John & Belle Have A Blog

What?

I find it really hard to believe that this man wasn't convicted.

A jury acquitted a convicted sex offender Monday of raping two teenage girls who police say escaped after they were left to die in an underground bunker he had built....

Authorities accused Hinson of snatching the 17-year-old girls from their bedroom last year and dragging them one at a time to the underground room, raping them and binding them with duct tape. Prosecutors said Hinson expected the girls to die because the room, under a tool shed, had no air supply.

He was charged with kidnapping, sex crimes and assault with intent to kill....

Hinson testified that the girls had consensual sex with him. He said they made up the story so they would be able to take drugs from the bunker, which he used to store marijuana....

Hinson had faced a mandatory life sentence without parole under the state's two-strikes law because of a past conviction for raping a 12-year-old girl in 1991.

The underground room was about the length and width of a mid-size car, with a ceiling about 4 1/2 feet high. Hinson testified Sunday that he had built the room behind the trailer where he lived.

Defense attorney Rick Hoefer spent much of his nearly two-hour closing argument Sunday picking apart what he called inconsistencies in the teens' testimony, including how long it took them to call 911 after their alleged escape and whether they saw Hinson with a gun.

Here's one of the accusers, speaking out after the verdict:

She told News 10 Hinson kidnapped her from her bed, tied her with duct tape, and raped her and her friend in Hinson's underground bunker.

"No girls are going to get up on the stand and lie to say a man raped them and bound them and put them down a hole and raped them and did all this disgusting stuff to them and threatened them, said he'll kill family and people they loved the most. Nobody's going to get up there and lie about that! Nobody!" she said. 

One juror said it did not make sense the girl would not wake up when he came into her room to kidnap her and her friend. But the girl says that's not her fault: "I can't help it I'm a hard sleeper; I sleep hard."

She also said she didn't scream when he came to kidnap her, "because he had a gun. He carried it everywhere he went." 

One juror said he did not believe the story being tied with duct tape, because he said it didn't have bite marks on it.

"The only duct tape bit off my hands was the duct tape around my wrist. That was the only part bit off," said the girl.

I am compelled to a certain admiration for the defense attorney, but that aside, this just seems like twelve kinds of wrong. You can read about the accused man's testimony here. If the girls had just been making up a story to cover up their stealing pot from him, then why did he agree that he had had sex with them? (Besides that he needed to account for DNA evidence, I mean.) What the victim said in the article seemed to imply that the jurors weren't informed of his previous rape conviction, can that be right? I don't really know what the rules are on that. In any case, that is one guilty-looking motherf&$%)#.

Norriswatch!

"The Justice Riders realized that whatever they would do or become they would not tolerate evil, oppression, or injustice." (via Bookslut)

The book description is anaphorically unbuckled: "From the gold and silver mines of California and Nevada to the wide open plains of Texas, the American West was a wild frontier in the 1870s where dangerous outlaws pursued devilish dreams of fortune. But there were other men of simple faith, unsung Civil War heroes who adventured west to bring justice to places that had none. Those they called "The Justice Riders."

So they called the places 'the Justice Riders'?

No matter who wins, we lose

This WSJ editorial is a piece of work. Is it really necessary to be wrong about all of culture and capitalism, just so you can be wrong about filesharing? I love the casual shinkick against judicial activism followed directly by unusually crude advocacy of it. Please deliver a distributed drubbing in comments, if inclined. (Link via A&L Daily.)

I'm going to watch "Alien vs. Predator" instead. I have a scholarly interest, I assure. I taught "Alien" last semester and read quite a bit about the - ahem (cough, cough) - Quadrilogy. What do you think: how bad is AVP? Is it worse than the WSJ editorial, for example? How can one decide a thing like that?

UPDATE: Wow, that AVP thing made no more sense than the WSJ thing.

Randy Barnett r0x0rz

I think I speak for all of us here in the blogosphere when I say, "go Randy Barnett! Go Randy Barnett! Restore that lost constitution, dude! Let Californians have legal weed and let the federalist chips fall where they may! (I love the New Deal as much as anybody, but come on. "Interstate Commerce" wasn't founding father-speak for "any damn thing the Federal Gummint wants to do." I'm sure we can work around this. Innovative Blue state social programs and job creation will attract all the voters and then where will our low-tax Oklahoma friends be? Shit out of luck because no one wants to live in Oklahoma no matter how light the regulatory hand is. [Some Oklahomans not included.]

He Got Weed! He Got Weed!!

It must have seemed like a good idea at the time:

A Newark father's attempt to teach his daughter a lesson about alcohol backfired when the teen led cops to a stash of drugs and illegal weapons inside his house.

    The incident began at 2:45 a.m. Friday when the unnamed 16-year-old came home drunk and unruly.

Her dad, Kevin Winston, called police, but when they arrived, the girl told police she feared for herself and her four sisters, aged 3 through 15, because her father stored drugs and weapons there. Cops arrested Winston after finding four semiautomatic guns, including an AK-47, plus 617 vials of cocaine.

She probably feels kinda bad about it now, but hey--she was drunk! He should have listened to Chris Rock.

If I babble, who owns it?

Having linked to Ray's interesting post in my post below, I will now comment on its legal aspect. Apparently the book he read contains 'transcribed eavesdropping' on ordinary conversations, the fruits of which now allegedly belong to Cambridge UP. Ray jokes that he is henceforth releasing all his personal chat under Creative Commons. But does it actually make sense that someone can transcribe someone else's words - without their permission; or even with it, but without the additional step of getting them to sign over copyright - and then own those words? The issue doesn't come up much, I suppose. But what about interviews? If I give an interview and later want to quote myself at length, don't I still own my own words (although perhaps not the interviewer's questions)? This seems like the sort of issue that must have come up at some point.

If you build it

I see that Randy Barnett is a little annoyed at us. This is very understandable, as he has gone to the trouble of writing books, and we haven't gone to the trouble of so much as reading them. Sometimes a snark is a boojums, perhaps. So I went to the law library to check out Barnett's The Structure of Liberty. (Noticed NUS does not have a copy of his new book, Restoring the Lost Constitution. I'm official philosophy department library rep, so on my list of books to order it goes. Could do with a little more libertarianism around the place. Perhaps prof. Barnett will accept this proxy purchase as a token of our good will. We at John & Belle do like our Volokh Conspiracy with coffee every morning.)

Four Chances to Gain 10 Yards and You Turn Over the Ball

Also at the Volokh Conspiracy, a discussion of California's "Three Strikes and You're Out" laws. Eugene thinks that when critics of the law focus only on the third strike, which may be a minor property crime, and the disproportionate life sentence that results, they skew the debate, because the law was precisely intended to take into account previous crimes. I think the real shame is that the law takes its form from America's alleged national pastime, baseball, rather than its actual national pastime, professional football. Football is quicker, easier to understand, much more violent, and totally unknown outside the States. I think it's obviously our national sport, and should provide the basis for sound lawmaking. Plus, then we'd get to hear lawyers say things like, "Your Honor, my client would like to go for it on fourth down."

Keeping It Real, the Strom Thurmond Way

Frum follow-up post pending. In the meantime, don't miss this great Richard Posner anecdote in Brian Leiter's post on legal realism.

[Posner] recounted the story of his own confirmation hearing, at which Senator Thurmond asked him the obligatory question, "If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?" to which Posner - being more intellectually honest, and less cowardly, than most - replied, "Well, Senator, it's a bit more complicated than that," and then proceeded in to a lengthy explanation of the necessity of judicial law-making, the ambiguity of the kinds of cases that require appellate review, and so on.

When Posner a few weeks later got the transcripts of his confirmation hearing, the exchange appeared as follows:

"Thurmond: If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?

Posner: Yes."

I should now say something wise - but brief - about legal realism. It is a true and important doctrine. The Curmudgeonly Clerk irks Leiter by designating it baby-stuff: "we do not need the assistance of law professors to perceive the obvious." This slight elides the vast distance between the question whether the doctrine is true - yes, yes, only mooncalves don't know; and how it is true - i.e. what extra-legal considerations weigh in judicial decision-making, to what extent, in what dynamical fashions, so on and so forth. It seems terribly obvious to me that there must be a whole host of non-obvious answers to a truly vast array of questions about how legal realism is true: surprising facts, non-obvious generalizations, shrewd insights and observations, nasty sausage-recipes. And crazy stories about crazy politicians. To deny the possibility of studying (and teaching) all this by brushing it off as 'obvious' seems to me a misguided reaction to what are probably regarded as sordid, regrettable truths.

I suppose the thought might be: if realism true, it will take care of itself - e.g. Republican and Democratic law students will go forth to bend the law to their private wills, in subtle and not so subtle ways. But that would not be a reason not to study the truth, and certainly not a reason to suppose it would be be trivially simple to study. (We all do lots of things on auto-pilot - breathing, for example. But how we do these things is often exceedingly interesting.)

It seems to me the position the Clerk advocates - a normative goal of maximal partisan dagger-sheathing, I take it - is consistent with robust (highly non-trivial) legal realism, even with robust teaching of robust legal realism. You could (hypothetically) have a legal culture in which judges were strongly and officially admonished to make it impossible for observers to discern their politics from a study of their decisions. So you don't try to confuse the poor things by telling them - or anyone - the noble lie that realism isn't true. You just tell them it is a judge's job to make it impossible for anyone to tell which party he or she belongs to. This is not a goal you could realistically attain. But a norm of conscious concealment is one at which you could realistically aim in a variety of ways (some of them quite artificial, even schizophrenic, but if that's what you want ...) If judges tended to be ashamed to be perceived as discernably partisan, because this made them look sloppy and unprofessional in the eyes of peers and colleagues, this would not result in 'pure, formal law'. What we would have would be eminently 'real' determining factors, i.e. lots of partisans taking assiduous care to step down hard on their own impulses. These would of course still leak out around the edges, and probably elsewhere, and whenever push came to shove. It might be a very odd sort of legal culture. I'm not sure what advantages it would have; but there would be fewer partisan daggers drawn, which I think would tend to be a good thing. There would be nothing unstable about this arrangement - not necessarily, anyway. (Think about the pride US military brass take in being above partisanship - at least until they retire and run for President. Not so easy for judges, by any means, but ... well, if you really don't want people to be able to tell whether you are a Democrat or a Republican, you can find a way to keep it under your robe to a far greater extent than is currently the case in our legal system.)

Of course it's quite difficult to imagine how to get to this funny legal world from where we are, even if we all decided we wanted to emigrate there. But it is important to see that descriptive legal realism is consistent with a tremendous variety of normative views, including (so far as I can discern) the Clerk's.

Perhaps there is some tendency to suppose that teaching or espousing legal realism exacerbates partisanship, by consciously drawing people's attention to the possibility of indulging in it. Then you get in some hideous feedback loop. So there is no reason for professors to encourage this undesirable dynamic by preaching it. But it would be just as easy to draw people's attention to the truth of realism, then sternly admonish them about their solemn duty to damp down expressions of partisanship to the extent that it proves possible. Judges could ber encouraged to pick some full-bodied, not obviously flagrantly partisan legal philosophy and really stick to it through thick and thin. Or they could arbitrarily tick from left to right like metronomes. Whatever. These may seem like silly suggestions. But it seems to me that the noble lie that legal realism isn't true - in fascinating, complex ways - is also quite silly. So there we are.

But I don't know about this stuff. I've never given it an hour's thought before this very night, so go ahead and tell me I'm wrong.

The Gay Marriage Thing

You know, I think I could teach an entire course on informal reasoning - with emphasis on avoiding fallacies - with nothing as a (cautionary) text except every editorial against gay marriage the NRO has ever published. What you need, for such a course, are simple, OBVIOUS - so that even a child can see them - examples of classic ways reason can betray itself in incontinently shameful fashion. Which brings us to Jonah Goldberg's silly thing. Oh, Andrew Sullivan has already laid into it. As has Ted Barlow.

There seems to be something about gay marriage that brings out the fallacy in folks. Even Stanley Kurtz, usually the irenic voice of reason over NRO way. I mean: I usually disagree with whatever the NRO crew are arguing about whatever, but they aren't dummies; its ONLY when they get onto gay marriage that I am really struck by the fact that their writings ought to go into the "Big Book of Thought" chapter on "How Not To Do It".

Let me forego the traditional methods of the fiscatore and proceed positively, geometrically even:

Either marriage is, in its nature/justification:
1) A religious institution.
2) A civil/secular institution.
3) A mix of religious and civil/secular. (Let this be a slider, as it were, running from 99% religious to 99% civil/secular. That ought to cover things to a nicety.)

Obvious 3) is the right answer. But let's be thorough about this.

If 1), then the question of who can marry whom ought to be left to individual churchs, denominations, religious leaders, private consciences of believers, so forth. There is a thing called religious freedom, after all. And there is such a thing as the establishment clause in the Constitution. (Of course there are limits and complications. But since there is no direct harm to others, and since two men/women getting 'married' bears a strong family resemblance to a man and a woman getting married ... well.) CONCLUSION: if marriage is a religious matter, the government ought to be quite generous in allowing varieties of union, if religious people want them, as it is in allowing varieties of ritual observance and so forth.

If 2), you check your inspired religious texts at the door, obviously. If you then tot up all the advantages to government/society of santioning and otherwise providing minimal legal support for the existence of these things called families - well, you will find that a preponderance apply to same-sex unions. Yes, no children. But adoption. And sterile people/old people can marry as it stands. CONCLUSION: it would be more arbitrary to deny than to allow, from a purely civil/secular standpoint. And, and federalism.

But the answer is 3). Marriage is an uncertain mix of religion and civil/secular. But since 1) and 2) independently support gay marriage, how can 1) and 2) together go against? I mean, without commiting lots of fallacies so as to rig that result

Too simple, obviously. For instance, I just legalized polygamy. But, you know ... I don't like polygamy, but I'm OK with that result.

What The Real Answer Is

Before someone tells me, let me make clear that I know what the real answer is regarding my legal paradox: any judge would ignore an alleged reduction to absurdity of the possibility of banning things for obscenity, because it is well established that one can ban things for obscenity.

Solving Logical Paradoxes The Marketing Way?

Eugene Volokh emails a possible resolution of my paradox, while expressing some doubt as to whether it could work. He suggests, of all things, marketing. And he cites a case, Ginzburg v. United States (1965), which can be read as precedent for a (hypothetical) decision that an adult comic marketed, red-light-style, at the prurient interest crowd may not be legal; but the same one aimed at the more high-toned white shoe legal crowd might be. (Well, I'm sure Eugene isn't the white shoe type.)

This marketing proposal raised high my eyebrows over the lantern of my ever-skeptical orbs. I didn't know the case. It sounded very strange. My first thought: if the thing is obscene, you don't need to ask how it's marketed. If not, you can't make it so by false advertising. (If some publisher starts flogging "Hop On Pop" as a vile & shocking tale of incest, he might garner frustrated readers, certainly some grief from the Seuss estate. I doubt he could garner himself a conviction for obscenity ... not even in the great state of Texas.

Legally speaking, I thought this has GOT to fall on the wacky far side of impossible attempts (you can be convicted for attempted murder with a toy gun, if you're really that dumb), square into plain legal impossibility. Thinking something is illegal cannot make it so. If you buy, say, an herbal medicine, thinking it is illegal in your state, but it turns out the DEA gave it the thumbs-up, your wicked intent to buy a forbidden substance cannot make it the case that you actually committed that crime. Oh, and you can't (rightly) be convicted for a crime you bragged about commiting but didn't actually. Right? Ditto for something you think (or say) is obscene, that turns out not to be. Right?

So much for a priori legal scholarship.

The case is interesting and clearly relevant, even if (in my inexpert opinion) ultimately unhelpful in resolving my paradox. The one paragraph syllabus (here's the link again) is unusually clear and to the point. Basically, it comes to this: a work was declared obscene even though it might have had some thin, non-prurient legitimate interest - anthropologically, scholarly, literary, whatever - because it was MARKETED as obscene. Partially this argument for the prosecution amounts to: 'if THEY think it's obscene and WE think it's obscene, who's arguing?' Partially it's a little something more:

The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material.

Call this the rubbing-our-noses-in-it argument. It's as though you have a product with a dual use, one legit, one illegit - yet the manufacturer has deliberately and unnecessarily engineered it so that you've got to use it illegitimately. (Possible analogies? A radar detector that only works if your car is doing more than 75 mph? Dunno.)

So does this apply to the comics case? Does it explain why Eugene can read the thing (he auto-marketed to himself on legal grounds), but adults in a Texas comic store can't? A problem, it seems to me, is that the comics store was rather stunned to find itself prosecuted. They knew they were selling erotic stuff, marketed as such. But they didn't know they were selling illegal stuff. They didn't MARKET IT as SO erotic it was illegal. In the Ginzburg case, the sellers (a mail-order outlet) promised to refund money if the stuff was inderdicted as obscene. I'm willing to bet there was no sign in the adult section of the comics store promising a full refund if the cops consfiscated anything.

This kills the 'if they think so too, who's arguing?' argument dead; also the 'rubbing our noses in it' argument. How so? 40 years ago, the sellers of these mail order items knew - and prosecutors knew they knew - they didn't have a lot of anthropologists buying their wares, who would be frustatedly forced to confront undue prurience in their scientific attempts to understand housewives better by reading "The Housewife's Handbook On Sexual Promiscuity". But today? I'm going to go out on a limb here - a tentacle, for all I know - and assume "Demon Beast Invasion 2" is rather fetishistic in its treatment of sexuality. Now just last week I was reading Ftrain's amusing essay about fetishes. Here's a guy who takes an interest but just can't work himself up to any significant pitch of prurience. Doesn't have it in him. Now it isn't at all implausible that a guy like this - even in Texas - might wander into a comic store and buy a fetish comic out of sheer arch-bemusement and ironico-slackistical curiosity. Maybe because he had a bright idea for writing something funny about it. It wouldn't surprise the owners of the comic store if this happened. Comics aren't expensive. You can buy weird stuff on a lark. So you could not truthfully say the MARKETING of the comic BY THE STORE was somehow driving prospective, legitimate custom away, or tipping the balance against legitimate use.

In general, there are always extreme hypotheses about possible motives one can entertain: perhaps the guy who was caught, and said he just found the money bag on the street and was bringing it back to the bank, is telling the truth. But most of these hypotheses are rather silly and unbelievable. "I am a student of housewifology, your honor. I was studying the book out of scientific curiosity." Nawww. Thing is: these days excuses are plausible. "I read it because I was sort of curious about fetishes, but I didn't expect to like it much, and didn't. Interesting, though."

This is actually quite a serious point. it's basically the point I made last night about radical cultural shift. Perhaps in no other area touched by criminal law has cultural sensibility shifted so radically as regards obscenity. A document - this legal decision - not half a century old feels utterly alien (but not demonically so). How so? For one thing, it assumes commercialized erotica is presumptively criminal. That just isn't going to hold up today. Nothing on the magazine rack at the supermarket would be legal. American culture is commercially eroticized in 2003. In 1965 the court complained that, "The "leer of the sensualist" also permeates the advertising for the three publications." Nowadays the leer of the sensualist is everywhere.

Turning the point around: I don't much symphatize with crusaders against smut, but I can intellectually appreciate how it really angers them that obscenity law, on the books, goes utterly unenforced. If there was something I cared about deeply, and it was illegal, and every day I saw the law flouted and the cops doing nothing ... well, that would be really annoying. But given that this is the case - unenforcement - the fact is that people cease to think of this stuff as illegal. Which is a crucial data point with respect to Ginzburg. And given the cultural spread of the stuff - due to unenforcement - the culture changes. The result is that, by the terms of the unenforced law, enforcement becomes problematic if not impossible. Ginzburg is again a case in point. Cultural coordinates have changed so completely that, while I don't think the decision was obviously bad when it was written, it is hard to conceive that such a case could arise today. I don't mean the same case. I mean a relevantly analogous case. One in which a borderline case is decided with reference to marketing. I think it would have to involve, at the very least, someone MARKETING their stuff as illegal. And even that would not necessarily be enough. Because there is a sense in which the Ginzburg decision envisions someone saying: 'I might have found this legitimately interesting, but the fact that it was declared on the cover to be obscene was distracting and I found it hard to focus on what legitimately interested me.' A bit unreal, in a world in which a women's magazine on the supermarket shelf might well trumpet its contents as obscene. How can someone watching or reading something pretty hardcore be not bothered by that BUT be offended by the fact that it is marketed like "Cosmopolitan"? I don't think that psychology is possible - certainly not plausible.

If all this cultural change is making gentle readers of this blog feel alienated from the harlot leviathan that is modern life, you will be comforted to learn that some things do stay the same - namely, the obvious:

EROS [one of the publishers] early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners' efforts to sell their publications on the basis of salacious appeal;

Indeed.

XXX Grounds For Prurient Appeal: Hot N' Horny Nonsense on Stilts, vol. 2 XXX

I am amused to read that Eugene Volokh has finally gotten his hands on Demon Beast Invasion 2, the comic banned in Texas for obscenity. I am more amused to think about the fact that, after he returns it to his law library, it will sit on the shelf for any law student - some no doubt Texans - to consult. And well it should. For it is now a significant legal document. Which brings me to my point, which is that it is obviously logically impossible for the work to be bannably obscene at this point because, thanks to Texas prosecutors, it has undeniable legal and political value.

Of course, Eugene is in California. But I am sure there are some Texans in Texas with a non-prurient interest in the question of whether their courts are making good or bad decisions.

This pesky line of reasoning is somewhat akin to the liar's paradox - but not quite the same. Some stuff really is bannably obscene, no question - but the act of banning adds a property that makes it not be so anymore. A perfectly coherent situation, so long as you don't ban anything. But if you do, an invasion of demon beasts - logical ones - can hardly fail to follow.

I remember reading a Jim Holt column in Lingua Franca, years ago, about how Kurt Gödel mentioned while going to take his American citizenship test that he thought the Constitution had a logical inconsistency, from which it presumably followed that you could prove anything was legal. His friends advised him not to mention this to whoever was administering his text.

I figured Gödel somehow had in mind old number nine - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This might be thought to say: this document says you have rights this document does not say you have. (Yes, I know it doesn't actually say that. I'm just trying to think like Kurt Gödel.)

What a surprise, then, to discover it was good old familiar number one - free speech - harboring the hidden, Gödelian seed. Obscenity incompleteness: it is legally impossible to ban all (in fact any) works that meet the test of being legally bannable. (Not that the obscenity exception is written in the original document. I know better. I'm just talking nonsense here.)

Anyhoo, it might be thought - as Gödel's friends obviously thought - this is not the sort of thing to bring up before a judge. Judges do not like to hear that the law is an ass. If the law contains a paradox, you have the rigorous training it takes to concentrate your gaze and say, 'Hey, look, the Goodyear blimp!' Or something. I dunno.

But there is a semi-serious point to be made here. It is in fact now legally impossible for some ordinary Texan citizens - and perhaps Texan lawyers, even Texan judges - to satisfy non-prurient interests in the question of whether certain folks are behaving decently behind closed doors in Texas courtrooms. For they cannot legally obtain material they need to decide this question. (Eugene's first post is a good example: he had a very specific question which required he see for himself.) Now this sort of thing is not unheard of - I mean stuff ending up secret. Quite common for legal stuff to end up closed and sealed and therefore uncheckable by just anybody with an idle curiosity. But it is not ordinarily the case for this to happen ONLY because no one can POSSIBLY have a non-prurient interest in stuff that ACTUALLY interests many people non-pruriently.

What this nicely illustrates is the way in which obscenity law - with its inherent presumption that some adults are in a position to decide what other adults should and should not be able to see and read - corrodes political liberalism. We think any adult citizen (especially those who are lawyers themselves) ought to be able to judge whether the court has acted rightly. We don't think just anyone off the street ought to be able to overturn a legal decision, of course. We aren't anarchists. But we prize the privilege of intellectually informed private dissent. To dock this privilege, for no compelling reason - well, that seems un-American.

One might be tempted to respond like so: it is not the point of obscenity law to create a situation in which ordinary citizens cannot judge their judges. The clause about 'non-prurient interest' is supposed to guard against that and other illiberal evils. But, to the contrary, it is precisely the impulse to say some adults can judge for other adults, who are forbidden to judge for themselves, that is the source of the awkward result. The root problem is that you cannot devise a law, as an expression of this impulse, that does not express this impulse.

Of course, we can't get any of this hot stuff in Singapore.

XXX Hot N' Horny Nonsense On Stilts!!! XXX

Long-time reader Kedi Holland, who wishes to remain nameless, has solved my legal puzzle with this definitive link. Turns out it's legal to be a porn producer or a porn actress in California SO LONG AS YOU DON'T LIKE YOUR JOB.

Smooth runs the water where the brook is deep/ And in his simple show he harbours treason

I thought about getting picky about Eugene Volokh's first post about 'traitor' and a libel suit. But it seemed, well, a picky point. But he's sticking, so I'll pick.

Eugene says:

It is a fact of social life that the word "traitor" means different things in different situations. Sometimes it means someone who has committed the crime of treason. Sometimes it means someone who you think has violated some moral obligation (that's how "traitor" was used in the labor context, in the Austin case). Sometimes it means someone who you think is working, albeit perfectly lawfully, against the interests of his country.

It seems to me that the word 'traitor' only ever (apart from very extraordinary circumstances) refers to those guilty of the crime of treason. Sometimes (most of the time) speakers intentionally apply the term to those obviously innocent of that crime, by way of making claims that are not obviously false. But speaker meaning and word meaning (sentence meaning) are distinct and readily distinguishable. If Jones calls me a 'traitor', because I didn't chip in for drinks, he means I have failed to fulfill a moral obligation. The word maintains its semantic valence, above the beery fray. He has said one thing, but obviously meant something else by it.

There are a couple reasons for insisting on this, pedantic as it seems. First, I don't think a half decent analysis of Jones' rhetoric is possible if you don't appreciate that he has literally said I'm guilty of treason, although he obviously doesn't think I am, or intend others to think he thinks I am, let alone intend that others think I am. Jones' allegation is hyperbole. And hyperbole cannot exist if word meaning doesn't stay tolerably fixed.

Second - what is really the same point, coming from a different direction - if you contextually transmute meanings in the manner Eugene advocates, semantic absurdities result. For example, it will probably turn out that Ann Coulter is right that 'all liberals are traitors'. The truth of this sentence, uttered by Ann, will follow more or less trivially from certain of her beliefs. But surely we don't actually believe that the proper way to analyze Coulter is by interpreting her as speaking Coulterese, a colorful dialect of English. Nor is she somehow a context unto herself, within which word-meaning warps. (Well, she probably is. But that's a separate question.) If, in her mouth, 'treason' meant something so anodyne as 'in my opinion, works lawfully against the interests of the country', she would have picked a different word to put on her cover, because she meant her cover to SAY something far more shocking and controversial.

A picky point.

Legal Question About Oldest Profession

Instapundit links, indignantly, to this story about a crackdown on porn in California. Which will do as an occasion for a lazyweb legal question. How is it possible to make pornography legally in places where prostitution is illegal? How is it possible to to define the latter crime so as to exclude paid adult film performers? Why isn't every porn video evidence of several criminal acts? (A lot better than those crummy convenience store security tapes that just show a guy in a mask waving a gun. Could be anybody.) Why are these crusading prosecutors always pushing the obscenity angle, which drags in all sorts of murky questions about community standards and art and all the rest?