Conservative activist Larry Klayman — the victor the recent NSA case — tongue-lashes CNN's Don Lemon and Jeffrey Toobin.

The clip, below doesn't show the whole interaction, but the text at Politico does:

Klayman’s appearance Tuesday night on CNN was preceded by a profile of him that included a quotation from a former George W. Bush staffer saying his lawsuits were about “fighting for himself and his own, in my opinion, delusions of grandeur.”

When Klayman was brought into the conversation, he came out firing.

“I think it is important to note that you’re a big supporter of Obama,” Klayman said to Lemon. “That you have favored him in every respect. You have to try to do a hit piece to diminish a very important decision.... I’ve watched you for many years. You’re an ultra-leftist and you’re a big supporter of Obama.”

The drug consumption rooms of Denmark...

"... where adults with serious addictions can bring their illegal drugs and take them, legally, under the watchful eye of a nurse."

Inside, to the left, behind a huge window, is cluster of smokers with improvised pipes, enveloped in haze. To the right is a long, stainless steel table where several people sit, injecting themselves with heroin, cocaine or both. Some finish and leave quietly. A few slump over the table, asleep. One man gets up and paces frantically back and forth, swearing and shouting. In the middle of it all, sits a nurse in street clothes, calmly taking in the scene.

Every day, these nurses witness up to 800 injections.

"I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen..."

"... for purposes of querying and analyzing it without prior judicial approval... Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment."

Wrote Federal District Judge Richard J. Leon, a Bush appointee, in a case brought by Larry Klayman, a conservative activist, who is seeking to represent a class of all Americans.

Similar legal challenges to the N.S.A. program, including by the American Civil Liberties Union and the advocacy group Electronic Frontier Foundation, are at earlier stages in the courts. Last month, the Supreme Court declined to hear an unusual challenge to the program by the Electronic Privacy Information Center, which had sought to bypass lower courts.

ADDED: Orin Kerr has some sharp analysis:

Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.

Read the rest at the link.

About that "affluenza."

Those who think the rich teenager — who, driving drunk, killed 4 persons — should have gotten a harsher punishment than 10 years probation are focusing on the expert testimony he presented in his favor. A psychologist named G. Dick Miller testified that having grown up in affluence, "He never learned that sometimes you don’t get your way... He had the cars and he had the money. He had freedoms that no young man would be able to handle."

Miller used the term "affluenza" — a portmanteau of "affluence" and "influenza" — to refer to the young man's psychological deficit.

Affluenza, Miller acknowledged to CNN’s Anderson Cooper on Thursday, is “not a medical term.” The psychologist said that it means “You have too much and you don’t know how to distribute it.” At Cooper’s prompting, Miller acknowledged that the boy was “a spoiled brat.”

The affluenza claim rightfully strikes the most absurd note since Dan White’s infamous 1979 “Twinkie defense.” Psychologists have loosely used the term for years to describe the emotional pitfalls unique to children raised in affluent settings.

Of course, psychologists will have a lot to say about the afflictions of rich people, since rich people are more likely to have money to throw into long, luxurious sessions with psychologists. And rich people have the money to put on a strong defense in a criminal trial, replete with expert testimony framing their deficiencies in the most compellingly sympathetic form.

It's the judge's responsibility to give this testimony the weight it deserves. The problem here is not that rich people have money to dump into a strong defense in a criminal proceeding or that psychologists have coined a catchy/cutesy term for the woes of the rich. It is the judge — Texas State District Judge Jean Boyd — who is accountable for anything that went wrong in the case of Ethan Couch. And we don't know the weight she put on Miller's testimony or the notion of "affluenza."

I don't know how Boyd has treated other teenagers. Perhaps she's deeply informed about the deficiencies of the teenage brain and has shown mercy to a great many poor and working class teenagers and her sentencing of Couch is — within her record — a model of equal treatment of the rich and the poor. Maybe she knows the research that has led, for example, to articles like this — "Developmental Psychologist Says Teenagers Are Different" — in the New York Times.

That's a 2009 interview with Laurence Steinberg, "a developmental psychologist at Temple University in Philadelphia... one of the leading experts in the United States on adolescent behavior and adolescent brain biology." He says:

I’m not one of those people who labels adolescence as some sort of mental illness. Teenagers are not crazy. They’re different.

When it comes to crime, they are less responsible for their behavior than adults. And typically, in the law, we don’t punish people as much who are less responsible. We know from our lab that adolescents are more impulsive, thrill-seeking, drawn to the rewards of a risky decision than adults. They tend to not focus very much on costs. They are more easily coerced to do things they know are wrong. These factors, under the law, make people less responsible for criminal acts. The issue is: as a class, should we treat adolescents differently?

Asked whether the criminal justice system is "beginning to take these differences into account during sentencing," Steinberg says:

It’s been coming up in cases. I went to Washington in November to watch the oral arguments in two related cases before the Supreme Court that ask: should someone who committed a crime as a teen be subjected to life imprisonment without a chance for parole, ever?

With these cases, and another in 2005 where the high court threw out the death penalty for adolescents, I was scientific consultant to the American Psychological Association on its amicus brief. What we said in the death penalty case — and now — was that we have considerable evidence showing that adolescents are different from adults in ways that mitigate their criminal responsibility. But since 2005, there’s been a lot of new scientific evidence supporting this position.

At the link you can see links to the U.S. Supreme Court cases and descriptions of the neuroscience research about the teenage brain.

Speaking of brains: Let's try to think clearly about this case and the larger context. Don't get too distracted by the word "affluenza" — which no one said was an actual disease. Don't impulsively slot this into a class warfare template. Remember that the criminal defendant has a right to present the evidence in his favor. And the responsibility for sentencing lies squarely with the judge, but don't succumb to impulsive emotion as you judge the judge.

"Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however..."

"... is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage."

Says federal judge Clark Waddoups in Brown v. Buhman, a case about the Utah anti-bigamy statute, which makes it a felony "when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." From the first time I noticed this issue, I've thought the answer was obvious. You can't punish people for the ideas they happen to have about why they are living in a household with multiple sexual partners. Call it a marriage or call it a sandwich. Imagine that God blesses your relationship or imagine that your kitty cats brought you together. It's no proper concern of the government's.

Now, if you want to legally register your marriage and qualify for various marriage-connected benefits and privileges, it's a different matter, and Judge Waddoups makes that clear. This case was not about that. It was about people who live together and perform private marriage rituals and call themselves married. Prosecuting these people, while other married people are left alone when they commit adultery, is criminalizing their speech and beliefs. If you understand the issue, I think you'll see this must be the answer.

This does not lay the groundwork for finding a right to marry multiple spouses any more than it compels the government to prosecute adulterers.

"Starting early next year, any adult with a craving or curiosity will be able to stroll into a strip mall or downtown shop in Colorado or Washington State and do what has long been forbidden..."

"... buy a zip-lock bag of legal marijuana."

No, not any adult. Only adults who think federal law that isn't being enforced still counts as law and who feel bound to follow the law. And, I, for one, feel that this discrimination against us rule-followers is unfair. Why are we — of all people — the last to be free?

I am the person who — when the fences were torn down at Woodstock and the hippies were declaring "It's a free concert now" — would have respected the rights of the landowners and the concert promoters.

If something is to be legal, make it truly legal, or explain to me why there is some special reason to fence out those who still believe in order.

"Microaggression" — the word that died.

I've been working on the theory that the term "microaggression" briefly spiked to prominence and then utterly crashed with the story of the professor who was accused of "microaggression" for correcting spelling and grammar errors. I picked apart some details in the way that story was told here, and then I began to Google "microaggression" every day or so to see what was surfacing in the world of microaggression. It's an interesting label, possibly useful, clearly abusable, and I wanted to see where it would get put. But all that came up, again and again, was that spelling-and-grammar-correcting professor. Hence the theory that the word died.

But today's search turned up something new over at Buzzfeed: "21 Racial Microaggressions You Hear On A Daily Basis." A photographer named Kiyun got her friends to "write down an instance of racial microaggression they have faced," so this is a series of people racially microaggressed against, holding signs. This is a pretty good-humored project, and the young people who went along with the photographer's idea object mostly to dumb remarks ("What do you guys speak in Japan? Asian??"), excessively personal remarks, ("What does your hair look like today?") and — here's something to hearten the John Roberts' fans — lack of color-blindness ("What are you?").

You know there's a color-blind way to fight against microaggression: Etiquette!

About that 6-year-old boy accused of "sexual harassment" for kissing his schoolmate's hand.

I heard Rush Limbaugh talking about this yesterday, and I see this morning that Glenn Reynolds — calling the boy "the littlest casualty in the war on men"  — is linking to James Taranto — who's blaming Obama (because of a requirement that schools protect students from sexual harassment).

I agree that someone that young should not be labeled with an offense that contains the word "sexual." (The school district, barraged with criticism, has relabeled his offense "misconduct.") And I would locate the issue of suspending him within the larger problem of the "zero tolerance" approach.

But I do think that the school is right to forbid kissing. The boy's mother, who naturally wants to defend her child, tells us that the children were "boyfriend and girlfriend" and that the girl "was fine with it." That may make the misbehavior less severe, but it does not take it out of the range of what a school should forbid.

By the boy's report, it happened "during class, yeah": "We were doing reading group and I leaned over and kissed her on the hand." That isn't acceptable in-class behavior! The school should forbid that. I don't understand saying it's fine for boys and girls who like each other to freely express that affection with hand kissing during class. How about a little support for the school teachers who expect discipline during their lessons? You're not allowed to whisper back and forth or pass notes either. This is basic classroom respect. Have we all forgotten?

"Why should we continue to care about Guantánamo?"

A student asked Linda Greenhouse on the last day of the law school course she taught on the sole topic of Guantánamo. She doesn't mention that the law school is Yale, which is the most difficult law school to gain admission to and therefore the one with the most elite set of students. Odd to think that someone who got into Yale and elected to take a course dealing solely with Guantánamo — it can't possibly be a required course — endured the experience to the last day and still asked why should I care?

I wasn't there, so I don't know the tone of the question. Greenhouse gives the context the student presented — "the Guantánamo population has shrunk even as urgent human rights crises that place many more people at risk have erupted in other parts of the world" —  and characterizes the question as "deliberately provocative and not entirely rhetorical." Greenhouse informs us that the class was provoked to "lively" "conversation" that "quickly" produced "consensus."

Of course, the intense activity of devoting a law school semester to one legal problem needs to make sense in the end. Simple human defensiveness could explain the quick trip to consensus. Why did we take this course instead of Information Privacy Law or Law and Regulation of Banks and Other Financial Intermediaries or whatever else might have captured our hearts on Yale Law School's rich menu of course offerings?

Here's how Greenhouse, in her NYT column, phrases the consensus:

We care because the Guantánamo saga isn’t only about the 162 men still held there, or the hundreds who have come and gone. It’s about the health of our own institutions, our own commitments. We look in the mirror of Guantánamo and see ourselves.

From "isn’t only about the 162 men" I gather that the students got weary of caring about those 162 men. If they are the 162 who are left, they are there for a reason. Bush put them there, but Obama has kept them there. Must we really go over and over the question of whether it all was done precisely right? And then you see it: the place of refuge from this nagging doubt about whether these 162 men deserved all this elite law study.

And that place is: ME! This is about ME! This is US! This is WHO. WE. ARE. Ah, relief. So I haven't been staring for months into the dismal stories of 162 shady-but-perhaps-procedurally-abused characters. I've been staring into a mirror at myself. Ah! The relief! It was about me!

That was where the elite students quickly found relief from provocation. I suspect that practically any particular legal problem can support the claim that it's really about the legitimacy and principle of the entire legal system, so the quick consensus position — to me, seen from a distance — feels more like evidence of the students' desire to free themselves from the anxiety of having paid a semester's worth of attention to something they believed they would care about, because they liked the idea of being the sort of people who do care when others do not care, but then they saw that they did not really care at least not quite that much.

And then the relief comes, and it has sufficient resonance with the original choice of what to study: I am studying myself caring about the people I wanted to believe I cared about. I've been looking into the mirror to see if I care, and I must now see that I care, or it doesn't make sense to have chosen to stare for months into a mirror to see if I care. I do care. I care about me caring.

"Homosexuality became illegal again in India Wednesday after the Indian Supreme Court ruled that a colonial-era law banning gay sex was improperly struck down."

Reports the NYT:

The ruling reverses a landmark judgment by a lower court, which in 2009 decided that an 1861 law that forbids “carnal intercourse against the order of nature with man, woman or animal” was unconstitutional. The law, passed by the British, makes homosexuality punishable by 10 years in prison. Only Parliament can change that law, the Supreme Court ruled.

There is almost no chance that Parliament will act where the Supreme Court did not, advocates and opponents of the law agreed. And with the Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in ascendancy before national elections in the spring, the prospect of any legislative change in the next few years is highly unlikely, analysts said.

The NYT quote I've put in the headline is a bit inaccurate — probably willfully so — in saying that "homosexuality" is illegal. It's homosexual intercourse that is banned, not the status of having a homosexual orientation. But those who want equality for gay people frequently elide this connection. In the American case dealing with homosexual conduct, Justice O'Connor, concurring, made the connection openly:

Texas argues... that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. “After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” [Romer v. Evans, 517 U.S.] at 641 (Scalia, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not “deviate sexual intercourse” committed by persons of different sexes, “that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

"I’m just a university faculty member who expresses his own opinions, thoughts and proposals, which is absolutely my right. This is an out-and-out witch hunt."

Said Zhang Xuezhong, fired from his job at the East China University of Political Science and Law in Shanghai.

Professor Zhang, 47, has had run-ins with school administrators over his writings, but their unhappiness with him deepened last May after he publicized the contents of a secret document, produced by the central government, detailing seven subjects that are not allowed to be discussed in Chinese classrooms. The banned topics included democracy, freedom of speech and past mistakes of the Communist Party....

Professor Zhang’s undoing appears to be an article he published online in June titled “The Origin and the Perils of the Anti-Constitutionalism Campaign in 2013.”

"We at the ACLU are chipping in to help 5 same-sex couples have a Big, Gay, (Il)legal Wedding..."

"...to highlight the unfair patchwork of state marriage laws and why it's so important for everyone to have the freedom to marry."

We're giving $5,000 to couples with the best ideas for how they'll cross state lines to tie the knot. Do you and your special someone have a great idea? Enter for your chance to win or vote for your favorite couple!

"To celebrate the holidays in his public high school science lab, Stuart Ross Rosenthal decided he would make a 'chemist-tree.'"

"He pieced together a colorful branching array of test tubes and Erlenmeyer flasks, and a few antique chemical stock bottles, filled them with various salt and mineral solutions, and then stacked them on a stand of porcelain rings. After encircling the base with a wintry-white towel, he placed a few glistening rock 'presents' under the tree and surrounded them with Bunsen burner 'candles.'"

And to celebrate the holidays in my public internet creative writing class, continue the story. What happens next?

In the actual case of the high school chemistry teacher — Stuart Ross Rosenthal — there was no discord and divisiveness and certainly no — to use James Madison's phrase — torrents of blood. Rosenthal (who's Jewish) is able to affably quip:

"If people say, 'Oh, I like your Christmas tree,' I say, 'It's a chemist-tree – nondenominational... People can argue about religion, and they can even argue with science – but you can't argue with scientific glassware."

Oh, yeah? If you are working on the creative writing exercise in my class, I'll bet you can concoct — or decoct...



... a vicious fight over the the scientific glassware. Rosenthal has substituted an exaltation of science for the celebration of Christ! This is the government's insidious effort to establish a religion of secularism!

"I screamed, 'The bird!'" and the cop said "'F--- the bird,' and he, like, stepped on it."

'I was shocked... It was a blue and green bird. It was really pretty."

The cop, the parakeet, and — the bone of contention — the traffic cone (the cone of contention).

"A judge says an Army artillery officer linked by DNA to a string of sexual assaults on young girls..."

"... will be allowed to blame his twin brother at trial for attacks in two states."

Identical twin, of course.

"This is a case about the right to peacefully protest on a fully open public road, in a designated protest zone..."

Erwin Chemerinsky — the UC-Irvine law school dean — argued in the Supreme Court yesterday. His client, John D. Apel had been banned from protesting within Vandenberg Air Force Base (in an area set aside for protests) after convictions for vandalism and trespass.

But Justice Antonin Scalia said the question before the court did not involve the First Amendment.

“You can raise it,” he said, “but we don’t have to listen to it.”..

Later, Justice Kennedy said: "You have a First Amendment argument... I understand that. But let’s just concentrate on the property ownership.” And Scalia said: “You keep sliding into the First Amendment issue... We’re only interested in whether the statute applies."
 
The Court is reviewing a 9th Circuit opinion that said that the federal statute under which Apel was convicted didn't apply to the situation in which the feds had given some public access to the military base (which they'd done to give access for protests).

ADDED: The wording of the first sentence of the linked report (at the NYT) made me think Apel was not actual on the base but only near it: "John D. Apel... was convicted of breaking federal law by entering an area set aside for protests near the main entrance to Vandenberg Air Force Base." Near the main entrance — you'll see if you keep reading — was on the grounds of the base, but it was "an area open to the public on the other side of a painted green line that separates the closed part of the base from the Pacific Coast Highway."

"I understand the man who shot him is real upset, and I think he should be... He shot an innocent man."

"He should have stayed in the house like a normal person would."

Wandering 72-year-old man with Alzheimer’s gets shot to death. At the top of the NYT article the scene is described almost poetically:

No one is sure how, in the frigid hours before dawn last Wednesday in this small north Georgia community near the Tennessee border, Mr. Westbrook ended up nearly three miles from home with a handful of other people’s mail, jiggling Joe Hendrix’s doorknob.

Mr. Hendrix, 34, stepped onto his porch with a Glock pistol in his hand and his fiancée inside on the phone with a 911 dispatcher. He fired four shots. One hit Mr. Westbrook in the chest.

On a cold and damp day Tuesday, Mrs. Westbrook buried her husband of 51 years...

Further down, there are more details about how it looked from Hendrix's point of view. It was "Just before 4 a.m." and:

At least twice, Mr. Westbrook climbed onto the small porch, tried to open the door and rang the doorbell....

“When you listen to the 911 calls, it’s evident to me that there was fear displayed at least by the female who lived there,” [the sheriff] said.

Note the plural: "calls."

As Mr. Westbrook came around a corner of the house, Mr. Hendrix took his gun and repeatedly called for him to identify himself, he told the police. Then he fired the shots. Mr. Hendrix told investigators that Mr. Westbrook continued to approach him, so he fired the shot into his chest.

So it wasn't just a man jiggling the doorknob at a strange hour and then waiting for an answer only to be met by a man who steps right out and fires 4 shots. There was activity around the house and beyond the porch area, in the middle of the night. The couple inside were scared and enough time passed to make more than one call to the police. Hendrix went outside to investigate, tried to interact with the intruder, and only shot when the man kept approaching.

“When we sat down and told him the age of the victim and the diagnosis, he broke down and became emotional,” Sheriff Wilson said.

Most of the article is about whether to prosecute Hendrix (and the usual material about Stand Your Ground law). Commenters over there are quick to blame guns, but I think homeowners have a right to defend themselves against someone trying to break into their house at night. Hendrix tried to talk to the man and couldn't see that he was old and didn't know that his mind had deteriorated.

Mrs. Westbrook says she's not sure whether Hendrix should be charged. The article begins with the line "Deanne Westbrook had tried everything to keep her husband, Ronald, in the house." No one wants to say anything unkind to a woman who lost her husband and who tried to treat him well, but if we're going to ask whether Hendrix was reasonable, shouldn't we also ask if Mrs. Westbrook was reasonable?

What more could she have done? Didn't she know that her husband went out and behaved in a way that would scare people at night and that he would not be able to explain himself when people asked him what he was doing or to stop when he was told he'd better stop? He needed supervision and constraint.

"He should have stayed in the house like a normal person would." That was the wife's quote. I see ambiguity in it now.

By the way, you don't need to look far in the NYT archive to find articles about people with Alzheimer's where the suggestion is that others ought to show them the exit from this life. They're all jiggling at the doorknob.

"Why did they start with abortion clinics? Because it begins with the letter 'A'?" asked Judge Richard Posner.

At the oral argument in the 7th Circuit Court of Appeals yesterday.

The subject was Wisconsin's new law requiring doctors at abortion clinics to have access to hospitals within 30 miles, which has been temporarily blocked by the lower court.

At times appearing exasperated, Posner repeatedly interrupted [Wisconsin assistant attorney general Daniel] Lennington, asking why lawmakers — if it's true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries....

Lennington professed to have no idea why. One suspects that the reason is: Because it's only abortion that we disapprove of and therefore want to encumber. If that's the real answer, Lennington wouldn't want to say it, because it lays the groundwork for finding the law to be the kind of undue burden that violates privacy rights.

Posner also cited figures that just .3 percent of abortions have medical complications. Asked if there were records of women dying in Wisconsin after abortions, Lennington said he didn't know.

At that point, Posner said about the law, "It doesn't sound reasonable. It sounds irrational."

Lennington didn't even know if there were records?! If you actually want to get away with imposing these burdens, you ought to build a foundation for showing that there are strong medical reasons for the new requirement. But then it would be less obvious that the law expresses opposition to abortion. I'm going to presume that the legislature wanted to flaunt its opposition to abortion — for political reasons — and the law is more of a gesture than a genuine health provision that can and should be upheld.

Part of the plan, perhaps, is a tempting invitation to the judges to strike it down. Can a judge resist? If not, the social conservatives will bray about "activist judges," and they'll overplay their hand, in all likelihood, and we'll be back in the throes of the "war on women" just in time for the next presidential election, which, of course, will be won by Hillary Clinton, who — through judicial appointments and federal statutory law and health-care regulations — will save The Right To Choose.

"We have here a judicial finding that this once-proud city cannot pay its debts."

"At the same time, it has an opportunity for a fresh start. I hope that everybody associated with the city will recognize that opportunity."

Judge Alex Kozinski, dissenting in a decision that upheld the ban on political and commercial advertising on public TV and radio stations.

"... I would set public television and radio free to pursue its public mission to its full potential. We'd all be better off for it."

The 11-judge panel of the 9th Circuit rejected arguments that were based on the First Amendment free speech guarantee.