Thursday, October 30, 2003


Is Atrios Responsible for Libel?

The blogosphere has been abuzz over the cease and desist letter issued to Atrios by Jeffrey J. Upton, an attorney purporting to represent Donald Luskin, an NRO Online Contributor:

You recently linked to Mr. Luskin's October 7, 2003, posting on his website entitled "Face To Face With Evil," in which he chronicles his attendance at a lecture and book signing presented by Paul Krugman. You chose the unfortunate caption "Diary of a Stalker" for your link. More importantly, your readers, in responding to your invitation to comment, have posted numerous libelous statements regarding Mr. Luskin. Picking up on the theme you introduced, several have made false assertions that Mr. Luskin has committed the crime of stalking. Such a statement constitutes libel per se, an actionable tort subjecting both the author and the publisher to liability for both actual and punitive damages. As a result of your control over and participation in the comment section of your site, as well as the fact that Mr. Luskin has personally brought these libelous comments to your attention already, you face personal liability for their distribution. Determining your identity for the purpose of making service of process can be easily accomplished through a subpoena to

This is a nuisance suit. Unfortunately, Atrios will have to hire an attorney, but he should win easily. Despite Mr. Upton's suggestions to the contrary, Atrios is not liable for the postings in the comments section. And he has no duty to take them down. This is a consequence of section 230 of the 1996 Telecom Act. See my previous discussion on when bloggers can be sued for libel:

What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 states that " no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

This does not mean that bloggers are immune from libels they themselves write. It means
that they are immune from (for example) libels published in their comments section (if they have one) because these comments are written by other people and the blogger is merely providing a space for them to be published. Congress wanted to treat operators of chatrooms and other interactive computer services differently from letters to the editor columns in a local newspaper.

So if bloggers defame somebody, they can still be sued for what they say, just not for what
someone else who publishes on the blogger's site says.

Of course, Luskin could sue Atrios for Atrios's own comments, for example, that Atrios suggested that Luskin was a stalker. But read in context, Atrios' post is (a) not an allegation of actual criminal behavior, and (b) is a protected statement of satire and opinion. He is making fun of Luskin's own comparison of himself as someone who stalks Paul Krugman. Luskin's argument that Atrios has libeled him shouldn't survive a motion for summary judgment. Of course, the real problem is that getting to that point will cost Atrios money to defend himself.

Luskin should be ashamed of himself for having any part in sending this letter. It's a disservice to the blogging community, and inconsistent with respect for freedom of expression.

What's most upsetting is that he is employing a frivolous lawsuit in order to punish someone for exercising their First Amendment rights and that he is piggybacking an abusive subpoena to expose Atrios' identity. So he's not only engaged in frivolous litigation (aren't conservatives against frivolous lawsuits?), but also an abuse of the discovery process (aren't conservatives opposed to the dirty tricks of trial lawyers?). I guess Luskin is only opposed to frivolous lawsuits by other people, and dirty tricks by lawyers who are not representing him.

That's a protected statement of opinion too, by the way.

Sunday, October 26, 2003


Not Even A Program?

The Washington Post reports that Iraq did not even have an active program to construct nuclear weapons:

According to records made available to The Washington Post and interviews with arms investigators from the United States, Britain and Australia, it did not require a comprehensive survey to find the central assertions of the Bush administration's prewar nuclear case to be insubstantial or untrue. Although Hussein did not relinquish his nuclear ambitions or technical records, investigators said, it is now clear he had no active program to build a weapon, produce its key materials or obtain the technology he needed for either.

Sunday, October 12, 2003


Headscarves and Religious Accommodation

CNN reports that an 11-year-old Oklahoma girl, Nashala "Tallah" Hern, has been suspended from a public school because officials said her Muslim head scarf violates dress code policies, originally instituted to prevent wearing gang paraphenalia. The school's policy makes no exception for religious headgear, and school officials stated that they would not create one:

"As I see it right now, I don't think we can make a special accommodation for religious wear," said school attorney D.D. Hayes. "You treat religious items the same as you would as any other item, no better, no worse. Our dress code prohibits headgear, period."

He added that, under the dress code, a Jewish child would not be allowed to wear a yarmulke, the skullcap traditionally worn by orthodox Jews, to school.

Because of a 1990 Supreme Court decision, Employment Division v. Smith, rules of general application do not violate the Free Exercise Clause even if they impinge more heavily on minority religions. That case is, I think, wrongly decided. But, in any case, there is no constitutional problem with a school making religious accommodation for religious headgear. When the Supreme Court held that the military's interest in esprit de corps allowed it to keep a serviceman from wearing a yarmulke without violating the Free exercise Clause (this was before the 1990 decision in Smith), Congress promptly passed a bill mandating accommodation for religious items to be worn with uniforms. Generally speaking, the Establishment Clause does not prevent government from lifting a burden on religion it has itself imposed through a rule of general applicability. Such a rule could be unconstitutional if it specifically mentioned particular religions by name for exemption, or if it gerrymandered the exemption with the intention of benefiting some religions for accommodation but not others. But a well drafted rule can usually avoid such problems.

Congress passed a statute, the Religious Freedom Restoration Act (RFRA) in 1993, to counteract the Smith decision, and to require the federal and state governments to make religious exemptions under certain conditions, but the Supreme Court struck it down in 1997 as beyond Congress's powers as applied to state governments. Many states then passed their own versions of RFRA. Oklahoma is one of them. If the Oklahoma statute is like the federal one, then the student has a strong case for arguing that failure to make an exemption for religious headgear in the school dress code violates the law.

I'm not sure whether the above quote is simply due to a mindless bureaucratic mentality or is due to the fact that the school officials in question are implementing a regulation created at a state level that they do not have authority to change. If the former, their argument that they must treat religious clothing the same as all other clothing is specious. If the latter, I would think that school officials should do everything in their power to interpret the law so as not to apply to religious headgear, and, as I have noted, it's quite possible that the law violates Oklahoma's version of RFRA.

Other accounts of the story seem to suggest that the dress code is not statewide but is the policy of Benjamin Franklin Science Academy, and that the school has defended its decision on the grounds that there is no federal right to religious exemption. That may well be true, but it is irrelevant to the question whether the school is *permitted* to make such an exemption under the Establishment Clause.

Saturday, October 04, 2003


Rush Limbaugh Explains the Importance of Colorblindness

From an October 5th, 1995 radio show (courtesy of Ellis Henican and Newsday):

Even though blacks and whites break the drug laws in roughly equal percentages, [Limbaugh] noted, black druggies go to prison far more often than white druggies do. But to the liberal-bashing host, this was no reason to ease up on blacks.

"What this says to me," he told his listeners that day, "is that too many whites are getting away with drug use. Too many whites are getting away with drug sales. Too many whites are getting away with trafficking in this stuff. The answer to this disparity is not to start letting people out of jail because we're not putting others in jail who are breaking the law. The answer is to go out and find the ones who are getting away with it, convict them and send them up the river, too."

I think we've been taking Limbaugh's remarks about Donovan McNabb out of context. It's now clear that they were much more than the smug posturings of a rabble rouser who simply wants attention. Rather, they reflect a deep moral commitment: Just as Limbaugh doesn't want black quarterbacks to get a free pass from the sports media, he doesn't want white drug abusers like himself to get a pass from the criminal justice system.

When Limbaugh turns himself into authorities and demands to be treated no differently than African-Americans arrested and convicted of drug offenses, we will all see how wrong we all were about this man.

UPDATE: All sarcasm aside, if Limbaugh has become addicted to drugs, he deserves our sympathy, no matter what our views about his politics, and no matter whether he broke the law. As the above quote suggests, in the past Limbaugh himself has had nothing but scorn for people who have come to that sorry state. That disdain reflects less his conservative political views than the fact that he has, for most of his public life, been a callous, insensitive bully. Moreover, he has learned that being a callous, insensitive bully has gotten him a loyal audience and enormous adulation from a public that likes raw, obnoxious ranting from their political commentators. He has learned to enjoy the high he gets from being outrageous and merciless and goading his listeners into similar feelings of outrage and mercilessness. That is to say, Limbaugh has become as addicted to verbal thuggery as he has to painkillers.

If he is now addicted to drugs, we should be sympathetic to his plight, for addiction is no small matter, and living with it is a lifelong struggle. But we should also hope that he learns something from the troubles that are now raining down upon him-- that he, like the rest of us, is fallible and imperfect, and therefore deserving of love, and deserving of mercy. It is true that he is not a man much given to forgiveness, and that he has made a very successful living out of bullying, aggression and hatred. But perhaps he will discover, in a time of darkness, that there is more to life than aggression and demagoguery, and we, in turn, will discover that there is much more to him than the rather obnoxious and unsympathetic character he portrays on the radio. If he can turn his life around, and learn to bestow mercy on others as well as receive it, he might be well on his way to ridding himself of both of his addictions.

Friday, October 03, 2003


Fair and Balanced Pays Off

James Grimmelman writes about a new report concerning how mass media affect the American public’s attitudes toward the Iraq war. The study, conducted by the Program on International Policy Attitudes, finds that a significant proportions of the American public had false beliefs about (1) whether Saddam Hussein was working closely with al Qaeda before the war; (2) whether weapons of mass destruction have been found in Iraq; and (3) whether world public opinion favored the U.S. invasion. (For those who are wondering, no evidence has been found linking Saddam to 9/11 or demonstrating that that he was working closely with al Qaeda before the war, no WMD’s have been found in Iraq, and world opinion did not favor what the U.S. did.).

Sixty percent of the American public held one or more of these misperceptions, although only 20% held two and 8% held all three. The study further suggests that support for the war is highly correlated to holding one or more of these misperceptions. Among those who held none of these misperceptions, only 23% supported the war.

The extent of these misperceptions, the study reports, varies considerably based on Americans’ sources of news about the war. Those receiving most of their information about the war from NPR or PBS were least likely to have these three misperceptions about the war (Only 23% did followed by people who read the print media generally at 47%). On the other hand, those who received most of their information from Fox News are more likely than average to hold one or more of these misperceptions. (80 percent did, followed by 71 percent for CBS). The study corrected for demographic differences between the different sets of audiences, and found that the pattern held even when comparing the views of particular demographic subgroups. People who support the President are much more likely to hold one or more of these misperceptions, regardless of their party affiliation.

The study suggests that disinformation conveyed by the news media can shape public attitudes about important questions before the public. It also suggests what politicians have long known: propaganda works.


Why Preemption Was Such A Good Idea

David Kay gave his long awaited interim report from the Iraq Survey Group, explaining that none of the chemical and biological weapons that were a primary justification for the war against Iraq had been found.

Kay's report is likely to intensify the debate over whether the administration intentionally misled the public on the threat posed by Iraq's weapons programs.

``We have not yet found stocks of weapons, but we are not yet at the point where we can say definitively either that such weapons stocks do not exist or that they existed before the war, and our only task is to find where they have gone,'' Kay said in an unclassified version of his testimony released by the CIA.

Members of his Iraq Survey Group, Kay said, have discovered weapons ``activities'' and equipment that were concealed from U.N. inspectors when they returned to Iraq late last year. Those include apparent biological weapons research and Iraqi attempts between 1999 and 2002 to import technology for 900-mile range missiles from North Korea, he said.

Reaction from intelligence committee members ranged from support for Kay's work to frustration over the limited findings, to dismay that one of the central justifications for war had not been proved.

``This raises real questions about the doctrine of pre-emption,'' said Sen. Jay Rockefeller, of West Virginia, the ranking Democrat on the Senate intelligence committee. ``You just don't make decisions like we do and put our nation's youth at risk based upon something that appears not to have existed.''

The committee chair, Sen. Pat Roberts, R-Kan., declared himself ``not pleased with what I heard today.''

``Everybody involved in this effort would have hoped by now there would have been a breakthrough,'' he said.

Jay Rockefeller is on to something. If you are going to employ a doctrine of pre-emption, you had better have confidence that the threat you are facing is real and worth the risks of war. If you go to war on the basis of bad intelligence, or, even worse, if you engage in wishful thinking and employ trumped up intelligence reports to justify your support for war, you may cause yourself a great deal of trouble in the long run. For example, you may get stuck in a costly occupation with no end in sight, and instead of being hailed as liberators, you may find yourself bogged down in a lengthy guerilla war.

Nah, couldn't happen.

Thursday, October 02, 2003


What Caused Wilsongate? Some Thoughts About Institutional Incentives

What caused the Wilson scandal, and why did the story break into the mainstream press when it did? We can start to answer these questions by thinking in terms of institutions rather than individuals. The institutions are the Bush Administration, the CIA, and the mainstream press.

Begin first with the Bush Administration’s attempt to divert blame. Administration officials originally claimed that Saddam’s weapons of mass destruction and likely nuclear capabilities fully supported their decision to go to war. Later, when no WMD’s were uncovered, they argued either that their decisions were reasonable extrapolations from available intelligence, or failing that, that there was an intelligence failure; i.e., that the CIA had not done its job correctly.

The latter claim cast aspersions on the professionalism of the CIA. The CIA resented the Bush Administration’s attempt to use them as a scapegoat. But after Wilson wrote his op-ed on July 9th, responding to insinuations of CIA incompetence, senior members of the Bush Administration went one step further. They leaked information about Wilson’s wife’s identity as a CIA operative. The evident purpose of this was to say, both to Wilson, and to anyone who might have similar ideas in the future: “Screw with us and we will screw with you.”

At this point, however, the Bush Administration stepped over the line, at least from the CIA’s perspective. It was bad enough that the Administration attempted to impugn their professionalism and shift the blame to them. But now Administration officials had outed a CIA operative in response to criticism, partly as payback and partly as a warning. As a result, the CIA has struck back by requesting that the Justice Department investigate the leak.

Two questions:

Why did the CIA take so long to respond, from July 22d, when Novak’s story was published, to the end of September?

Why did the mainstream press take so long to take up this story?

The answers to both these questions concern institutional incentives.

When Novak’s story was first published, several bloggers complained vigorously about the administration’s leak, but the mainstream press paid very little attention (and at that point Novak himself obviously believed that the Administration had done nothing very seriously wrong). Why did the press hesitate? To answer this question we have to recognize the institutional incentives of the Washington press. Reporters do not like to disclose their sources. The more important a story becomes, the greater the chance that reporters will be called to testify before a grand jury, because, obviously, they know who leaked the story to them. Given their professional norms, the reporters will then refuse to disclose their sources, and the press will look bad for breaking the story and then refusing to assist with ascertaining the truth. That is, if the matter goes to the grand jury, there is a danger that the press itself will become the story, not the miscreants who leaked the information to the press.

All of this explains why, in the run of the mill story about leaks, the press is less than interested. The mainstream press has no incentive to make a big deal about leaks *to the press itself.* For this reason, it is often said that investigations about leaks in Washington tend to go nowhere. But they go nowhere not because the information is not readily available– it is readily available, the reporters have it! They go nowhere because reporters don’t want to testify about their sources, and government officials are usually not willing to take the political heat for putting them in jail if they don’t testify. (The institutional calculus is somewhat different with respect to local reporters in jurisdictions outside of the Beltway, so you actually do see the occasional reporter jailed for refusal to testify). Put another way, the ongoing (some would say incestuous) relationship between national politicians and the Washington press corps leads to the received wisdom that the source of leaks cannot be uncovered. And it also led to the mainstream press not picking up on the story for over two months after the Novak column originally appeared.

The CIA’s request to the Justice Department, however, changed the equation considerably. Once the CIA started to push back at the Bush Administration in order to defend its reputation and its institutional prerogatives, it produced a story that could not be buried. The story had to be covered, even though the idea of putting mainstream reporters in harm’s way makes the institutional press quite nervous. The Bush Administration, recognizing the natural hesitancy of the mainstream press to push hard on stories where the press’s own interests are involved, has wanted this to be a story about leaks, which are a common enough occurrence in Washington, and which are governed by the unspoken rules between politicians and the Washington press corps. Thus, if this remains a story about leaks, then it will go nowhere.
The CIA’s decision to complain, on the other hand, suggests that to the CIA, at least, this is a story about the Administration trying to push the CIA around, and interfere with its professional status and its prerogatives. For that reason, if the Administration pushes the CIA, the CIA is going to push back. From the CIA’s standpoint, the Bush Administration (and all future administrations) must be shown that if it screws with the CIA, the CIA will screw with them. Karl Rove may think that he is Don Corleone, and that he can put the metaphorical equivalent of a horse’s head in Joseph Wilson’s bed, but two can play at that game. And, given the fact that the CIA probably has enough evidence in its files to undermine any sitting president, it is probably not a good idea for the Bush Administration– or any administration for that matter-- to use the CIA as a whipping boy.

It is likely that Valerie Plame and her immediate superiors wanted to push back at the Administration almost immediately after she was outed. But the CIA bureaucracy may have resisted for some time, hoping that the press would pick up the story. The mainstream press did not do so, for the institutional reasons I have just recounted, and therefore at some point the CIA felt it necessary to force matters into the open by requesting an investigation from the Justice Department.

Many people, I suspect, will want to see this story as about political machinations between Democrats and Republicans. Surely there is plenty of that going on. But if one focuses only on the partisan aspects of the story, one will miss the much more interesting and intricate conflicts between institutions that have set these events in motion.

UPDATE: Jerry Newmark writes that the CIA actually did make an informal request for an investigation within a week of Novak's story. An account appears here. He argues that the CIA only made a formal request (thus bringning on press scrutiny and, possibly, a full criminal investigation) only after the White House and the Justice Department failed to respond to its informal suggestion:

Along the lines you've presented, I've got a slightly different take on why
it took so long for the CIA to submit a formal request (and publicize it in
a way that is unusual for them). The CIA did make an informal request for a
Justice Department review shortly after the Novak article was published.
This may be seen as message to the White House that while the CIA wanted
someone's head to roll, they would rather not pursue a criminal
investigation. There are good institutional reasons for this - a formal
investigation would necessarily involve having the FBI investigate CIA as
well as White House personnel and the animosity between the CIA and FBI is
well known - as well as practical concerns about being able to control the
scope of an investigation once it has begun. Only after it was clear that
Justice and the White House were not going to act on their own accord did
the CIA raise the stakes.


If At First You Don't Succeed, Spend, Spend Again

The New York Times reports that President Bush will ask Congress for 600 million dollars to continue the search for weapons of mass destruction in light of the interim report of the Iraq Survey Group which is expected to state that no such weapons have been found.

Approximately 300 million dollars has already been spent in a so far fruitless search for weapons of mass destruction. The Administration wants to double that amount, in what is reported to be a classified portion of the Pentagon's appropriation request to Congress.

One suspects that if the Administration is willing to spend that much money, they could simply purchase the weapons of mass destruction and deposit them in Iraq.

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