The Volokh Conspiracy

I was a supporter of Ronald Reagan's, and I think it's fitting to mark the occasion of his death — but it seems to me that spending about half a billion dollars of taxpayer money for a paid holiday for federal employees (see here and here) isn't quite the right way to do it.

Now: "Reagan's admirers contend that his costly re-armament program caused the Soviet collapse. Maybe so; but surely the thing that did in the Russians was that time had proved communism an economic, political and moral disaster."

In 1982: "I found more goods in the shops, more food in the markets, more cars on the street — more of almost everything . . . . [T]hose in the United States who think the Soviet Union is on the verge of economic and social collapse, ready with one small push to go over the brink are wishful thinkers who are only kidding themselves."

(Thanks to Dinesh D'Souza for the quotes, to this site for more on the 1982 quote, and to Dan Gifford for passing along the pointer. I have not checked the context of the quotes; if they are materially out of context, please let me know.)

Now these statements are not entirely inconsistent: Perhaps time proved it after 1982, or time proved it before 1982 but the 1982 Schlesinger hadn't read the proof yet. Or perhaps Schlesinger might point out that he was simply saying that it wasn't ready with one small push to go over the brink (it would take a medium-sized push), and it wasn't quite on the verge of collapse (it was a bit away from the verge); that, though, hardly seems to be the tone of the quote.

But even if the statements may be consistent, the 1982 one — especially read together with the 2004 one — does undermine to some extent Schlesinger's credibility, no?

My friend and colleague Steve Bainbridge has a TechCentralStation essay that praises government protection of "negative rights" ("the right to be let alone") and generally condemns government protection of "positive rights" ("a right to an education, a job, etc."). The piece doesn't define the terms explicitly further, but as I understand it, the terms usually refer to the right to be let alone by the government (negative rights) and the entitlement to benefits provided by the government (positive rights).

Bainbridge then goes on to praise "private property and freedom of contract," which I agree are very important. But he then goes on to say:

As the analysis thus far suggests, private property and freedom of contract are at the center of the debate over positive and negative rights. You cannot achieve positive rights of the sort [William] Saletan [of Slate] likes without infringing on someone's negative rights to private property and/or freedom of contract.

I think, though, that this simple negative/positive rights distinction doesn't really do the work that most conservatives or even moderate libertarians would want it to do — because private property and freedom of contract (as generally understood) themselves involve positive rights.

When we say that "protection of private property and freedom of contract" should be "legitimate social goals," we're saying that the government should take steps to protect our property (for instance, by arresting trespassers) and enforce our contracts (for instance, by seizing the property of people who breached contracts and were held liable for damages). We're also saying that the government generally shouldn't itself take our property — there is indeed a negative rights component to property — but we're also saying that each of us is entitled to demand a certain benefit (property protection and contract enforcement) from the government.

What's more, this benefit is generally seen as the entitlement of all people, even those too poor to pay for it. Some (though probably not most) conservatives and moderate libertarians might insist that rich plaintiffs personally pay their full share of litigation and enforced (including the prorated salaries of police officers and judges, capital expenses, and other costs). But few would demand such payments as a condition of poor people's filing suit or calling the police: A poor person should be able to get the police to arrest someone who has taken his property, even without paying for the police officers' time and risk. (Anarchists may disagree with this, but most mainstream conservatives like Steve, or moderate libertarians like me, would, I think, take the view I describe.)

And this government benefit is itself given at the cost of the other party's negative rights. My right to my private property in my land and my fruit trees means that I can demand that the government keep people from walking on the land or picking my fruit. This is a restraint on those people's negative liberty to go where they please and do what they please with their bodies. It's a perfectly legitimate restraint — but it is a restraint, in that it does enforce my (morally proper) positive rights by limiting their (morally untenable) negative liberty.

This is of course most obvious with intellectual property; my patent, for instance, blocks you from doing what you please. But it's equally true of tangible property, real and personal — we just don't notice it as much because we're so used to it. All property is a restriction on someone's negative liberty.

More broadly, I think even most conservatives would conclude that people have a positive right to police protection more broadly — even poor people should get it, even if they're too poor to pay for it via taxes. Some may say the same about fire protection, though some libertarians would part ways on that. But it's only the anarchists who just oppose all "positive liberty" claims, I think. In the view of others, there are certain benefits, such as police or fire protection, that a good government ought to provide to all people, even at the expense of taxpayers (whether the "ought" stems from some moral rights to government benefits, or from pragmatic concerns).

This having been said, I agree that we should be skeptical of claims of positive liberty beyond a certain narrow zone. I am, after all, something of a libertarian, though not an anarchist.

But I don't think that the distinction is as simple as that positive rights are bad and negative rights are good (something that isn't explicitly stated in the column, but that I think the column strongly suggests). Rather, it seems to me that the question is which positive rights should be protected, and why.

I realize that by conceding this, people like me make the welfare-state liberals' case easier. And this is one reason why some people do become radical anarchists, who think that there should be no government at all, even to protect property rights or freedom of contract.

But I don't think the radical anarchist view is a sound position (for reasons too complex to go into on the blog). I also don't think that even requiring all people, including poor people, to pay for all police, judicial, and national defense services they use is a sound position. Maybe I'm wrong to hold this view — but people who hold this view must, I think, admit that the question isn't whether positive rights (in the sense of entitlements to government benefits) are good, but which ones are good.

UPDATE: More on this from Stephen Bainbridge and Clayton Cramer. No time to respond in detail now to Steve, except to repeat that while the government as protector of private property may be said to be functioning as simply "a facilitator of private ordering," it is nonetheless (1) restricting others' negative liberty and (2) providing a valuable service to which we think everyone is entitled. That has a lot in common with other positive rights, as I first suggested, though I agree that it is in important ways different from some other such rights.

Steve Kurtz points to Tom Franck's indictment of the game:

In even a casual introduction to the game of quidditch, its flaws are so obvious and so great that it strips JK Rowling naked and reveals just how divorced she is from our world of muggle sports. . . .

The general idea of a broom-riding basketball/hockey/soccer game is not unsound. The problem is introduced with the position of seeker and the hunt for the golden snitch. The objectives of having chasers get the quaffles into the goals and the seeker catching the golden snitch are completely unrelated to one another. It's as if two separate games have been clumsily welded together. . . .

A quidditch game only ends once a seeker catches the golden snitch. It also gives his or her team an additional 150 points. (Quaffle goals are worth 10 points each)

If you were an avid quidditch fan, your most common feeling would be one of non-satisfaction. Essays by sports columnists attacking the rules would be commonplace. The better team would often lose and the winning team would often have hollow-feeling victories. There would be numerous tales of the seeker who lost the game for his team when he foolishly caught the golden snitch, not realizing his team was down by more than 150 points at that second . . . .

The NBA finals are upon us. Bring a friend over, turn on the TV and each pick a team. Then pull out a chess board and play while the game is going on. If you win the chess game, give yourself 150 points and add it to the score of whichever NBA team you picked. If that total score is greater than the number of points of your opponent's NBA team, you win! The marriage of the two contests into one makes just as little sense as quidditch . . . .

Objections, counterarguments, curses, etc. should all be sent to Franck, not to me.

Clayton Cramer faults the dissenting judge in the Ninth Circuit decision that I point to below (Marsha Berzon) for her interpretation of Lawrence v. Texas:

For all that supporters of Lawrence talk about love, commitment, and relationship, the fact of the matter is that by scrapping all notions of sexual morality between adults, Lawrence is opening the door to scrapping laws intended to protect an adult with the mental capabilities of a chid from exploitation by a guy who barely knew this woman. . . .

I sympathize in some measure with Cramer's point, and I think there's a good argument here that the sexual autonomy rights of the mentally retarded should be determined by legislatures, and not as a constitutional matter.

But at the same time, it seems to me that Cramer's argument misses an important point: Sure, the mentally retarded are vulnerable to sexual exploitation. But if statutory rape laws were fully enforced, then the mentally retarded would be vulnerable to a lifetime with no sexual relationships, even loving, nonexploitive relationships. And even if they aren't fully enforced, then they are vulnerable to a lifetime of sexual relationships only with people who are willing to face time in prison to have such a relationship with them.

Even if one believes that the law should enforce sexual morality, what does sexual morality tell us about this situation? That people who are mentally retarded ought never be allowed to have legally tolerated sex with anyone? That they may only have sex if they're married -- even though such a "marriage" might be a sham, because they cannot comprehend the moral or legal obligations that go with such a marriage, and because they cannot meaningfully consent to the marriage any more than they can meaningfully consent to nonmarital sex? (Should state law even allow marriages among people who are mentally retarded enough that they can't consent to sex, and can't enter into many other much less important contracts?)

Again, I'm far from sure what the right answer is here. And I agree that talk of autonomy and freedom of choice isn't fully apt (and perhaps isn't apt at all) when we're dealing with people who lack the mental capacity to fully comprehend the nature and consequences of their choice. But talk of legally enforced sexual morality doesn't seem to be entirely helpful here, either; and while talk of avoiding exploitation is important, I'm not sure that it provides a complete answer, for the reasons I give above.

One more thought, triggered by a reader who mentioned an incident where the sex seemed clearly exploitative. Imagine that a mentally competent 40-year-old has sex with a mentally retarded 19-year-old. Exploitive or not? After you answer this, please click below for the follow-up questions:

A just-released Ninth Circuit opinion has a fascinating debate on this difficult issue. See especially pp. 7264 and 7278-84, which should be quite accessible to laypeople.

I've long been interested in this issue (as a purely academic matter, I assure you). Sex with the mentally retarded is generally treated as statutory rape — just as children below some age are seen as legally incapable of giving meaningful consent to sex (even when they are in fact enthusiastic about engaging in the act), so are the mentally retarded. And that does make a good deal of sense.

But at the same time, if you take this seriously, the mentally retarded would be legally forbidden to have any sex ever in their lives. That's quite a burden, it seems to me, and a much greater one than for children, because it's permanent rather than just temporary.

In practice, I suspect that many mentally retarded people do have sex — some exploitative and likely physically or emotionally harmful to them, and some quite fulfilling and likely beneficial to them — because these laws are quite underenforced. Still, the existence of the laws means that these people's sex lives are entirely on the sufferance of government officials. If the law were completely enforced, the mentally retarded would have no sex at all; and anyone who is engaged even in a mutually good sexual relationship with them is at the mercy of the prosecutor.

What solution can there be for this? And even if the answer is to stick with prosecutorial discretion, how should prosecutors exercise this discretion? Should they basically let parents decide who should be authorized to have sex with the mentally retarded person? Should they do so, but subject to the prosecutor's veto (or some judge's veto) when the parent's actions seem exploitative (for instance, if the parent is essentially pimping the child, for instance letting their drug dealer have sex with the child in exchange for drugs)?

Should there be some judicial override of the parent's veto, as there is for children's abortion rights? Should prosecutors or judges try to distinguish "exploitative" relationships from "beneficial" ones? If so, should they try to avoid their own value judgments (e.g., casual sex bad, committed relationship good, group sex bad, one-on-one sex good, homosexual sex bad, heterosexual sex good)? Or is it permissible for government officials to impose such judgments where control of the mentally retarded is involved, even if it would be impermissible (or at least unwise) to restrict the actions of mentally competent adults on these grounds?

I don't know the answers here (nor am I looking that actively for the answers, since I don't write much on this subject). But I am pretty sure that these are interesting and difficult questions.

UPDATE: Reader Seth Tillman asks whether there may be an exception to these statutory rape laws when the person is married. Laws that restrict sex with underage people often do have an exception for married couples, though of course the marriage laws themselves have age thresholds (and sometimes, I believe, one threshold for marriage with the parent's consent and one for marriage without the parent's consent). Perhaps some states' restrictions on sex with the mentally retarded also have an exception for married couples; I hope to check into this in a few days, when I have a bit more time.

But even if this so, then this just highlights some of the other issues I mentioned. Requiring people to marry before they can have sex is a pretty serious burden on their autonomy -- a burden that we have in practice rejected for competent adults. Should the rule be different for the mentally retarded? Also, presumably people who lack the mental capacity to meaningfully agree to sex would often also lack the mental capacity to meaningfully agree to marriage -- to lifelong sexual fidelity (at least in the absence of divorce, but how does one decide whether a mentally retarded person really consents to seeking a divorce?), to lifelong emotional commitment, and so on. Does it make sense to require them to marry as a condition of having legally permitted, no-fear-of-the-prosecutor-locking-someone-up sex?

And of course there is one sort of sex that marriage won't make legal (except in Massachusetts): Sex between people of the same gender. If you oppose recognizing same-sex marriage but also oppose locking people up for same-sex sexual activity -- and I suspect that many tens of millions of Americans take that view -- then what do you do about mentally retarded adults who have sexual interest in people of the same sex? Do you just say "Sorry, it's not legal for people to have the sexual relationships with you that you want, though it's legal for heterosexual mentally retarded adults (since they can get married)?"

Jeff Jacoby has a good column on the subject in the Boston Globe:

. . . Consider how the illegal procedure was identified in news accounts of last week's [abortion law] ruling: . . .

National Public Radio: "Partial-birth abortion is a term used by opponents for what doctors call intact dilation and extraction."

Washington Post: "The ban on the procedure that critics call 'partial birth abortion' was already on hold temporarily as three courts heard legal challenges to it."

NBC: "A federal judge declared the so-called 'partial birth abortion' act unconstitutional on Tuesday." . . .

Why the circumlocutions? In journalism, short and clear is better than long and wordy; reporters generally don't have the space or time to reach for periphrastic phrasings when something more direct is available. Yet when it comes to partial-birth abortion, many of them suddenly feel compelled to distance themselves from a familiar and straightforward term. Why?

The answer most journalists would give, I imagine, is that they are just being accurate. "Partial-birth abortion" isn't a proper medical term, they would argue — the phrase was originally coined by prolife activists and it's appropriate to point out the political baggage it comes with.

Which is fair enough — but only if the same standard applies across the board. "Choice" and "the right to choose," the most common euphemisms for abortion, aren't medical terms either. They come straight out of the abortion-rights lexicon, which adopted them for their favorable connotation. . . .

For that matter, when was the last time a news report spotlighted the political provenance of any label *other* than "partial-birth abortion?" After all, it isn't only in the abortion wars that terminology can have partisan overtones. If it's a matter of good journalism to call attention to the fact that a phrase tends to favor those on one side of a controversial issue, shouldn't reporters be more fastidious about using terms like "campaign finance reform" or "the gun lobby?" Shouldn't they point out the implicit bias in referring to only some violent offenses as "hate crimes?"

When legislation to ban guns bearing certain cosmetic features is proposed, journalists should note that the measure would restrict "what opponents call 'assault weapons,' a term not used by weapons experts, who say it has no clear meaning." When reporting on the same-sex marriage controversy, they should observe that "what critics call 'homophobia' — a term promoted by gay and lesbian activists — is not recognized by medical authorities." . . .

There are often no convenient politically neutral labels for some things; advocates on all sides often try to convey their political message by embedding it in seemingly objective terminology; it can indeed be helpful for journalists to alert readers to this; and at the same time journalists can't do this for all terms, so it will have to select which terms it will flag this way.

But, as Jacoby points out, the journalists' selection decisions do tell you quite a bit about the journalists' political prejudices — and about how these prejudices can affect supposedly objective reporting.

Cathy Young has a very good column on this in the Boston Globe. "When secularists go after a tiny cross on a county seal or Christmas decorations at a firehouse, they lend substance to the 'religious persecution' complex -- and play right into the extremists' hands." Indeed.

There's much to condemn in George Soros's recent statements (and actions), but Mark Kleiman is right to fault Tony Blankley for making Soros's Jewishness part of the condemnation. On the June 3 Hannity & Colmes, Blankley had the following odd statements:

. . . [L]et's get back to Soros.

This a man who blamed the Jews for anti-Semitism, getting Abe Fluxman (ph) — excuse me — head of the Anti-Defamation League to call it an obscene statement.

This is a man who, when he was plundering the world's currencies in England in '92, he caused a Southeastern Asian financial crises in '97.

[Richard Aborn]: Please, come on. Wait a second. You're so far beyond the facts. Hold on.

[Blankley]: He said that he has no moral responsibility for the consequences of his financial actions. He is a self-admitted atheist. He was a Jew who figured out a way to survive the holocaust.

What does his being a Jew who managed to survive the Holocaust have to do with things?

I think it's quite a stretch from this to concluding, as Mark Kleiman does, that this "resolv[es] doubts" "about how much of the [anti-Soros] campaign was based on simple anti-Semitism." I'm not sure this even tells us how much of Blankley's anti-Soros views are based on simple anti-Semitism, much less the views of the rest of the campaign.

There's a simple explanation for why Republicans, especially pro-Administration republicans, dislike Soros and are working to undermine them — he seems to dislike them, and is working to defeat them, using some rather intemperate rhetoric. I have no reason to think that their actions are based, in any significant part, on anti-Semitism.

At the same time, when a person just trots out someone's Jewishness (or whiteness or blackness) in a context where it seems to make very little sense (the first Blankley reference to his Jewishness does make sense, but the second does not), it does at least suggest that the person is more focused than he should be on who's a Jew and less on the merits on the debate — and it certainly hints at broader hostility to Jews.

Finally, the line about atheists is pretty reprehensible, too. Just as many Christians rightly condemn anti-Christian insults or anti-religious-Jewish insults, so they should condemn anti-atheist insults.

It is true that there are theoretical arguments about why one shouldn't trust atheists (they don't answer to any higher authority) — just as there are theoretical arguments about why one shouldn't trust devout Christians (they believe things without adequate factual evidence) or devout Catholics (they are governed by the actions of a foreign potentate) or devout Jews (see Christians above if you're irreligious, plus if you're a Christian, in theory you should end up agreeing more with Christians than with Jews). But in practice, such generalizations end up being much less reliable than one might think; and they end up being highly destructive of civil debate, and ultimately of society in general, especially when society consists of many religions and denominations.

And that's just as true of condemnations of people for their atheism as it is of condemnations of people for their Christianity or religious Judaism or Catholicism or Hinduism or whatever else. (This may not extend to all religious beliefs — if a religion in fact requires adherence to some genuinely evil beliefs, then one can rightly infer that adherents of that religion hold those beliefs and are likely to act on them. Satanism, as I've heard it described, may be one such example; likewise, if someone belongs to a militant sect that in practice is likely to push its members to engage in holy war against others. But it certainly applies to most mainstream sets of religious belief, including the absence of religious belief, which simply requires as its foundation an understandable skepticism towards the existence of the unproven.)

UPDATE: My colleague Steve Bainbridge explains the story behind Blankley's first reference to Soros and Jews -- "This [is] a man who blamed the Jews for anti-Semitism." (I didn't mention it, because I thought that story was fairly well-known; but indeed some people might not know it, so Prof. Bainbridge's explanation is useful.)

But while that story is the reason I don't fault Blankley for that first reference (see above), the story does nothing to explain Blankley's second reference, which is the subject of my criticism.

I continue to be puzzled by Slate's Kerryism of the Day feature. The column is largely about editing — about showing how Kerry's speech is marred by his "caveats and embellishments" and how it could be improved ("translated into plain English"). The column also purports to use these "caveats and embellishments" as evidence of Kerry's "pomposity and evasiveness", but that works chiefly to the extent that the proposed edits work. After all, if it turns out that the editing removes necessary provisos (and not "pointless embellishments"), then this suggests that the original is actually not so bad — rightly cautious rather than evasive.

What's more, Slate, like many magazines, is itself also largely about editing — taking the universe of commentary and cutting away the dross, plus taking a particular article and cutting it down to its readable, clear, focused essence. People who run magazines should want their readers to feel that the magazine is consistently well-edited.

It's remarkable, then, how bad the editing in the Kerryisms really is. The Kerryisms author strips away necessary material, not just the "pointless embellishments." In the process, he substantially changes the original author's meaning; this often leads to the result's conveying something the original author doesn't want to convey (something authors rightly hate). At the same time, the Kerryisms author often omits other edits he should be making. And he makes all these mistakes with a smug, self-satisfied tone that leads the errors to just be more annoying.

For evidence, just look at today's Kerryism. Kerry was asked "Does the Kerry administration care if I want to take a trip to Cuba some time?"

Kerry replied:

Well, since there isn't a Kerry administration yet — I believe that, I have said this publicly, that I think that — I'm not for lifting the embargo. I think we ought to keep the embargo in place. I think we ought to continue to find ways to push Castro to change. But I am in favor of allowing cultural exchanges and travel.

The supposedly "plain English" version is:

I'm not for lifting the embargo. I think we ought to keep the embargo in place. I think we ought to continue to find ways to push Castro to change.

Kerry's original is indeed not great, though even articulate people often can't be as concise in their off-the-cuff oral responses as they can be in edited text.

But Slate's "translat[ion]" is awful. First, it strips out Kerry's entire "there isn't a Kerry administration yet" line. My guess is that this is not a "pointless embellishment," but rather a useful little bit of modesty, helpful to keep the response from sounding overconfident (especially since the question was asked in the present tense, as if the Kerry Administration was already in power). Kerry didn't put this as well as he could have, but that's no reason to cut out the entire thing.

Second, it changes Kerry's meaning, and in an important way. Kerry isn't in favor of a total embargo; he's in favor of allowing "cultural exchanges and travel." That (1) helps him win support from voters who support at least some contacts with Cuba; (2) helps him seem generally moderate, even to voters who don't care much about this issue; and (3) is necessary to adequately answer the question: For all Kerry knows, the questioner might be wanting to go there as a matter of "cultural exchange[] and travel" (or perhaps Kerry thinks that all personal travel should be exempted from the embargo), and just omitting that sentence would thus misrepresent to the questioner what Kerry's position really is. And yet Slate thinks this should be edited out.

Finally, the most useful edit is one Slate doesn't even note: The two sentences "I'm not for lifting the embargo. I think we ought to keep the embargo in place." are pretty much redundant of each other. Sure, sometimes repeating things is helpful for emphasis, but this doesn't seem to be one of those times. Now perhaps Slate just decided not to mention it because this isn't a matter of "caveats and embellishments," but some of Slate's other edits (for instance, the deletion of "I think that") don't seem limited to caveats and embellishments, either.

So if I had to edit Kerry's response, I'd suggest this:

Well, there isn't a Kerry administration yet, though with your help we can change that. I think we ought to keep the embargo in place. I think we ought to continue to find ways to push Castro to change. But I am in favor of allowing cultural exchanges and travel.

It's crisper, and Kerry's speech indeed can often be made crisper. (Slate's objections to "I believe that, I have said this publicly, that I think that" are sound, though again note that it's hard to avoid some such stammering in an off-the-cuff oral response.) But it keeps Kerry's important substantive and rhetorical points, rather than just dismissing them, with no foundation, as "pointless embellishments."

Or, better yet, I'd suggest that the whole column (and its older companion "Bushisms") be dumped.

For more criticisms of Kerryisms, see here, here, and here.

The Spanish medals-for-nothing controversy is now apparently being dubbed "Medalla-Gate" in Spain (though, I suspect, at least partly facetiously).

The Corpus Christi Caller-Times reports (thanks to reader Chris in Austin for the pointer):

A television advertisement for Democrat John Kerry's presidential campaign appears to have violated copyright laws by broadcasting several photos from the Caller-Times book "South Texas Heroes." . . . These veterans or their relatives say they did not give permission to use their photos, nor did the Caller-Times. . . .

The advertisement targets Hispanic voters in six states, and features photos of 16 Hispanic veterans, 15 of which were featured in "South Texas Heroes." . . .

The Kerry campaign's director of Hispanic media, Fabiola Rodriguez-Ciampoli, said late Wednesday that the ad may be pulled off the air after she learned that some people did not give permission to run the photos. It's also possible a different version of the ad may run with photos of people who gave permission to Gutierrez and the campaign. . . .

[Ad producer Armando] Gutierrez said "South Texas Heroes" is not the source of the photos used in the commercial, which started airing Friday. . . .

Gutierrez said he is related to most of the people in the commercial, including five Barrera brothers. The other photos were from friends of the family, he said. That's why he didn't think it was necessary to have written permission, he said. . . .

Gutierrez said if there is a problem with obtaining rights to the photographs, it is his mistake and not that of the Kerry campaign. . . .

Let's assume -- and the story suggests that this is likely so -- that indeed Gutierrez copied some of the photos from the Caller-Times book without getting anyone's permission. Would this be a copyright infringement?

Potentially, yes, since the photos are copyrighted works, with the copyright being owned by the original photographers (or their heirs), though possibly with the photographed people having an implied license to authorize others to republish the photos. (The copyright might be owned by the photographed people, but I doubt it -- that would probably require the photographed to have conveyed the copyright in writing, which generally isn't done.)

Still, I think the Kerry campaign would have a pretty strong fair use defense here.

1. It's using the photographs for self-interested purposes, it's true, but not for commercial ones -- that cuts in favor of fair use.

2. The photos are factual works, with some creative component (lighting, posing, and the like), but relatively little. That also cuts in favor of fair use.

3. The entire photo is used; that cuts against fair use, but probably not by much, since that's the only really practical use of such a photo.

4. Such uses probably have virtually no effect on the income of the copyright owners -- the photographers and the photographers' heirs. The owners would be extremely hard to track down, 50 years after the photos were taken; often people might not remember who the photographer even was. They would thus be very unlikely to get any money from licensing the use of such photos. As a result, Gutierrez's actions would not have in practice materially affected the market for their works.

If the photos were taken by family members, then they might be easaier to track down; but even there, you'd have to know exactly who took the photograph. Moreover, since the commercial value of the license to use the photo would likely be fairly low (not nil, but fairly low), this effect-on-copyright-owner's-income factor would probably not weigh heavily against fair use, especially since it would often be so hard to figure out for sure exactly who took the photograph, and whom the rights descended to at the photographers' death, if the photographer is dead. In the fair use effect-on-market factor, such practicalities do make a difference.

Ah, you say, but what about the objections of the photographed people and their families, as subjects rather than as photographers? Well, copyright law provides no protection to the subjects as subjects (and neither do other legal rules, for reasons given here). Copyright law protects the rights of the copyright owner, or, more precisely, the owner of exclusive rights under a copyright. And, especially for published works, the fair use analysis focuses on the economic value of the work, and not on the subject's (or even the photographer's) moral or political objections to the use. The subjects and their families might have the right to license the uses, under the theory that the photographer gave them an implied nonexclusive license to do so. But they have no right to sue over such uses, because they only have the nonexclusive right to use the photo and maybe the right to license it; they have no right to exclude others from using it.

So my sense of the legal issue: This is probably not a copyright infringement, because it's a fair use. Again, though, it's possible that the Kerry campaign may feel political pressure to stop using those photos (see the story for more details on some of the family members' objections).

Technical note: Because the photos were taken before the Copyright Act of 1976 was in effect, but were published afterwards, they would be essentially governed by the 1976 Act. See secs. 303 & 302, for instance, which show that the photographs are still protected by copyright; likewise, the photos didn't have to have a copyright notice on them when they were first taken, because they weren't published then, and they didn't have to have a copyright notice on them when they were published, because the publication happened in 2003, long after the copyright notice requirement was eliminated.

From Expatica.com, via Arthur Chrenkoff" and InstaPundit:

The . . . [Spanish] Defence Minister handed back a medal he was given for his role in withdrawing troops from Iraq, it emerged Wednesday.

José Bono sent a letter to the prime minister José Luis Rodríguez Zapatero saying he would give back the Cross of Military Merit, according to sources close to the minister.

The move comes after Bono was heavily criticised when he was given the award last week.

It was awarded by Zapatero for Bono's "merits" as a minister, including his role in the withdrawal of Spanish troops from Iraq.

But Opposition political figures said Bono should not have received the award only six weeks after taking over as Defence Minister.

Zapatero granted the award to all those who helped in the withdrawal of Spanish troops from Iraq. . . .

As always, Cathy's work is much worth reading.

CNN reports (thanks to InstaPundit for the pointer):

A group of Vietnam veterans opposed to John Kerry's presidential campaign demanded Tuesday that he remove a photograph that appears in one of his television advertisements.

In Tuesday's "cease and desist" letter, Swift Boat Veterans for Truth called on Kerry's campaign to stop what it said was the unauthorized use of the images of some of them in a 60-second biographical spot titled "Lifetime." The ad began running nationwide in early May.

The U.S. Navy photo in question depicts 20 officers, including Kerry, and was taken January 22, 1969, on the island of An Thoi in Vietnam. The ad shows only a portion of the picture -- not all of the men are visible -- and is displayed for two seconds.

But even the men who are not in the ad have a right to demand the picture not be used, said Alvin A. Horne, a Houston attorney who served on a swift boat in Vietnam in 1969-1970. He is giving legal advice to the group. Eleven of the 20 men in the picture oppose their images being used in the campaign ad, he said.

"The use of the 11 images in this political campaign wrongfully and incorrectly suggests their present endorsement of his candidacy for president of the United States of America," said the letter, which Horne wrote. . . .

"Suing is a possibility," said Horne . . . .

Would the objectors have a good legal case? No. You generally can't use another name's or likeness without their permission in a commercial ad, but that doctrine (the so-called right of publicity) doesn't apply to political ads (and I suspect it wouldn't apply to such ads even if the ads were overt political fundraising, though that doesn't seem to be the case here).

The Lanham Act -- which is the federal trademark / false advertising statute -- and similar state laws prohibit the use of misleading statements in commerce, and especially the use of names, likenesses, or symbols that misleadingly suggest that a product is being endorsed by someone who isn't really endorsing it. But this too wouldn't apply to political ads. Courts are rightly reluctant to judge what statements in political ads are merely misleading. Though the Lanham Act has at times been extended (often wrongly, in my view) to parody magazines and other speech beyond merely commercial advertising, I'm pretty sure that it wouldn't be applied to a candidate ad such as this one.

The tort cause of action called false light invasion of privacy does apply to purely political speech. But it covers only a quite narrow category of speech -- in this context, it would be speech that pretty clearly conveys a false impression about the plaintiff, and a false impression that most people would find highly offensive. A false ascription of support for a mainstream political candidate probably wouldn't qualify as offensive enough to lead to liability. But more importantly, from all I hear of the ad, it doesn't say or clearly imply that the people in the photograph all endorse Kerry. Maybe for a purely commercial ad, under the more relaxed standards of the Lanham Act, the ad's use of the photo would be seen as misleading enough to be actionable. But I'm pretty sure that it wouldn't be so seen as to a political ad, under the rules applicable to false light invasion of privacy.

But all this is just the legal analysis -- as a political matter, the veterans' objection might well be powerful and effective, either at getting the Kerry campaign to change the ad, or more broadly at hurting the Kerry campaign politically. I leave that speculation, however, to others who are more knowledgeable about the politics of such things.

So reports the L.A. Times (thanks to How Appealing for the pointer). Here is my explanation of why the ACLU's complaints are unsound; I think the County could have easily and successfully (though, of course, at some expense — there's always some expense) defended the suit on these grounds.