The modern 24 hours news cycle is pretty good at deluging us with bizarre attempts from around the world to enforce the law and encourage social compliance but this one still surprised me. Someone in the UK apparently thought it was a good idea to have local schoolchildren lecture drivers so they have “chance to hear directly what the children think of speeding drivers.” For christ’s sake can’t they at least pretend to have put serious thought into this program instead of going with a feel good solution?

I mean presumably the only reason anyone might (honestly) support such a program is because they thought that deaths and injuries caused by speeding were a serious social harm and lectures would increase overall welfare by being a more effective deterrent. But if you really thought speeding was that big a harm go raise the fines or impose jail time on speeders. In fact it’s far from clear that speeding is even a net harm since the revenue contributes to society while allowing those who gain the most from speeding pay in to society for a small indulgence. It’s downright silly to think that this new program would provide such greater deterrence per unit of suffering to justify trading the revenue from tickets for the expense of having children give lectures. Somehow I doubt they gathered even the smallest smidgen of evidence about this or even thought about it. Nor, I suspect, did they even consider whether the greater attention people pay while speeding (gotta look out for cops) compensates for the increased danger of faster driving.

What really bugs me about this program though is the underlying dishonesty, underhanded social pressure and the dangerous cultural tendency is represents. Just bringing in children to confront a speeder is like pulling out a cute puppy during a political debate and saying, “your plan will kill little munchkins.” Having the children deliver the lecture is downright disgusting. This program doesn’t tell speeders “what the children think” of them. That’s absurd. If they primed the children with stories about race cars and fast driving instead of how bad speeding is they would say something entirely different. These children are being used as mouthpieces to deliver moral lectures that couldn’t stand on their own two feet. You can resent the police man for being an idiot or blowing up speeding into something more than it is but it’s not the children’s fault so you can’t resent them and you surely can’t point out to them that cost-benefit analysis really doesn’t support their position. Frankly, I think it’s despicable to hide behind children so people can’t respond to your moralizing bullshit.

But sure if we have to go this way: won’t someone think of the children? Isn’t anyone worried about underhanded emotional tricks being held up to our children as the right way to confront those who disagree? What about the effect of substituting feel good emotional appeals for real cost-benefit analysis? Shouldn’t we be teaching them the virtues of an objective evenhanded justice system that enforces the law rather than moral prejudices? This case might be harmless and silly but this is the same kind of thinking that causes the unjustified exaggeration of anti-smoking laws, laws against fatty food not to mention attempts to legally persecute the overweight as well as our stupidly moralistic rules about sexual content and intoxicating substances. If out society is going to remain free we need to do more than mechanically enforce certain legal guarantees; we need to cultivate the attitude that the law is an impartial means of punishing people who break the rules not a means of perpetuating your moral preferences on others.

So California assemblyman John Benoit announced legislation today that would set up numerical limits for the amount of illegal drugs (I believe schedule 1 substances excluding marijuana¹) one could have in your blood stream and legally drive similar to the .08 BAC limit for alcohol. Apparently the lack of such specific limits is making it difficult to prosecute inebriated drivers (presumably because they must convince the jury of they reached some subjective level of impairment). This is a good reasonable idea that would likely save lives

But of course a proposal as sane and reasonable as this was too good to be true. Benoit has now said (same article) that he is seriously considering making this a zero tolerance law. Yup, that’s right apparently demonstrating our moral outrage that people are taking illicit substances is more important than saving lives on our highways.

As we all know from drug testing in athletes drugs can be detected in your bloodstream long after the individual in question has sobered up. Thus if you are a drug user the net effect of such a zero tolerance law would be to decrease the relative penalty for driving while inebriated. If you know that even if you wait till the next morning to drive the police could still throw you in jail because of the residual drugs in your bloodstream then why bother waiting? We’ve already (unreasonably in my opinion) expressed our moral disapproval of drugs by making them illegal but it’s criminally stupid to put our moral outrage over people’s lives. Not to mention the perfectly sober people who partied the night before who will end up in jail under such a program.

Of course if groups like Mother’s Against Drunk Driving are really about saving lives and improving highway safety I expect them to come out strongly against bills like this one. I On the other hand if they are about revenge and getting even with that type of person they will probably support this kind of zero-tolerance legislation. I’ll leave it to the reader to decide which is more likely.

So I finally got my application in for the NSF postdoc and got some needed sleep. So instead of working on my math like I should be now I went and downloaded the new Radiohead CD, “Rainbows.” Now I don’t actually like Radiohead that much so I didn’t pay anything at all¹ and that’s a perfect example of the inefficiency of the current copyright system. I’m likely to get some positive utility out of this (satisfying a hoarding instinct if nothing else) and this utility is a pure loss on a normal copyright system. However, it’s pretty annoying to hear all the people on the media and in forums act as if the fact that people are paying Radiohead for their CD shows that this is a plausible alternative model.

Even paying $0 for real honest reasons (worth less to me than transaction cost of using a credit card) even I was inclined to feel a little bit guilty and no doubt this is what causes people who actually like Radiohead to chip in a reasonable amount. But one feels guilt primarily because you feel that Radiohead is somehow stepping out on a limb by trusting users to set their own price. If this was ever to become a common practice that pressure would disappear. More critically is that the very people like me this system benefits will cause it to break.

People have strong intuitions of fairness and if you ever tried to distribute music more generally with this sort of system people would start feeling like suckers when they pay twice what their friend did for the music. Ultimately there will be an inevitable slow creep to the bottom as people check with their friends and see that their only paying $6 so that’s not cheating if I do that or come up with other reasons why it’s okay not to pay a bit less. I mean hasn’t everyone someone justifying their use of P2P by saying they would buy music if only the studies didn’t produce such crap? The same process of self-justification would start to happen with self-priced products as well. Besides, who is going to decide to buy 5 CDs worth of music they only sorta like for their car trip because they only have $15 to spend and they value the CDs they really like more than that?

No, I’m afraid solving the inefficiencies of the copyright system will require a fundamental change to the system of IP for creative content. Some means of truly collective purchase is required and the best system that I can think of at this point is to put works in the public domain after 3 years or so with a taxpayer funded system that compensates content producers based on numbers of tracked downloads from some central online repository. Maybe some clever person can figure out something better but as IP fills a bigger and bigger role in our lives the unacceptable inefficiencies of the current market become less and less bearable so sooner or latter something will change.

Alright I’m getting really fucking tired of the way the left treats Clarence Thomas. The level of vitriol but even as liberals spew hate at him they demand to know why he can’t “let it go” even as op-eds in major media criticizes him for being angry even while re-attacking him over the whole Anita Hill controversy and liberal blogs demand he be impeached for being so angry. Now maybe I’m going out on a limb here but if Justice Thomas’s views make you angry maybe he fells something similar and being personally attacked as a result is a further catalyst.

As far as Hill goes there is nothing unusual to explain. It would be surprising to find a sexual harassment case where both sides weren’t angry about it. Whatever the truth each person always (mis)remembers events from their own point of view. That’s in the past and whether or not he was a cruel or socially clueless guy back then really isn’t relevant to his legal scholarship. However, what really bugs me about the Thomas issue is the constant suggestion that he is somehow a hypocrite for benefiting for affirmative action and then opposing it. The logical fallacy here is clear. No one would believe that opposing nationalized health care meant you shouldn’t use it if it is created so why would you think this about affirmative action. In fact being able to oppose something that has benefited you is an important virtue (not claiming this is at play here) not a flaw. The new attack is to call him a hypocrite for not believing he was getting an affirmative action appointment to the supreme court¹ but is it really that hard to believe that someone convinced themselves they were being rewarded for their merit? It isn’t like most people don’t convince themselves religion is true because they want to believe.

Now I happen to think that Thomas’s views on constitutional interpretation are harmful and would much prefer a justice who believes in a more evolutionary approach to jurisprudence but this doesn’t mean I can’t recognize that Thomas has a respectable intellectually plausible approach that he follows with at least as much consistency as other supreme court justices. Even if you disagree with his view on the harms of affirmative action it is a plausible theory seriously tendered and your obligation is to cite evidence refuting it not personally attack it’s proponents. For the love of god Thomas is just a guy, he may believe some gloriously wrong things but his beliefs are far more coherent and thoughtful than most liberals (or conservatives) I’ve met. He just happens to be wrong.

The furor and emotion surrounding Clarence Thomas is perhaps the best example of the true nature of politics. People aren’t really concerned about ideas and argument they care about group loyalty and emotional signaling. It doesn’t seem to matter to people that Thomas may have a reasonable argument for his position (they don’t even bother to refute it) they are angry because instead of showing gratitude to his ‘team’ even after benefiting from their gifts he switched sides and criticized those programs. No doubt this was a great way to approach things when you were trying to gain advantage in your tribe but it isn’t a good way to approach serious intellectual issues.

I think there is a good case for making the sale of child porn illegal and certainly the creation of child porn (by molesting actual children) should be heavily criminalized¹. However, the argument for criminalizing mere possession of child porn seems less strong. In particular I can think of a bunch of reasons off the top of my head why criminalizing child porn would increase the number of molested children. Let me summarize a few here.

1. There are documented problems with the harshness of child abuse penalties (lifelong sex offender status etc..) discouraging family members from turning in their relatives. No doubt people are going to be an order of magnitude more reluctant to send their uncle or brother to jail for merely possessing child porn (whatever the truth is they will tell themselves he doesn’t hurt anyone). If child porn was decriminalized it might encourage more people to report pedophiles they know to social services who can then provide treatment.
2. Making possession and sharing of child porn illegal radically restricts the reuse of child porn. Suppose there is X amount of child porn that has ever been made and X is more than enough to satisfy most people. If they could all access that X amount there wouldn’t be as much motivation to molest kids to make child porn. On the other hand by making it illegal we likely take a great deal of that child porn off of the internet and balkanize the rest of it encouraging more people to pay for child porn and thereby encourage others to make it.
3. Prohibiting possession of something always creates a criminal element who tries to deliver that thing. Organized crime creating child porn may harm children more than the alternative. It’s hard to rate relative badness of this sort of thing but being repeatedly molested by a criminal enterprise may be much worse than being occasionally molested by your uncle.
4. Whenever you criminalize an activity that a fair number of the perpetrators see as victimless (“I just downloaded the pics I didn’t hurt anyone”) you reduce the barrier to further crime. This is the same way that government prohibition of weed has made it a gateway drug. In the legal scheme where mere possession of child porn is a felony many people may not see it as a big leap to go from mere possession to purchasing child porn from sketchy eastern European websites. On the other hand if you make it a felony to purchase child porn but not merely to possess it you might very well do more to suppress the profit motive in abusing children.
5. I suspect that some people who like to look at child porn (or at least who would were it not a felony) are actually decent people who do believe that children shouldn’t be molested, they just happen to be turned on by it. For instance some girls both feel very strongly about protecting college girls from being taken advantage of yet also find porn that depicts it really hot. I have no reason to believe that there aren’t some people who are turned on by child porn who feel similarly. By decriminalizing mere possession you can enlist the aid of these people in tracking down the abusers who make the material.
6. Making possession of child porn a felony encourages people to be very careful about who they share it with reducing the distribution of any single image. This makes it much less likely that the child pornographer will be caught since it is less likely to make it to the police in a timely fashion.
7. Sending otherwise productive members of society to prison and especially inflicting punitive sex predator laws on them is not only a huge societal cost but makes them more likely to offend. The guy who is turned on by molesting kids but has a nice career, friends and family may very well keep his desires under control. Send him to prison for a few years because you find some child porn on his hard drive and he may very well become bitter and having little left to lose descend to actually molesting children.
8. Maybe people who would otherwise get treatment are scared of asking for help lest their child porn collections be suspected and they get sent to jail. Since therapy seems to be helpful in preventing more abuse this could be another potential avenue of harm.
9. Perhaps the release provided to pedophiles by looking at child porn makes them less likely to go out and molest. While I think this is the least likely of all these points it needs serious study not another mass media sensationalization about a correlation between the two (duh people who want to look at child porn more likely to molest kids).

Now maybe these factors all end up getting balanced out by other ones but I seriously doubt that these questions have been seriously studied. They certainly weren’t why we passed the laws against child porn. Frankly I don’t really know whether child porn laws help or hurt and given that I’m unsure I think the default state should be not to regulate speech/content. However, one can reasonably disagree with this point.

What one can’t reasonably disagree with is that we have a morally responsibility to seriously examine whether laws criminalizing child porn reduce or increase the number of children who are molested. If you are in a position to seriously influence the law (politician etc..) and you allow more children to be molested because you want to make something as disgusting as child porn illegal or just because you are too lazy to consider the arguments then your not much better (maybe worse) than a child molester yourself. At least child molesters have the small excuse of extreme psychological pressure but if you let it happen out of mere laziness you have no such excuse.

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1. By child porn I mean photographic evidence of what would be otherwise termed molestation of a child. Teens taking pics of each other or people taking candid shots of their kids getting out of their bath even if later used for sexual purpose are not what I am talking about here. Maybe other laws should cover these situations but that isn’t the subject here, nor will I address here the question of where to draw various age lines. ↩

Senator Craig (R-Idaho) was recently arrested in the men’s restroom at Minneapolis-St. Paul International Airport on charges of “Interference with Privacy” and “Disorderly Conduct”. Now I recommend everyone read the accusations since it’s pretty funny to hear about a republican senator soliciting gay sex in an airport restroom but I’m baffled and slightly disturbed by the charges. If the officer in the case is to be believed Senator Craig seems to have acted in a way that strongly suggests he was trying to solicit anonymous gay sex in the restroom but how does this qualify as either interference with privacy or disorderly conduct?

The relevant parts of the interference with privacy statute forbid the following behavior:

(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping room in a hotel, as defined in section 327.70 subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and (2) does so with intent to intrude upon or interfere with the privacy of the occupant

Yes, some courts have (reasonably) ruled that peeking into restroom stalls to catch a glimpse of someone’s privates qualifies as an offense under this provision. However, Senator Craig obviously did not peek into the stall “with the intent to intrude or interfere with the privacy of the occupant.” Just the opposite, Craig presumably peeked into that stall in an attempt to avoid embarrassing the occupant (and himself) with an unwanted solicitation for gay sex and was likely hoping to see someone fully clothed (and therefore occupying the stall for other reasons)¹.

The relevant parts of the disorderly conduct statute read as follows:

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor: … (3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

In my opinion the breadth of this statute and the qualification “reasonably” make it unconstitutionally vague. Furthermore the fact that the statute criminalizes merely “offensive” conduct that is likely to “reasonably to arouse alarm, anger, or resentment” means it runs afoul of the first amendment as well. After all chanting “abortion is murder” outside of a family planning facility is offensive conduct that reasonably arouses anger and resentment. Still, even if we ignore these problems and try to offer a ‘reasonable’ interpretation of this law that doesn’t include behavior that obviously wasn’t intended to be criminalized I don’t think it supports a charge against Senator Craig.

Suppose I pick up my girlfriend at the airport and while waiting for our bags I verbalize my intention to anally violate her as soon as we get home. Now this might lack class and be somewhat rude but surely it isn’t the sort of conduct that the legislature meant to include in their definition of disorderly conduct. Even if my girlfriend’s friend is present and I let her know she is welcome to join in it still doesn’t qualify as disorderly conduct, even if she is offended by the offer. In short even unwanted solicitations to engage in sexual activity aren’t enough to qualify as disorderly conduct². The fact that Senator Craig was suggesting an illegal act (indecent exposure/public sex) isn’t relevant since only the conduct Craig actually engaged in is relevant to this statute. The only thing that distinguishes Senator Craig’s solicitation from those we are certain don’t qualify as illegal activity is the greater distaste many people have for the sort of sex he suggested. So not only would this charge likely be dismissed by the court (at least on appeal) it should be obvious even to the police that it’s bogus.

Now some sites are already gloating about a reactionary senator getting caught soliciting anonymous gay sex, and I can’t deny feeling a certain satisfaction myself, but I’m horrified at the behavior of the police in bringing these sorts of charges. Unfortunately, do to the embarrassing nature of the accusations I suspect most of those charged plead guilty like Senator Craig and try and make the charges disappear. Now I agree we might want to discourage anonymous sex in airport restrooms (though I’m suspect we could put our police officers to better uses) but that’s not an excuse to charge people with what amounts to a crime of ‘being disgusting.’

Fair treatment and freedom from puritanical moral impulses requires that we don’t enforce, or better yet make, laws which penalize some vague notion of acting inappropriately. If you want to charge people for soliciting (but not having) anonymous sex in public restrooms you need to pass a law against it. Most certainly we shouldn’t have our police going around and charging people for things the police should damn well know aren’t really illegal and counting on embarrassment to make sure they don’t protest. That is blackmail and harassment not good police work.

UPDATE: Apparently I’m not the only one who feels like this.

I take it as a given that the constitution ought to be interpreted in much the same way as we interpret any kind of instructions. If you are house sitting for your professor saying that you thought it was a silly rule isn’t a valid excuse for ignoring his command, “Don’t let anyone else into the house.” On the other hand if his dog gets violently ill it is perfectly reasonable to allow the vet into the house since the situation is radically different from those the professor had in mind and he obviously doesn’t expect or want you to follow it in this case. However, this does not give you leave to supplant the professor’s judgment even if you believe it will better serve the aims he had in mind. Even if you know his intent in forbidding guests is to avoid scaring his dog it still wouldn’t be acceptable to invite over your friend who is really good with animals. After all if he had wanted you to use your judgment about who to invite he would have told you so.

So what does this framework say about the second amendment? In short: everyone is wrong. The collective rights theorists are blatantly substituting their judgment for those of the framers¹ while the individual rights theorists clearly misconstrue the framers intent. Let’s start by explaining why the collective right theory is totally absurd since this is likely to be the most controversial.

As wikipedia notes the collective rights camp can be divided into two groups, those that merely hold that the right to bear arms is simply one “the people” have collectively and those who take the view that it is a right reserved only to “members of a well-regulated militia.” The first view is absurd on it’s face. What would it mean for the people as a body to lack the right to keep and bear arms? That we weren’t allowed to form an army? Who would take this right away? Is it just saying that we can always repreal our gun laws if we so desired? Presumably so long as the constitution is in force we can always vote to repeal any laws banning gun possession.

But perhaps I’m being unfair. Maybe the second amendment should be understood as guaranteeing states’ rights in a very narrow specific way. Namely the national government can regulate individual gun ownership as it likes but can’t prevent from maintaining an armed force. But that would be extremely odd. The Bill of Rights is almost exclusively concerned with the rights of individuals (with the tenth amendment split half and half) so it doesn’t seem plausible that the authors of this amendment thought it would be clearly understood as guaranteeing a right to the states. Moreover, even the sources that support a collective interpretation of the people understand that term to be referring to a national community. So while in some sense the second amendment obviously protects states rights it is implausible to think that it does so by granting states the right to keep an official armed force without ever mentioning the word state.

The militia interpretation makes little more sense than a the purely collective interpretation. After all if you understand the amendment to guarantee people the right to bear arms when the government lets them join an official militia then it guarantees them no right at all. Of course the government can choose to let people bear arms and join a militia if it so desires. Slightly more plausible is the theory that the second amendment guarantees people the right to be defended by an armed militia so that in the absence of a sufficient official militia people would have the right to arm themselves for the collective defense. This, however, simply isn’t historically plausible.

It is quite well documented that the second amendment was viewed as a protection against government tyranny when it was adopted. In particular the militia was to serve as an armed defense against government soldiers, e.g., a situation like the colonies had faced in the revolutionary war. Yet surely if citizens only reserve the right to arm themselves in the absence of an official army this provision would provide no protection against such an army. In fact any interpretation of the second amendment that allows the government to narrow gun ownership to a small proportion of the population or otherwise keep most of the personal weapons under it’s control would clearly be incompatible with this purpose. If only a few national guard troops, more a part of the army than a state force, get to carry guns the people could not possibly rise up against the army. You might disagree with the founding father’s judgment that an armed populance is a good idea or even a good protection against tyranny but as I outlined at the start this isn’t justification for ignoring the rule.

On the other hand the second amendment clearly doesn’t say that people have the right to carry arms for personal protection or sport shooting or whatever. One might try to argue that these are part of the ninth amendment’s unenumerated rights but they simply aren’t part of what the second amendment says. Thus while the second amendment might guarantee that most private citizens can keep and bare arms it doesn’t seem inconsistent for these arms to be regulated. So long as those laws didn’t substantially interfere with the ability of the people to mount an ad hoc common defense it seems that anything could go.

For instance a state could outlaw all handguns, and perhaps even hunting rifles so long as it allowed its citizens to keep assault rifles in their basements. One might require that all transport of weapons occur under lock and key or even have the state pass out the only legal weapons to citizens who participate in weekly militia drills. Heck, you could probably even limit participation to married homeowners over 25 without getting into trouble with the second amendment.

In short it seems pretty obvious to me that both sides in this debate are twisting the second amendment to suit their preferences. The second amendment is about arming the people for the purpose of the common defense against both tyranny and foreign aggressors. Pretty clearly this is an outdated notion and it should be repealed but it shouldn’t be left on the books and misinterpreted.

So the big financial story of the day is the revelation that John Mackey, the CEO of Whole Foods posted anonymously on the Yahoo finance site. Unsurprisingly he tended to say good things about his company (and his haircut) while dissing his competition (Wild Oats which Whole Foods is now trying to purchase). In short he behaved like every other fanboi on the internet, he just liked his own company rather than the one that made his computer CPU. But because he is the company CEO everyone is getting really worked up about this. Frankly I don’t see what the big deal is.

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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.

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.