to capital murder trials. And yes, they should be turned on in Constitutional cases too.

Turkey Cooking Questions

Would it be wrong to stuff a pre-roasted Cornish game hen inside the turkey, then at dinner tell all the kids, "Uh-oh, it looks like we cooked the turkey's baby, too!" while you pull it out?*

And if you make a turducken with tofurkey in it, is it...  No, I can't bring myself to complete that.

Happy Thanksgiving, everyone. Cook your turkey thoroughly.


* I can't take credit for this, it's not original to me. I found it here.

The Most Significant News You Aren't Paying Any Attention To

Russia and China have agreed to dispense with using the dollar -- or the Euro -- in their bilateral international trade. They don't need to anymore; Russian and Chinese financial markets are sophisticated enough to trade rubles for renminbi.

He So Ronery

Why ever should North Korea be scared or upset about the world scolding it for killing more South Korean soldiers and bombing South Korean territory? The world stood back and used very strongly-worded missives to deliver harsh rebukes when the North blew one of the South's ships out of the water earlier this year.

The U.S. isn't really out of Iraq yet, not talking about getting out of Afghanistan until 2013, broke, and weary from the longest period of continuous war in our country's history. The Europeans have no stomach for a land war in Asia. China is slowly becoming aware, as Japan has been for some time now, that it too can be a target and its ill-behaved client is bad for business. But unlike anyone else on the stage, China is possessed of a credible ability, coupled with the will, to wipe Pyongyang off the map. An overt, all-out attack on the South would be counterproductive in that the South is its primary source of material necessary for survival; it, in turn, can devote all of its economic abilities to making guns since with those guns, it is able to extort butter from the rest of the world.

So the North Korean leadership can, within its sphere of influence, do what it pleases and say, "What are you going to do about it, bitches?  Say 'stop' again?" And we'll react the way we always have -- which is to give in to their strategy, up the food imports and foreign aid, and mutter about the extortion to ourselves -- since downtown Seoul is located within howitzer range of the DMZ and we aren't really sure yet whether they have nukes or not or if they are really crazy enough to use them.

What incentive can we give them to rejoin the civilized world and stop being the bully over in the corner of the yard demanding that the rest of us cough up our lunch money?

Cranberry Pardon Explained!

Obama Outlines Moral, Philosophical Justifications For Turkey Pardon

Textbook Tests

This video is making the rounds. The professor is discovering to his chagrin that students can get access to test banks and cheat on the answers.

 

At Outside the Beltway, James Joyner (a former professor himself) takes the professor to task for using test bank questions at all:

Crafting the exam isn’t something that ought be farmed out to one’s graduate students — much less the textbook publisher. Testing is part of teaching. It’s a way of forcing students to grapple with the material, extract major points, and understand how the pieces relate to one another.

Well crafted exams are such that having the questions ahead of time wouldn’t constitute cheating.

I don't know that I particularly agree with Prof. Joyner here. I certainly don't do it. In the class I'm teaching now -- which I anticipate will be the last class I teach as an adjunct for any institution; unless I somehow get hired on full-time as faculty somewhere I'm not interested in teaching anymore because I've stopped having fun doing it -- I've set up a class almost completely out of the textbook.

First, I looked at the learning objectives fed to me by the school. Presumably, these relate to some sort of accreditation. Whatever; it's what my employer wants me to teach, so I'll teach it. For instance, if I were teaching a geography class, I might find "political geography" on the list of subjects to address.

Second, I looked at the schedule fed to me. I have nine classes in which to teach a total of about forty subjects. So I split them up more or less evenly between the nine classes. So again, if one of the subjects to address were "political geography" I would look at that in, say, week 3.

Third, I looked through the test bank of objective questions provided to me along with the textbook. I read through them until I found questions that matched up with the learning objectives which I did not consider to be either pathetically easy nor unfairly difficult. I had to make that choice, because my students would always complain that this would be an example of an unfairly difficult "political geography" question:

What is the capital of France?
A) Beijing
B) Paris
C) Washington, D.C.
D) All of the above

So I did have to make a judgment call about the difficulty of the questions.

Fourth, I rearranged the answers to the questions so that the answers were not in the same order as the test bank, just in case a student were able to get a copy of it. So to continue with the example, my question would look like this:

What is the capital of France?
A) Paris
B) Washington, D.C.
C) Beijing
D) All of the above

See how tricky I am?

Fifth, I change the names of the characters in the question so that they are easier to understand, less boring, or suggestive of their roles in the question. When I have a procedural question, the plaintiff's name always begins with "P" for "plaintiff," so there's a lot of people named Peter, Paula, Preston, and Priscilla filing lawsuits -- against people with names like Dawn, Donald, Debbie, and David, because "defendant" begins with "D." Other times I might use a pop culture reference, because that seems to help people remember who the characters are in a given scenario. So to continue my political geography example, my question would go through the transformation process and look like this:

Woo hoo! Homer Simpson won a contest and got tickets to take his family to the capital of France! Where are they going?
A) Paris
B) Washington, D.C.
C) Beijing
D) All of the above

Granted, in this case the pop culture reference doesn't really add much to the question. But in a five-sentence setup for a question about the Statute of Frauds, it is helpful. It also obscures the question from being identical to a question in the test bank, again if the students have access to it. I figure, if the student has enough intelligence to read through my irrelevant cosmetic changes to the question and discern what the real question is and match it up to the test bank and extract the correct answer from the re-ordered answers on my test, that student is probably reasonably smart to begin with and has now devoted more effort to cheating than he would have devoted to actually studying.

Then, as I have done in other classes, I print up all nine quizzes and I hand out the actual quizzes to the students, on the first day of class. Here it is, folks, the entire class. Each week I lecture about the answers to the quizzes. And only the answers to the quizzes. I explain why the correct answers are the correct answers and why the incorrect answers are incomplete. And this is where it gets to be a drag -- the students will insist that the incorrect answers really are correct. "You see, Professor TL, Beijing really is the capital of France if you look at it from an economic hegemony perspective..." No. If you didn't figure out that the right answer is "Paris," you don't get credit.

Full credit, that is. Since I'm teaching at a career college, I have heard and understood the implicit message that I'm not supposed to fail anyone, whether or not they have actually learned or understood anything I've taught or which might be found in the textbooks that it remains an open question as to whether they have been opened.

Like Prof. Joyner, I eventually succumbed to the incentives for objective testing rather than essays, and went the next step to not caring at all about how my students performed, and then took the last step on the Academic Morale Death Sprial^® and stopped caring all that much about whether I reported good or bad grades -- I now only care that there is sufficient variation that it appears that I am doing something to evaluate my students' performance. Thus, a student can "correct" or "amend" a bad answer in class after I explain what the right answer is.

So to complete my "political geography" example, I will make two powerpoint slides for my question, which would look something like this:

I talk about this stuff for a few minutes, and then I do the reveal:

...And all the students furiously scratch down "A" on their amended answer sheets and turn them in to me at the end of class -- for which they will receive 60% credit, the minimum necessary to pass. Thus, if they simply show up, send text messages to their girlfriends or boyfriends the entire class and simply transcribe the answers on the slides, they are guaranteed to pass. If they pick answers through the mechanism of chance and leave the textbook virgin in its shrink-wrap, they will still get one out of four correct for full credit, resulting in a "C" grade for picking answers at random and then showing up.

Indeed, since I will accept amended answers up through the last day of class, and I post my slides on the class website every week, they can actually not even show up to get the correct answers. I don't have enough contempt for them yet that I can bring myself to say "Actually, I prefer it if they don't show up," but for some of them I'm kind of close to that. Not that they've done anything wrong; it's just my profound apathy at play.

Why don't I worry about cheating? Because I've taken all the incentive out of cheating. It would be a hell of a lot more work to get the test bank and decipher my questions than it would be to do the process I've outlined above. And if there's one thing I can count on cheaters to do, it's to take the path of least resistance. If it's more effort to cheat to pass than it is to do the real work, then no one will cheat.

Are the students learning anything this way? Am I being offensively lazy for teaching my class this way? Is this instructor-facilitated cheating? Once upon a time, I would have delved into these answers. But as I approach the event horizon of the Academic Morale Death Sprial^®, my answer to all three of those questions is the same: I don't care.

No one else seems to care about the answers to those questions, either. Not the students, who insist after class that they were really, really thinking that "Paris" was the correct answer and want to vent their immense frustration at confusing themselves, at the wasted effort spent studying for hours and still getting it wrong, at the cruel fact that one little word in the question (viz., "France," which in this case, they apparently mistook for "China") changes the whole answer!

Then they tell me that they're really learning a lot in the class and they're really enjoying it. I smile, and deliver good customer service on behalf of my employer. But inside, I just don't care whether they're enjoying the class or not.

As an added bonus, when the students complain that the question is poorly-worded, I can tell them that I took the question from the test bank provided to me by the authors of the textbook. In other words, I can dodge the blame and pass the buck on that sort of criticism because frankly, I haven't the patience or the interest to hold up a sustained argument about a multiple-choice question anymore. "I'll send the authors a message when the class is over with your complaint" seems to satisfy them -- even though I'm pretty sure that the message will be ignored.

Nor does the administration seem to care about the intellectual integrity of this teaching method. Their incentive, after all, is to get happy customers who will give them repeated business. Failing grades make for unhappy customers. Not the accreditation agencies that seem to tolerate this sort of thing, from whom I've never heard a peep since I started teaching seven years ago as a supplement to my regular career.

If the government doesn't care, the administration doesn't care, and the students don't care, why should I? Well, I don't. I've managed to design a class for which there is little incentive to cheat in the first place. So I don't worry about cheating. Nor do I worry about failing students, for which my employer feels a sharp financial disincentive that it dare not articulate but which it nevertheless communicates to me anyway, because a for-profit career college has customers, not students.

Those customers who are there to learn, to be actual students, are going to learn the actual material, no matter what I do. They come self-motivated and they're the ones who ask good questions and whose faces register light bulbs turning on during my lectures. It doesn't take Super-Teacher to get them working and learning -- and amazingly, these students are on track to get good grades!

Most of them, though, are just there to go through the motions in order to get a piece of paper to which they assign no intellectual import are not going to learn anyway, again, no matter what I do. No one -- not the administration, not prospective employers -- will care about the students' grades in a few years anyway. So if nothing I do will change the real outcome of the class, and the superficial outcome of the class is functionally irrelevant anyway, why should I care?

Getting back to the professor in the capstone class finding out that his students cheat -- there are all sorts of things that can be done to get around it. I don't know that writing one's own objective questions is any better or worse than using questions out of a test bank. I think the real issue is coming up with a way to de-incentivize cheating in the first place, rather than punishing it after the fact. Then the problem never comes up.

Let's Get Ready To Wharrgarbl!

Headline: Owners of Park51 project apply for $5,000,000 in Federal redevelopment funds designed to encourage development in downtown Manhattan after 9/11.

Reaction: Wharrgarbl!

Examples of resulting wharrgarbl may be found in all the predictable places, like here, and here. And the outrage can really die down -- the chances of this money actually being awarded are low, low, low.

But for the record, I think we have better things to do with Federal money than this. Not out of any particular distaste for Islam on my part, but rather out of a particular dislike for Federal money being used to help build any house of worship, anywhere, whether directly or indirectly.

That, and the fact that we don't have a budget surplus with which to enjoy questions of which private projects deserve public support. Our government can't afford to be doing things like this right now, for anyone.

Three-Stage Compromise On Screening

Every time airport security procedures are tightened, a margin of people who otherwise would have traveled by air decide not to. In some cases, they opt to travel by car instead. For instance, overall airline use declined when the TSA began x-ray screening of carry-on bags. Statistically speaking, car travel is much more dangerous than air travel. So what do you get when you put them together?

...roughly 130 inconvenienced travelers died every three months as a result of additional traffic fatalities brought on by substituting ground transit for air transit. That’s the equivalent of four fully-loaded Boeing 737s crashing each year.

Feel safer yet? How about those investments in the airlines -- are you ready to buy stock in Delta or United yet?  In fact, their prices are trending up over the last year or two. But as an investor, do you really think the new TSA procedures are going to help these struggling mega-businesses increase profits? The answer may be "yes," if the new procedures are implemented judiciously.

I continue to be surprised at finding my own attitudes on this issue to be the ones on the periphery. Maybe I have more body modesty than most people. Maybe I have whipped myself into a needless frenzy and it's just really no big deal for most folks to have strangers working for the government looking at unsexy pictures of them naked or to be felt up. Maybe it matters to them that the TSA agents doing the screenings are obviously not doing it for their own sexual pleasure. You've seen the picture to the left by now, and it's clear that the agent is not enjoying himself. Gratefully, we can't see the face of the passenger being screened; the man can retain that much of his dignity. Still, the body language suggests that the passenger isn't having any fun enduring the search either.

So once again, I suggest a compromise position. We have new technology and a new procedure, and apparently some people are convinced that these are good ideas and not huge impositions on travelers. I think otherwise. Here's my suggestion -- a three-stage process.

Everyone goes through a "primary" screen. That consists of removing one's shoes and emptying one's pockets, and walking through a metal detector and chemical sniffing device. Shoes, pocket contents,and carry-on bags go through an x-ray machine.

If the x-ray reveals an object that raises a reasonable suspicion by the security screener, or the metal detector and chemical sniffer repeatedly report the presence of metal or dangerous chemicals, then we go to a "secondary" screen, which consists of unpacking the bag and looking for whatever is setting off the x-ray, or using a metal detecting wand or close use of the sniffer to localize and identify the source of the alarm.

Should this secondary screen not identify the source of the problem, then the TSA can use the full-body scanners or "enhanced" pat-downs. This would be a "tertiary" (or "third-stage", for those who find "tertiary" hard to pronounce) screen, done rarely.

On its face, this is quite similar to stated TSA policies in place today. The big difference is that instead of randomly picking people for the tertiary screen, the primary and secondary screening procedures are used to weed out people for whom there is no reason to suspect the tertiary screen would yield anything. It incorporates the concept of "reasonable suspicion" into the governmental search. "Reasonable suspicion" is, as criminal and Constitutional law geeks can tell you, a standard more relaxed than "probable cause."

I would also add that in the case of an enhanced pat-down, an advocate for the passenger could electronically record the pat-down to ensure that nothing untoward was going on. I will exonerate, in advance, the vast number of TSA agents assigned to this task as not taking any pleasure from so doing, and credit to them, in advance, a good-faith desire to only do their jobs. It's the few bad apples in the bunch that concern me here. And given that everyone in the world now knows what an "enhanced pat-down" involves and what it looks like, there can't possibly be any security benefit to be derived from prohibiting the recordation of any specific pat-down.

Finally, there should be signs posted and disclosures made whenever someone buys a ticket that they may be subject to these procedures, in clear, simple language. They probably don't need to reference specific Constitutional rights but they do need to make clear that if you do not consent to the screening procedures, you will not be allowed to board an airplane. To that end, if at any point in the security screen a passenger decides to walk away from the airport and find another mode of transportation, they should be free to go without penalty. It must not be the case that once you're in the system, you can't get out. If the purpose of the screen is to assure people that every passenger on the airplane is safe, then allowing someone who refuses to submit to the screen to leave without penalty does not diminish that gloss of safety because the person who wasn't screened isn't on board the plane.

Hopefully this would keep the screenings moving quickly and efficiently, result in fewer uses of what I would relegate to a tertiary level of screening, appropriately disclose to travelers what they're in for and provide them with a meaningful opportunity to not subject themselves to the process. At the same time, it should retain the ability of the government to provide the "feeling" of safety (although not its reality) which seems to be the object of the exercise.

United States v. Ghaliani

Ahmed Ghaliani was accused of being a significant participant in the August 7, 1998 bombings of the United States embassy complexes in Kenya and Tanzania. At least 223 people were killed and over 4,000 were wounded in nearly-simultaneous suicide bombings of the two embassies in Dar es Salaam and Nairobi.

After a substantial political controversy, Ghaliani was tried in a regular United States District Court in the Southern District of New York. A critical witness against Ghaliani and a substantial confession were excluded from the trial because the judge found that the evidence had been obtained through unconstitutional interrogation techniques (commonly called "torture"). The result was that Ghaliani was acquitted of 284 of the 285 counts against him, being convicted of only a single count of conspiracy.

Let's not lose perspective on the real-world result. Ghaliani hasn't been sentenced yet, but the minimum sentence that can be imposed on him is 20 years and the judge can find that good cause exists for a life sentence. There is no parole in the Federal penal system -- if you're sentenced to serve 20 years, you're going to serve 20 years. This is not a man who is going to be walking free, planning additional crimes, or hanging around with his terrorist buddies again any time soon. That's the result from a single count.

Some have argued, and with some weight to the argument, that torture is in fact useful to extract information from prisoners. But let's distinguish "information," which can be useful and used for gathering additional "information" and possibly motivating intelligence or military operations, from "evidence," which can be used in a court. Information which is obtained wrongfully cannot be used as evidence.

It needs to be underlined that the same exclusion of evidence would have applied in a military tribunal. Substantial, educated, and mature discussion of the issue can be found at the excellent blog Lawfare, which has been having something of a Ghaliani-fest since the verdict was returned. It also bears noting that the conviction's having been obtained in a civilian court makes the conviction much easier to defend on appeal. What it really comes down to is not in what forum Ghaliani should have been tried but whether he should have been tried at all or simply held without trial indefinitely.

While I can see the attraction to indefinite detention, our legal system cannot tolerate such a thing forever. Someone who is in the power of the government at some point transforms from being a "detainee" to being a "prisoner" and becomes entitled to some kind of legal process, an opportunity to know why he is being held, and to present evidence and argument in a meaningful bid for freedom. We do this not because we lack concern about guys like Ghaliani. We do this because it is the only way for us to act consistent with our own morals and ideals, it is fundamental to our system of government, it is at the still-beating heart of why there is such a country as the United States of America in the first place. We must not fear truth, and truth is, hopefully, what trials are all about.

What bothers me about the verdict here is the question of "what if he had been acquitted of everything," because then we would have to make a very hard decision. If Ghaliani is really as dangerous as the government tells us he is, he cannot be allowed to go free. But if he is acquitted of any crime, then we have no legally valid option but to let him go free. And the fact that the Administration announced before the trials started that there was no chance at all that Ghaliani would be allowed to breathe free air, this makes the trial appear to be a show trial. I'd rather that they simply skipped the trials altogether than have the trials not be meaningful. If Ghaliani had been acquitted of everything, he should have been set free.

The big problem here, and I don't claim to have any easy, pat solutions to it, is that so much evidence against so many of these Really Bad Guys is tainted from being obtained through torture. So it could very well be the case that most of the really good evidence we've got against, say, Khalid Sheik Mohammed will be excluded from any court. So we return to the question of whether we should have trials at all.

There is insistence in some quarters to treat terrorism prisoners, and all anti-terrorism activities, as military in nature. If we were talking only about protecting ships in foreign ports, fighting bad guys in the mountains of Afghanistan, and shooting missiles at camps, I could see that. But we're also told that there are dozens of terrorist training camps within the United States, and we know that U.S. citizens are involved in terrorism activities of some kind. There is intelligence that must be gathered within our own borders and from our own citizens. Some interaction with the criminal justice system is therefore inevitable.

It's very, very tempting to say, "Keep them in Guantanamo and throw away the damned key already." But here's what I can't get past: if we really don't have any good evidence to offer against someone we're keeping under lock and key, we shouldn't be keeping that person under lock and key. Trials are where that kind of evidence is tested. We fought the Revolution for that.

Trials are a risk for the government. But at the end of the day, our choices are to betray our own principles or take the risk. If we succeed, the problem of what to do with these guys really does go away -- they go into the penal system and that is that. Let us hope that we have sufficient admissible evidence for the rest of the prisoners with whom who we eventually have to do something.

Murfreesboro Will Soon Have A New Mosque

I wrote a while back expressing moderate embarrassment at the bigoted attempts of a lawyer in Tennessee to stop a mosque from being built in the charming city Murfreesboro. Much as I (and quite a lot of other people, it's not like I was going very far out on a limb) had predicted, he has failed, and construction of the mosque will proceed. Recall that I found particularly off-putting was the decision of plaintiff's counsel Joe Brandon to question the County Mayor about whether he put a whip on the wall of his house as a warning to his wife and later beat her with it. Now, I can also call Mr. Brandon out for losing composure in the face of an adverse verdict:

Brandon had his hands on his face and at times was bent over the desk as the judge read his ruling. Afterward he briskly walked out of the courtroom without speaking to reporters.

Way to keep your poker face, Joe. Here's what you do when you lose a high-profile case: stand up and take your adverse ruling like a grownup with as neutral an expression on your face as you can muster, tell the reporters that you're disappointed and will confer with your clients about whether or not they will exercise their rights to appeal but no decision has been made yet, and slink off into the sweet goodnight from which hopefully you can derive more clients in the future to keep your personal injury, criminal defense, and family law practice viable. Oh, and good luck finding appellate issues on this one, dude; the Chancellor gave you all the rope you asked for.

All of us who litigate for a living have to learn the lesson of picking and choosing your cases carefully. Joe Brandon has, maybe, learned that lesson in a very public way. Who knows, maybe he's gained a political following for fighting the good fight even if he lost and one day he'll be a Rutherford County Commissioner or something like that. But the law wasn't on his side here and he allowed his personal distaste for Islam to blind him to that fact. One wonders if he had any friends who took him aside and told him that he was headed down a bad path and counseled him not to go forward. Or if he listened to them.

Another Suit I'll Have To Apologize For

Dr. Arturo Carvajal ate an artichoke at Houston's. An entire artichoke. Stem, spiky leaves, and all. That turned out to have what I'm sure were decidedly uncomfortable gastrointestinal consequences and consequently he sued Houston's for not warning him that there were portions of the artichoke that are not edible and you scrape the meaty, edible plant flesh off the leaves and then discard them.

Ken at Popehat more than adequately describes the massive forehead-slap lawyers around the country will go through upon hearing of this utter nonsense. We can be relatively confident that the suit will not result in a favorable verdict and very likely will be thrown out of court at an early stage of proceedings.

But shit like this doesn't make the job of opposing tort reform any easier. Seriously, Marc R. Ginsberg of Mandina & Ginsberg LLP in Miami Lakes, Florida (with a satellite office in Key West), what do you have to say for yourself when you've just fed choice ammunition to people who want to use the political process to take away your ability to make a living? And mine? Wasn't I just writing about having to exercise some discretion in case selection? You've been an attorney much longer than me -- what on Earth made you think you'd be able to get anything out of this case?

Good thing I've given up on teaching law classes. This is yet another one I might not be able to credibly apologize for.

Writers Blues

Talking with a friend who is a writer last night reminded me that both my dilletantish efforts at composing fiction, or my ill-formed dreams of putting together something useful to offer as a nonfiction text, are up against an astonishingly intimidating system. To become a professional writer appears to have as many barriers to entry as any other kind of profession -- and like other professions, it would be difficult and expensive to switch. I suppose I can press on with my current (non-blogged) project or not, but the consolation I took from the conversation was that the reason to write is for love, not for money -- if the money comes, that's great, and you need a strong stomach to take all the bullshit that comes after or at least partway through the writing is done. My friend didn't mean or intend or want to discourage me and I'm glad for the realistic insight into the business side of things. But the result was discouraging.

Social Networking Research

So I'm opening up a new file and one of the things involved is a background check on the plaintiff. This includes checking the plaintiff out on Facebook. I farm this out to my young assistant. She reports that the plaintiff has no Facebook profile. Damn. My assistant says, "You want dirt on the plaintiff? Let's check out Myspace."

I ask her, "Does anyone even use Myspace anymore?"

She says, "Yeah, sluts use it all the time. The only reason anyone gets on Myspace anymore is to hook up with a stranger for random sex." She logged on. "Okay, no, your plaintiff doesn't have a Myspace account either, but see? In the fifteen seconds I've been logged on, I've got three friend requests from guys twice my age. Ugh, they all think I'm pretty. Eeeeww, yuck!"

As You Might Expect I Have A Better Idea

Senator Jay Rockefeller admits that there's a little bug in him that wants to shut down both Fox News and MSNBC. He's right that the partisanized press has been a detriment rather than a help to political discourse. But obviously his impulse is wrong, and he is quick to say that he knows full well that such a thing could not actually happen consistent with the Constitution.

But there is another way. Turn those channels off and don't turn them back on again. Get your news from sources that are not so overtly partisan. The good  reporters, the good commentators, the good producers, will all find work elsewhere. The bad ones will get weeded out.

Won't happen, of course.

The Bible In 410 Words

Since I'm enjoying the role of officious editor of long documents, here's my take on the Bible, reduced to its essential elements and leaving in all the "good stuff":

In the beginning, the universe was created, the earth was formed, and humans and all the other animals and all the plants came to exist. Then, humans formed societies and found they have to live together. This proved more difficult than it seems, so here are the basic rules to follow:

Above all, be good to each other. This includes not murdering one another, avoiding war when possible, not stealing, not breaking promises, and not lying, or engaging in other activities which you know or should know will cause unnecessary pain to others especially when those activities involve sex. Do not buy, sell, or own slaves; one human being cannot own another like property and to act otherwise is an abomination. Parents, be particularly good to your children and this includes taking good care of the earth, because they will have to live in it when you are gone. Children, be particularly good to your parents and this includes taking care of them when they are very old, because they took care of you when you were very young. Envy is the source of much unhappiness, so make a good faith effort to be content with what you have and to acquire wealth only through honest means. Mind your own business and do not be overly concerned with what others do if it does not cause you harm.

You will need to make more rules than these with your fellow humans, and those other rules should be consistent with these ideas.

Bad things are going to happen to you in life, and life is not fair. It may not be obvious all the time, but everyone suffers at least some time. Nevertheless, life is worth living and you should take joy from the love offered by your friends and your family. There are no guarantees, but if you get an education, act in harmony with the basic rules of ethics outlined above, and work hard, you are much more likely to grow prosperous than if you do not do these things.

The purpose of your existence is to live a good life, and living a good life includes both behaving morally as well as enjoying pleasure. You have intelligence; use it. No matter what your station in life, if you devote the effort needed to make the world around you a better place, this will bring you a powerful measure of happiness. Go now into the world, and be happy.

Notice the absence of anything relating to the supernatural; no gods or prophets, no fake history, no attempts to freeze society into antiquated culture, no zombies or zombie-worship, no hallucinatory visions, no demons or bogeymen or cosmic protection rackets. What gets left behind when you trim out all the nonsense is a relatively short, sensible, and worthwhile code of ethics.

Irish Coffee Banned In White House

I don't need the White House to tell me whether or not I am legally permitted to drink a Four Loko. Or a Red Bull and vodka.* Or a rum and Coke. Yes, it sucks if some kids binge drink the stuff. The problem was the binge, not the drink.

The mixing of caffeine and alcohol is just fine and an adult should be able to decide whether to have one of these things or not. I put a little Bailey's Irish Cream, or its South African counterpart Amarula, in my coffee on weekend mornings. Is that going to be on the "banned" list too, Mr. President?

Get your damn government hands out of my liquor cabinet.


* I've tried Red Bull and vodka, and concluded that it tastes nasty. YMMV.

Life Of A Professional Writer -- Of Sorts

I know very well that if I were willing to, I could totally be this guy. It would involve a short-circuit of my ethics, of course. It wouldn't be all that different than being a lawyer, really, right on down to the primary source of annoyance with the work, which is of course interaction with clients. The essayist also has some interesting, and deeply cynical, points to make about higher education, as do commenters on this thread. It's well worth a read.

How To Edit Out Invective

Earlier today, I was e-mailed a link to an article that someone found interesting. Another person on the e-mail link said that he too found the article interesting, but was taken aback by the partisan rhetoric, ad hominem attacks, and emotional invective. So I took a stab at editing the essay, and wound up chopping out nearly four-fifths of it. The original can be read here; it is 2,787 words long. My edited version of it follows, it is 614 words long. I'm sure that the author, Professor David Michael Green of Hofstra University, loved every one of the 2,173 words that I cut out, because a lot of them were liberal-to-progressive red meat. But I think I've kept the intellectual content of his essay intact. Here's how I edited of Prof. Green's essay:

The most important problem America faces is the inability of its citizenry to make thoughtful decisions. We are fast losing the “Enlightenment-era” ability to engage in dispassionate empirical observation and rational analysis. Many prefer instead a “religious approach” to the world in which knowledge is given as true by an authority, and deviations therefrom are sanctionable heresy. “Enlightenment” and “religious” thinking is ultimately irreconcilable, and the second approach has dangerously gained popularity.

An illustration: while doing a radio show earlier this month, I spoke with a man who believed Barack Obama to be a “liberal.” I said, “I can name ten examples of right-wing policy from this White House. Can you name three examples of liberalism? … Okay, how about one?” He could not, and uncomfortably laughed, “You know, you’re never going to get me to believe that!” He adhered to the “Obama is a liberal” idea despite my demonstration of its falsity, showing a mentality defined by an incapacity for rational thought. In place of reason, he held a tribal world view in which “our” team is always good and right, and “facts” are accepted dogma, rejected out of hand, or manufactured to support a predetermined conclusion. This is characterized by fear and discomfort when the ambiguities of reality contradict given assumptions.

Religious people claim that there are no atheists in foxholes. That may be true, but it does not mean that religion is true. Rather, it demonstrates that faith is a palliative for frightening realities. Religious thought thus appears when political discourse meets difficult problems.

Consider fiscal policy. Our government promises radical tax cuts for the wealthy and a balanced budget at the same time. Similar promises were made during the Presidencies of Ronald Reagan and George W. Bush, and they resulted in increased deficits. Tax cuts cannot be delivered at the same time as a balanced budget. President Reagan’s OMB director, David Stockman, has admitted this. But the myth persists; a new generation of tax and fiscal policy based upon it will surely increase rather than diminish our national debt.

Consider foreign policy. Former Pentagon official Paul Wolfowitz has admitted, and the Downing Street Memos proved, that the argument in favor of invading Iraq so as to prevent its creation and use of WMDs was not based upon substantial evidence. World leaders likely knew this truth but nevertheless sold the myth, even as they prepared for and fought a long, bloody, and expensive war.

Consider patriotism. We claim that the United States is an exceptional, thriving society, despite the fact that many economic indicators suggest that ours is an empire in decline. President Obama was taken to task recently for saying something that suggested America was falliable. His critics ignored other things he said, which were unambiguous praise of America; they were irritated by the suggestion of even the slightest imperfection in America. For deviating even minutely from the a priori Truth of American exceptionalism, Obama was castigated unjustly.

Consider science. When scientists say that global warming will effect deleterious climactic changes over the next half century, uneducated pundits claim this is not true because fifty years from now is very different than fifty hours from now, and the science upon which the conclusions are based is hard to understand, so the cause-and-effect relationship is obscure. But if that climactic change were predicted to take place in fifty days, serious scientific and technological effort would surely be mobilized to address it.

The root of all of these problems is our increasing reliance upon faith rather than reason. We should consciously return to the values of the Enlightenment culture, which places a premium on thoughtfulness, logic, and a scientific approach to reality.

My goal in editing the essay was to keep its intellectual argument intact, not necessarily to endorse or adopt all of its content. I'm not sure, for instance, that tax cuts were the direct or even primary cause of bloated deficits in the past -- I think spending increases, in both defense and in entitlements -- were probably bigger culprits. I still have doubts about the justifiability of the Iraq war when viewed from a prospective rather than a retrospective basis, and additional moralizing about it now strikes me as not a particularly useful thing to do. And I remain unopinionated as to global warming because the science is hard and complex and I have made a choice to deal with other kinds of issues because there's lots of other commentary about global warming available elsewhere. So I'm not 100% with Prof. Green on his content. I don't think I need to be, in order to either understand or distill and fairly restate his points. I don't think there's any doubt, even edited, that the essayist comes from a liberal perspective.

I'm also not claiming to be a superior writer to him. Prof. Green was blogging, and that's an indulgent, unattended, generally unassisted theater in which one writes. My own writing and blogging here is overlong, sometimes over-emotional, and quite often would benefit immensely from third-party editing. So I'm not saying I'm any better than Prof. Green here because I'm guilty of indulging my political and emotional passions when I blog too, instead of stepping back, cooling down, and trimming out the fat as I probably should more often than I do. Emotional arguments have a valid and appropriate place in persuasive discourse, after all, so the last thing I'm saying is that he should trim out all of the emotional impact of his essay because in places, I think his appeals to emotion contribute to the larger point.

What I am saying is that if Prof. Green wants to change the minds of people who think like he says Republicans do (and he's right that they think this way), then he's cutting himself off at the knees when eight of every ten words he writes contribute to a theme of "Rethuglicans R teh SUXor!!1! hehe" because the partisan bashing really does get in the way of the argument. I'd ask him, "Who is the target audience for this essay? What is this essay intended to produce in the mind of its readers?" If the target is conservatives he wants to persuade to abandon what he calls "faith-based" thinking, mixing in insults is hardly the way to appeal to them to do so. If it's a piece written by a liberal to other liberals, why did he write it in the first place, seeing as his audience agrees with him already? What intellectual bridge does this cross? If it's intended to make liberals look more "rational" and thereby appeal to persuadeable moderates, then why does he work so hard to bend a criticism which obviously can apply to both sides of the aisle in a partisan fashion?

At the end of the day, Prof. Green does have an interesting point to make. Too many people -- he singles out political conservatives but liberals are presumptively just as susceptible to this sort of thing as conservatives -- do not engage in critical thought when approaching difficult problems, and exchanging competing slogans is not the same thing as political discourse. Making this point may not be as much fun as calling the other side a pack of lying weasels, but in my opinion making that point without all of the partisan baggage makes the point more effectively and to a broader audience.

You Need To Let Us See Your Ass Crack Because Of 9/11

Hat tip to Doug Mataconis.

Dear TSA: Please Dispense With The "Freedom Feel-Up"

I've been thinking more and more about the nudity scanners and genital gropes that airline passengers are being asked instructed by the government to endure if they want to travel by airplane.

First of all, let's start with the law.  In the case of United States v. Aukai (9th Cir. 2007) 497 F.3d 955 we get from an ideologically balanced panel of judge a detailed examination of exactly how far the TSA can go in requiring all passengers to submit to an "administrative search" before more intrusive searches can be implemented. In Aukai, the defendant went through the same sort of screening that we've all been used to for quite some time -- he walked through a "magnetometer" or metal detector and put his bags through an x-ray screening machine. The metal detector indicated the presence of metal, and the defendant denied having anything metal on his person. The TSA screener then ran a wand over the defendant, and it registered metal in the defendant's front pocket three times. A supervisor ran the back of his hand on the outside of the defendant's pocket, felt something, and asked the defendant to empty that pocket. When the defendant did so, it was revealed to be a meth pipe.* The critical passage:

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ][and] that it is confined in good faith to that purpose.”

So it was okay to require Aukai to go through a metal detector and run his bags through an X-ray machine; these are "reasonable" searches permitted under the Fourth Amendment. But the wanding, pat-down, and command to empty pockets was not justified until those less intrusive search methods raised a suspicion that there might be something dangerous in Aukai's pocket. It turned out to be evidence of Aukai's criminal stupidity, but of course the TSA officers would have had no way of knowing that from the metal detector devices.

Second, consider  Ken at Popehat's nice little thought experiment. Most people think they can distinguish packaging from content; is it true here? If something feels as though it's imposed on us from outside, would we resist it? But if it comes from the government, swaddled in a pretty assurance that "It's For Your Own Safety," why do we turn in to sheeple and quietly consent? I'm not out of line to say that most people have and will consent -- alarmingly, roughly four in five Americans polled support these screens although, as Nate Silver points out in the link, it's easier to support someone else's loss of dignity than your own.

Third, a look at how the Israelis do airport security. Notice how it is person-specific, not object-specific. Kevin Drum points out in that article that the Israelis make no bones about racially profiling airport users (not just passengers), and that we would be required to omit that portion of our own security screens because our Constitution is written differently than Israel's. Nevertheless, it seems to me that there are rather important lessons the Israelis could teach us which we are ignoring.

Fourth, speaking of Israelis, here's a gem from an Israeli security expert, which is to say, someone who has training in how to bomb airplanes: "I can overcome the body scanners with enough explosives to bring down a Boeing 747." Further evidence supporting the proposition that this is all a big, expensive, inconvenient act designed to make people feel better but which does not also materially enhance the reality of safety.

Fifth, a statement from a TSA official that the public must learn to tolerate Fourth Amendment violations in order to travel in the air. Perhaps the guy spoke inartfully, perhaps he knows full well what he was saying (admission between 2:30 and 2:40 in linked video).

Sixth, a few reasons why we should care about this. Most prominently, the government lies when it says that the images of naked people aren't stored and kept for later use and/or amusement of bored TSA workers looking to mock citizens at the airport. Let me quote a little bit more from Ken at Popehat, because he's done a better job than I of finding good links for good reasons not to trust the government with this sort of power over people whom it has no probable cause to think are committing any crime:

the TSA can’t distinguish between a thing and a picture of a thing, thinks that it has authority to investigate illicit cash (and believes that telling them it’s none of their business represents suspicious behavior), relies on junk science to “detect” danger, feels entitled to your unquestioning obedience (and tries to earn it not with competence but with, in effect, a also-ran muppet), and is vigilant against pressing dangers like Decepticons. Of course, if you recruit on pizza boxes, you’re not going to wind up with Elliot Ness. You’re going to get people who use the body scanners to make fun of people’s genitals, pretend to find cocaine in passengers’ luggage as a prank, steal from carry-ons, and generally act like badged choads. Oh, and sex offenders. Don’t forget the sex offenders. A security checkpoint is Walt Disney World for them.

* * *

Consider this story from a groped rape survivor: ... Think she’s alone at being treated like that? Think she’s being over-sensitive? Think again. Oh, think again.

* * *

Another addition: “Heads up, got a cutie for you.”

* * *

And Another: Hate kids? Love kids more than currently legal? Either way, a career at TSA has you covered!
And still more: Really, who am I to criticize the brave men and women of the TSA, who are all that stands between us and the menacing terrorist snowglobes?

* * *

More: Sure sounds like sexual assault to me.

How much is enough before people will say, "Enough!" So to conclude this festival of links demonstrating just how far the TSA has gone, seventh let's recall the guy who refused to submit to one of these searches, gave up his flight, was released by the TSA into a crowd of people, and went home causing no security risk at all. Yeah, sure enough, for daring to defy the TSA's authoritaii, he's now subject to a civil suit from the government, and they're seriously considering actually going through with it. The fact that this is the guy who actually publicized the TSA's tactics and exposed them for the petty martinets that they are has nothing to do with the fact that they're suing him out of the thousands of people they could have sued. No, nothing at all.

The Founding Fathers wouldn't have put up with this. They'd have recognized it for what it was: the government abusing and exceeding its authority; they wouldn't have put up with what is, in effect, a General Warrant. At most, these kinds of scans and searches should be reserved for people whose behavior and the results of other kinds of appropriate and Constitutional searches raise specific flags and concerns. At best, maybe we ought to take a few lessons from our friends in Israel. El Al painfully learned its security lessons in the 1960's and hasn't experienced Major Asset Loss since then -- so how do they do it? One thing's for sure -- they don't worry about peoples' feelings or ameliorating commercial pressures on donors to political campaigns. They do what needs to be done, and they do it without looking at or feeling peoples' sexual organs.


* I thought meth pipes were made of glass, not metal, but I don't smoke meth so I'm probably not the best person to opine on such matters.

Yobs

England and the United States are nations separated by a common language and this is nowhere more evident than in differing slang words. That, and I guess the Sun isn't exactly the Times when it comes to enforcement of staid journalistic standards. So although the article is certainly amusing, I don't know that I'm entirely certain what a "yob" is. "Stupid drunken assholes now resembling smears of raspberry jelly in St. James Park" is the meaning I derive from context.

Picking Painful Policies

From a macro-level perspective, it's not that difficult to balance the budget in both the short and mid-range terms. Using an online toy at the New York Times, I was able to get not a balanced budget but modest surpluses. Specifically, I got a $1 billion dollar surplus in 2015 and a $158 billion dollar surplus in 2030, by doing the following:

• Cut foreign aid in half
• Eliminate farm subsidies
• Eliminate earmarks
• Reduce federal workforce by 10% (through attrition)
• Reduce nuclear arsenal and space-based spending
• Reduce military to pre-Iraq war size, reduce presence in Europe and Asia
• Reduce Navy and Air Force fleets
• Delay or reduce new weapons programs
• Reduce troops in Afghanistan to 30,000 by 2013
• Enact medical malpractice reform
• Raise Medicare eligibility to 68
• Cap Medicare spending growth to GDP+1% per year in 2013
• Raise Social Security eligibility age to 70
• Reduce SSI payouts to high-income earners
• Tighten eligibility for disability
• Use alternative measures for inflation to index SSI increases
• Return estate tax to Clinton-era levels
• Subject some incomes over $106,000 to SSI tax

This gave a balanced budget in FY 2015 and a healthy surplus in FY 2030, with only 15% tax increases (the last two levels) and 85% spending cuts.  Notably, I did not enact a Federal pay cut for either civilian or military employees, reduce payments to Federal contractors, or enact a carbon tax or a national sales tax. What I did do was, mainly, reduce entitlement spending and military spending. Which, of course, sucks. But meaningful attempts to tackle government overspending require that these sacred cows be placed upon the altar.

I would anticipate in my scenario that the surpluses would be used to retire outstanding debt. This would result in eliminating the long-term debt of the United States by about 2050, leaving only the sort of short-term debt financed by short-term instruments necessary to work through week-to-week shortfalls in revenue.

Precautionary Fondling

I'm not fond of the idea of a TSA agent feeling me up the next time I try to board a plane. Not that I think that the agent is really looking forward to it, either. But is the threat of having a stranger grabbing your genitals enough to get Americans to finally address, in a serious way, the extent to which we're willing to sacrifice our dignity, privacy, and liberty, in exchange for the promise -- sure to be broken eventually -- of enhanced security.

But it should never come to something like this.

We fear terrorists on airplanes, and rightly so. But the response to ever-tightening and ever-more intrusive security measures is for terrorists to become ever smarter and more clever in the way they conceal weapons. And if we are looking at air travel security from the macro-level, the level of making policy, the truth of the matter is that some level of criminal activity cannot be prevented at all. At least one airline pilot is concerned that our response is one of panic and short-sightedness rather than resolve and intelligence, which he fears will not only result in a drag on air transport services, but less security in the services that are provided. He provides a very interesting historical perspective along the way.

This brings me also to an article linked in a comment here, a short thought experiment by the late, great David Foster Wallace. I have taken it as an article of faith that a nation as technologically advanced and wealthy as the United States does not need to choose between security and liberty; we ought to be smart and capable enough to have one without diminishing the other. Wallace asked, in effect, what if that is not ultimately true? What if in order to have safety we must diminish our own freedoms to the point that we no longer have the liberty that makes life in our society worth living? Would we choose to tolerate a certain level of terrorist and/or criminal-induced violence in order to preserve our liberties -- does this mean that there is a calculus of liberty versus life upon which we need to find an ideal balance point?

A disturbing thought indeed. A life enslaved is a life not worth living, for the most part, unless there is a possibility of liberation at some point in the future. But liberty obviously cannot be enjoyed if it is accompanied by fear, or more basically, if one is dead. Nor is the idea that other people are free much consolation to those who mourn the victims of a criminal (or terrorist, if you prefer) act.

But as I stated in a response to that comment, here I look to our Founding Fathers for inspiration. It's our choice to make, but this is what heroes and myths are for -- to help guide us make decisions in real life by providing role models. The United States' Founders were men who made a conscious decision to expend blood in the pursuit of liberty. They knew they were going to war, and that had they opted for peace, they would have continued to have life and (at least for most of them) economic prosperity. They chose a more risky path, one in which not only their livelihoods and wealth, but their safety and lives and those of their families and countrymen, were sufficiently at risk that they knew some lives would be lost. The chose to pay the price of blood in order to have freedom.

I'm pretty confident that none of them would have willingly submitted to a uniformed member of King George's government grabbing their wieners prior to boarding transport vessels so as to check for unauthorized satchels of gunpowder. I linked above to a guy who refused to submit to a genital grope or nude scan of his body and invited civil claims against him by the government for his doing so, and I have to think that George Washington would have admired him.

Do we today choose to pay the price of freedom in order to have -- what? A marginally increased level of protection against criminals? Worse, the illusion of a marginally increased level of protection against criminals? I don't want to pretend that there aren't security risks out there nor would I suggest that we abandon security screening entirely. But I also don't want to permit the security apparatus of the government to reach an unreasonable level of intrusiveness. There has to be an appropriate and effective middle ground, and by the time we've got passengers submitting to full frontal nudity views and genital pat-downs, we've crossed the line.

(Image from boingboing.net; hat tip to James Fallows)

Raising A Red Flag About Heckler's Vetoes

What is it with all the stories about hecklers' vetoes? After I felt moved enough by Pat Condell yesterday to praise a culture of free speech, I turn around and see this -- someone's offended by a kid putting an American flag on his bike, on Veteran's Day, and a public school official decides to censor it. The question is whether the display of the flag (or a corresponding counter-display of, say, a Mexican flag) would reasonably be seen to incite violence. Which seems very strange in this case because doesn't the school fly the American flag every day?

You don't have a right to not be offended. The fact that your child is learning about bad things that really did happen in history does not mean you can sue the school district for failing to sugar-coat things. You don't get to use the power of the government to silence speech you don't like simply for the reason that you don't like it.

What I suggest you do if you feel emotionally offended by someone expressing an opinion or discussing an issue in a way with which you disagree is to get over it and add to the debate rather than trying to subtract from it. This is the case even if the people who are exercising their rights of free speech are, by any objective or reasonable standard, best regarded as flaming asshats; flaming asshats have free speech rights, too.

The remedy to hearing really stupid, offensive things is not to censor them. It's to point out that they are stupid and offensive, and to offer one's own take on the topic under discussion. This is true even if the stupid, offensive statements you're calling on the carpet were articulated by your own husband who happens to be a United States Senator and a former major party candidate for President of the United States. The remedy for unpleasant speech is more speech.

You would think that would be obvious. Apparently, though, it isn't. Regardless, censoring the American flag on Veteran's Day not only makes for terrible politics, but it also crosses the line into a First Amendment violation. Absent a particularized, articulatable threat of violence or disruption of school activities, the student can fly a U.S. flag, a Mexican flag, can wear a pro-gay-rights T-shirt or an anti-gay-rights T-shirt, or any other kind of expressive display she wishes.

For the record, referring to each of the linked stories, my immediate reaction is:

1. The kid in Monterey ought to be able to put an American flag on his bike if he wants. The school district was wrong to tell him to take it down. What the school district needs to do is teach the students that it's okay to be proud to be an American, and it's also okay to be proud to be of Mexican heritage, so it's not worth fistfights over racial tensions.
2. The father in Michigan doesn't have the right to tell the school district not to use a particular textbook. If he doesn't like his daughter being taught from that textbook, maybe he ought to be an effing parent and talk with his daughter about what she's learning at school, rather than generating another stupid lawsuit I'll have to apologize for in another forum.
3. The kids wearing the "straight pride" T-shirts have a right to do so. The fact that their actions are within the scope of their First Amendment rights does not ameliorate the fact that they are flaming asshats for choosing to use their rights in this fashion -- and worse for attempting to cloak their bigotry in religion, because by doing so, they make their coreligionists look bad too. The right response to bigotry is to criticize the bigots.
4. I agree with the sentiments in the anti-bullying video, provided that the celebrities (and Cindy McCain, rather boldly subverting her own husband) are advocating that bullies should be ostracized by their peers, rather than punished by the authorities, for things like taunting and teasing. Violence or threats of violence should be punished, regardless of the motivation for the violence or threatened violence.

The big picture is that free expression is the paramount value here; no one has a right to silence people who say offensive things.

Constitutional Convention: The Board Game

I am enough of a history geek that this game sounds like a whole lot of fun. "Boom! I've got Franklin on this one!" I don't think I could get The Wife to play it very often, though.

Ca' di Gladiatori Crumbles

A sad day in Pompeii, as the House of the Gladiators collapses. Italy has been suffering heavy autumn rains, and the unearthed ancient ruins of the world's most unique and miraculous archeological site are not up to it.

Italy, like much of the rest of the world, suffers from a crunch in money and its government feels the pinch too. It is obviously not directly essential to the welfare of the Italian people that they keep the ruins at Pompeii in good shape -- although they are a tourist attraction that brings a lot of money in to the Campanian economy so one would think that there is a financial calculus going on somewhere. Private funding or funding from research institutions outside of Italy is also drying up. It's very easy to look at something like this and fault the government for allowing the nation's patrimony to degrade to this point. At the same time, it's easy to anticipate the government's rebuttal -- we only have so much money; how many ambulances and hospitals should we not have bought, how many soldiers should we have not paid, how much election fraud should we have tolerated or crimes left unprosecuted, to free up the money that was needed to preserve la Ca'di Gladiatori?

So the larger issue is that Pompeii is one of the ways that Italy can distinguish itself as a nation -- trading in part on its rich history and in part on its good fortune to have such an asset and in part on its commitment to maintaining, studying, and making available its unique culture. Every nation has such cultural assets, unique to itself. If we take the point of view that culture is not a job for the government, then something like Pompeii has to be handled at least in part by private enterprise (perhaps in the form of a private charity), or vanish entirely. Sometimes that private money is there and sometimes it isn't. And some things are of great cultural value and some are of more moderate importance.

To say that the degree of state involvement and the financial commitment of a community and a government must be addressed on a case-by-case basis is not a very satisfying or principled way of looking at the issue. But it is probably the only realistic result.

Fainting In A Movie?

Last weekend, I saw 127 Hours at what I suppose must have been one of the only four screens in America showing it. It's in wider release this weekend. Apparently, the rumors going around are that the "arm scene" is so gruesome people are fainting. I didn't faint. It was tough going, but I made it through, so did The Wife, so did our friends. The "arm scene" was actually shorter than I feared it would be and its toughest part was not what I was expecting.

No full movie review here. Suffice to say that the movie was actually quite good. Short (it is a movie based on a single event, after all), bombastic (score by A.R. Rahman who rejoins Danny Boyle after their success in Slumdog Millionaire) and visually powerful (does not deter me from wanting to visit the Canyonlands). But the biggest winner has to be James Franco, who unflinchingly portrays a cocky young hiker, rendering him sympathetic while still illustrating the flaws that got him into his awful predicament. And it's all the more interesting because, of course, it's based on a real event.

I wonder if I would have done what the guy did. I can handle low levels of pain for a while and if the pain creeps up on me, gradually escalating, I can deal with it. But a sudden, sharp pain such as a dentist's tool coming near a tooth nerve makes me recoil quickly and profoundly; every trip I take to the dentist for anything more than a routine cleaning leaves me feeling like a pain wimp. To inflict such pain on myself would be a great challenge -- even if it came down to a choice between that and death. Hopefully I (and all of you) never have to find out and when the end does come, it will be swift, painless, and only arrive after a long and happy life.

Somehow I Don't See This In My Crystal Ball

President Lyndon Johnson famously responded to overwhelming public criticism of his handling of Vietnam by announcing that he would not serve as President for a second full term -- he channeled the long-dead General William Tecumseh Sherman, who said "If nominated, I will not accept; if drafted, I will not run; if elected, I will not serve."

This created chaos for the Democratic party in 1968, and paved the way for Richard Nixon to explore entirely new and different ways to get into political trouble concerning Vietnam.

Today, it is easy to see that President Barack Obama has run in to strong -- I'm not sure "overwhelming" is accurate, but "strong" certainly is -- public criticism of his handling of the economy. Is the solution a Polk-like "one and done" for Barack Obama? 

Survey says: irrelevant, because it's not gonna happen. It's fundamentally contrary to the President's personality not to seek re-election, just as it was fundamentally contrary to his personality to decline a Nobel Peace Prize he demonstrably had not earned.

There Is No Part Of This Story That Is Not Surreal

Dick Van Dyke, yes that Dick Van Dyke, is 84 years old and still surfing.

Except he maybe ought to not be surfing because paddling out past the breakers apparently exhausts him so much that while surfing he falls asleep.

And wakes up out of sight of land.

Whereupon he is pushed back to shore by a pod of friendly porpoises.

The porpoises were unavailable for comment.

Now you know why I like to read the British newspaper websites. You can't get this sort of thing on CNN. Instead, you get it on the Scottish equivalent of David Letterman (porpoise story at the 9:00 mark). Hat tip to Rufus F.

The Real Villains

Sometimes I wonder why exactly I can't find it in my heart to condemn Islam so starkly, clearly, and powerfully as Pat Condell:

Then I remember the answer: what Condell is describing here isn't congruent with my own personal experience with Muslims. I've had Muslim clients, I've had Muslim friends, I've had Muslim attorneys as adversaries in cases I've handled, I've hired Muslims as expert witnesses in cases I've handled. In all those experiences, some of them have been friendly and nice, some of them have been kind of jerks and seemed untrustworthy, and some of them have been basically unremarkable. Many of them are immigrants from other parts of the world to the United States and of these, some have adapted better to the culture here than others. Some of them are smart, others not so much.

Put another way: in my own firsthand experience, the Muslims I have dealt with have acted pretty much like any other group of people one might care to identify. Demonization of them is not congruent with my own experience.

Like any other group of people, some of them are going to be assholes. Some of these assholes are going to be assholish about their religion and if one focuses on the media (particularly a partisan press) one might get the impression that there are a lot of assholish fundamentalist Muslims out there. And indeed, there are fanatics and some of those fanatics are dangerous and willing to use violence to achieve their ends. The word that comes most readily to mind when describing people within a society who use violence to achieve their ends is "criminals." I believe criminals should be treated like criminals and their religion is not the primary reason why I condemn criminals -- their harmful, lawless behavior is.

Now, bear in mind that Condell's soliloquy here addresses an issue of what kind of behavior should and should not be criminalized. The root of what Condell is talking about in the video above is not criminal behavior by Muslims, nor should it be. It is assholish behavior by them. It is beyond rude and arrogant for a Muslim to think that he or she can live in and enjoy the benefits of a free society and still make use of the power of the government to prevent themselves from being offended by something someone else has to say. Freedom of speech and freedom of religion does not mean freedom from criticism. Freedom of speech means that the government tolerates the offensive things that people say.

Pat Condell is and ought to be free to condemn Islam without fear of governmental reprisal. That is what freedom of speech means. He also ought to be free from the fear of violent reprisal for his statements. That is what it means to be part of a peaceful, law-abiding society. If something in Condell's speech offends you, you have two primary options which are acceptable in a free society: you may either 1) ignore him, or 2) rebut him.

Same as the Muslims who don't like hearing their backwards religion criticized.

What I fear gets lost in a polemic like the one above is the proper focus of Condell's diatribe. The real villains in the situation he's describing in Austria are not the Muslims. They are the governmental officials who are punishing free speech, who invoke the judicial power of their nation to prosecute someone for the "crime" of criticizing someone else's religion. In a nation that purports to respect freedom and individual rights, there is no other option to the government but to tolerate someone criticizing Islam. The Muslims are availing themselves of a governmental remedy that ought not to exist. It ought to be very obvious that the remedy for speech they dislike is more speech.

I do not think all of the criticisms and condemnations of Islam are valid. I think critics of Islam paint with too broad a brush -- as though a critic of Christianity were to claim that every Christian is, wants to be, or at least admires and supports, people who assassinate abortion doctors. A Christian can condemn both abortion and the people who murder doctors who perform abortions; the vast majority of Christians condemn both.

Is this a logical and consistent position for them to take? I don't much care, because real human behavior with respect to religion is that people pick and choose what commands of their holy books and clerical leaders they will follow and which ones they will ignore. The overwhelming amount of the time, they opt for morally good behavior.

So are there violent, awful, morally indefensible passages in the Koran. Damn skippy there are. Are there Muslims who nevertheless believe in an act upon these morally indefensible passages? Sadly, yes. Those people are, as I mentioned above, "criminals." They should be treated like criminals. Their coreligionists, however, do not deserve to be treated like criminals until and unless they too commit criminal acts. And those in charge of the governmental powers need to be careful about the kinds of acts that they criminalize.

If I believed in God, I would thank Her that I am blessed to be a citizen of a country with a strong Constitutional guarantee of free speech. A prosecution against someone for speaking their mind about a social issue of the day here would quickly run up against a First Amendment challenge and the prosecuting authorities would be scrambling, hard, to justify their actions. If they pressed on, they would earn the rightful condemnation not only of those who agreed with the defendant's political point of view, but others who would see creeping totalitarianism. Witness how Ezra Levant is a hero -- not for criticizing Muslims, but for criticizing and standing up to his own government:

So. Why don't I take on the evils of the Muslim faith? Because it is the abuse of government power which most offends me. Frankly, I expect that a manual of social mores come out of the late Bronze Age Middle East is going to contain all manner of utterly morally indefensible things, and that people who insist on taking those obsolete visions of society literally are going to act in morally indefensible ways.

Those sorts of evildoers can best be kept on the fringes of society where they belong is not through making sure that "their side" always loses in a political fight. The best and most enduring way to keep them out of power, keep them out of positions where they can do real harm to our society, keep them from actually imposing their views on those who do not wish to subscribe them, is to consistently and with principle insist that the government honor as inviolable, and to safeguard as the highest objective of its existence, the civil liberties of the individual.

Those liberties, our best and most enduring protections against the evil theocracy that a small number of fanatic, literalist Muslims would impose on the rest of us, will not be toppled through military conquest. Those liberties can, however, erode. The forces that erode them will not be forces that are obviously and apparently trying to subvert and transform American society. Rather, they will and can only be those forces that claim to be protecting, defending, and conserving that society.

To claim that this is a "Christian nation" and therefore that Christianity is entitled to special, favorable treatment by the government takes away the bulwark of separation of church and state. What will the Christian nation advocates claim if and when Muslims outnumber them at the ballot box and suddenly America is proclaimed to be a "Muslim nation?" They will have already established that the government may favor the majority's religion -- and should they then find themselves in the minority, there will not be the Constitutional guarantee against Establishment of a religion to protect their rights.

The real villains in Pat Condell's diatribe are not the Muslims who complained loudly about being offended that someone in Austria publicly explains why they dislike Islam. The real villains in Ezra Levant's videotaped discovery are not the imams who filed complains with the Alberta Human Rights Commission. The real villains are those who would involve the government in those kinds of issues in the first place. We protect the rights of unpopular minorities not because we like what the minorities do, not because we would make them elites, not because we desire to see democracy subverted or overturned. We protect them because we must limit the power of the government, whether that power is used to an unpopular end or a popular one.

Why don't I condemn Muslims more stridently than I do? Because as awful as 9/11 was, our nation is much too resilient and powerful to collapse because a few buildings were destroyed and some innocent people were murdered. Only we have the power to really destroy ourselves, and such destruction will not be an overt attack but rather a metamorphosis. The real threat is in our own city halls and statehouses, in Congress and the White House, at our own ballot boxes -- a short-sightedness about the expediency of government action to address that which is unpleasant today, without regard for the future disasters that we invite by setting aside the safeguards to our liberties. An intelligent respect for everyone's Constitutional rights, and an independent judiciary to safeguard them, are the best defenses we have available.

5 Questions From 2 Christians 4 Atheists

This one seems to be making the rounds on the Intertubes. It may not be particularly philosophically deep, but it is seemingly popular. I'm not about to make a video response as the authors solicit, although this guy's video response ends on a charming note. So I'll do a written response instead.


1.  What kind of evidence would it take for you to believe in God?  Not what would be a good start, but what evidence would actually convince you?  And when we say "God," we're talking about a mind which is all-loving, all-powerful (meaning he can do everything but what is logically contradictory), all-knowing, and eternal.

Notice the rhetorical twist in the question: "We Christians can't seem to convince you atheists of the existence of God. So instead, please try to convince yourselves." Sorry; it doesn't work that way; this isn't Moot Court. As proponents of the claim that God exists, you bear the burden of proof. What that proof might be, I haven't a clue. Maybe such evidence exists; I haven't seen any after forty years of life but then again, I don't know what you've got to offer. So hit me with your best shot.

2.  Is there anything I can do that would convince you that God exists?  Like, could any argument we could make have the potential to sway you?

See my answer to question #1, above. One thing I'd suggest you do before trying is to see if your new, wonderful argument is really new and wonderful. And sorry, chances are that it isn't. In fact, chances are good that your argument is some variant of either the ontological argument or the cosmological argument, and I find neither to be convincing.

3.  If you realized that an all-loving God existed, would you desire to have a relationship with Him?  If you said "yes" to that question, would you want to have a relationship with Him just to get into heaven or for some other reason?

An all-loving God would be a nice friend to have for all sorts of reasons, the best reason being to enjoy and reciprocate the love and friendship offered. Now, note that according to your definition, God is all-powerful, all-knowing, and all-loving. As such, an all-loving, omnibenevolent God would put everyone into eternal paradise and bliss in the afterlife, regardless of whether they were sinners, apostates, or whatnot. So if an all-loving God existed (as you've defined Him), I wouldn't be worried about getting in to heaven at all; that God would put me in Heaven no matter what because He loves me the same way He loves you.


4.  Have you ever met a Christian that lives their life in such a way that it is clear that they believe in an all-loving God?  (Onscreen disclaimer: "I am not insinuating that only Christians can be moral")  Meaning they live a life that is impressively kind, loving, and selfless.

Yes, I have met and known and in some cases formed warm friendships with many Christians whose kindness, capacity for love, and selflessness have impressed me and touched me deeply on an emotional level. Those friendships have deeply enriched my life. Similarly, I've met and been morally impressed by people who identify as Jewish, atheist, agnostic, Buddhist, Muslim, Hindu, or in the case of my favorite roommate from college, Zoroastrian. I do not think one's religiosity has any more relationship with one's moral worth than does one's shoe size.

5.  Has the presence or lack of presence of such a person had any impact on your atheism?

None whatsoever. My love for my friends, and their love for me, does not change the fact that there is no evidence whatsoever to justify or even inspire belief in the supernatural, any more than such love (or the lack of such love) would change the speed of light or the force of gravity. The universe is utterly and absolutely indifferent to your feelings about it. God either exists or does not exist, regardless of whether Christians are good people or bad people.