The Volokh Conspiracy

Bloomberg.com reports:

Ford Motor Co., the world's second biggest carmaker, has had a television commercial for its Land Rover brand banned by the U.K. communications regulator after it was judged to "normalize" the use of guns.

The advertisement, which featured a woman brandishing a gun later revealed to be a starting pistol, breached the Advertising Standards Code and must not be shown again, Ofcom said in an e-mailed statement. The regulator received 348 complaints against the ad, many concerned that the commercial glamorized guns and made it "appear that guns are fun and cool." . . .

Ofcom said glamorization is "part and parcel" of the advertising process but this commercial "normalized" gun ownership in a domestic setting. The pistol, fired by the woman into the air as a man got into his car, was used in "an apparent casual manner and just for fun," Ofcom said. . . .

Handguns, as I understand it, are indeed largely banned in the U.K.; but this wasn't an ad for handguns. (Even under U.S. law, which as I understand it is more speech-protective than are U.K. or European free speech norms, an advertisement for an illegal product is unprotected.) Rather, it was an ad that the government thought spread an idea -- handguns are "fun and cool" -- that the government disapproves of. So of course the solution is: ban it.

Thanks to Dan Gifford for the pointer.

I've long declaimed against online polls, largely because they involve self-selected samples — that X% of the people who chose to participate voted in a particular way tells us next to nothing about what the public at large, or any other segment of the public at large, thinks.

But MSNBC has managed to come up with a poll that has a problem much less subtle than the one I describe above. Here's how the question is framed, I kid you not:

QUESTION OF THE DAY

Did Rudy Giuliani's speech reassure you or move you to support the Bush-Cheney ticket?

Reassure Move you to support

Yup, those are the only two options. The problem is so glaring that I have to assume it was an accident — but what an accident.

Thanks to Marty Lederman for the pointer.

UPDATE: Gil Milbauer reports that this has been fixed, and the choices are now "yes" and "no."

It's innuendo, but it's pretty repulsive innuendo (at least unless Dennis Hastert has something to back it up). From Fox News Sunday, Aug. 29, 2004:

[Host Chris] WALLACE: Let me switch subjects. You both had very deep reservations about McCain-Feingold campaign finance reform before it was passed. In fact, I think you say in your book, Mr. Speaker, that you thought it was the worst piece of legislation that had been passed by a Republican Congress since you've come to Washington.

Now that everyone seems upset with these so-called independent 527 groups, whether it's MoveOn.org on the liberal side of the spectrum or Swift Boat Veterans for Truth on the conservative side, do you feel like saying, "I told you so"?

HASTERT: Well, you know, that doesn't do any good. You know, but look behind us at this convention. I remember when I was a kid watching my first convention in 1992, when both the Democratic Party and the Republican Party laid out their platform, laid out their philosophy, and that's what they followed.

Here in this campaign, quote, unquote, "reform," you take party power away from the party, you take the philosophical ideas away from the party, and give them to these independent groups.

You know, I don't know where George Soros gets his money. I don't know where -- if it comes overseas or from drug groups or where it comes from. And I...

WALLACE: Excuse me?

HASTERT: Well, that's what he's been for a number years -- George Soros has been for legalizing drugs in this country. So, I mean, he's got a lot of ancillary interests out there.

WALLACE: You think he may be getting money from the drug cartel?

HASTERT: I'm saying I don't know where groups -- could be people who support this type of thing. I'm saying we don't know. The fact is we don't know where this money comes from.

Before, transparency -- and what we're talking about in transparency in election reform is you know where the money comes from. You get a $25 check or a $2,500 check or $25,000 check, put it up on the Internet. You know where it comes from, and there it is.

Hastert's substantive criticisms of campaign finance may be legitimate -- but the suggestion that Soros might be getting money from illegal drug distributors, even as a hypothetical example, is pretty reprehensible. (Imagine that, say, Ted Kennedy said "I don't know where Swift Boat Veterans for Truth are getting their money, if it comes from overseas or from neo-Nazis"; I take it that we'd be pretty appalled, even if Kennedy was just giving a hypothetical example.) And while "drug groups" may be slightly ambiguous in other contexts, where it might refer to pro-drug legalization groups, in this context it pretty clearly does suggest drug criminals, partly because Hastert didn't deny the connection when Wallace raised it and partly because the pro-legalization groups are funded by Soros, not the other way around.

As Jesse Walker (Hit & Run) points out, illegal drug dealers are actually likely to oppose drug legalization rather than supporting it: "Drug prohibition acts as a price support and a barrier to entry; it helps the cartels maintain their market position. They're about as likely to fund a legalization campaign as they are to give Denny Hastert an all-expenses-paid vacation in Bermuda or -- as long as we're throwing around groundless insinuations -- a free sex tour in Thailand." But in any event, Hastert shouldn't be making such unsupported innuendos, whether they make economic sense or not.

this time over IndyMedia's posting of delegates' "names, home addresses, e-mail addresses and the New York-area hotels where many are staying." The Secret Service is investigating.

I'm not sure whether such postings break any existing laws, or whether a law could indeed ban them consistently with the First Amendment. While such speech may indeed facilitate crime, it is also useful for legal and perhaps even constitutionally protected purposes, such as remonstrating with the delegates or demonstrating outside their hotels (or even their homes). See generally NAACP v. Claiborne Hardware (1982), which held that publishing the names of people who weren't complying with the boycott was constitutionally protected. (The speech in Claiborne didn't involve publishing addresses, but in a small county of about 10,000 people, knowing someone's name could pretty quickly get you his address.)

On the other hand, the Secret Service may be legitimately investigating to see whether any illegal conduct against the delegates is planned. Constitutionally protected speech may often trigger an investigation: This is most obvious after a crime is committed -- if Joe Schmoe is killed, and it turns out that I had earlier expressed the constitutionally protected opinion that he needed killing, the police could certainly investigate me more closely because of what I had said -- but I think it's equally true when the police are trying to prevent a crime. So it's hard to evaluate the investigation based on just the brief snippet that I saw reported.

Iain Murray (Edge of England's Sword) has several posts on this; go here and scroll down, and also see here.

I'm not sure I agree with the last post, which argues:

It occurs to me that impeachment may actually have been the subject of implied repeal under the much-derided (by me among others), but nevertheless law of the land, Human Rights Act 1998.

How does the impeachment process as described by the authors square with these provisions?

[Article 6] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

How can their Lordships assembled be regarded as an "independent and impartial tribunal"? And:

[Article 7] No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

An undefined "High Crime / Misdemeanour" is patently contrary to this article.

I know nothing about British law, but my instinct is that if an impeachment — even for a "High Crime" — leads only to expulsion from office, it's more akin to the firing of a high government official (though a highly specialized sort of firing) than to a true criminal conviction. It doesn't make much sense to have the same protections for the accused there as when the accused is put in danger of prison, death, or the other consequences of criminal convictions; the main issue here is the welfare of the realm, not the interests of the government official, who ought not be seen as having any property interest in his position. And it would surprise me if English courts interpret these provisions, which seem focused on true criminal prosecutions or at least matters where the individual does have some sort of personal right at stake, as applying to impeachment. But in any event, Iain is the expert on English matters, and I'm not.

UPDATE: I've exchanged a few e-mails with Iain about my quibble, and they reminded me to acknowledge what Iain quite correctly pointed out (and what Mark Kleiman has just blogged about) — — in English history, the most prominent impeachments (centuries ago) have resulted in criminal punishment. The U.S. constitutional rule that an impeachment may at most punish someone by removal from federal office, perhaps coupled with a prohibition on future federal officeholding is actually a reaction to that history.

Nonetheless, I strongly suspect that in this impeachment, all that Blair's enemies would seek is his removal from office. As a political matter, it seems highly counterproductive for them to ask for more. And if that's all they ask for, then I don't think that the process ought to be treated as a criminal process.

FURTHER UPDATE: I told you that Iain is the epxert on English matters and I'm not; he writes that a 1999 report of the Parliamentary Committee on Privilege provides the following:

Under this [. . .] procedure [i.e., impeachment], all persons, whether peers or commoners, may be prosecuted and tried by the two Houses for any crimes whatsoever. The House of Commons determines when an impeachment should be instituted. A member, in his place, first charges the accused of high treason, or of certain crimes and misdemeanours. After supporting his charge with proofs the member moves for impeachment. If the accusation is found on examination by the House to have sufficient grounds to justify further proceedings, the motion is put to the House. If agreed, a member (or members) are ordered by the House to go to the bar of the House of Lords. There in the name of the House of Commons and of all the Commons of the United Kingdom, the member impeaches the accused person. A Commons committee is then appointed to draw up articles of impeachment which are debated. When agreed they are ingrossed and delivered to the Lords. The Lords obtain written answers from the accused which are communicated to the Commons. The Commons may then communicate a reply to the Lords. If the accused is a peer, he is attached by order to that House. If a commoner, he is arrested and delivered to Black Rod. The Lords may release the accused on bail. The Commons appoints 'managers' for the trial to prepare attendance of witnesses on his behalf, and is entitled to defence by counsel. When the case, including examination and reexamination, is concluded, the Lord High Steward puts to each peer, (beginning with the junior baron) the question on the first of the charges: then to each peer the question on the second charge and so on. If found guilty, judgement is not pronounced unless and until demanded by the Commons (which may, at this stage, pardon the accused). An impeachment may continue from session to session, or over a dissolution. Under the Act of Settlement the sovereign has no right of pardon. The last impeachment was in 1805 (Lord Melville). The procedure has not been widely adopted in the Commonwealth. However, it survives, in a somewhat different form, in the constitution of the United States of America.

to let Prof. Natelson teach constitutional law: As I reported in early July, quoting a local newspaper:

University of Montana professor Rob Natelson, accusing the Law School of discriminating against him for years because of his conservative political views, has asked the state Board of Regents to overturn a decision denying him the opportunity to teach constitutional law. . . .

In his appeal, Natelson cited the Montana Constitution ban on political discrimination and said political discrimination by state agencies can be unconstitutional under the 14th Amendment to the U.S. Constitution. . .

A hearing officer has ruled that Prof. Natelson was indeed wrongly denied the opportunity to teach constitutional law, and should be allowed to do so; and the University President has therefore ordered the Dean of the law school to let Prof. Natelson teach the class. The decision, though, was based on the law school's having not followed its own traditional informal rules on the matter; the hearing officer said he didn't have to decide whether political discrimination was present. Some of Prof. Natelson other charges, also mentioned in my earlier post, were also seemingly not reached.

The fabulous UCLA Law Library has gotten me copies of the hearing officer's opinion and the President's decision, so I've put them on the Web for those who are interested.

Another interesting column -- don't know if it's right, but it's definitely worth reading. Here's an excerpt:

One of John F. Kerry's most damning accusations against President Bush is that he has made America a global pariah, thereby undercutting the international cooperation we need to win the war on terrorism. . . . Opinion polls show that a large number of Americans have bought this argument. . . .

It's easy to see why so many people would come to this conclusion, since surveys do show that U.S. popularity has declined in many countries during the past four years. Obviously it's better, all things being equal, to be liked than disliked. Kerry has a point when he accuses the Bush administration of squandering some opportunities to garner support abroad. The mishandling of Turkey before the Iraq war is a case in point.

Where Kerry is dead wrong, demonstrably wrong, is in suggesting that this unpopularity is taking a heavy toll on America's efforts to win the war on terrorism. Actually, by all indications, the United States is now getting significantly more cooperation in fighting terrorists than it ever did in the balmy days of Bill Clinton, who did all the sweet multilateral things that Kerry endorses -- trying to broker an Israeli-Palestinian accord, signing the Kyoto global warming treaty, not offending "Old Europe" or threatening the power of Middle Eastern autocrats. . . .

What's going on here? Why are countries from Pakistan to Portugal doing so much to help the United States if George W. Bush has purportedly done so much to alienate them? Chalk it up to pure self-interest. Many nations have come to realize, as they never did in the past, that Islamist terrorists pose a mortal threat to them. . . .

There was no question that the United States was better liked abroad in the 1990s, at least if public opinion surveys are to be believed, but was it more respected? When the Clinton administration went privately to Middle Eastern countries seeking cooperation against terrorism, it sometimes got significant help -- the Jordanians, for instance, helped bust up the 2000 millennium plot. . . . But often the Clinton administration got the cold shoulder from governments that were wary of a fickle America that would likely flee at the first sign of adversity . . . . Pakistan and Saudi Arabia were actively aiding the Taliban and perhaps even al Qaeda before 9/11 because they were more scared of alienating Osama bin Laden and Mullah Omar than Bill Clinton. Bush's steely response to the 9/11 attacks helped change the calculus within these wavering states: They became more wary of trifling with the gunslinger in the White House than with his smooth-talking predecessor. . . .

In cataloguing the consequences of American unpopularity abroad, Democrats suggest that Bush is driving more recruits into al Qaeda's arms. This is a real possibility, but it is not a claim that can be verified or falsified, since there is no roll call of terrorists. All we can say for sure is that al Qaeda had no trouble recruiting young Muslims to attack U.S. targets in the 1990s even as Bill Clinton was doing everything possible to make America more popular. . . .

No doubt the invasions of Afghanistan and Iraq have driven some Islamic zealots over the edge and led them to pick up a rocket-propelled grenade or a homemade bomb. Certainly some Afghans and Iraqis have opportunities they never had before to attack U.S. soldiers, if not U.S. civilians. But it's also true that the international forces opposing al Qaeda have gotten immeasurably stronger during the Bush administration . . . .

(For many more details, see the column.)

Alexia, which turns out to mean -- and in English, not in Hebrew or Greek -- "Loss of the ability to read, usually caused by brain lesions." (Thanks to A Word A Day for the pointer.)

According to 1990 census data, 0.003% person of the female population of the U.S., which is to say about 4000 women, are named Alexia. On the other hand, it's better than calling your boy Dick, or for that matter calling your girl either Latrina or Titiporn.

Who rules us with an iron rod?
Who moves at Satan's beck and nod?
Who heeds not man,
Who heeds not God?
Van Buren, Van Buren!

Who would his friends, his country sell
Do other deeds too base to tell
Deserves the lowest place in hell
Van Buren, Van Buren!

Here's today's Bushism of the Day from Slate (note that "they" refers to the voters):

"They've seen me make decisions, they've seen me under trying times, they've seen me weep, they've seen me laugh, they've seen me hug. And they know who I am, and I believe they're comfortable with the fact that they know I'm not going to shift principles or shift positions based upon polls and focus groups." — Interview with USA Today, Aug. 27, 2004

The subhead of the column is, as always, "The president's accidental wit and wisdom," but this has nothing to do with the misspeaking — whether real or imagined, unusual or commonplace in the normal speech of normal people — that is supposedly Bush's hallmark, and that is thus supposedly accidentally funny. Nothing here is ungrammatical or a malapropism (unless, I suppose, the author is somehow picking on Bush for saying "under trying times" as opposed to "in trying times" or "under trying conditions").

The only thing that I can imagine the Slate author finding amusing is the "they've seen me hug" line, and more broadly the touchy-feeliness of the first sentence. But that's not a Bushism — that's an "I feel your pain" sensitive-guy Clintonism. I confess it puts me off a bit; I hope you'll never hear me say "they've seen me hug" in public. It says more, however, about the Clintonization (or 70s-ification, if you want to go that far back) of American politics than about Bush's accidental wit and wisdom.

UPDATE: Just to make it clear, occasional hugging is fine -- it's just talking a lot about hugging that I disapprove of.

The Theodorakis remarks that David Bernstein points to below aren't the first of his remarks about Jews to make the news. Last November, Theodorakis was reported as saying:

We are two nations without brothers in the world, us [Greeks] and the Jews, but they have fanaticism and are forceful. . . Today we can say that this small nation is the root of evil, not of good, which means that too much self-importance and too much stubbornness is evil.

He then tried explaining himself, but not quite persuasively, in my view. I posted about this here.

I got many responses to my query; thanks very much to everyone who submitted items. I ultimately ended up choosing the ones for which I could find someone else saying (preferably in a reputable publication) that many readers were indeed likely to use the books to fantasize about doing, rather than to do. Nothing like having Authorities to Rely On, even if they're just someone who's making an educated guess about what's likely.

The items I'm using — and no need to submit more, thanks — are:

1. Lonely Planet: Antarctica. See Juliet Coombe, Planet Goes to China, HERALD SUN (MELBOURNE, AUSTRALIA), Jan. 30, 2004, at T11 (interview with Tony Wheeler, co-founder of the company that produces the Lonely Planet guidebooks) ("Q The Lonely Planet guide to Antarctica sells about 45,000 copies a year. Why is it so popular, despite relatively few people going there? [A] Science and wildlife expeditions are getting more exposure and lots of people are armchair travellers. The guidebook includes long sections on wildlife and the environment. For most of us, a trip to Antarctica is a dream."). Naturally, some of the readers are "armchair travellers" in the sense of people who are curious and want to satisfy their curiosity by reading rather than by traveling; but I suspect that some of the armchair travelers really do read the books to fantasize about actually being there. Thanks to Michelle Dulak Thomson.

2. WoodenBoat magazine. See, e.g., MICHAEL RUHLMAN, WOODEN BOATS 23 (2002) ("[A]n obscure magazine idea, a magazine devoted to wooden boats, became a resounding success precisely because readers didn't have to own wood to love it, admire it, or even dream about it. . . . [I]ndustry experts guess that fewer than 10,000 wooden boats exist in America, not including dinghies, canoes, kayaks, homemade plywood skiffs, and the like . . . . Yet this minuscule industry . . . generates a subscription base for Wooden-Boat of more than 100,000 . . . ."). Thanks to David Riceman.

3. Worst-Case Scenario books. See, e.g., Jayne Clark, `Worst-Case' Writers' Newest Scenario: Runaway Train to Fame, USA TODAY, Apr. 27, 2001, at 7D ("In this sequel to their best-selling The Worst-Case Scenario Survival Handbook, Joshua Piven and David Borgenicht have once again produced a very funny guide with a deadpan tone aimed at armchair Walter Mittys, as well as wannabe Indiana Joneses."). Thanks to many people.

4. Some cookbooks. See, e.g., Maurice Sullivan, Last Best Books of 1997, WINETRADER, vol. R, no. 6, http://www.wines.com/winetrader/r6/r6bk.html ("I have finally figured out that all these beautiful and expensive color cookbooks aren't for people who really want to cook, but rather are for folks on diets that want to fantasize about food!"). This is probably something of an overstatement, but I suspect that some of the cookbooks' readers do indeed use the books this way, even if others do actually use them to cook. Thanks to many people, especially Ashley Doherty.

Apropos the story I mentioned yesterday, here's Daniel Pipes' argument for why revoking Tariq Ramadan's visa was a good idea. (My post dealt simply with why it's constitutional.) I don't know enough about the facts to speak to this myself, but I thought I'd pass the item along; I'll be happy to link to counterarguments, too. Here's an excerpt:

What's up? The DHS knows much more than I do, but it is not talking. A review of the press, however, gives an idea of what the problem is. Here are some reasons why Mr. Ramadan might have been kept out:

• He has praised the brutal Islamist policies of the Sudanese politician Hassan Al-Turabi. Mr. Turabi in turn called Mr. Ramadan the "future of Islam."

• Mr. Ramadan was banned from entering France in 1996 on suspicion of having links with an Algerian Islamist who had recently initiated a terrorist campaign in Paris.

• Ahmed Brahim, an Algerian indicted for Al-Qaeda activities, had "routine contacts" with Mr. Ramadan, according to a Spanish judge (Baltasar Garzón) in 1999.

• Djamel Beghal, leader of a group accused of planning to attack the American embassy in Paris, stated in his 2001 trial that he had studied with Mr. Ramadan.

• Along with nearly all Islamists, Mr. Ramadan has denied that there is "any certain proof" that Bin Laden was behind 9/11.

• He publicly refers to the Islamist atrocities of 9/11, Bali, and Madrid as "interventions," minimizing them to the point of near-endorsement.

And here are other reasons, dug up by Jean-Charles Brisard, a former French intelligence officer doing work for some of the 9/11 families, as reported in Le Parisien:

• Intelligence agencies suspect that Mr. Ramadan (along with his brother Hani) coordinated a meeting at the Hôtel Penta in Geneva for Ayman al-Zawahiri, deputy head of Al-Qaeda, and Omar Abdel Rahman, the blind sheikh, now in a Minnesota prison.

• Mr. Ramadan's address appears in a register of Al Taqwa Bank, an organization the State Department accuses of supporting Islamist terrorism.

To return to the legal question (and I stress again that I don't know enough about the factual issues to comment on them), if one thinks that aliens should have a right to enter the U.S., and should be barred based only on proof in court of criminal conduct rather than based simply on suspicion of connections with terrorists, then these allegations might not be enough. But U.S. law has not generally taken such a view, and I think it has been right not to take such a view.

The claim: A paper on climate change reaches bad results because the authors entered one piece of data in degrees rather than radians. (See Crooked Timber (John Quiggin) and Deltoid (Tim Lambert).) Whoops! Not quite as bad as filling up an airplane in pounds rather than kilograms or using the wrong units in the Mars Climate Orbiter, but -- if this indeed happened -- still pretty bad.

Of course, that's the claim; if there's a rebuttal somewhere, please point me to it, and I'll happily link to it.

A tangentially related phone call from a reporter reminded me of this story that a law professor I know and trust told a while back.

It seems that a visiting colleague's students were going to a public school in Texas, and declined to say the Pledge of Allegiance. The teacher insisted that they say it, which of course violates Barnette v. West Va. Bd. of Ed., the 1943 case that held students had a First Amendment right not to recite the Pledge. Fortunately, the school backed down after getting a letter from the father.

The letter gave an explanation for the children's behavior, though it didn't have to (and though as a legal matter, there should have been no need for the letter). The explanation was that the visiting colleague, and his children, were visiting from a foreign country, and they were citizens of that country, not the United States. They thus don't owe allegiance to the flag of the United States of America, or the Republic for which it stands, wonderful as it may be. (Technical footnote: In a purely legal sense, noncitizen residents of the U.S. owe the nation a duty not to aid its enemies in time of war -- noncitizens can thus be convicted of treason -- which is sometimes called a sort of "allegiance," but this is not, I think, the solemn allegiance to the flag that the Pledge contemplates.)

Apparently the teacher not only didn't know or think about the students' First Amendment rights. The teacher also didn't think about what exactly the Pledge means, and why some students have an entirely simple and prosaic reason -- entirely unrelated to high constitutional debates about dissent and conscientious objection -- not to express that meaning.

seems to be marked on ears, not foreheads. Thanks to GeekPress for the pointer.

seems to be saving the day — or ruining it, depending on whether you're human or a bee.

UPDATE: My colleague Steve Bainbridge has a different view.

I'm looking for examples of factual books — preferably how-to books — that some readers read for the fun of imagining themselves using this knowledge. One example, though I don't know if such a book actually exists, would be a work that explains how someone could reconstruct civilization if stranded on a desert island. It may not be consciously aimed at the fantasizing market, but I imagine that a lot of people who read it would do it in part to imagine themselves as some super-savvy Robinson Crusoe.

Likewise, my sense is that the Hit Man contract murder manual — obviously a much darker and more dangerous work — has also been used mostly as entertainment for people who want to imagine themselves as soldiers of fortune. It apparently sold 13,000 copies, and I doubt that there are 13,000 would-be real contract killers in the country. The same may be true for the Anarchist Cookbook and similar works.

I'm looking for more examples, preferably of real how-to books, that people do use, or are likely to use, as means to imagine themselves as something else — a successful castaway, a contract killer, or something else. If you can give examples of people actually remarking (preferably in the press) that this book is good for that sort of thing, that would be best. But examples where it's simply plausible that many readers would read the book for that purpose would be fine, too.

This is for a tangent to my Crime-Facilitating Speech, which I'm just finishing up and getting ready to send to the journals, so responses that I get will come in very useful. Many thanks in advance.

[Note: Yes, I know that my first hypothetical is reminiscent of the "what technology could a smart 12-year-old reproduce if hurtled back in time to ancient Rome?" question. I have the 250 messages that I got in response on my desk, and I've gone through about 175, looking for what strike me as the best answers — I'll then try to do a bit more research on them, and post the answers, probably in a month or two. Thanks again to everyone who responded, and sorry for the delay.]

UPDATE: A bunch of people have recommended the Worst Case Scenario guides, and some others have recommended some other items (I'll blog more about this soon). In the meantime, more, more — I'm still not satisfied!

An intriguing and very readable piece.

Venkat Balasubramani (Begging to Differ) points to what appears to be a revocation of a visa based on an alien's speech:

The US administration came under fire for barring prominent European Muslim scholar Tariq Ramadan from entering the country to take a post at the renowned Notre Dame University.

Ramadan, rated by Time magazine as one of the 100 most influential people in the world, was granted a visa in May only to have it revoked on August 2 by the US State Department on the recommendation of the Department of Homeland Security (DHS). . . .

Russ Knocke, a Department of Homeland Security spokesman, told Reuters on Tuesday, that the work visa was taken back because of a section in federal law applying to aliens who have used a "position of prominence within any country to endorse or espouse terrorist activity." . . .

(I say "appears" because the article is clearly an opinion piece, not an objective news account -- note the reference to "the Board of Deputies of British Jews [launching] a vile campaign against prominent moderate Muslim scholar Youssef Qaradawi's visit" -- but I'll assume that the account is complete and accurate for purposes of this post.) Balasubramani calls this "a good example of Patriot Act abuse" (because "The Patriot Act added the following clause which provides an additional ground of inadmissibility with respect to an alien who . . .'has used the alien's position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities'"); he also says that "[i]t's definitely not a no-brainer as to whether this passes First Amendment scrutiny," though in an update he suggests that "the case may be a bit less strong, and maybe because of the standing issue," and may present only an as-applied challenge.

But as a doctrinal matter, this is a "no brainer" in favor of the government; there's a 1972 Supreme Court case, Kleindienst v. Mandel that's quite squarely on point:

It is clear that Mandel [a self-described "revolutionary Marxist" foreign academic] personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. . . . The case, therefore, comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country or, in other words, to compel the Attorney General to allow Mandel's admission. . . .

Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court . . . [has] held broadly . . . that the power to exclude aliens is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers - a power to be exercised exclusively by the political branches of government . . . ." . . . The Court without exception has sustained Congress' "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." . . .

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [sec.] 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. . . .

One can debate whether the Court got it right in Kleindienst; I think it did, but that is a story for another day. One can also debate whether it's a good idea for Congress and the Executive Branch to exclude such aliens -- though note that the Patriot Act is not an innovation in this respect. But as a matter of existing First Amendment doctrine, the government has a clear winner of a case here (again, even if the press account that Balasubramani quotes is entirely accurate).

Here's an excerpt:

Digital radio promised lower costs, higher quality and more variety. To portray this as a bad thing, the NAB turned the free-market logic of 18th-century economist Adam Smith on its head, stressing the harm satellite radio could do to the listening public.

Satellite's "purported benefits are, in the main, nonexistent, unrealistic or of minimal value," the group assured the FCC in 1995. Left free to compete, the NAB added, satellite radio would offer inferior programming and shove better-quality AM and FM service off the air. Thus competition would leave consumers worse off, the NAB said in an Orwellian conclusion: "Adding a new service would likely decrease the overall service to the public."

"Economists just don't take a lot of those arguments seriously," says Stuart Benjamin, a Duke University professor who studies broadcast regulation. "To be blunt, the NAB has power that is not commensurate with the persuasiveness of its arguments." . . .

The Harper's Magazine site contains the following (thanks to Christopher Rohrbacher):

[Letter to the Editor:] I was most impressed to read of Lewis Lapham's ability to travel in time in "Tentacles of Rage" [Essay, September]. As far as I can tell, on the day I received my copy of Harper's Magazine, the Republican convention had yet to take place, and living in New York, I think I would have noticed. Admittedly, the pablum will be predictable (barring some unforeseen event), but it seems awfully sloppy of Lapham to discuss feelings he had while watching something he has yet to watch, simply in order to put some additional feathers on one of his rhetorical barbs. What is most appalling is that he chose an actual piece of journalism, rather than his accustomed punditry, for this rather silly fillip. This doesn't exactly give me faith in his understanding of what it is reporters actually do.

On the other hand, if he has in fact traveled in time, I would appreciate it if he could let all of us subscribers know the outcome of the forthcoming election.

Matthew Ostrowski Brooklyn

Lewis Lapham responds:

As Mr. Ostrowski properly notes, the rhetorical invention was silly. The mistake, however, is a serious one, and if I'd had my wits about me as an editor, I wouldn't have let the author mix up his tenses in manuscript or allowed him in page proof to lapse into poetic license. Both of us regret the injury done to the magazine and apologize, wholeheartedly, to its readers.

It's to Lapham's and Harper's credit that Lapham apologized, and did so promptly, via the Web. I'd like to know a bit more about how this error came about -- but in any event, I'm glad that it was promptly acknowledged.

A reader asks: "[C]an you explain this geometry puzzle?," pointing to the 8 x 8 = 5 x 13 puzzle that's been making the rounds. He adds:

Ever since I saw it, I've had a hard time concentrating on work. It seems to call into question an orderly universe, which is quite disturbing.

Well, I surely don't want American productivity — or for that matter American faith in an orderly universe — to decline. So the answer is

available by clicking here.

UPDATE: Reader Jason Wolfkill articulates the general point well:

Your answer to the 64=65 puzzle showcases what I like to call the "do the math" principle. Our eyes and intuition may lead us astray, but the numbers don't lie (at least not to a degree that those of us living in the Newtonian/Cartesian world can detect).

The JibJab "This Land Is Your Land" controversy (see here and here and several posts in between) is over: It turns out, thanks to an investigation by the Electronic Frontier Foundation, that the song may well be in the public domain -- and thus free for all to use -- because the original copyright had not been properly renewed. (Under the pre-1978 copyright law, a copyright had to be renewed after the first 28 years; that's not the case any more for new works.)

Ludlow Music still claims that they do own the copyright, but they have decided to withdraw their objections "to avoid the expense and difficulties of litigation." JibJab had earlier filed a lawsuit for declaratory judgment to establish their right to use the song, and that lawsuit has now been settled in JibJab's favor. See this Electronic Frontier Foundation press release and this Wired News story.

Thanks to readers Robert Schwartz and Matthew Sheffield for the pointers.