Spousal Unions in New Hampshire

The House of Representatives in the Granite State - the third-largest legislature in the English-speaking world, incidentally - overwhelmingly approved a bill that would create "spousal unions," its own version of civil unions. If approved by the Senate and the governor, it would give gay couples all the rights of marriage, while retaining for straight couples only the moniker itself. The bill would also allow for recognition of lawful civil unions and marriages from other states as well.

This is typical New Hampshire: tolerant, fair-minded, and above all sensible. This is the spirit that makes me love the state. (Here's the bill, appropriately laconic.)

I hope it passes. It should make for some interesting questions once the presidential hopefuls start to stump there in earnest! Mitt Romney, in particular, should come out looking like a Gordian knot, as is his wont.

The Dangers of Email

The latest in a never-ending series. This woman's a nut, and that guy seems outrageous too (though to a much lower level)....

Former Sen. Simpson on Gays in the Military

I always liked Alan Simpson, a pragmatic conservative former senator from Wyoming. He voted for Don't Ask, Don't Tell - and now he's for dropping the ban entirely. He justifies this shift in part by emphasizing our need for "every able-bodied, smart patriot to help us win this war." He emphasizes, too, the ongoing changes in society's attitude toward homosexuals in the military; for instance, the "percentage of Americans in favor [of dropping the ban] has grown from 57 percent in 1993 to a whopping 91 percent of 18- to 29-year-olds surveyed in a Gallup poll in 2003." That's an amazing figure. He even says that General Pace's recent comment that homosexuality is immoral was "completely out of the mainstream of American thinking"; I wonder how true that is, although it unquestionably describes the trends.

Plus, Andrew Sullivan has a link to some pretty surprising poll numbers on the issue, some of which Sen. Simpson mentions.

"This Is a Clear Free Speech Issue"

Some further thoughts on the First Amendment rights of that pedophile pundit.

An interesting question: "given that the pervert does have the right to free speech, [what does] Obama's attempt to get the material censored says about his own commitment to First Amendment rights"? It's understandable for a parent to react this way, of course; but Obama is running for president.

A "Final Solution"? Really?

Really?

Creepiest Guy of the Day – But Did He Break the Law?

A self-described pedophile posted on his website a picture of Sen. Barack Obama with his wife and two young daughters. According to The Smoking Gun, the man "posted photos of the Democratic politician's young daughters on a web site that purports to handicap the 2008 presidential campaign by evaluating the 'cuteness' of underage daughters and granddaughters of White House aspirants."

Wow. That is really disturbing. Obama's lawyers protested, of course, alleging defamation, invasion of privacy, and copyright infringement; the pictures have been removed, although a link to the website for Obama's presidential campaign remains.

I wonder how strong the legal claims would actually be, though?

• Defamation. In defamation, the gist is harm to reputation, and a showing of such harm is a constitutional requirement; can Obama claim that his reputation was injured by this?
  
  Furthermore, can't the pedophile simply say that he was expressing an opinion? Defamation covers assertions of fact, not mere expressions of opinion. I don't believe the pedophile maliciously made any assertions like "Obama endorses my views" or anything like that. And if the pedophile merely wished to express the opinion that "Obama's daughters are cute" – well, it's disgusting, but it also strikes me as constitutionally protected opinion.
  
  Even if the pedophile were asserting some false, identifiable "fact," Obama would have to show that the "statement" was made with "actual malice" – that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." NY Times v. Sullivan, 376 US 254, 280 (1964). This is because Obama is a public figure. Thus, if the pedophile unintentionally implied that Obama supported his message, this might not rise to "actual malice" – even if it were negligent. It can be argued, furthermore, that Obama's wife and daughters are also public figures (note: figures, not officials) – an intentionally broad term. The same logic might therefore apply to any defamation suit brought by them or on their behalf.



• Invasion of Privacy. I don't know much about invasion of privacy law, but I suspect the provenance of the picture might matter somewhat. After all, if the picture had been publicly distributed by Obama's campaign, how can the pedophile be accused of invading anyone's privacy?



• Copyright. Assuming that Obama owns the copyright in the picture (a reasonable assumption), he may prevent unauthorized distribution or reproduction of the copyrighted image. The pedophile may be able to claim a fair use defense, however; I'm not sure how that works. (There may be other defenses available, as well; we haven't gotten to defense yet in my copyright class!)

---

These issues may be moot, because the pedophile did the right thing and removed the picture. But he has not removed the link to Obama's site, as Obama's lawyers had demanded. Furthermore, Obama's lawyers demanded that the pedophile "remove all references to Senator Obama, his family, and Obama for America" – regardless of the content of those references – and that he "forever refrain" from posting any references to or pictures of the same. Even if Obama could win in court, he surely would not be entitled to such a sweeping remedy. What happens if the pedophile posts a reference to or picture of "Obama, his family, and Obama for America" in the future, regardless of the content or context?

Interesting stuff, though deeply unsettling. So can a candidate for office do anything to stop online perverts from publicly drooling over their children?

UPDATE: According to the fair use provision of the 1976 Copyright Act, 10 USC § 107:

[T]he fair use of a copyrighted work[ ...] for purposes such as criticism, comment, news reporting, teaching[,] scholarship, or research, is not an infringement of copyright.

Additionally, § 107 states that, in considering fair use, courts must consider such factors as "the purpose and character of the use," "the nature of the copyrighted work," "the amount and substantiality of the portion used," and "the effect of the use upon the potential market for or value of the copyrighted work." None of this seems to rule out a fair use defense entirely; I wonder what the case law says?

Meehan Seeks Repeal of "Don't Ask, Don't Tell"

Rep. Marty Meehan (D-MA) will introduce a bill to repeal the ban on gays serving openly in the armed forces. According to the Washington Times, a 2005 GAO report stated that almost 9,500 members of the armed services, "including 750 service members with specialties 'critical' to the war on terror, have been discharged since the policy was implemented" in 1993. ABC News reports on 742 such dismissals in fiscal year 2005 alone, and many of them, too, had specialties critical to the War on Terrorism. 322 of them had critical language skills, most notably in Arabic, Farsi, and Korean.

I used to criticize President Clinton for introducing such a half-measure as "don't ask, don't tell"; my view was, either let them serve or don't, but don't force them to skulk around in secrecy. But I've gained some sympathy in recent years. If politics is the art of the possible, then even modest gains represent progress, and a system under which gays can serve if they'll only keep quiet about it is still better than an outright ban, under which anyone with a grudge could torpedo another person's career.

That doesn't mean it's good enough, however, and the War on Terrorism underscores how we would be better off scrapping all restrictions on gays serving in the armed services. 750 service members with specialties "critical" to the War on Terror? Why do we hamstring the war effort like this?

And the chief argument against allowing gays to serve openly doesn't even hold up anymore. That argument says that allowing gays to serve would undermine morale and the esprit de corps among straight servicemen and women. Yet according, again, to the Washington Times, a recent Zogby poll showed that 73% of current servicemen and women would have no problem serving alongside gays. And the experiences of Britain and other Western countries illustrate that our Civilization will not come crashing down just because gays get guns and dogtags. (Besides, which of the following is more likely to enlist anyway: Andrew Sullivan or Andy Dick? Sullivan could surely kick my ass.)

Even if our servicemen and women have a problem with it – so what? We ask them to face "difficulty" all the time; it's in the job description. We ask them to go through hellish training. We ask them to patrol some of the most dangerous neighborhoods in the entire world. We ask them to stare death in the face, if need be – but serving with a homosexual would break them? Why do we suddenly lose faith in them? Why do we have so little regard for their emotional maturity?

Remarkably, the first marine to be injured in the Iraq War is gay. Rep. Meehan had Staff Sergeant Eric Alva by his side yesterday to urge lawmakers to abolish the ban completely. His incredible story of heroism tells us just what we're losing by dismissing gays from the armed services.

(Sadly, Sgt. Alva will soon begin working for the Human Rights Campaign, a shrill and hopelessly partisan gay advocacy group. That's unfortunate.)

"Don't ask, don't tell" has been a major issue on America's campuses, too. Many universities, including state universities like my own, refused to allow military recruiters on campus because it would allegedly violate those institutions' policies of nondiscrimination. (It is all too common for university administrators and professors to choose airing their own hard-left political views over providing opportunities for their students. Their high virtue was bought at a cheap cost for them, but at a great cost for their students.) This is why Congress adopted the Solomon Amendment, 10 USC § 983, under which the Defense Secretary is authorized to withhold federal education funds from universities that do not allow military recruiting on campus. I supported the Solomon Amendment, and I still do, because universities receiving public funds should not limit employment opportunities just because it would offend the political sensibilities of administrators and faculty. But even more, I support making the Solomon Amendment superfluous by dropping the ban entirely.