Confederate Flag. I indicated a day or two ago that I had a possible solution to the flag problem. Before I outline it, however, I must direct you to Eugene's note on the Confederacy. As you may recall, several of us had a disagreement about the cause of the Civil War and I indicated my displeasure of the defense of the Confederacy by so-called Libertarians.

Moving on, as you recall, the jist of the argument is that because the Confederate flag, represents the Confederacy, which was a collection of states that supported legalized slavery, all right-thinking people should boycott all states, cities, organizations, entities, individuals, and so on who display this flag. At worst, the flag critics see it as racist; while its defenders say it stands for the southern region of the United States and that there is no racist intent.

So what's my solution? Simple -- a group of flag detractors should take a page from the Christian church and just adopt this accursed symbol as it's own. Let this thing which was supposed to be a thing of defeat (for the follower's of Jesus, the cross) be the symbol of your victory. It seems to me that the organization that is in the best standing to adopt it as their own is the Southern Christian Leadership Conference. After all, this flag is identifiable with the South and, with it's St. Andrew's Cross, is identifiable with the Christian leaders who make up this group. Finally, it represents the victory over slavery. Take it away from the KKK and those racists who want to use it as a symbol for intolerance.

Interestingly, I mentioned this to a friend of mine, an attorney who is gay, and he said that the gay movement did the same thing with the word "queer." Think about it -- it's no longer such a vile word and the only ones who really use it are gays applying it with, well, queer pride.

Virtual Porn Lauren C. raises a very interesting question:

I've been in the information processing business in one capacity or another for 30 years last February, and I'm concerned that those who write and interpret laws are always a few steps behind the technology they're attempting to regulate.

In information theory, sight, hearing, and touch are just information streams. With current (not future) technology, I can produce sight and sound indistinguishable from reality. It would be expensive, prohibitively so, but possible nonetheless. Give me time and sufficient bandwidth, I could do the same thing with touch. Take a couple of neural pathway breakthroughs, but it's coming.

Based on that, how can the court's ruling that you must be able to identify a physical child being harmed be implemented?

In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court distinguished child pornography from other sexually explicit speech and press due to the state’s interest in protecting the children exploited by the production process. In that case, Justice White noted, among other factors, that "recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions." However, in that same paragraph, he based the rationale on "a definable class of material . . . [which] bears so heavily and pervasively on the welfare of children engaged in its production." Accordingly, under Ferber and the more recent case, Ashcroft v. Free Speech Coalition, a statute which restricts or bans pornography using actual children, would still pass muster, but if you can create a CAD or some other version of child pornography, it can not be banned as a category of material by statute.

Now it could still be found to be obscene, but that would have to proceed on a case-by-case prosecution.

This message does raise an interesting scenario. Could a state ban the reception of neural stimulation? I don't know if you ever saw Natalie Wood's last movie, but there was a scene in there were one of the technicians recorded an episode of sexual simulation and climax, then cut it and looped it and got caught in his loop of climax. Since the scenario I'm hearing you propose is more like pharmacological stimulants, could the state step in and ban it without running afoul of the First Amendment?

Child molesters. All child molesters raise your hands? Thank you.

Miscellaneous Items. Quick lunch break -- a busy day. I updated links last night. I included a left-leaning one, via Eugene V., Two Tears. I've been looking for a good left-leaning one, maybe this will be it. And I see that David S-, er, Louder Fenn has a new place.

Here's a link to downloading an .mp3 of the song Kiss Me in Japanese.

Finally, "Are you an American or a Journalist?" Read Media Minded then read this summary by James Fallows of a PBS episode on the Media, the Constitution, and the Military. I remember when the PBS episode was aired, I was floored -- I ordered the transcript and subsequently videotaped this one. Look at how Mike Wallace intimidates Peter Jennings. And then watch the Marine smackdown Wallace. ("Marines will die going to get ... a couple of journalists.") Very powerful.

Speech, Press and Slippery Slopes. I neglected to mention, below, that I'm also about halfway through Eugene V's article on Mechanisms of the Slippery Slope. This is an excellent article -- and you get it for free (of course, it consumed nearly a half ream of paper and a good bit of ink from my deskjet at home). Even the footnotes are wonderful (endnotes actually, since this is a web publication -- but worth flipping back and forth for).

In fact, this might be a paradigm shifting article for me -- like Godel's Theorem (actually, just the explanation of the theorem -- I never read his paper) did for my belief in provable rationalism.

I've always been partial to the slippery slope argument, yet also found something wrong with it. I think it bugged me that you'd have people making the argument that you can't ban child pornography because next they'll be burning Romeo and Juliet. In truth, I think there is a clear distinction to be made between banning obscenity and the protection of a free speech and press. As I've previously indicated, I think the Court is wrong to not adopt a per se rule that child pornography is obscenity. (Yes, I know, then the question will be what is child pornography.)

Last, Eugene, on his blog, notes the 4th Circuit decision with respect to the Confederate flag on the license plate. I appreciate his condemnation of the Confederacy movement -- too many libertarians I run across have a perverse affection for it -- yet he strikes the right balance in noting that those who want to fly the flag are not all (or even mostly) racists. I have my own solution to the flag situation, which I'll mention in a day or two -- this is already getting to meandering. What I do want to note is that I disagree with the general Supreme Court flag burning ruling.

On the one hand, since the case was brought under a broad flag desecration law, the free-speech challenge was appropriate. Yet, it still bugs me that I can be prosecuted for having an open-air wood fire in my back yard. But if I was burning the flag, I would be untouchable. My solution? Whenever we burn the pine in the back (you wouldn't want to burn this in a fireplace) we do it to as "speech" to celebrate the freedom granted to us by the First Amendment (indeed, it's an unalienable right). That's right, it's all speech, not conduct, right down to the toasting of marshmallows.

Of course, since I'm not a state actor, I can tell the kids to be quiet -- they've had enough marshmallows.

Commerce. Our friend is persisting with his claim that scientific research and development is unregulatable (is that a word? Okay, how about outside of the jurisdiction of the federal government.) He ignores the dollars being spent on this -- this is clearly a matter of interstate commerce. I write this as I eat my sandwich made out of federally inspected meat product, but I guess that's not commerce either.

In box - Driving. As I get ready to go back to the shop for my Civic, consider this from my box:

Most people assume WWJD is the acronym for "What would Jesus do?" But the initials really might stand for "What would Jesus drive?"

One theory is that Jesus would tool around in an old Plymouth because the Bible says, "God drove Adam and Eve out of the Garden of Eden in a Fury." But in Psalm 83, the Almighty clearly owns a Pontiac and a Geo. The passage urges the Lord to "pursue your enemies with your Tempest and terrify them with your Storm."

Possibly God favors Dodge pickup trucks because Moses' followers are warned not to go up a mountain "until the Ram's horn sounds a long blast." But then some scholars insist that Jesus drove a Honda but didn't like to talk about it. As proof, they cite a verse in St. John's gospel where Christ tells the crowd, "For I did not speak of my own Accord..."

Meanwhile, Moses rode a British motorcycle, as evidenced by a Bible passage declaring that "the roar of Moses' Triumph is heard in the hills." Joshua no doubt drove a Triumph with an aftermarket slip-on muffler
because: "Joshua's Triumph was heard throughout the land."

And, following the Master's lead, the Apostles car-pooled in, you got it, a Honda: "The Apostles were ..... in one Accord."

To which my friend added: "I'm sticking with my ragtop...never know when the rapture might be..."

My Spidey Senses are Tingling or it could be my three-year old son, who tho' he can't read a word of english and watches no tv, knows beyond a shadow of a doubt that Spiderman is Almost Here!

See also, Lileks, for example on JJJ:

J. Jonah Jameson was the editor of the Daily Bugle, the paper that employed free-lance photographer Peter Parker, aka Spiderman. As a child, this was my introduction to the world of newspapers: they were run by an autocratic man with white sideburns who always had a cigar exactly six inches long (with a half-inch ash) jammed in the corner of his mouth; this editor would Stop the Presses, Remake Page One, and reshape the paper to fit his whims and fits. And this man lied. JJJ hated Spiderman. Hated him. Took every opportunity to portray him as a menace to the city, despite all the evidence to the contrary. In a town with many papers, JJJ had decided to play to the anti-superhero demographic - but why?

Currently Reading: Lost Victories: The Military Genius of Stonewall Jackson by Bevin Alexander.

Dr. Woodlief, I presume? Anthony Woodlief is to be congratulated for having earned a Doctoral Degree at the University of Michigan. He writes, in part: "I'm a doctor, though I won't let anyone call me that, because you shouldn't put 'Dr.' in front of your name unless you know what to do when Joan S. keels over in front of you with cerebral thrombosis." While I agree -- your Doctorate has been fully earned -- congratulations.

On the other hand, something about this reminds me of a friend of mine, who when first elected to a minor office noted he could be addressed as "The Honorable ____" I responded that people who insist on Honorable as part of their title genererally aren't.

WASPS smarter? This has to be the most politically incorrect thing I've seen in a long time. Although, somehow it manages to miss my various heritages.

What is this? Look, I know about embargos on the press -- it's usually done with respect to medical and science news -- giving advance copy of scientific journal articles to journalists, so they can read and accurately report on it -- but what is this from the AP:

BEGIN EMBARGOED MATERIAL

Treasury, for example, oversees the Customs Service and has been setting up a system aimed at carefully but quickly examining goods being imported into the United States. It also is hiring new Customs agents, searching for financial assets controlled by terrorists and buttressing security provided by the Secret Service and Bureau of Alcohol, Tobacco and Firearms.

"We bear the responsibility of protecting the nation on three fronts: at our borders, in the world of finance and here at home," O'Neill said in his prepared remarks.

In February, O'Neill and Byrd had an emotional clash before the Senate Budget Committee over the powers of Congress to regulate executive agencies that touched even on the two men's deprived childhoods.

Hanging over Tuesday's session was Ridge's absence. Aware of Byrd's strong feelings about the subject, Powell sought to assure him of administration cooperation.

"The administration is committed to ensuring that you and the Congress receive the appropriate information on what we are doing to improve, enhance and ensure the protection of our homeland," Powell said in his written statement.

END EMBARGOED MATERIAL

Dismissed as paid Ben Domenech links to a list of crazy judges. Here's a different story -- a decent judge and a guy I worked for many years ago. When I started out in Legal Services, back when Jimmy Carter was President, Don McDonough was my boss and was the managing attorney of the Fairfax office.

A Beneficent Bench by Michael Leahy and Leef Smith Washington Post Staff Writers Saturday, June 10, 2000; A01

Typically on a Friday, Fairfax Judge Donald P. McDonough operates at assembly-line speed: 150 landlord-tenant disputes, one right after the other. But at 10 a.m. yesterday, McDonough's efficient system of justice paused. Something about the middle-aged deaf couple standing before him, and facing eviction for falling $250 behind in their rent, got to him.

Though no one yet knew it, this dispute would be different from any of the thousands McDonough had heard in more than a decade on the bench. When the landlord insisted on a judgment against the deaf couple, McDonough abruptly left the courtroom, returning a minute later with two crisp $100 bills and a $50 in his hands.

"Consider it paid," he said, leaning over the bench and handing the money--his own money--to the landlord's stunned attorney. As a
sign-language interpreter translated for defendants Deborah Morris and Louis Swann, Morris pressed her hands to her chest in unaffected rapture, according to several people who were present.

"Only in America," said Fairfax Commonwealth's Attorney Robert F. Horan Jr., adding that in his 33 years in office, "I've heard of judges suspending judgments. I've never heard of a judge chipping in."

Bailiff Erin Cox, who was in the courtroom when the scene took place, agreed. "Not something you see much," Cox said. "Not something you see ever."

After McDonough handed over the money, another strange thing happened: Four attorneys present for other cases spontaneously whipped out their checkbooks to give more, according to Cox. She said the lawyers told her they planned to give the $1,250 to the couple, but as of last night, Morris and Swann said they had not received it.

The made-for-TV courtroom drama began with Swann and Morris telling their story. They were short of money, again. Married in October, they learned only recently that their new status as a couple meant a sharp reduction in Morris's disability benefits. Without the aid, they couldn't pay their full $630 monthly rent.

Using an intepreter, Morris passionately argued the couple's case in sign language. They were virtually broke. They thought marrying would save them money. The caprices of the disability rules caught them by surprise. Things seemed hopeless.

The landlord's attorney, exasperated by what he called a string of late payments, asked the judge to order full restitution and eviction.
McDonough sighed and asked if settlement was possible. No, said Andrew Lawrence, the lawyer.

A former legal aid attorney, McDonough looked down at the bench for a long half-minute while no one and nothing moved in his courtroom. Finally, he wheeled back and looked at Lawrence. "What if I pay it?" McDonough asked.

Lawrence's mouth slid open, an observer said. The judge turned toward Cox, his longtime General District Court bailiff. "Let's go, Erin," he said, and without another word exited the courtroom through the door behind him. According to Cox, the judge went to his briefcase and pulled out the cash.

Back on the bench moments later, he quickly brought the case to an end, handing Lawrence the money and scrawling on the case folder, in illegible writing that would make a doctor proud, "Dismissed as paid."

"I'd been praying that someone would help us with the rent, but I wasn't prepared for this," Morris said a few hours later at the couple's
cluttered apartment just off Route 1 near Fort Belvoir.

Theirs was a sweet fairy tale of rekindled romance. They met at a Maryland school for the deaf in the 1960s, then became reacquainted five years ago at a school reunion. They share their two-bedroom apartment with a white cat named Snowy.

But real life is hard. Disability benefits for Morris went from $500 a month before her marriage to $91 a month and then were cut altogether, she said. Swann's wages as a day laborer don't come close to covering the mounting bills.

"They said they were going to evict us if we couldn't pay," said Morris, 48. "Then the judge took money from his own pocket. . . . I couldn't say a word. . . . It just blew me away."

McDonough, 55, declined to be interviewed. But Cox said the judge's actions were not a surprise. "He's a very kind man who listens to everybody," she said. "You feel you got your day in court when you're in there with him."

Not everyone in the courtroom shared her ecstasy. Lawrence, the attorney for Mount Vernon Apartments, called McDonough's action "highly unusual" and said the judge, whom he characterized as "very pro-tenant," unfairly cast his client as a coldhearted landlord unwilling to give a deaf couple a break.

"She was embarrassed by this," Lawrence said of the apartment manager, whom he declined to identify. "She felt it was somewhat unfair. . . . The couple were behind [in their rent] before, and slow catching up."

Lawrence said it wasn't the first time the couple had been taken to court over late rent payments. Still, he said, "we certainly didn't
intend to be the heavies here and put these people out on the street. We were going to be working with them."

Although the landlord rejected McDonough's invitation for a settlement, Lawrence said the judge could have called both sides to the bench and quietly settled the case. Failing that, the judge could have set a trial date, essentially giving the couple a few weeks to make good on what they owed.

Even as McDonough reached over the bench to hand Lawrence the money, the attorney asked to drop the suit. McDonough would have none of it, declaring the matter done, dismissed, dead.

Cox said she'll never forget the expression on Morris's face. "She had that stunned look, like this was the last thing she'd ever expect to see in a courtroom. . . . You don't think of judges this way."

McDonough himself remained out of sight most of the afternoon. A fellow judge called him a "very modest, generous man" embarrassed over the attention.

Staff writers Patricia Davis and Michael D. Shear contributed to this report.

Outstanding Cases from 2001. The following, according to my notes, are the remaining cases to be decided from oral arguments in 2001:
--Alabama v. Shelton: "In light of the 'actual imprisonment' standard, does the imposition of a suspended or conditional sentence in a misdemeanor case invoke a defendant's Sixth Amendment right to counsel?"
--LA v. Alameda Books - can a city prohibit the operation of more than one adult entertainment business at a single location, including an adult bookstore and an adult arcade by just relying on findings from other court cases from other jurisdictions?
--A number of telecommunications cases, not discussed here.

Applying a FIFO rule, look for these cases to be decided soon.

ADA v. Seniority. In my first comments on the U.S. Air v. Barnett case, before, I indicated it was a 5-4 decision. Actually, it should be seen as a 2-5-2 voting split.

Breyer, for the court (Rehnquist, Stevens, O'Connor, and Kennedy) holds that if an employer shows that if a requested accommodation conflicts with the rules of a seniority system, then the accommodation is not “reasonable.” However, "The plaintiff remains free to present evidence of special circumstances that make “reasonable” a seniority rule exception in the particular case. And such a showing will defeat the employer’s demand for summary judgment."

Stevens concurs and writes to note defects in the factual record (questions I had -- so I'm grateful he lists that these are not part of the record).

O'Connor also concurs but notes "I would prefer to say that the effect of a seniority system on the reasonableness of a reassignment as an accommodation for purposes of the ADA depends on whether the seniority system is legally enforceable." The first paragraph of her concurrence is interesting because she basically concedes she joins Breyer's opinion, although in disagreement with it, because otherwise "we would not agree on a resolution of the question presented in this case."

Scalia, joined by Thomas, writes, in relevant part:

Since, under the Court’s interpretation of the ADA, all workplace rules are eligible to be used as vehicles of accommodation, the one means of saving seniority systems is a judicial finding that accommodation through the suspension of those workplace rules would be unreasonable. The Court is unwilling, however, to make that finding categorically, with respect to all seniority systems. Instead, it creates (and “creates” is the appropriate word) a rebuttable presumption that exceptions to seniority rules are not “reasonable” under the ADA, but leaves it free for the disabled employee to show that under the “special circumstances” of his case, an exception would be “reasonable.” Ante, at 13. The employee would be entitled to an exception, for example, if he showed that “one more departure” from the seniority rules “will not likely make a difference.” Ante, at 13.

I have no idea what this means. When is it possible for a departure from seniority rules to “not likely make a difference”? Even when a bona fide seniority system has multiple exceptions, employees expect that these are the only exceptions. One more unannounced exception will invariably undermine the values (“fair, uniform treatment,” “job security,” “predictable advancement,” etc.) that the Court cites as its reasons for believing seniority systems so important that they merit a presumption of exemption. See ante, at 12.

Justice Souter, joined by Ginsburg, defers to the language as drafted by Congress. He notes that Congress did not include the same language in the ADA with respect to seniority rules that it did in "Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, each of which has an explicit protection for seniority." He's right about this.

Commercial Speech. O'Connor, in writing for the majority noted "If the First Amendment means anything, it means that regulating speech must be a last – not first – resort. Yet here it seems to have been the first strategy the government thought to try." In my opinion, she's correct. The law differentiates between those pharmacies which advertise (subject to one set of regulations) and those that do not (subject to another).

As I noted below, the voting tends to follow the analysis of Eugene Volokh -- except that here O'Connor writes the opinion. Perhaps she's trying to rehabilitate herself to her former clerk. J/K, of course. I have so much respect for Justice O'Connor that it's hard to joke about her.

Court Rules. In US Airways, Inc. v. Barnett, the Supreme Court today tossed out a 9th Circuit Decision which held that the Americans with Disabilites Act pre-empted company seniority rules. The Court held that the ADA does not require a level of accomodation which would allow a disabled employee to move to a different position within the same company ahead of workers with more seniority who would normally receive preference for that position according to collective bargaining. The Court did indicate that if the the employee could show special circumstances, s/he could receive preference for that postion.

The majority opinion is by Stephen Bryer. Stevens and O'Connor write concurrences. Scalia and Souter write separate dissents.

In the other case of the day, a free speech challege to administrative rules governing the advertisement of "compounded drugs," the Court struck down the rules, 5-4. In that case, Breyer writes the dissent, joined by Rehnquist, Stevens, and Ginsburg. This tends to substantiate Eugene Volokh's assertion that Breyer is the least committed to free speech. (O'Connor writes the opinion, Thomas a brief concurrence -- more a clarification and reservation.)

More later -- on both cases.

Cover Watch. I like Newsweek's stark black and white cover, "What Would Jesus Do?" Time magazine's cover on Autism is intriguing, but I confess that if I were choosing one magazine to take on a plane, it would be Newsweek.