Following the lead of the Volokh Conspiracy's pseudonymous Philippe DeCroy and The New York Times' William Safire....

OFFICIAL ICBW PREDICTIONS FOR 2003

A year from now, Iraq will be where Afghanistan is today: a troubled but largely ignored backwater where things are much better than before the US invasion, and American troops help minimize the chaos, but there's still plenty of turmoil, and the long-term political structure of the country has yet to be fully sorted out.

Another terrorist "mega-attack" will occur, this time somewhere in Western Europe.

Yasser Arafat, Kim Jong Il, Ayatollah Khamenei and Hugo Chavez will (barring death by natural causes) still be clinging to power in their respective political entities at the end of the year, although perhaps somewhat more precariously than at present. The "engagement" strategies pursued by the UN, EU, OAS and other multilateralist organizations with respect to these leaders will have absolutely no effect on their strength or belligerence levels. Their satrapies will suffer further declines in living conditions, but will otherwise (and, particularly, in political terms) remain largely unchanged.

The major American market indices will experience yet another year of net decline, as will the US Dollar and real estate market. The American economy will have dipped back into recession by the end of the year, and the domestic American political debate will have largely shifted from international politics to economics. The president's popularity will suffer significantly as a result, although not as severely as his father's did.

Japan will at last begin adopting some necessary financial reforms. Their short term effect on its economy will be markedly negative.

A note on the method: The ICBW prognostication technique is a carefully calibrated, high-precision process, consisting of the following steps: (1) Observing the current state of affairs; (2) Considering that things usually don't change all that quickly, and that rapid changes are usually highly unpredictable, anyway; (3) Assuming that most things will stay more or less the same, except where change appears inevitable; and (4) Where change is inevitable, assuming that the outcome will be, at best, not particularly positive.

Mark Kleiman and Sasha Volokh are engaging in an interesting debate on the "precautionary principle" as it applies to public health policy and government regulation of technological innovation. The essence of the question at hand is: should some human actions be forsaken merely on the grounds that their unforeseen consequences might conceivably be catastrophic, even in the absence of any evidence that such a consequence has any significant likelihood of coming to pass?

Both Kleiman and Volokh (now) seem inclined to give at least some credence to the principle, on the grounds that an unknown risk at least contains a scintilla of a possibility of a disaster, and hence should be averted where possible. As Volokh puts it, "you shouldn't just compare the mean estimates of the benefits but....you should also take into account the variance, that is, figure out which of the alternatives has more uncertainty and possible unknown bad outcomes and be a little bit biased against it." Or, in Kleiman's words, "any proposal where a plausible story can be told of truly catastrophic risk (i.e., risks equivalent to substantial fractions of total national or world wealth) ought to be forbidden until the probability attached to the risk can be plausibly quantified".

I believe these arguments miss the important distinction between an unknown probability and an unknown (probabilistic) outcome (with a known probability distribution). When Volokh treats an unknown probability as a(n implicitly known) distribution with a high variance, and when Kleiman invokes the word "plausible" to implicitly ascribe a (known) non-negligible probability to a bad outcome, they are effectively contradicting their own claim of ignorance about the probability of a catastrophic event. This insinuated substitution of "known, small but non-negligible probability" for "unknown probability" is certainly intuitively tempting, but I believe it leads to an important error.

The problem is that this implicitly estimated tiny-but-significant probability is then being compared with another unknown probability--the probability of a catastrophic outcome from inaction--that has in fact been implicitly replaced with "a negligibly small quantity". This latter substitution also has an obvious intuitive appeal, of course--"don't upset the applecart", "don't ruin a good thing", etc. etc. But in practice it is almost always disastrous to avoid change completely, if one considers a long enough timescale. Certainly, if our society had refused to change over, say, the last two hundred years, then the results would have been disastrous (by comparison with our current state). This principle is even enshrined in the structure of life itself, which is built to evolve and vary genetically over time, to avoid presenting a sitting target to both the three p's (predators, pathogens, and parasites) and unexpected environmental changes.

Oddly enough, environmentalists--usually the most enthusiastic proponents of the precautionary principle--are happy to recognize the dangers of stasis when it suits them. One might have thought, for instance, that a radical reduction in the world's fossil fuel consumption might have all sorts of unexpected side-effects, some of which might even prove to be disastrous. However, the (extremely ill-understood) threat of global warming is enough to convince many that inaction is even more dangerous than action in this case. (It all depends on one's baseline notion of "inaction", I guess.)

Now, it may be that in some cases there are fairly well-defined, quantifiable threats that make a precautionary stance reasonable. (For example, by Kleiman's calculation, even a 1% chance of a deliberately induced smallpox epidemic would make pre-emptive vaccination a worthwhile countermeasure. One could easily imagine a defensible model based on real-world knowledge that placed the threat above that threshold.) But in these cases, the "precautionary principle" no longer applies, as the risks are no longer being thought of as unknown and unquantifiable. Conversely, if the risks of a given action--say, that genetic modification of plants could lead to a "superbug" that decimates humanity--are poorly understood, then they cannot automatically be assumed to be greater than the risks of failing to take that action--say, that a "superbug" will arise naturally that only genetic modification technology can prevent from decimating humanity.

In general, the human instinct to identify consistency with safety is understandable, since arbitrary changes to the status quo are much more likely to be seriously detrimental than beneficial. (Again, our genes lead the way in this respect, attempting to replicate themselves perfectly, within limits.) However, in genetics as in life, the absence of small gradual changes with no obvious harmful effects can be as disastrous as the presence of large, radical changes with unmistakable harmful effects. The precautionary principle fails to take the former danger into account, and thus deals with all changes as if they belonged in the latter category. That makes it a poor guide to evaluating, for example, the risks of new technologies.

Oxblog's David Adesnik, and Reuel Marc Gerecht (whose opinions I usually agree with) in the Weekly Standard, are both concerned that the Bush administration might be wavering in its commitment to establishing democracy in the Middle East. Gerecht complains that "the assistant secretary of state for Near Eastern affairs, William Burns, articulates counterterrorist, not democratic, priorities", and suggests that the region's despots "probably ruminate on how good it is to rule in an age when non-Muslims show such deference to the culture and traditions--many of which arrived via London, Paris, and Berlin--that give them unchallenged dominion." Adesnik is even more blunt: "As a passionate advocate of promoting democracy in the Middle East, I am often told to get real. Don't I know that Muslims can't handle democracy?....I'm not giving in. The desire for freedom is universal."

Now, ICBW readers know that I am second to none in my enthusiasm for democracy--in the Middle East or anywhere else. And I sincerely hope that it takes that benighted region of the world by storm as soon as possible. But if the universal desire for freedom were the only prerequisite for its establishment, then one might have expected it to have appeared in the wild on a large scale before a couple of centuries ago, and certainly to be the overwhelmingly predominant system of government in the world by now.

In truth, nobody really knows how or why democracy succeeds in some places and not others. There appear to be certain positively correlated factors: widespread affluence and literacy; political and social stability; a large, established professional and commercial middle class; past experience (however perfunctory) with democratic forms and procedures; a culture of religious moderation. But clearly not all of these are necessary, nor are they all sufficient (which does Singapore lack?). All we can say is that based on the current and historical records of most of the countries in the modern Middle East, the prognosis for their democratic evolution is, well, not stupendously encouraging.

That's not to say, of course, that the US should simply abandon the whole region to groan under the inevitable yoke of brutal tyranny. Encouragement--rhetorical, political, financial, even military--towards liberalization of the area's authoritarian regimes would certainly be the geopolitical equivalent of a good deed, in those cases where it is likely to succeed in fostering real democratization. However, Gerecht and Adesnik seem to assume that it would invariably succeed, and is therefore always correct policy. Unfortunately, it is more often than not likely simply to fail, sometimes with serious adverse policy consequences for America.

Gerecht mentions Algeria, for instance, as a country whose ruthless military dictatorship benefits conspicuously from American willingness to indulge repression in return for cooperation against terrorism. What Gerecht does not mention, of course, is that Algeria was on the verge a few years ago of voting a radical Islamic theocracy into office--completely democratically, in a free and fair election--and was prevented from doing so only by the military takeover that resulted in the current regime. Had the US successfully intervened back then to protect the inchoate democratic process there, Algerians would probably not be better off today for their state having been forcibly Islamicized, and America would certainly be in a worse position as a result.

In Afghanistan, and probably soon in Iraq, the US will be faced with a similar choice. It can try to cobble together a not-too-horrible candidate government, perhaps organizing some kind of democratic ratification process, and then step back and let the nearly-inevitable authoritarianization occur; or it can pour billions of dollars, thousands of personnel, and years of effort and attention into trying to build resilient democratic institutions pretty much from scratch. Of course, an Afghanistan or Iraq ready for EU membership would be a wonderful thing, and probably an excellent boost for American interests abroad, as well. But if the whole project's likelihood of success is virtually nil, as I suspect it will be, then it can't possibly be worth the investment.

It is important to note that the realism I'm advocating is by no means equivalent to cynical, callous pursuit of American self-interest. On the contrary, freeing Afghans from Mullah Omar and Osama bin Laden, and freeing Iraqis from Saddam Hussein, are supremely selfless acts of kindness, for which those respective inhabitants ought to be hugely grateful (though, realistically, they almost certainly won't be for long, if at all). To paraphrase the Talmud, it is not America's task to finish the job of creating paradise on earth; it suffices for them to contribute to it. And one can do so without necessarily converting the entire Middle East into a second Scandinavia; for many of the region's countries (and people), even Jordan or Tunisia would be a major step up.

I've been quite forthright in my criticism of instances of liberal bias in the press, but I'm well aware that conservative commentators often confuse lack of conservative bias with liberal bias. A perfect example appeared Thursday in James Taranto's "Best of the Web" in the online Wall Street Journal.

Taranto complains, quite justifiably, about the New York Times' lack of attention--even in an article about prominent Democrats' positions on anti-terrorism measures--to Senator Patty Murray's bizzare comments about Osama bin Laden (she suggested that his support in the Arab world stems from his alleged good works there). But Taranto then lumps that article in with a Seattle Times editorial defending the Washington Democrat's remarks. After noting that "Seattle is a haven for wacko anti-Americanism", where a majority opposes an attack on Iraq, Taranto cites these instances of "[t]he Murray whitewash" as "an example of....liberal media bias".

Let us put aside for the moment the absurdity of citing an editorial in a single newspaper as an example of "liberal media bias" (especially after having just cited another, nearby newspaper's editorial expressing the exact opposite view). In truth, even if all of Seattle's newspapers consistently editorialized in favor of left-wing positions, it would be ridiculous to accuse them of left-wing bias if Seattle's population is in fact solidly left-wing. "Bias" is meaningless without a baseline, after all, and the only independent one available is the one drawn by the center of (a particular audience's) popular opinion. That's why it's not "bias" for newspapers to stand uniformly on one side of consensus issues like the evil of murder or the goodness of charity, or for Seattle newspapers to oppose the invasion of Iraq. That's also why it is an example of bias that the New York Times, which bills itself as an authoritative national newspaper, instead usually reflects the baseline views established by its liberal urban New York readership rather than a more national one.

It's unfortunate that most "media criticism" these days is largely partisan, and consists of complaints that the press is insufficiently biased in favor of the critic's personal views. A more useful role for media critics would be to identify disconnects between the press and its audience that might lead to the latter being poorly served or feeling alienated from its main news sources. But perhaps in today's fragmented, polarized media market, there is no room for such dispassionate analysis (apart from the odd, forlorn blogger).

Few debates in modern society are so rife with deep confusion over principles and motives as the debate over the relationship between sexual conduct and the state. Consider, for instance, Tim Noah's article in Slate on President Bush's recent executive order allowing federal "faith-based initiative" funding to religious institutions that "discriminate on the basis of religion". The order was designed to allow religious charitable organizations to preferentially hire members of their own faith without jeopardizing their access to federal grants. This permission has both obvious justifications and worrisome implications, but Noah, who generally accepts the idea, focuses on one of the latter in particular: that once the power to judge "membership" is granted, "other forms of discrimination can slip in the back door". His example: a Methodist children's home "decreed that homosexuals and unmarried heterosexuals who engage in premarital sex are....not Methodists—or at least not sufficiently Methodist to be eligible for employment there."

Now, the "discrimination" case for granting full, unconditional equality to homosexuals is a bit like the "perjury" case for impeaching former president Clinton: it's really a moral argument about sex masquerading as a legal argument about rights. In its most reasonable form, it targets an underlying weakness in most claimed justifications for singling out homosexuality (uniquely) for opprobrium: they apply equally to other traditionally shunned forms of sex, but are rarely (or at least rarely vocally) invoked against, say, extramarital sex in general. Casual heterosexual sex is also, after all, a sin in the major monotheistic religions; it undermines marriage and family just as much (or as little, depending on your point of view) as homosexuality; and when practiced promiscuously, has comparably disturbing public health consequences. (It's no surprise that the "gay liberation" movement followed directly on the heels of the sexual revolution; the anti-traditionalist, sexually libertinistic principles embraced by the latter lead easily and naturally to an embrace of the former.) Singling out homosexuality and homosexuals for moral condemnation while remaining silent on other deviations from traditionalist sexual norms is thus at least somewhat hypocritical, and gay rights proponents (such as Noah) thus implicitly invoke the sexual laissez-faire spirit of the times when arguing for gays' right to "equality".

But the Methodists Noah denounces, in effect, as bigots are not vulnerable to such an argument. They endorse a completely traditional view of (all) sex that, while possibly not attractive to Tim Noah, has the advantage of being strictly faithful to its own religious teaching, completely consistent in its embrace of a particular ideal of family structure, and even defensible as a public health strategy. To argue that it is unjustly discriminatory is thus to argue the same of virtually all marriage and family law, all religious (or other) moral teaching about sex, and, for that matter, all denunciations of promiscuity (even, for example, on public health grounds). If Noah actually embraces absolute sexual and domestic libertinism so completely that any deviation from it amounts, in his eyes, to bigotry, then it is he, not the Methodist children's home, that has adopted a rigid and intolerant fundamentalism that brooks no dissent in its desire to impose its own uniform moral vision on all of society.

It's hard to believe, though, that Noah really means to suggest that religious denominations, to avoid discrimination, must be utterly silent on matters of sexual morality. More likely, he, like so many who discuss this topic, is simply confused.

Nick Kristof, in the New York Times, and Wendy Sherman, in the Washington Post, have both written columns this past week urging the Bush administration to "negotiate" with North Korea. It's not at all clear what the verb even means in the context of North Korea, a nation that has consistently ignored any and all commitments it has made in the course of its past "negotiations" with Western countries. As far as anyone can tell, simply airdropping food, money and leaflets proclaiming friendship over Pyongyang would be faster, easier and no less effective than attempting to engage in some kind of empty diplomatic charade with the government headquartered there. The strongest argument Kristof can come up with in favor of opening up a dialog is that the current policy of sanctions and isolation is "not working". But it's hard for him to make that claim when he can't point to any goal that negotiations could plausibly achieve that is not already being accomplished by today's policy of what amounts to irritated neglect.

Sherman, however, makes a much more relevant point: The South Korean government and public currently both support (however foolishly) a policy of engagement. And given that South Korea is the main "front-line" state targeted by the North, and a strong US ally to boot, any American stance more hardline than Seoul's would not only stir South Korean resentment (Sherman's primary, largely irrelevant concern) but, more importanly, end up being undercut by South Korean accommodationism. A policy of isolation, for instance, is pretty difficult to enforce if the South is disinclined to participate in its implementation.

The US has been in these shoes before, of course--most notably at various moments during the Cold War, when Western Europe distanced itself from more hawkish American administrations trying to maintain a united front of firmness against the Soviet Union. (Non-Israeli skeptics of the late stages of the Israeli-Palestinian "peace process" were in a similarly difficult position during Ehud Barak's prime ministership, when he started making huge unilateral concessions in the hopes of winning reciprocation from Arafat. Who were we, after all, to second-guess the nation that stood to suffer the most serious consequences of any error in judgment?)

But the lesson of these past encounters with crazy regimes is clear: totalitarian leaders, when offered concessions, invariably overplay their hands, and healthy democracies, after a period of foolish flirtation, always come around--eventually--and respond by toughening up their stances. In the case of the Korean peninsula, where Pyongyang has never been shy about directly provoking the South with pointless acts of shocking aggression, the pattern is particularly dependable. The US should quietly agree to follow Seoul's lead regarding North-South relations, confident that sooner rather than later, America's view will be vindicated, and its South Korean partner will willingly join it in applying sustained, vigorous pressure (to the extent possible) on the maniacal regime to the north.

Even in this age of murderous fanatics and craven appeasers, some examples of moral confusion are so incomprehensibly extreme that they stretch one's conception of the range of human folly. Such is journalism professor Ted Gup's rambling paean, in the Washington Post, to the free speech rights of a rabid anti-Semite.

Confronted with a Cleveland restaurateur who has adorned the wall of his deli with a mural depicting a whole panoply of hate-filled lies about Jews ("Jews as monkeys wearing yarmulkes", "a Jewish conspiracy in control of American network television"), Gup nevertheless expresses thanks for the absolute right of free speech. Understandable enough, one thinks as one reads; such laws allow Gup to recognize and avoid despicable bigots like proprietor Brahim Ayad, to organize protests against them, and to be forewarned of their potential for violence. But no, Gup sees more direct social benefits, as well: "Hate speech need not be a precursor to violence. On the contrary, it can defuse tensions that could turn explosive." Ayad's murals "invite the possibility, however slim, that we might find some sliver of common ground, that confrontation could lead to conciliation".

Gup visits Ayad's shop, and finds him "courtly, soft-spoken and oddly vulnerable", despite the hate literature he hands out and the conspiracy theories he spouts. (Bigots are people too, after all.) He may be an anti-Semite, but he appears quite friendly with the local black population--"if he is a bigot he is most selective", writes Gup, approvingly. The lessons of pride and self-confidence Ayad teaches to his eight children are "[n]ot so different from what I tell my own sons." (The scary thing is, he might be right.) Gup draws a contrast between this disturbingly cordial chat and his childhood experiences as a Jew growing up in the stuffy, quietly discriminatory Midwest of the 1950's, "when prejudice was vented only in whispers between like minds." Dealing with "prejudice [that] was hidden behind disingenuous smiles" convinced him that "a silenced bigot can do far more mischief than one who airs his hatred publicly."

It's hard to know what to make of Gup's ludicrous misinterpretation of these past and present brushes with racism. Perhaps his free-speech dogma has tied him in rhetorical knots; perhaps he was taken in by Ayad's friendly manner; or perhaps he's just dense. But one thing is clear: the secretive bigots of Gup's youth were not more dangerous than the overt, flagrant anti-Semites of today for their having been suppressed. In fact, they were not legally suppressed at all; to the extent that free speech rights were interpreted less expansively in the 1950's than today, they hardly afforded less protection to open expressions of racism. On the contrary, most forms of bigoted expression were far freer from formal restraints back then than they are today--and were accompanied by much more overt harm, including violence, towards their targets. While Gup was enduring muted slights in Canton, Ohio, for example, blacks in the American South were being openly subjected to vicious slurs on a routine basis--and certainly had no reason to feel more safe as a result.

No, what confined anti-Semitism behind disingenuous smiles in the 1950s was, in a word, shame--the widespread recognition that racial and ethnic prejudices, even fairly common ones, were nonetheless considered in many quarters to be immoral. Likewise, what protects Ted Gup today from monsters like Brahim Ayad is not Ayad's unfettered freedom, but rather his inability to win popular acceptance for his depraved blood libels. And if, God forbid, his despicable views should gain widespread credence (as they have, for instance, in the terrorist-breeding towns of the West Bank and Gaza Strip), then the First Amendment will hardly protect Gup from the inevitable ensuing brutality. Moreover, the path from here to there, should it end up being traveled, will have been paved by the warm indulgence shown the likes of Brahim Ayad by the likes of Ted Gup.

There are, it is true, serious, plausible arguments for eschewing legal restrictions on hate speech: the difficulty of distinguishing it from more defensible opinions; the value of being able to gauge its popularity openly, and counter it vigorously as necessary; the patina of glamor that inevitably attaches to anything banned. But none of these contradict the simple fact that hate speech is unambiguously evil. It encourages and cultivates violence and other forms of direct harm, and should be shunned and condemned without reservation or mitigation--even when promulgated by a jovial deli owner in Cleveland. Shame on Ted Gup for losing sight of this glaringly obvious truth.

Andrew Sullivan has collected nearly $80,000 via his blog with his "pledge week", Glenn "Instapundit" Reynolds an undisclosed (but presumably somewhat lesser) sum with his "tip jar". Such fundraising has actually become quite common among bloggers. At least one, though, has questioned the seemliness of articulate, employable (and usually lucratively employed) amateur diarists engaging in what amounts to electronic panhandling.

Here at ICBW, of course, we have no need for any such shenanigans, being in possession of a multi-million-dollar trust fund donated by a recently-deposed African strongman, who happened to share our strong views on the evils of judicial overreaching. Unfortunately, the money is currently locked up in an escrow account in Lagos, Nigeria; readers interested in assisting us in transferring it to a more accessible locale (in return for a hefty percentage of the proceeds) are encouraged to email us for further instructions. (Or you can just drop us an email to let us know you enjoy reading the blog, or to tell us to knock it off with that annoying royal "we".)

The Wall Street Journal's recent editorial expressing concern that too many non-affluent Americans may be playing too little in taxes--and hence lacking in tax-cutting passion--has understandably come under fire from liberals like Tim Noah, E.J. Dionne, and (of course) Paul Krugman. They quibble with the math (low-income people pay lots of tax, even if most of it is not income tax), condemn the mean-spiritedness of the idea, mock the irony of Republican "class warfare", and write ominously of the potential for this "meme" to take off, with predictably awful consequences.

What they (again, understandably) seem to have missed is the bigger picture: the obvious sheer desperation infecting ideologues like the WSJ editorialists that has them actually hoping for a major political setback, just so that they can recover their lost feeling of gaining momentum and making progress. The simple fact is that anti-tax fervor has won in America; it is a universally accepted conventional wisdom, it can command automatic, overwhelming political support, and no politician dares raise a firm voice against it. In other words, it has peaked, and has nowhere to go but down.

Over time, segments of the public that once reflexively opposed taxes will inevitably start noticing attractive governmental opportunities missed as a result of this dogma, and anti-tax zealots will find themselves fighting rearguard holding actions against popular measures to raise revenues for particular widely-supported government expenditures (or simply to preserve popular current ones, in the face of mounting deficits). Tax-cutters will at that point have morphed from impassioned revolutionaries into beleaguered defenders of the status quo, just like the tax-and-spend liberals whose barricades they once stormed. The wheel will have come full circle.

In their hearts, I believe that the "preserve the poor's tax burden" set subconsciously understand their problem; they dread their inevitable fate, and are frantically trying to preserve the last vestiges of their beloved insurgent status. Their efforts, of course, are doomed to failure.

I have often described the modern liberal arts university as an institution suffering from a lack of a substantial social purpose to serve. But that purpose (at least in the case of the elite schools) may have been found at last. David Brooks, the perspicacious anthropologist of modern society who unearthed Patio Man, has turned his attention to academia, and the result is a fascinating portrait of today's top tier of college students.

On the plus side, these students are extremely hardworking, ambitious, industrious, mature, self-confident overachievers, a gender-integrated version of the famous Japanese "salaryman" cohort that led that country's economy to such heights in the seventies and eighties. They run themselves ragged pursuing opportunities, organizing activities and advancing their careers, caring little for frivolities like dating and romance. Their studies are in fact just a sideline to their resume-padding extracurricular pursuits. "It is through activities that students find the fields they enjoy and the talents they possess, writes Brooks. "The activities, rather than the courses, seem to serve as precursors to their future lives."

Brooks sees some less positive aspects in this culture, though. The students he observed are not really intellectually engaged, or even unusually intelligent; they have instead been selected for their having "master[ed] the method of being a good student", and treat excelling in their studies as another task to be accomplished with their trademark diligence. Moreover, the "tyranny of the grade point average" stifles specific passion in favor of bland generalism, and "punishes eccentricity". Ambitions are narrowly focused on the few professions that offer well-trodden, steeply upward-inclining career paths, at the expense of all sorts of unusual or creative possibilities. As a result, these students lack "any clear sense of what their life mission is", or even "of what real world career paths look like".

These would be very serious criticisms indeed, if a large fraction of college-age youth ended up in such a setting. As a forge for America's leadership and managerial class, though, an environment that directly cultivates hands-on leadership and management (not to mention workoholic devotion to accomplishment) doesn't sound bad. (Societies--even highly successful ones--have certainly done worse; think of the English "public school" culture of institutionalized physical brutality that molded the functionaries of the British Empire.) America does not lack its share of independent-minded visionaries; developing a corps of hardworking careerists devoted to making things happen, on the other hand, would at least constitute a tangible contribution the nation's success. And it's about time the country's top liberal-arts colleges finally returned to providing one.

Chris Bertram, a.k.a. "Junius", notes that despite Europe's reluctance to accept Turkey as a member of the EU, the Turkish political system follows European models in many respects. Jacob Levy concurs, adding that two particular European complaints about Turkey--its suppression of religious expression and of linguistic minorities--have strong precedents in French history.

Well, Levy is a political scientist, and Bertram is a philosopher, so I suppose they can be forgiven their unworldliness. And I'm not entirely unsympathetic to their criticisms of European snobbery about Turkey. But shocked though these two academic theorists may be to hear it, a nation's official political structure does not necessarily define its politics. I strongly suspect that Europeans are in fact not afraid that Turkey might become too aggressively secular, but rather that a strain of fundamentalist Islam is brewing just beneath the officially secular surface. Similarly, they are not concerned about a Turkey too strongly unified by strict enforcement of a single cultural norm, but rather about a country riven by ruthlessly suppressed ethnic strife that may continue to erupt periodically into dangerously destabilizing episodes of violence for decades to come.

A more interesting question, raised tangentially by Bertram, is what, precisely, might qualify Turkey (or any country, for that matter) as "European", if Turkey's current condition does not. While obviously any such definition is bound to be somewhat imprecise, I propose the following list of promising signs:

• The presence of a large "internationalized" class who view their home country as a reactionary backwater, and an integrated, forward-looking Europe, the epitome of civilization, as its potential savior;


• Widespread enthusiasm for an expansive, dirigiste welfare state;


• A heavily state-subsidized "cultural sector" that produces dreary, unpopular content;


• Frequent public displays of virulent hatred of the US and Israel.

Once Turkey presents the above symptoms, it will already be effectively European, and rapid finalization of its membership in the EU will then no doubt be a mere formality.

Dahlia Lithwick and Mark Kleiman have both noted approvingly the effect of Clarence Thomas' presence on the Supreme Court's hearing of the recent "cross burning" First Amendment case, Virginia v. Black. Thomas, a black justice of little jurisprudential distinction who was almost certainly nominated at least in part because of his race, and who rarely speaks during oral arguments, chose the occasion of this particular case to interject some passionate remarks about the meaning of the burning cross as a symbol of the Ku Klux Klan's long history of absolute, violently-wielded power over much of the American South. Lithwick concludes from the episode that "justice can only be done when judges representing the most diverse experiences and backgrounds sit on the nation's courts." Kleiman observes that "Thomas's intervention showed that race remains relevant to the exercise of the office of judging in the United States," and implies (though he demurs from asserting it as his opinion) that the de facto racial preference that brought Thomas to the Supreme Court might be seen to have benefited the court in this instance.

Now, as a non-conservative who originally opposed Thomas' nomination on the grounds that he was a mediocre judge nominated for purely political reasons (only to change my position when opposition to his appointment in the wake of the Anita Hill brouhaha suddenly became the more overtly political stance), I find it ironic that folks like Lithwick and Kleiman, who most likely gnash their teeth in frustrated outrage at 98 percent of Justice Thomas' opinions, would concentrate on this one case as evidence that selecting Thomas for the court might have had an overall positive effect. But even in this instance, it's worth examining the content and consequences of Thomas' comments.

He did not, after all, say anything that enlightened the Court as to a matter of law or logic. In fact, he did not say anything that was unknown to the other members of the court, or that might not have been said just as well by any one of them. Nevertheless, Lithwick remarks that "with his personal narrative, Justice Thomas changed the terms of the legal debate," and Kleiman mentions that "[t]he same speech from Scalia or Rehnquist would have been much more surprising, and probably less persuasive". In other words, its strong impact on the justices derived completely from the fact of Thomas' race.

I will be more blunt than either Lithwick or Kleiman: Thomas was using--just as he did during the Anita Hill hearings--indignant language about America's sorry historical record of mistreating blacks as a blunt rhetorical instrument with which to overcome more reasoned arguments. And unlike the Hill hearings, which had unfortunately already been politicized through and through, oral arguments in the "cross burning" case had been quite typically dry and dispassionate until Thomas' outburst. If his words managed to change any minds, it was certainly not on the strength of their legal significance.

Now, many Americans (apparently including Lithwick, and perhaps Kleiman as well) actually think it quite proper that such blatantly emotional approaches be incorporated into the Court's reasoning--that is, that the Court is entitled to factor political, social and cultural sentiments into its decisions. But if so, then the Court is just another political body--the Senate with fewer members and no elections; and whether it happens to be one-ninth black is only one of a very, very long list of discomfiting questions that deserve to be asked about its political representativeness. (As Lithwick herself concedes, "how much identity politics can you fit on the head of nine pins?")

Conversely, if there is any meaning or legitimacy to the Supreme Court's being an appointed legal body, rather than an elected, political one, then Thomas' little speech was completely inappropriate for it. Had it been delivered to the Virginia State Legislature debating the ban on cross-burning that was at issue in the case, it would have been entirely fitting; in the courtroom, it was yet another demonstration that Clarence Thomas was a poor choice for his seat on the court.

(As an aside, I actually share Thomas' views, Constitutional and political, on the cross-burning issue, although I'm much more careful to separate the two. I believe that the First Amendment exists to protect the democratic process, and thus properly applies only to the lifeblood of democracy: written or spoken speech. Symbolic gestures of any kind--from flag-burning to cross-burning--are unnecessary to the orderly conduct of the democratic process, and are therefore open to regulation without fear of collapse into tyranny. The expansion of the "free speech" clause to cover them--and much more--is, in my view, part and parcel of the Constitution's embarrassing and unwise elevation from pragmatic guardian of democracy into elaborately interpreted quasi-religious tract. Noxious speech may require tolerance in the name of an open political process; but noxious symbols and gestures are as likely to undermine that process as to enhance it.

In the case of cross-burning, I also happen to agree with Thomas and the Virginia legislators--as a political matter--that cross-burning is a despicable enough action to deserve a ban. I personally feel much less strongly about flag-burning, being Canadian and all; but I consider the claim that these two literally incendiary gestures are Constitutionally different to be utterly incompatible with any notion of Constitutionality that rises above individual political and cultural sentiment--of the kind to which Justice Thomas was so nakedly appealing.)

Now that Henry Kissinger has resigned as co-chair of the "independent" investigation into the 9/11 terrorist attacks, it appears that some other elder statesman with a gravelly voice will have to be found to deliver the stunning news: that pretty much everyone in the country was unprepared for what happened, and that the very few people who suspected something along those lines might be in the offing were, in retrospect, much, much more right than anyone realized at the time. (Eugene and Sasha Volokh's father suggests Tom Clancy as chair, but I expect the latter is more adept at writing spectacular fiction than pedestrian truth.)

Independent commissions of inquiry have many purposes, a few of them even legitimate. Probably their most respectable role is to act as official codifier and publicizer of some already-well-established set of facts being challenged by conspiracy theorists or generic wackos. (The Warren Commission was the prototype; it may not have been as successful as it had hoped to be, but think how wild and, uh, imaginative the Kennedy assassination conspiracy industry could have been without its careful establishment of a basic set of facts and evidence on the event.)

Finger-pointing commissions, on the other hand, are much less effective; it's much easier to believe that an august panel of dignitaries has misplaced the blame for some fiasco than that they've deliberately fabricated or covered up hard evidence. If it's politically or emotionally expedient for some people to reject the 9/11 commission's conclusion that it was, say, all Larry King's fault for failing to book Steven Emerson often enough, then they will.

Besides, how on earth can "blame" for failure to anticipate 9/11 possibly be calculated? When an event is unanticipated, that means that most people have adopted a worldview that rates such an event as highly unlikely. Now that the event has happened, of course, it's possible that their calculation of the likelihood of such a threat was grossly--even negligently--mistaken. It's also possible, though, that their calculation was completely correct. For all we know, the September 11th attack was a wildly improbable "success" that depended on numerous strokes of unbelievable luck on the terrorists' part (say, multiple near-compromises of the plot that somehow were just barely avoided). It's also possible, for all we know, that an attack viewed at the time as far more likely (say, a missile launch by a "rogue state") happened to have been derailed around the same time by some remarkable fluke of good fortune.

Indeed, even if an al Qaida attack was the most likely threat at the time, it's still possible that no reasonable information collection and analysis strategy (that is, one that did not recognize a priori the nature of the al Qaida threat) would have identified it as such. As Slate's William Saletan pointed out a few months ago, a "pattern" of evidence comparable to the one since observed regarding the September 11th attack could also have been constructed to support a prediction of any number of other disasters that, as it turned out, never came to pass. Expecting the unexpected is a very difficult business; there's just so much out there not to expect.

That doesn't mean that the government shouldn't be hard at work seeking out, studying, investigating and evaluating threats to the country, of course. What it does mean, however, is that a thorough examination of the process that missed the last threat is not likely to be particularly fruitful. (It could, for instance, spawn a "terrorist threats first" approach that will miss the next, non-terrorist danger.) A more productive exercise would be a simple best-effort threat assessment, based on the best information currently available, then an enumeration of possible countermeasures, and identification of the most cost-effective of these (in terms of estimated threat reduction potential) for implementation. I see no reason to think an "independent commission of inquiry" headed by Henry Kissinger or any other grandiose luminary would be nearly as effective as, say, a Pentagon "skunkworks" team (or perhaps several, working independently) at performing this function.

Readers of the Volokh Conspiracy weblog may be puzzled by the references there to a substance called "chopped liver". I will try to explain the origins of this bizarre material.

The liver is an organ present in all higher animals; its primary function is to secrete a malodorous green substance called bile, essentially a detergent that helps dissolve fats to aid in their digestion. It also produces a cascade of other chemicals designed to neutralize various toxins; some of these toxins are also stored in the liver to protect the rest of the body from them. In some animals, the liver is actually toxic in its own right; polar bear livers, for instance, contain hazardous quantities of vitamin A. In other animals, the organ is (barely) edible, albeit with an extremely foul flavor.

However, humankind's long history of daring ingenuity and perennial food shortages has prompted many societies to attempt to exploit all manner of noxious resources--insects, worms, dirt--for nourishment. It was thus inevitable that some intrepid cultures would attempt to convert the liver from waste by-product of livestock slaughter into dietary component. And, as with so many other examples, liver originally consumed out of desperation evolved in some locales into a "delicacy", as palates trained to tolerate this revolting ingredient eventually learned to crave it. The French, for example--notorious converters of detritus into cuisine--have taken to subjecting geese to obscene tortures in the belief that these can actually render the birds' livers tasty (in fact, the forced-feeding regimen they impose only dilutes the organ's flavor somewhat, making it marginally less disgusting to eat).

Another European tradition asserts (mistakenly) that cooking the liver, mashing it, then mixing it with fat, onions and spices, can mask its nauseating flavor; hence Volokh's strangely enthusiastic references to this dish. And remember: if anyone ever asks you whether they're "chopped liver", it's only polite to assure them, in no uncertain terms, that they are not.

(Next week: "Steak and Kidney Pie -- The British Sense of Humor Strikes Again")

Thomas Friedman, my favorite international affairs columnist, is now arguing that NATO should take control of the West Bank and the Gaza Strip, the way they did Kosovo. In fact, he claims to have suggested the idea a year ago. Of course, the analogy was absurd even back then; Kosovars weren't attempting to conquer and resettle all of Serbia, nor were they sending suicide bombers all the way to Belgrade to murder innocent civilians in support of their ambitions. But at least at that time the necessity of suppressing the "terrorist infrastructure" in the Palestinian Authority's domain with harsh military force, while obvious to many of us, hadn't yet been empirically proven. This past March, however, the Israelis moved in, and what has happened since? "Ariel Sharon has adopted a policy of hot pursuit and it has resulted in the Palestinian Authority's being destroyed and more Israelis being killed and feeling insecure than ever," writes Friedman. Does he really believe that more Israelis are being killed and feeling insecure than before Operation Defensive Shield? Does he even read his own newspaper?

Unless NATO is prepared to act as vigorously against terrorism as the Israeli army has, the bombings and killings emanating (currently at a much-reduced but still disturbing rate) from the PA's former stomping grounds would only increase under NATO rule. And the minuscule likelihood that, say, Norwegian troops would be willing to conduct dangerous and aggressive military operations against Palestinian terrorist organizations to capture "militants" and destroy munitions factories does not exactly inspire optimistic hopes for Friedman's plan. But widely celebrated international affairs pundits don't like messy, ugly situations with no elegant solutions; they're paid to be creative, and they'll propose grand, imaginative schemes, dammit, even if they have to ignore reality to do it.

You've got to hand it to Michael Kinsley; few writers can make a spectacularly flawed argument sound so spotlessly logical. His current critique, in Slate, of the practice of plea-bargaining is apparently derived from a 1978 article in the magazine Public Interest by one John Langbein, entitled, "Torture and Plea Bargaining". To quote Kinsley:

Langbein compared the modern American system of plea bargaining to the system of extracting confessions by torture in medieval Europe. In both cases, the controversial practice arose not because standards of justice were too low, but because they were too high. In medieval Europe, a conviction for murder required either two eyewitnesses or a confession by the perpetrator. This made it almost impossible to punish the crime of murder, which was an intolerable situation. So, torture developed as a way to extract the necessary confessions.

Plea bargaining evolved the same way, Langbein explained. As our official system of justice became larded with more and more protections for the accused, actually going through the process of catching, prosecuting, and convicting a criminal the official way became impossibly burdensome. So, the government offered the accused a deal: You get a lighter sentence if you save us the trouble of a trial. Or, to put it in a more sinister way: You get a heavier sentence if you insist on asserting your constitutional rights to a trial, to confront your accusers, to privacy from searches without probable cause, to avoid incriminating yourself, etc.

This analogy looks reasonable on the surface, but it is in fact wildly self-contradictory. If the modern system of justice is as "larded with....protections for the accused" as the medieval one, then how can plea-bargaining threaten to impose a "heavier sentence" on someone who is nearly guaranteed an acquittal? What is the incentive for the accused not simply to demand a trial, and obtain an exoneration?

In fact, the medieval torture analogy fits one aspect of the modern criminal justice system perfectly--just not the part that involves plea-bargaining. Plea bargains almost always involve cases in which the defendant faces a very high chance of conviction, because the evidence for guilt is overwhelming. In such cases, the defendant has a strong incentive to accept the certainty of a lighter sentence in exchange for the near-certainty of a heavier one. This is a perfectly reasonable transaction for both sides, and not even Kinsley is able to come up with a serious argument against it.

The trouble starts when the authorities have somebody whom they "know" is guilty, but whose prospects for an acquittal are large--either because the evidence is genuinely weak, or because the elaborate labyrinth of "protections for the accused" prevents the damning evidence from being used. In such cases, modern equivalents of medieval justice--from ruthless interrogation techniques to falsification of evidence to "testilying"--become extremely tempting "correctives" to the system. And once used to convict the unmistakably, horribly guilty who would otherwise go free, they become equally tempting tools for winning convictions in cases where the evidence is less clear-cut--including some where the accused later turns out to have been innocent after all.

Now, all of this fits Kinsley's/Langbein's analogy perfectly. It even explains the ostensible topic of Kinsley's column ("Why Innocent People Confess") much better than all of his grumbling about plea bargains. But the clear lesson of this analysis--that doing away with absurd Constitutional barriers to convicting the obviously guilty might actually afford the innocent greater protection, by reducing society's incentives to quietly allow convictions to be obtained by corrupt means--is terribly unappealing to someone of Kinsley's ideological pedigree. So he must instead twist a perfectly good analogy in perverse directions, extracting a lesson--plea-bargaining is bad--that makes no sense, and that benefits nobody except a lot of criminals, their defense attorneys, and their political sympathizers.

Then again, given the incoherence and perniciousness of his claim, Kinsley certainly argues it well.

The blogosphere (and now the real world, too) is up in arms over Senate Majority Leader Trent Lott's fond reminiscences about Strom Thurman's days as a rabidly pro-segregationist "Dixiecrat". Some commentators have expressed surprise and even alarm at the slowness with which the public outcry has arisen. Sunny optimist that I am, I view this delay as a positive sign; in effect, it demonstrates that Lott's expressed sentiment is now so far beyond the pale that everyone simply assumed he'd gotten his tongue in a knot, so to speak, and ended up blurting out something whose plain meaning he couldn't possibly have intended.

Of course (he said, returning to cynical mode), none of this has any bearing on whether Lott actually gets to keep his job or not. As I've often pointed out, a political scandal rarely has much to do with the actual offense ostensibly at the center of it; rather, it's an occasion for the protagonist's allies and opponents to do political battle, with the offender emerging unscathed, alive but bloodied, or completely destroyed, depending upon the relative strengths of the forces engaged in the melee. I have no idea how strong Lott's support is in, say, the Republican Senatorial caucus, but if it's strong enough, he could tout Osama bin Laden for president and get away with it, whereas if it's sufficiently weak, his crummy hairpiece alone is enough to sink him.

That having been said (he adds, returning to sunny idealism), the outcry among conservatives at Lott's remarks (and the initial relative restraint among liberals) extends a building (and most welcome) trend against racial polarization in American politics. (The defeat of several polarizing candidates in 2002 also provided consipcuous evidence of this tendency.) I haven't seen it mentioned, but I suspect that one of its biggest accelerators was the WTC attack; nothing promotes national unity better than an external enemy, and racial animus post-9/11 now seems not only quaintly outdated, but arguably downright unpatriotic. Somehow, I suspect that improved racial harmony in America is not the effect the September 11th hijackers had in mind....

Mark Kleiman is tussling with a few folks who resent his (and others') calling Elliott Abrams a "felon". Now, I agree completely with his point that while "innocent until proven guilty" is a perfectly appropriate standard in a criminal court, public discussions of public figures are free to use less rigorous standards of proof when judging criminality. Hence, describing Abrams as a "felon", despite his having plea-bargained his way to a couple of misdemeanors and an eventual pardon, is not unreasonable by the standards of casual (e.g., blog) conversation.

But, significantly, Kleiman also felt compelled to throw in an offhand-seeming remark that "Abrams wasn't deceiving the Congress about his sex life". In other words, it's not true that to him, a felon is a felon is a felon; allowances can be made for, say, people forced under oath to choose between mendacity and political suicide, and opting for the former, in the course of a political witch hunt decried by Jeffrey Toobin in a book as a scandalous misuse of prosecutorial power for political ends. Well, under that criterion, Abrams, too, would get the benefit of the doubt.

(Of course, Kleiman may well feel that the matters about which Abrams misled Congress were more the investigator's business than those about which a certain former president misled a certain plaintiff's lawyers. And personally, I'm inclined to agree. But then, that president didn't have to sign into law the statute that made the topic about which he was later pressured to dissemble a permissible line of investigation for sexual harassment plaintiffs. That he did suggests that by his own standards, the investigators who later caught him perjuring himself were acting legitimately.)

Hence, in the end, while I won't quibble with Kleiman for referring to Abrams as a felon, he shouldn't pretend that he's doing so merely because Abrams is, in the casual sense, a felon. More likely, it's because he objects strenuously to Abrams' past political acts and views (and quite possibly his present ones, as well). Wouldn't it be more appropriate, then, for discussions of the man to concentrate on his merits or demerits as a political figure, rather than legal hairsplitting? Isn't that what we both would wish for, after all, in our conversations about that former president with the embarrassingly similar problem?

The New York Times may not allow columnists to disagree with its editorial page, but it apparently does allow op-ed pieces to conflict with columnists. For example, Chinese dissident Gao Zhan's critique of the Chinese education system directly contradicts Nick Kristof's glowing praise for it a few weeks ago. Who's right?

Actually, the two columns agree on quite a bit; Kristof asserts that academically speaking, "Chinese parents demand a great deal" of their children, that "Chinese students may not have a lot of fun", but that they "are driven by a work ethic and thirst for education" that leads them to study many hours a day, seven days a week. Gao writes that "[t]he competition in big city schools is intense", that "[s]tudying 15 hours or more a day is commonplace", and that "[l]est you think the pressure is only on the children, parents are not exempt." They disagree on the breadth of students' education; Kristof writes that "the brightest kids are not automatons; many are serious enthusiasts of art, music, poetry or, these days, the basketball plays of Yao Ming", while Gao complains that "the system discourages intellectual inquiry, especially in the humanities".

But mostly, they disagree over whether all this drive for educational achievement is really a good thing in the first place. Kristof lauds the country's "educational success", attributing it to the attitude that "good students do well because they work harder", and the fact that "parents set very high benchmarks". Gao is principally concerned that the Chinese educational system is "hopelessly politicized, a vehicle of propaganda". But she also frets that "[t]he pressure on children can be cruel" and that students are "poisoned by cutthroat contests for academic success". In other words, this isn't primarily a difference about methods, or even the results of methods; it's about the very goals of the educational system. Kristof admires China's schools for producing outstanding academic achievers; Gao considers their successes irrelevant at best, and instead criticizes them for being "inhumane", producing "hotheaded nationalists and submissive cogs"--albeit scholarly ones.

And her extra-academic priorities are shared by plenty of non-Chinese educational critics. In a Washington Post commentary, writer Christine Woodside expresses unusual concern for a little-noticed (and not-usually-deplored) development on the American educational scene: the decline of recess. Although she raises the argument that a break in the daily schedule might actually improve classroom learning (a tough sell, empirically speaking, given China's experience), most of her claims focus on her concern that American schools might be (believe it or not) "forbidding fun".

Now, few such educational "reformers" openly express indifference as to whether children actually learn anything in school. But nobody could advocate making, say, driving school or medical school less rigorous, with fewer tests and more stress-free activities so that students won't feel so much pressure, without the obvious inference being drawn that the complainer cares little about the quality of the nation's drivers or doctors. And Gao's and Woodside's assertions that a less intense educational program would in fact be a more intellectually successful one are about as plausible as, say, the claim that children have more fun in a highly competitive school than in a slack one. There may be a tiny grain of truth to both statements, but anyone who makes them without massive caveats should be considered most likely completely disingenuous.

One can perhaps understand how a woman raised in an oppressive, totalitarian society could come to oppose highly disciplined education systems in general, associating them in her own mind with propaganda and perpetuation of state power. (That's not to say that the association is empirically valid; after all, Chinese students have been more involved in dissident activity, on average, than most segments of that society.) But what explains the popularity, here in the free world, of the notion that education--by far society's most powerful agent for personal, social, economic and technological advancement--is less important than adding to the modern Western child's copious quantities of leisure time?

James Taranto of "Best of the Web" notes a MEMRI report of a Saudi translation of a Kuwaiti newspaper's interview with Saudi Interior Minister Prince Naif Ibn Abdul Aziz. "I cannot still believe that 19 youths, including 15 Saudis, carried out the September 11 attacks with the support of bin Laden and his al-Qa'ida organization," avers the Prince. "It's impossible."

I guess they don't call him "Prince Naif" for nothing.....

Jacob Levy has posted a thoughtful response to my comments on "free speech" on campus. (He is also one of three bloggers recently added to my highly exclusive--though possibly not coveted, depending on what one thinks of my tastes--"blogs better than their exposure" roll.) We may not disagree as much as it seems; I will try here to sort out some of the intertwined issues.

First, we apparently agree fully that "time, place and manner" restrictions on speech--"no shouting outside dorms"-type stuff--can be quite legitimate. Levy also accepts that "[i]n-class speech that fails to advance an argument or to contribute to the academic enterprise is, of course, discouraged." (How vigorously it can be discouraged, Levy doesn't say.) Speech that is "merely offensive", however, is a different matter; according to the policy he wrote for the University of Chicago, it is not generally appropriate for "the University [to] intervene to enforce social standards of civility."

These last two positions form a striking contrast--with themselves, and also with traditional notions of academic freedom. In effect, they turn the usual form-content distinction on its head: we may forbid you to utter arguments in class that we consider invalid, but you are of course entitled to spew as many four-letter words as you please! That can't be what Levy has in mind--and it appears that indeed, it is not: " To single out a student for abuse," he writes, "to throw racial epithets at a particular person, to threaten with violence--these are over the line. They're violations of professional ethics and may well warrant university intervention." Now, to me, that sounds a lot like "enforc[ing] social standards of civility", and Levy seems quite comfortable with it.

What he is not comfortable with, as his examples show, is actually something very specific: restricting the expression of a specific set of ideas, on the grounds that a particular person or group finds it "offensive". Now, I happen to share this discomfort myself, but--and this is the crux of the issue, I think--I do not consider the principle at issue here to be the protection of free speech. There are, as our previous examples have shown, so many completely legitimate reasons for restricting free speech in an academic setting that standing on the principle in this class of instances invites charges of massive inconsistency.

No, the reason for not restricting speech based on perceived "offensiveness" is that this particular rationale for doing so is a terrible one. Left as is--"thou shalt not say things that are offensive to a particular person or group"--it is meaningless: who determines whether a given statement is "offensive" to a particular person or group? Defined more precisely--"thou shalt not say things that a particular person or group says it finds offensive"--it easily becomes grotesque: should any particular person or group be entitled to call down punishment on an arbitrary individual for the crime of having given offense? Even if such a rule were never used to stifle debate-worthy political or intellectual opinions (and there is every reason to suspect that it might), it would still be wide open to abuses of all kinds--blackmail, prosecution of personal or social vendettas, and so on. Why treat it as a free speech issue?

Now, it might be said that my distinction is a niggling, angels-on-pinheads affair; what does it matter whether a bad rule is shunned on free-speech grounds or on its own demerits? But as I explained in my previous posting, the "free speech" argument has been used to defend a lot of scurrilous behavior on campus, including acts that are profoundly damaging to the academic endeavor. These acts are not, pace Levy, a "red herring"; they are an excellent argument for avoiding overuse of the "free speech" shibboleth--especially when far more compelling arguments apply.

(Correction: Jacob Levy did not write the University of Chicago policy from which he quotes; I misread his reference to it as suggesting that. My apologies.)