Just as I feared the “BONG HiTS 4 JESUS” case is eroding our first amendment rights in other areas. I’m stunned to see the effect so quickly but I’m not surprised, only horrified, by the ruling in Wisniewski v. Board of Education of the Weedsport Central School District. Follow the link for a very nice description from Decision of the Day but I’ll give a quick summary for the lazy.

Aaron Wisniewski, an eigth grade student, made a crude drawing of a teacher at his school getting shot and used it as his AOL IM icon for three weeks. Eventually another classmate snitched on him and the school suspended Aaron. The police and a school psychologist then talked with Aaron and concluded the drawing had been meant as a joke and he didn’t pose any threat. Despite this conclusion a superintendent’s hearing concluded the drawing should not have been regarded as a joke and proposed a long term suspension for Aaron which was approved. Aaron’s parents then sued claiming that “the school board acted in a retaliatory manner in violation of Aaron’s free speech rights.” (from the deciscion) It is important to note that all of the communication took place outside of school but that the superintendent’s hearing choose to punish Aaron anyway because his speech violated school rules and required time and attention from the school.

Disturbingly the district court apparently made it’s own determination that Aaron’s speech was reasonably understood as a constitutionally unprotected true threat, an obviously absurd conclusion¹. Now the appeals court avoided the issue of whether Aaron’s speech truly rose to this level but it seems to imply that it does not. In either case we can assume, arguendo, that it does not as we consider the central holding of the appeals court:

Even if Aaron’s transmission of an icon depicting and calling for the killing of his teacher could be viewed as an expression of opinion within the meaning of Tinker, we conclude that it crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon would come to the attention of school authorities and that it would “materially and substantially disrupt the work and discipline of the school.”

Just by itself this decision is greatly troubling in several ways:

1. Like Morse the decision seems to ignore the distinction between harm or disruption that results from the form of the expression (acting out during class) and that which results from the content expressed. A notion of free speech that allows the government to punish your speech if it makes people so mad they create a disruption or provokes them to a harmful response isn’t free speech at all. To modify a frequent example from the Volokh Conspiracy if a majority of the population wanted to ban pro-gay speech in schools all they would need to do is protest such speech so vehemently that it constituted a disruption of the school environment.². Importantly the deciscion doesn’t even seem to require that the school prove that the disruption was a based on a reasonable prediction³ of Aaron’s future violence.

2. Imposing this punishment accomplishes nothing particularly relevant to student discipline. Certainly the school has an interest in avoiding the trouble and expense of dealing with situations people (irrationally) think are threatening⁴ but they have the same interest whether Aaron was a student or a member of the general public. If the government’s interest in avoiding this sort of bother is enough to justify detering it in Aaron’s case why isn’t it enough to justify fining a student’s father, or brother, or friend who creates a similar drawing knowing it may get back to the school and cause similar effects.

3. The decision permits punishment of speech that took place outside of school and was never intended to make it back to the school. The court was divided on whether it was necessary that it was “reasonably foreseeable that Aaron’s IM icon would reach the school property” or “the undisputed fact that it did reach the school” is enough. In either case it apparently doesn’t matter how the speech will reach the school. This means that so long as those who find the speech distasteful are sufficiently fastidious about bringing any student statements back onto the school campus the student can be denied any means to publicly express the idea without fear of government retaliation.

However, bad appellate decisions are troubling but nothing new. What is even more worrisome is the way this deciscion shows that, as I feared, the reasoning in Morse v. Fredrick is being extended beyond student advocacy of illegal drug use. The simple timing of this opinion suggests that the appeals court may have been waiting for Morse to be decided to get a sense of which way the supreme court was leaning. Additionally the decision troublingly cites Morse v. Fredrick several times, both as an authority to limit the holding in Tinker and to justify the incoherent distinction between this sort of speech and “conduct that was merely ‘offensive,’ … or merely in conflict with some view of the school’s ‘educational mission.’”

Just as I feared you can’t undermine free speech rights just for the topic or situation you find particularly objectionable and hope that it won’t erode free speech more generally.

In public discourse we are constantly being bombarded with lectures about the safe way to behave. We are reminded that abstinence is the only surefire way to avoid pregnancy/STDs, that recreational drugs could have unknown harmful effects, and that no level of smoking is safe. Unlike most of the other messages we are exposed to these seem to sneak in under our defenses. Even people with liberal sexual attitudes do not usually object to the claim that abstinence is the only surefire way to avoid pregnancy or advise a teen that it’s absolutely impossible to get pregnant in some fashion. In effect these sorts of warnings carry a stealth moral payload that bypasses our standard defenses by exploiting the ambiguity between the literal claim that something is risk free and the conversational practice of rounding sufficiently small probabilities to zero. Unfortunately this effect frequently allows puritanical, luddite or other narrow minded groups to exert inappropriate influence over society, particularly the way we educate our children.

This is best illustrated with an example. Unsurprisingly many teenagers are paranoid about pregnancy and wonder if they could get pregnant as a result of dry humping while wearing underwear. The answers tend to look like this:

Look, it’s like this: sperm can go through anything that has holes in it. Your clothes, though they may look solid, are not. Especially if they get wet with “juices.” The ONE thing sperm can’t go through is a condom. Just USE one. It’s not that hard. You can wear one even if you don’t have intercourse, and are just dry humping.

Even when the event is absurdly unlikely people aren’t willing to tell teens that they can’t get pregnant this way. On the other hand when people ask if they could get HIV by shaking hands or through other casual contact they get answers like this:

Remember that HIV cannot be transmitted through casual contact. A person cannot become infected with HIV from a handshake, a sneeze, a hug, or from sharing cups and dishes, tools, telephones, computer keyboards, bathroom facilities, or drinking fountains. You cannot simply “catch” HIV from air, food, water, insects, or animals.

My girlfriend is working as a bartender and she cut her self by cutting fruit. Then she shaked[sic] hand with some guy has AIDS and he had sweat[sic] hands. [Could she have gotten infected?]

Nope! Even if sweaty hands poz-guy had also picked his nose, peed on his fingers and upchucked a Big Mac all over his hands before the handshake, your girlfriend’s HIV risk remains completely nonexistent. (Tears, sweat, saliva, nasal mucous, urine, vomitus and feces do not transmit HIV, unless there is visible blood.)

But similar sorts of scenarios can be imagined for the transmission of an HIV virus as for a sperm. If we are going to worry over the limited number of sperm in a guy’s precum worming their way through the cotton mesh of a girl’s panties and sneaking all the way up her vagina we should certainly be worrying about unnoticed cuts or rogue HIV viruses that managed to sneak into mucus. Of course what we really should be doing is rounding down the risks in both cases to zero, as we usually do with sufficiently low probabilities. Interestingly if you start asking question about whether you can get HIV from certain kinds of sexual contact all the sudden the answers start to resemble those given about pregnancy suggesting that it is the cultural attitude to the ‘risky’ activity that is biasing the answers.

If this phenomena only occurred when talking about sex it would be troubling but of limited harm. Unfortunately we can see the same effect when talking about the risks of drug use, cigarette smoking, airline safety and posting personal information online. For instance compare the frequent claims that there is no safe level of secondhand smoke to the way we treat the safe level of mercury in fish or other types of non morally suspect exposure to potentially harmful chemicals. Or the way the potential of unknown harms from marijuana are treated differently than that of prescription medication. Making a broad oversimplification there seems to be a bias toward emphasizing the risks when the benefits of the activity are only pleasure or convenience while this bias is absent when it has more puritanically acceptable benefits.

Obviously this practice has the harmful consequences of creating unnecessary worry and helping demonize many perfectly reasonable behaviors as well as distorting the implicit cost/benefit analysis we make about policies like taking large tubes of toothpaste on airlines. Just because some people think teens shouldn’t be experimenting with sex doesn’t mean the rest of us should help keep teens unnecessarily worried about pregnancy or STDs. Even worse this practice impairs our ability to warn about real risks. When we won’t tell teens that dry humping wearing underwear is a surefire way to prevent pregnancy should it really be that surprising when they don’t heed warnings about pulling out being an ineffective method of birth control? Ultimately we would be much better to dispense with this bias and base our decisions on an unbiased estimation of probability and explicit value judgments about the underlying activities but what can we do to prevent this effect?

The best and easiest thing we can do is to be aware of this effect and refuse to fall victim to it ourselves. When someone asks if some activity could get them pregnant or if miniscule amounts of secondhand smoke are dangerous don’t just let yourself be pulled along by the ‘yes it’s possible’ crowd. Instead, explicitly compare the risk to familiar risks people routinely round to zero. Don’t say, “yes, it is possible but very unlikely you could get pregnant that way,” say, “yes it’s possible but you’re more likely to die in a car crash on your way over.” If you’re a bit more ambitious you might even want to point out when blogs and publications fall victim to this subtle, but dangerous bias. It’s probably unrealistic to think that we could ever eliminate such a deep seated bias from the larger culture. However, by making more people aware of the problem, particularly doctors, we can try to minimize the harms it causes.

Over at psychology today they have an interesting article which claims (among other things):

Long before TV—in 15th- and 16th- century Italy, and possibly two millennia ago—women were dying their hair blond. A recent study shows that in Iran, where exposure to Western media and culture is limited, women are actually more concerned with their body image, and want to lose more weight, than their American counterparts. It is difficult to ascribe the preferences and desires of women in 15th-century Italy and 21st-century Iran to socialization by media.

Now I’ve always been skeptical of the claim that somehow women are uniquely affected by mass media but it always seemed plausible that (the illusion of?) social mobility and the exposure to the rich, famous and beautiful that media provides increase our preoccupation with these sorts of status symbols. Of course it’s quite plausible that in 15th century Italy and 21st century Iran beauty is/was the only means of advancement for women making it relatively much more important than it is in a society where advanced degrees are as beneficial to women as their attractiveness. However, I don’t even know if this claim is even true much less why so if anyone has any references or personal experience that would shed light on this claim I would love to hear it.

As you might have guessed I’m a bit suspicious of the claims in this article. Not only is it in psychology today and lacks references but it claims that men prefer blonds. Studies I’ve seen suggest that while being blond may be a net advantage (because their are fewer blonds then men who prefer them) the majority of men actually prefer brunettes.

Another interesting claim made by the article is that:

One explanation is that the human pupil dilates when an individual is exposed to something that she likes. For instance, the pupils of women and infants (but not men) spontaneously dilate when they see babies.

Is this true? Is it just a statistical correlation or does this hold even for women who dislike babies and men who like them?

Anyway the article is interesting and has some provocative suggestions but I certainly wouldn’t go assuming that something is true just because they say so.

So over on language log Bill Poser recently wrote a post criticizing the BONG HiTS 4 JESUS decision. Poser argues that Robert’s and Alito’s opinion presupposes that the banner must mean something incorrectly ruling out the obviously correct interpretation of the banner as pure nonsense. In particular Poser responds to Robert’s opinion:

The dissent mentions Frederick’s “credible and uncontradicted explanation for the message – he just wanted to get on television”… But that is a description of Frederick’s motive for displaying the banner; it is not an interpretation of what the banner says.

This begs the point. No “interpretation of what the banner says” could be offered by Frederick insofar as it has no meaning. By dismissing any explanation for what was written on the banner that does not provide an interpretation, the Court assumes that it must mean something. Nowhere in the opinion is any justification offered for this assumption.

While I’ve already expressed my strong disagreement to the decision in Morse v. Fredrick’s I don’t find Poser’s critique compelling. For starters distinguishing between Fredrick’s motive for displaying the banner and it’s meaning surely doesn’t “beg the question” about the meaningfulness of the banner. Surely Fredrick’s motive for displaying the banner could have been just be to get on TV whether the banner said, “Take Illegal Drugs,” or, “Colorless Green Ideas Sleep Furiously.” I certainly didn’t see anything in Robert’s opinion that convinced me he refused to consider the possibility that the sign was meaningless, only that he concluded it advocated illegal drug usage.

Now I don’t doubt that Fredrick was not seriously advocating illegal drug use but what argument does Poser offer that the phrase, “BONG HiTS 4 JESUS,” isn’t advocacy of illegal drug use?

The kind of meaning that the Court purports to find is propositional. It claims, in effect, that the interpretation of the banner is something like “It is good to smoke marijuana even though it is illegal.” or “Go ahead and smoke marijuana.”. However, the banner does not, on any plausible analysis, contain the kind of syntactic structure that serves to express propositions, namely a sentence, not even a sentence part of which is not overt. Nor is this an example of a construction with an implicit verb, such as “Freedom for Tibet”, which means something like “Freedom for Tibet would be good” or “We support freedom for Tibet”. (The Court does not argue that the banner means “It would be good for Jesus to smoke marijuana.”)

But this is just patently false. Consider this salon.com piece “Rushing for Jesus”, or this “March for Jesus” page. The phrasing, “X for Jesus,” is generally understood to mean something like, “Do X for Jesus,” or “X honors Jesus.” Given the well established conversational norm that one should try to interpret utterances in a way which makes them meaningful this suggests that “BONG HiTS 4 JESUS” should be interpreted as saying, “Take bong hits 4 Jesus,” or “Bong hits honor Jesus.” While these sentiments were clearly not being expressed seriously by Fredrick they could reasonably be regarded as advocating illegal drug use. The clinching evidence that the banner is not mere nonsense similar to “Colorless green ideas sleep furiously” is this sort of response by protesters to the court’s opinion. Obviously I’m not the only one who immediately understood, “BONG HiTS 4 JESUS,” to be advocating taking bong hits in honor of Jesus.

Ultimately it was the fact that the court took Fredrick’s banner to be meaningful and then justified denying his free speech rights based on that meaning that made the decision so bad. The court essentially decided that some opinions (you should do illegal drugs) are so unreasonable as to not deserve 1st amendment protection. In effect the court has put itself into the position of deciding what sorts of ideas are worthy of protection, the very situation that the first amendment was designed to protect us against.

So apparently I had a stupid error in my HTML (probably the result of a bungled plugin customization) which was causing lots of trouble for IE 7 and Opera. I fixed this problem and (through the magic of conditional comments) fixed the navigation menus for IE 7. I don’t have a clue if the navigation menus work in IE 6 or below but you shouldn’t be using IE 6. It’s on window’s update so just select the windows update icon from your start menu and install it.

Even better get firefox. Or opera or even safari. This site now works in IE 7 but it isn’t as pretty. For instance the list elements on the sidebar don’t have the nice little » marker since li:before doesn’t seem to work in IE 7. Before someone jumps on me I know I could use a marker image or some other technique but it just doesn’t seem worth the effort when things look acceptably good in IE 7 and just right in all the other browsers. Also the navigation menus are a bit of a hack in IE so they may look less perfect.

Most criticisms of Supreme Court rulings are based on nothing more than an antipathy for the result and insufficient understanding of the legal precedents. Such a case can certainly be made for the school busing and the campaign finance cases. However, the opinion in Morse v. Fredrick is just the opposite. The outcome can be reasonably defended but the decision is the worst in recent memories.

Briefly the background of the case is this: When the Olympic torch relay passed by Juneau-Douglas High School principal Morse let the students outside during school hours, still under supervision, to watch the procession. At the event Fredrick, along with others, displayed a banner proclaiming “Bong Hits 4 Jesus.” Principal Morse disciplined them for this behavior and Fredrick sued claiming his free speech rights were violated.

Now the result in this case can quite reasonably be defended. If you think that watching the relay was similar to a school field trip the school could reasonably ban students from display unofficial banners. Even if the school would allow general political speech at the relay, e.g., as they would during a nomination for student government, one could reasonably hold that the “Bong Hits 4 Jesus” banner wasn’t serious expression but mere disruptive humor or acting out similar to calling a teacher “a hairy moron” or the sexually suggestive speech in Bethel School District v. Fraser. However, the court (implausibly in my opinion) instead interpreted the banner to be a serious advocacy of illegal drug use and held that it wasn’t protected because it advocated illegal drug use. Indeed the official summary (accurately) describes the opinion as holding:

Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.

In other words the court found a special ‘promoting illegal drug use’ exception somewhere in the first amendment. Importantly the court admits that this situation would not fall into the general first amendment exception for inviting imminent lawless action. It really is just a special exception to the first amendment for advocating drugs use. Alito did author a second opinion, joined by Kennedy which states:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

But it’s not clear if this is comforting or disturbing. For starters the fact that Roberts and Scalia didn’t join this opinion (Thomas would have just done away with free speech rights for students in general) is distressing. Worse as this post¹ by Eugene Volokh nicely lays out it just doesn’t seem coherent to support the holding of the opinion while claiming not to support any restriction on free speech “that can plausibly by interpreted as commenting on any political or social issue.” To give my own spin on what Professor Volokh is saying: unless Alito is saying that mere advocacy of illegal drug use is ipso facto not commenting on a political or social issue it seems that telling people to smoke more marijuana is necessarily a commentary on social issue, whether people should smoke marijuana.

Now no matter what you think about the drug war an exception to the first amendment based on the idea being expressed should be deeply disturbing. Deterring youth drug use might be an important government aim² but so too is/was defeating communism, preserving our democracy and helping the poor. If it is acceptable to ban advocacy of illegal drugs because the idea it expresses is harmful what prevents us from banning advocacy of communism, an unelected presidency or even cuts to welfare? If what counts as commentary on a political or social issue and hence what deserves free speech protection effectively turns on someone’s judgement that it is a reasonably viewpoint (apparently unlike thinking people should do drugs) then we don’t have any free speech protection at all.

Certainly it is better that this ruling was restricted to the case of student speech but the reasoning behind a supreme court decision often has as much impact as the ruling itself. I think I might have been more comfortable with a ruling (like Thomas favored) which denied students free speech entirely than one which legitimated a viewpoint based standard for free speech protection. I could go on for days about what a bad decision this was but I’ll stop here and let Steven’s dissent³ convey my feelings about the matter (emphasis mine):

The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner that Frederick has disavowed. … [T]he Court’s holding in this case strikes at “the heart of the First Amendment” because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson

I can’t believe this gas temperature thing is still an issue but apparently it’s even being investigated by congress. Either congress needs a lesson in economics or the media is misrepresenting their findings since apparently they found that the lack of compensation will cost the American consumer 1.5 billion dollars this summer. In my last post on the subject I argued that the hot gas issue shouldn’t make any difference because the extra profit the gas stations make just gives them extra room to lower the prices. You can look there for that argument here I want to address what appears to be the other side’s compelling argument: the gas industry must be swindling us because they install compensators in Canada and compensate on the wholesale market.

Let’s first deal with the wholesale market. Unlike the consumer market wholesalers set standard prices for a gallon of gas which apply throughout the country (or at least large regions). This means if they did not compensate for the temperature change gas stations in warm climes (and ultimately consumers) would end up shortchanged. The situation is different for gas retail where the price is set by your local gas station. If the gas stations in warm climates are giving less gas to the consumer per gallon that just means gas stations in those areas can price their gas more cheaply. In other words the local nature of the retail market lets them compensate for location based differences while the wholesale market does not. Also one needs to take into account the fact that the wholesale market needs fewer compensators and likely experiences greater variation in temperature (above ground trucks versus underground tanks) than the retail market.

Well then what about Canada? Now it could be that gas stations there follow a different model but for argument’s sake let’s assume they work like they do in the states. What could explain the fuel industry’s desire for temperature compensators in Canada? Well simple irrationality is always an option. The gas industry in Canada might very well have been tricked by the same kind of invalid arguments at work here. Another possible explanation is that the fuel is being sold at a temperature significantly above the average temperature in Canada. Thus by mandating temperature compensation the Canadian fuel industry probably reaped extra profits during the period of time it took consumers and the market to adjust to the decreased value in a gallon. Perhaps we could jigger up a one time transfer from gas stations to individuals in the US by setting the temperature standard to a lower than average temperature but likely gas stations would simply react faster when they need to change their prices to avoid losses rather than to minimize profits.

The ultimate proof that this is a false concern is that no one thinks the gas companies are being screwed over in the cold states like Minnesota or Maine. Should we compensate the gas companies in northern states out of tax dollars? If not why should gas companies compensate motorists in warm states?

So recently the movement to ban cluster bombs has been gaining momentum.  On Radio Netherlands Worldwide they’ve been repeatedly running a piece that narrates some of the ‘horrifying effects’ on civilians and discusses the Hague’s choice to suspend the use of cluster bombs but not ban them.  This seems to be the right choice to me and might even go too far.

War is intrinsically horrible.  People get mutilated and die.  The harm from cluster bombs doesn’t seem inordinately different from those of any other sort of weapon.  Sure it’s worse that they can stick around after  use and create unnecessary injuries but as always I don’t see why civilian deaths are any more terrible than military deaths.

In fact I worry that feel good attempts to ban things like cluster bombs and perhaps even land mines undermines the strength of the ban on weapons of mass destruction.  Just like the federal government made marijuana a gateway drug by banning it so too would international treaties banning normal conventional weapons risk lowering the barrier to the use of other banned weapons.  I fully support programs to reduce the harm from cluster bombs, say by making sure they don’t remain active for long periods of time, but I don’t see the argument for adding them to the list of truly horrific weapons we completely ban like chemical, biological and nuclear weapons.

Perhaps what we need is a list of ‘discouraged’ weapons whose use is frowned upon and treaties mandating technological fixes to minimize the harm.

Unfortunately it is not easily possible to make all the links from my old blog work totally properly. I have redirects set up that will take you to the general area of previous links to individual articles but I just don’t think it’s worth the massive effort to force my new links into the old link style or the annoyance.

Through the wonders of regular expressions and a huge list of mod_alias rewrite directives the old links now redirect to the correct places.

So despite pretty vehement opposition to the Bush administration I’m actually quite glad to see Bush commute Libby’s sentence. It’s not that I don’t think the administration didn’t act repugnantly in the whole Valerie Plame affair but Libby seems to be nothing more than a loyal staffer who got stuck in the hot seat. It’s Bush and Cheney who bear the responsibility for this whole business not Libby and by commuting Libby’s sentence Bush leaves little doubt where the blame lies. I don’t see much deterrence value in convicting him of this sort of crime. The only thing a prison sentence would really teach white house staffers is to say they ‘don’t recall.’ A lesson Gonzales seems to have already learned.

Besides I still have some misgivings about the whole business of obstruction charges. By no means could this investigation be called a witch hunt but where should one draw the line for crimes like lying to an investigator? What if the prosecutor asks you if you were cheating on your wife? Or asks a political figure if they lied in their campaign promises? Sure the questions likely have to be material to a genuine investigation but when is a crime significant enough to prosecute someone for not revealing compromising information? I’m troubled by the possibility that future parties could use investigations of minor crimes to put administrations between a rock and a hard place as even a direct refusal to answer can be an answer. Frankly I just don’t know the answers to these questions.

I guess I’m just not sure Libby needs to go to jail so I’m happy that he doesn’t have to and that Bush is effectively going to take the blame not his unfortunate subordinate. I mean all other things being equal it’s sad to see someone go to jail.  I don’t think that white house staffers should get special treatment but then again I feel that prosecutors have too much power and discretion generally and that we many of our sentences are far too high.