New comments about Cheri Yecke's Wikipedia biography

When I was pursuing my complaint that Wikipedia was violating its 501(C)(3) nonprofit organization tax status by blocking rebuttals to criticisms of a candidate in an upcoming public election, I did not make comments about Cheri Yecke's Wikipedia bio because I was afraid that such comments would be misinterpreted as conceding the false claim that truth is a defense against charges of censorship of rebuttals (that claim is a false extension of the correct claim that truth is a defense against charges of libel). However, I learned that Yecke is actually not a candidate in a public election and hence I now feel free to comment about her bio again. Yecke is now one of seven finalists for appointment to the position of Florida Commissioner of Education.

The most important thing is that Cheri Yecke's Wikipedia bio has no credibility because rebuttals of criticisms of her are banned there (the absence of an "edit this page" tab at the top shows that there is no open editing). Just in case, though, I will counter some of the things that the bio says:
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The versions of the Minnesota Science Standards circulated by Yecke contained language used by intelligent design advocates in the Teach The Controversy campaign which casts doubt on evolution while offering intelligent design as a competing theory. The version that was circulated among the public did not include these revisions. PZ Myers and other critics of intelligent design deemed the move an attempt to misinform the public in order to sway the committee decision in favor of intelligent design using public opinion.

For starters, the "Teach the Controversy" campaign does not specifically offer intelligent design as a competing theory -- the "Teach the Controversy" campaign just promotes teaching the strengths and weaknesses of evolution theory, and many of those weaknesses do not concern ID.

Also, the above statement gives the false impression that two different versions of the Minnesota Science Standards were being simultaneously circulated for the purpose of deceiving the public. This is quite a bit different from Yecke's following explanation in a TV interview at the time:

Host: What happened with the evolution versus creationism there were a couple of copies floating around, there was, was it confusion, or was there, go ahead…

CPY: We, we had a major screwup, and I, I apologize. Uh, there were several versions going around, we had some, some versions on a hard, on a hard drive, some on a floppy disk and we ended up putting the wrong one on our website. As soon as the, uh, it was brought to our attention we fixed it and so the ones that are up there now are correct. It’s the, it’s the consensus document and that’s the one that we’ll be talk talking about at the public hearings.

Also, Wikipedia said,

She cited the pro-intelligent design Santorum Amendment as supporting her effort.

The Santorum Amendment is not "pro-intelligent design" -- it does not mention intelligent design at all. This is evident from Wikipedia's own webpage on the amendment.

I mean no offense against Cheri Yecke, but I am surprised that she has a Wikipedia biography -- she just does not seem notable enough. There are thousands of public officials just like her across the USA.

I hope she gets the job.
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Christian and Jewish Zionists

The Institute for Historical Review appears to blame the USA's excessive and one-sided support for Israel entirely upon the Israel lobby while ignoring the role of Christian Zionists. And yes, there is no question that the USA's support for Israel is excessive and one-sided -- for example, in approx. 40 US vetoes of proposed UN Security Council resolutions directed against Israel in the period 1972-2006, none of the other 14 members of the council ever voted with the US, and in several of those vetoes the vote against the US was 14-1, with no abstentions.

A special-report news article said,
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Sondra Oster Baras is an Orthodox Jew doing an unorthodox job.

. . . . Baras stumps for money from evangelical Christians to support Jewish settlements in the occupied territories -- land she calls biblical Israel.

A recent stop finds her in Melbourne, Florida, visiting Pastor Gary Christofaro at his First Assembly Church of God.

Christofaro and his flock take their Jewish roots so seriously that on Friday nights they observe the Jewish Sabbath with Hebrew prayers.

This is not just religious ritual. They support Israel -- which to them includes Jewish settlements on the occupied West Bank. Church members tour settlements with Baras and have donated more than a $100,000 to support them.

. . . .A recent poll found that 59 percent of American evangelicals believe Israel is the fulfillment of biblical prophecy.

The Israeli Ministry of Foreign Affairs estimates 85 million evangelicals believe God tells them to support Israel -- more than six times the world's Jewish population.

One of the most successful Jewish fundraisers, Rabbi Yechiel Eckstein, raised $39 million last year from Christian Zionists to fund human services and humanitarian work in Israel and the settlements.

Christian Zionists often converge on Washington by the thousands to lobby members of Congress in support of Israel.

Sen. Joseph Lieberman, I-Connecticut, was among the speakers at last month's convention of Christians United for Israel.

"There are a lot more Christian Zionists in America than Jewish Zionists," the former Democratic vice presidential candidate told the group.

However, the relationship between Jews and Christian fundies is not always cordial. The Anti-Defamation League in particular is very hostile towards the fundies. The ADL and the fundies have particularly clashed on the Darwin-to-Hitler and evolution controversies.
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Guest post: "Wikipedia and Ethics in Online Journalism"

This is the first guest post in the approx. 16 month history of "I'm from Missouri," with over 500 articles -- many of them substantial (and some not) -- already posted. It came in an email. I am posting it here with permission:
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Tuesday, August 28, 2007
Wikipedia and Ethics in Online Journalism

Wikipedia is classified as a "tertiary source" for the purposes finding information to support a student's investigative report on a subject. That is, a student cannot cite a Wikipedia article as a source for information in a student paper.

Last week, I learned firsthand why the content of Wikipedia articles are considered unreliable.

Elsewhere, I wrote an essay on my experience trying to correct an erroneous article in Wikipedia. It was a dispiriting nightmare.

The editors on Wikipedia are anonymous and largely untrained in journalism. The concept of ethics in journalism isn't even on their radar screen. One of them told me that truth is not even an objective of Wikipedia. Rather the criterion is whether a piece of (mis)information came from a "reliable source."

And therein lies the problem. The New York Times, for example, runs stories on lots of controversial subjects. The Times will quote the views of partisans, typically providing counterbalancing views to help the reader understand how to assess the claims of competing factions in a controversy.

But it's easy to mistake a report in the Times delineating the claims of a partisan from an affirmation that the claim is valid or factually correct. And mistakes like that evidently abound in Wikipedia, since the main criterion is whether there is a reliable source which published the claim. In other words, if the New York Times reports a quote from Bush, that would justify (in the minds of some Wikipedians) that what Bush is quoted as saying is an independently verified fact.

Wikipedia is a rule-driven system, so participating in Wikipedia is a lot like playing chess. Every move can be challenged if the challenger can cite a rule that the move violates. That makes every participant both a player and a self-appointed referee. As a result, some Wikipedians become very adept at gaming the system. They don't participate with an ethic of crafting accurate articles in a responsible manner, but with the personal goal of winning the match. Of course the outcome of any rule-driven game is arbitrary. It just depends on which player is better at citing the rules. When this practice is combined with the tendency to cherry-pick which reported claims found in the legitimate press to elevate to the unwarranted status of facthood, one finds a miasma of half-truths, misinformation, unwarranted inferences, and political spin-doctoring masquerading as verified fact.

Most of the time, this isn't a big issue. But it matters when false and defamatory material finds its way into the Wikipedia biography of a living person. Wikipedia is supposed to have extra filters in place when inserting content into a biographical article. But my experience reveals that the chess game just turns into a frustrating stalemate, with no reliable method for resolving the case and getting to the ground truth. Wikipedia is not designed to get to the ground truth, especially since there is also a rule forbidding original research. Not surprisingly, there isn't much source material on a lot of living persons. If one's name is mentioned in a New York Times article, and some Wikipedia editor misinterprets the article, there isn't much hope for fixing it. Once a bureaucracy makes a mistake, it generally cannot be fixed. And Wikipedia is a rigidly rule-driven bureaucracy without sufficient responsible supervision to ensure that the chess games produces anything of lasting value to the general public (such as accurate stories that one can rely on).

No wonder teachers don't allow their students to cite Wikipedia as a reliable source.

But Wikipedia does provide an interesting example of a good idea gone awry.

And it provides a good example of how a rule-driven system becomes profoundly dysfunctional.

I emailed back the following response:
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Not only are some of the Wikipedia rules bad (e.g., the general rule against citing blogs), but the Wikipedia administrators grostesquely distort the rules and apply them in a discriminatory manner.

On the Wikipedia biography of Cheri Yecke, the Wickedpedian administrators blocked all rebuttals of criticisms of her.

I suggested a simple way of resolving Wikipedia disputes on controversial items -- just insert a brief statement of the item along with (1) a note that the item is disputed and (2) links to external websites where the item is discussed or debated. This would avoid cluttering up Wikipedia with long discussions or debates of controversial items. This suggestion was ignored.

The Wikipedia administrators -- as well as the administrators of other online encyclopedias -- do not realize that an online encyclopedia does not need to look like a printed encyclopedia. An online encyclopedia can contain a lot more controversial items than a printed encyclopedia because an online encyclopedia can provide instant links to external sites where the controversial items are
discussed or debated.

My blog has dozens of articles about Wikipedia and Internet censorship. These articles may be found under the post labels in the sidebar.

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Wikipedia's one-sided discussion of Judge Jones' one-sided opinion

A section of the Wikipedia article on the Discovery Institute says,

Controversy was stirred up again in December 2006 by the Discovery Institute and its fellows publishing several articles describing a "study" performed by the Discovery Institute criticizing the judge in the Kitzmiller v. Dover Area School District trial. It claims that "90.9% of Judge Jones’ [opinion] on intelligent design as science was taken virtually verbatim from the ACLU’s proposed 'Findings of Fact and Conclusions of Law' submitted to Judge Jones nearly a month before his ruling." The study, though making no specific allegations of wrongdoing, implies that Judge Jones relied upon the plaintiff's submissions in writing his own conclusions of law.

The study only claims (not "implies") that Jones relied upon the plaintiffs' submissions in writing his findings of facts (specifically, his ruling on the scientific merits of ID), not in writing his conclusions of law. The DI study did not address the question of whether he also relied on the plaintiffs' submissions in writing his conclusions of law.

BTW, Wikipedia's addition of quote marks around the word "study" in the title of the section is prejudicial.

Within a day, the president of the York County Bar Association had pointed out that parties are required by the courts to submit findings of fact and "a judge can adopt some, all or none of the proposed findings."

The term "within a day" is superfluous and prejudicial.

Briefs called "findings of fact and conclusions of law" are not required by the Federal Rules of Civil Procedure, and the local rules of federal district courts differ about requiring or authorizing them.

She added that in the final ruling, a judge's decision "is the judge's findings and it doesn't matter who submitted them".

The issue here is not just the copying of the post-trial briefs in general but is the one-sidedness of the copying. The ID-as-science section was virtually entirely copied from the plaintiffs' opening post-trial brief while ignoring the briefs that contained the defendants' arguments: the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs (these post-trial briefs have been published on the website of the National Center for Science Education -- they are at the end of the list. The plaintiffs' main opening post-trial brief, "Plaintiffs' Findings of Fact and Conclusions of Law," is accompanied by a supporting brief). There was no evidence that Judge Jones read any post-trial brief other than the one that he copied from. I am especially suspicious of his one-sided copying because his Dickinson College commencement speech showed extreme bias against the Dover defendants -- he said that his decision was influenced by his notion that the Founders believed that organized religions are not "true" religions.

Many of Jones' critics claim that the Dover opinion should have been in his own words, but I would have had no problem with the copying -- particularly in consideration of the great complexity of the ID-as-science question -- had it been done in a balanced manner. Also, IMO attribution of the copied ideas would have been nice.

Several commentators pointed out that Jones' use of the plaintiff's submissions were limited to his opinion, not his conclusion of law,

What? A conclusion of law is part of an opinion. And how does this excuse one-sided copying?

Vice President for Legal Affairs John West is not a lawyer, so he may not be familiar with the fact that this is exactly what proposed findings of fact are for.

Sheeesh -- one does not need to be a lawyer to express an opinion -- even a valid or reasonable opinion -- on a legal issue. In fact, the opinions of non-lawyers Ed Brayton and Wesley Elsberry are used to defend Judge Jones in this Wikipedia discussion.

Others noted that the institute's reliance on MS Word's "Word Count" function to conduct their study was flawed and resulted in inflated numbers

Because the original meaning of text can be retained after the text has been drastically altered by substitution of synonyms, insertion or deletion of superfluous or non-essential words, paraphrasing of statements, and/or scrambling of sentences and/or paragraphs, word-count programs are simply not a reliable means of comparing texts for similarity of ideas, particularly when the word-count correlation figure is low. The only reliable way of comparing two texts is by a side-by-side visual comparison. The Discovery Institute study placed corresponding statements from the two texts side by side for a visual comparison, and the high degree of correlation is apparent.

and that the bulk of the document Discovery studied was written by the law firm of Pepper Hamilton LLP, not the ACLU.

Immaterial. The plaintiffs' legal representation included attorneys from Pepper Hamilton and the ACLU. The plaintiffs' attorneys were referred to as the "ACLU" simply because the ACLU is better known than Pepper Hamilton.

Witold Walczak, legal director for the ACLU of Pennsylvania and the ACLU's lead attorney on the case called the Institute's report a stunt: "They're getting no traction in the scientific world so they're trying to do something ... as a PR stunt to get attention, ... That's not how scientists work, ... Discovery Institute is trying to litigate a year-old case in the media."

I would say that as a plaintiffs' attorney in the case, he is more than a little biased. As for the "Discovery Institute . . . trying to litigate a year-old case in the media," that's nothing -- there are still attempts to re-litigate Roe v. Wade, which is over 30 years old.

He also said the Discovery Institute staff is not, as it claims, interested in finding scientific truths; it is more interested in a "cultural war," pushing for intelligent design and publicly criticizing a judge.

So judges are above criticism?

A subsequent study performed by Wesley Elsberry, author of a text comparison program approved for use and considered authoritative in Federal court, on the section of the plaintiffs proposed findings of fact regarding whether ID is science with the section of the ruling on the same subject indicated that Judge Jones actually only incorporated 35% of the complete findings of fact and conclusions of law that the plaintiffs proposed that he incorporate, and only 66% of the section the DI criticized in particular, not the 90.9% the Discovery Institute claimed was copied in that section.

There is no evidence that Elsberry's text comparison program is "approved for use and considered authoritative in Federal court." As I noted above, these text comparison programs are quite unreliable for determining similarity of ideas in different texts, particularly where the computer results show little correlation. Also, the comparison of the entire opinion with the plaintiffs' opening post-trial brief (the plaintiffs' proposed findings of fact and conclusions of law) is irrelevant here because the Discovery Institute's study addressed only the ID-as-science section of the opinion.

Casey Luskin of the Discovery Institute has written rebuttals of the criticisms of the DI study -- one such rebuttal is here. Another of Casey's rebuttals said,

The Third Circuit Court of Appeals, which governs all federal courts in Pennsylvania, held that it is “highly disapproved of” for judges to adopt wholesale the briefs of parties in a “verbatim or near verbatim” fashion. As legal scholar Bruce Green from the Louis Stein Center for Law and Ethics at Fordham Law School told the Associated Press, it is “not typical for judges to adopt one side's proposed findings verbatim.” A 1964 U.S. Supreme Court case favorably quoted the famous jurist Judge James Skelly Wright explaining the danger behind the blanket adoption of party’s arguments:

I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.
(United States v. El Paso Natural Gas Company, 376 U.S. 651, 657, fn4 (1964) (internal citations and quotations omitted).

Also, this Wikipedia discussion -- like the Wikipedia bio of Cheri Yecke -- cites personal blogs, which is generally against the Wikipedia rules. I am personally against the general rule against the citation of personal blogs, but the rules are the rules and if an exception to this rule is made for any blog then an exception should be made for all blogs. Readers should have the opportunity to decide for themselves whether or not a cited blog article makes sense and is well-documented. Also, blogs that arbitrarily censor visitors' comments are unfair and unreliable and therefore should never be cited on Wikipedia, but this discussion of the Discovery Institute's study cites three such blogs -- multiblogger Panda's Thumb, Ed Brayton's Dispatches from the Culture Wars, and Wesley Elsberry's Pharyngula.
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Skeptic magazine to spread Fatheaded Ed's lies and exaggerations

BVD-clad blogger Fatheaded Ed Brayton reported in his article titled "Dishonest Producers of ID Persecution Film,"

. . . .yes, we are already preparing to counter the lies and exaggerations in the film ["Expelled"]. My detailed and thorough debunking of the Souder report will be published in Skeptic magazine at the same time the film comes out in February.

Ed's "detailed and thorough debunking" is too detailed and thorough to be credible. Ed just appears to pull his "facts" out of thin air. A lot of his "facts" are not substantiated by references or personal interviews of the parties involved. I know for a fact that he was talking through his hat when he claimed that everybody agreed that the Dover school board could not avoid paying an attorney fee award to the plaintiffs by repealing the ID policy prior to release of the decision.

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The myth that blogs are "private"

The most common argument I hear against my proposal for a "fairness doctrine" for blogs -- i.e., a law against arbitrary censorship of blog visitors' comments -- is that blogs are "private" and hence immune from government regulation. Nothing could be further from the truth. An article titled "Regulation of Blog Campaign Advocacy On the Internet: Comparing U.S., German and EU Approaches" is chock full of regulations of blogs. Indeed, the regulations described in this article are often far more burdensome than my proposed "fairness doctrine" because they restrict blog funding sources and what the bloggers themselves and websites in general can say. Indeed, because the Internet is international, foreign countries' restrictions on freedom of speech on the Internet have already begun to impact blogs and other websites based in the USA. The article's abstract says,
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This essay examines how U.S., Germany, and EU cases have treated the regulation of political commentary on the Internet. As political blogging grows in popularity, the reach of these sites, and their influence in political campaigns, may make them a target for regulation by rivals and incumbents, both at home and abroad. Since ordinarily any URL can be reached from anywhere with Internet access, conflicting domestic rules about what can be said (and who can say it) present potential for conflicting rules on blogging.

In brief, U.S. law protects blogging content, but may impose restrictions on the source of political commentary by barring certain funding sources. German law imposes stricter limits on the content of blogging, but does not regulate financial sources to the same degree. European court rulings may offer greater protection than domestic German law, but seem inconsistent and thus add uncertainty and ambiguity to the situation. In the end, bloggers may avoid legal entanglement because they enjoy public sympathy and support, but better still would be an international agreement to spare blogging from prosecution.

My reasons for not practicing arbitrary censorship of visitors' comments myself are practical as well as ethical -- I am concerned that such censorship would adversely affect the credibility of this blog. But it is apparent that there are a lot of bloggers and other website administrators out there who are unconcerned about their credibility.
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Looking a gift horse in the mouth

Fatheaded Ed Brayton says,

I've mentioned before the documentary Expelled, an ID propaganda film claiming rampant persecution of ID advocates. It will recount the entirely made up tales of martyrdom for Richard Sternberg, Guillermo Gonzalez and a couple others. PZ Myers and Genie Scott, it turns out, were interviewed for the film under highly dishonest circumstances. The producers lied to them about the nature of the movie to get them to do interviews.

"Highly dishonest circumstances"? The producers made no promises about how the interviews would be used. A letter from a producer to PZ Myers said,
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Hello Mr. Myers,

My name is Mark Mathis. I am a Producer for Rampant Films. We are currently in production of the documentary film, "Crossroads: The Intersection of Science and Religion."

. . . . We are interested in asking you a number of questions about the disconnect/controversy that exists in America between Evolution, Creationism and the Intelligent Design movement.

Why should answers to an interview -- or willingness to be interviewed -- depend on how the interview is going to be used? That would be dishonest, wouldn't it? These people who are asked for interviews should be grateful for the opportunity to publicize their views -- most of us are not so lucky. These people should not look a gift horse in the mouth. People have nothing to lose by granting an interview, because if one is not interviewed, it is certain that one's views are not going to presented at all. Also, refusing to grant an interview unfairly impairs the would-be interviewer's ability to present a balance of viewpoints.

Edward Humes claimed that he was neutral about the ID/evolution controversy when he asked to interview Casey Luskin of the Discovery Institute, but Casey was very suspicious and declined to grant a full interview. Humes' book "Monkey Girl" condemned intelligent design but Casey missed an opportunity to have his views presented in the book.

It was also reported that Discovery Institute staffers "stonewalled" requests for interviews for a PBS Nova TV show about the Kitzmiller v. Dover intelligent design case.

Also, Francis Collins made such a big stink about being included in the Darwin-to-Hitler TV program "Darwin's Deadly Legacy" that he was cut from the program. If some people would have thought that his appearance on the program meant that he endorsed it, that is their problem.
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Jefferson violated the Establishment Clause

The biggest reason for the big controversy over the Founders' policies concerning religion is, of course, originalism, the ridiculous principle that the courts' interpretations of the Constitution should be governed by the policies of the Founders or what is thought to be the policies of the Founders. Originalists with agendas concerning the establishment clause have portrayed the Founders as everything from a bunch of bible-pounding holy rolling fundies to a bunch of godless blasphemous atheists.

Among the Founders, Thomas Jefferson is the one who is most closely associated with the establishment clause, even though he was not present at the Constitutional Convention that adopted the clause. It is believed that his letter to the Danbury Baptists coined the term "separation of church and state." Yet the following story of his treaty with the Kaskaskia Indians shows that even Jefferson himself was not simon-pure in his support of his principle of separation of church and state.

In arguments about the Founders' policies, often there is not even agreement as to the objective facts. In the case of a treaty made with the Kaskaskia Indians, at least there is agreement as to the objective facts. Chris Rodda wrote on Talk to Action,
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During his presidency, Thomas Jefferson signed over forty treaties with various Indian nations. The treaty with the Kaskaskia is the only one that contained anything whatsoever having to do with religion. No other Indian treaty signed by Jefferson, including the others listed by Mansfield, contained any mention of religion.
The following is the third article from the 1803 treaty with the Kaskaskia.

And whereas the greater part of the said tribe have been baptized and received into the Catholic Church, to which they are much attached, the United States will give annually, for seven years, one hundred dollars toward the support of a priest of that religion, who will engage to perform for said tribe the duties of his office, and also to instruct as many of their children as possible, in the rudiments of literature, and the United States will further give the sum of three hundred dollars, to assist the said tribe in the erection of a church.(1)

. . . . . The problem with using this provision as evidence that Jefferson approved of using government funds to promote religion . . . . is that it was in a treaty with a sovereign nation. Unless a treaty provision threatened the rights or interests of Americans, there was no constitutional reason not to allow it, even if that same provision would be unconstitutional in a law made by Congress.

However, the Constitution considers treaties to be laws and Congress has a hand in establishing treaties -- the Constitution defines treaties as part of the supreme law of the land and they must be approved by two-thirds of the Senators who are present. Article VI of the Constitution says,

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.

Article II, Section 2 says,

He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;

And the Establishment Clause of the First Amendment says,

Congress shall make no law respecting an establishment of religion,

The quibblers are now going to argue that Congress does not actually "make" treaties but only advises the President about them and gives consent to them, but that is a nitpicking and hairsplitting argument. By the same token, it can be argued that Congress does not "make" laws in general but just "consents" to various bills and amendments to bills that are introduced by members of Congress. Also, members of Congress not only advise the President about treaties but have even participated in negotiating treaties with sovereign nations -- see this.

Rodda said,

Jefferson, who had a great deal of confidence in the ability of the American people to understand the Constitution, no doubt assumed that the people understood the treaty making process, and would not perceive these provisions as unconstitutional. In fact, in the first draft of his 1803 annual message, he described the Kaskaskia treaty in detail, including the provisions for the church and the priest. But, Secretary of State James Madison, when he read Jefferson's draft, wasn't quite so confident that the people would understand this. Madison advised Jefferson to limit his description of the treaty to the large land acquisition and omit the details of the religious provisions, which in the final speech became "other articles of their choice."

In other words, the Kaskaskia treaty's religious provisions were of such questionable constitutionality that Jefferson -- accepting the advice of Madison -- hypocritically decided to not mention them explicitly in his speech, even though the public in those days was probably not particularly uptight about establishment clause violations! Also, it seems odd that there is any historical record of the speech's first draft and Madison's advice -- it seems that they would have been secret.

Furthermore, not only did the treaty mention religion, but the treaty used federal funds to promote religion! What does Rodda think it takes to violate the establishment clause? If a mere one-minute statement about intelligent design in a public-school classroom is sufficient to violate the establishment clause, then what about this treaty?

Also, Rodda did not disagree with the following argument from Robert L. Cord's 1982 book Separation of Church and State: Historical Fact and Current Fiction:

Lest it be argued to the contrary, if Jefferson had thought the "Kaskaskia Priest-Church Treaty Provision" was unconstitutional, he could have followed other alternatives. An unspecified lump sum of money could have been put into the Kaskaskia treaty together with another provision for an annual unspecified stipend with which the Indians could have built their church and paid their priest. Such unspecified sums and annual stipends were not uncommon and were provided for in at least two other Indian treaties made during the Jefferson Administration -- one with the Wyandots and other tribes, proclaimed April 24, 1806, and another with the Cherokee nation, proclaimed May 23, 1807.

Rodda alleges errors in historical facts about other treaties but none of those alleged errors affect my above analysis of the Kaskaskia Indian treaty.

As Fatheaded Ed Brayton would say, Rodda's article is full of batshit wingnuttery. The fundies are correct about the Kaskaskia Indian treaty. This story of the Kaskaskia treaty helps show the folly of originalism. IMO, when we interpret the Constitution, we should consider the Founders' ideas but we should not blindly follow their ideas or what we think or wish are their ideas.

Rodda's article is discussed on Ed "it-is-obvious-that-everyone-agrees-with-me-so-why-do-I-need-a-policy-against-arbitrary-censorship-of-comments?" Brayton's blog.
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Sleazy PZ Myers is sued for $15 million for libel

Details are here and here.

If anyone should sue Sleazy PZ for libel, it's me -- he calls this blog "a bottomless pit of stupidity." But I don't mind -- every time he mentions this blog, traffic here spikes.

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Book insults Dover attorneys, Judge Jones

The National Center for Science Education website's article about the departure of staff member Nick Matzke says,
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It was in the Kitzmiller v. Dover case, however, that Matzke's star shone brightest. The staffer who was originally assigned to the case when it seemed as though it was just going to be a routine affair, he was instrumental throughout the case, providing a wealth of scientific expertise and practical advice to the legal team representing the plaintiffs. In his book on the case, 40 Days and 40 Nights (Collins, 2007), Matthew Chapman humorously wrote of Matzke, "The NCSE staffer initially assigned to the Dover flare-up, he now briefed the lawyers on the arcane ins and outs of science. Bespectacled, in his thirties, he was tall and large and peered down at you with a look of beleaguered doubt, as if to say, 'You're asking me this question about science, but you know and I know that you're not going to understand my answer, so, although I find this stuff fascinating, wouldn't you really rather go for a beer?'" We'll be buying him one or two as we bid him a fond farewell. (emphasis added)

This isn't rocket science. The book insults the lawyers -- and, by implication, Judge Jones, who may also hear the explanation -- by suggesting that they are not going to understand the answer. That is not what I would call "humorous." The correct interpretation of the "look of beleaguered doubt" is, "the answer is so obvious that I can't believe that you are too dumb to figure it out yourselves."

Matzke is entering the Ph.D. program at the Department of Integrative Biology at the University of California, Berkeley. "Integrative biology" is of course a code term for Darwinism.

BTW, I don't have a very high opinion of Matzke's replacement, Josh Rosenau, the blogger on Thoughts from Kansas. Once I was unable to post a comment on his blog and I asked him if he would do me the favor of posting it for me. He rudely refused, saying that I had an "incompetent inability" to post comments.

I think that I will now go for a beer myself.
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Update on Cheri Yecke

As regular readers of this blog are aware, I have been charging that Wikipedia is violating its 501(C)(3) nonprofit organization tax status by blocking rebuttals of attacks on a candidate in an upcoming public election.
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There is one little problem, however: Cheri Yecke is not a candidate in an upcoming public election. She just informed me that the position that she is seeking is appointive, not elective.

Wikipedia sure had me fooled. A notice at the top of her Wikipedia bio says,

This article or section contains information about one or more candidates in an upcoming or ongoing election.

I don't know where those jerks at Wikipedia ever got the idea that she is a candidate in an upcoming public election. In fact, one of the references in her bio, reference #4, makes it clear that the office she is seeking is appointive.
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Hypocritical Ed complains about government censorship

An article posted by arbitrarily censoring BVD-clad blogger Fatheaded Ed Brayton says,

Adnan Oktar, the Turkish nut who goes by the pen name Harun Yahya to pen (or have others pen) his voluminous creationist tracts, has gotten a Turkish court to block all blogs that use Wordpress, probably the second most popular standalone blog software in the world. Why? Because some blogs that use Wordpress published mean things about this lunatic and, being the totalitarian wingnut that he is, he wants them silenced.

Well, Ed -- to me, censorship is censorship. It doesn't matter to me whether the government or a blogger does it; the same principle -- or should I say lack of principle -- is involved.

. . . .the idiot seems to be blissfully unaware of the difference between a blog and the software used to create it. Banning Wordpress is like banning the company that makes the paper someone printed something nasty about you on.

Well, Ed, it's called "collateral damage" -- like when blocking an Internet user's ISP proxy's static IP address blocks other Internet users who share the same address.

Anyway, Ed, it's all just payback for Kitzmiller v. Dover.

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Proposed court rules

I propose three court rules here. One of these rules is already in effect in California courts.

My first proposed rule is that both sides in a court case be given the option of writing comments of limited length (maybe 1000 words max) which would then be attached to the opinion and become part of it, except that these comments would not become citable precedents in other court cases. The comments could be written by the attorneys, the litigants, or both. This would be like the dissenting and concurring opinions that are written by Supreme Court justices and other judges . Adding litigants comments would have the following advantages:

1. Litigants' and/or their attorneys' responses to a judge's opinion would become part of the official record.

2. Where a judge states no opinion at all or only addresses the winning side's arguments, this would give the losing sides a chance be heard. Of course, courts of review are supposed to read the losing side's briefs, but the losing side's arguments are far more difficult to ignore when they are part of the opinion. The losers could also attack the judge's procedures, e.g., Judge Jones' essentially allowing the ACLU to ghost-write the ID-as-science section of the Kitzmiller v. Dover opinion.

3. It would give litigants an opportunity to respond to personal attacks from the judges. For example, Judge Jones' Kitzmiller decision personally attacked the defendants, saying,
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The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy . . . . this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

Under this new rule, the opinion could include, for example, the following response from defendant William Buckingham:

If the judge called me a liar, then he's a liar. I'm still waiting for a judge or anyone else to show me anywhere in the Constitution where there's a separation of church and state. We didn't lose; we were robbed.
From page 336 of "Monkey Girl" by Edward Humes.

This rule would help eliminate judges' unscrupulous practices of (1) writing no opinion at all and (2) writing an opinion that addresses only one side's arguments.

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My second proposed rule is that instead of releasing final opinions immediately, the courts must first issue tentative opinions and then hold public comment periods before releasing the final versions of the opinions. This would be similar to the public comment periods that are used in the rulemaking procedures of administrative agencies. Having public comments would allow a broad range of opinions to be presented. Such public hearings would be especially beneficial at the Supreme Court level because a Supreme Court decision cannot be appealed. Petitions for rehearing are supposed to serve the function of this proposed comment period, but petitions for rehearing have the following disadvantages: (1) the public cannot participate, and (2) the Supreme Court virtually never grants rehearings; the last I heard, the SC had granted only one rehearing ever (of course, that is more the fault of the SC than of the current rehearing procedure, but public hearings might have the effect of increasing the number of rehearings by the SC).

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My third proposed rule is to allow one-time "peremptory challenges" of (1) randomly selected judges at the start of a case and (2) the original judges when decisions are remanded. As everyone who is familiar with jury selection knows, a "peremptory challenge" in jury selection is a dismissal of a juror by an attorney without any requirement that a reason be given for the dismissal. The federal court rules do not provide for such peremptory challenges of judges, and remanded decisions are returned to the judges who made them in the first place. This is bad, because the judge is likely to try to justify his/her old decision when making a new decision. The rules for California superior courts already allow such peremptory challenges both at the start of the case and for remands. I believe that in remands in the California courts, only the party that lost in the original decision is eligible to ask for a different judge. However, the original decision may be a split decision, i.e., with each side winning something, in which case there would be no "losing" party. So should both sides be eligible to request a new judge where there was a split decision? But what if, say, a party wins big except for losing on a small point; should that party then be eligible to request a new judge while a party that wins everything is not entitled to request a new judge? IMO the only fair thing to do is to allow any party to ask for a new judge.

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One likely argument against these proposals is, "but it has never been done that way." Well, in some of the federal circuits, the same argument could have been made against the recently adopted federal court rule, FRAP 32.1, which requires all federal circuits to allow citation of "federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like; and (ii) issued on or after January 1, 2007." FRAP 32.1 was the most controversial proposed federal court rule in American history but was nonetheless adopted. IMO my proposed court rules here are far less controversial than FRAP 32.1.

Another likely argument against these proposals is that they would slow down litigation, since extra time must be allowed for public hearings and litigants' preparation of comments. But litigation is often so slow anyway that adding a little extra delay is not going to make much difference; for example, in Selman v. Cobb County, the appeals court, merely on the grounds of missing evidence, vacated and remanded the district court decision a long sixteen months after that decision was issued.

I think that these three rules would go a long way towards helping to keep judges fair and honest.
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Illegal political activity by another 501(C)(3) non-profit group

As I noted, I have complained to the IRS that Wikipedia is violating its 501(C)(3) non-profit organization tax status by blocking rebuttals of political attacks against public-election candidate Cheri Yecke on her Wikipedia bio. Here is a news story about another violation of the 501(C)(3) rule against political activity:

Wiley S. Drake, a Buena Park pastor and a former national leader of the Southern Baptist Convention, called on his followers to pray for the deaths of two leaders of Americans United for Separation of Church and State.

The request was in response to the liberal group's urging the IRS on Tuesday to investigate Drake's church's nonprofit status because Drake endorsed former Arkansas Gov. Mike Huckabee for president on church letterhead and during a church-affiliated Internet radio show.

Drake said Wednesday he was "simply doing what God told me to do" by targeting Americans United officials Joe Conn and Jeremy Leaming, whom he calls the "enemies of God."

"God says to pray imprecatory prayer against people who attack God's church," he said. "The Bible says that if anybody attacks God's people, David said this is what will happen to them. . . . Children will become orphans and wives will become widows" . . . .

. . . .In 2006, Drake received a stern warning from the group's top lawyer for creating a Southern Baptist Convention letterhead and using it to endorse Republican Dick Mountjoy of California in his unsuccessful bid for the U.S. Senate.

Drake confirmed Wednesday that he endorsed Huckabee for president Aug. 11 in a news release on church letterhead, and on his radio show Aug. 13. But he said those statements should not jeopardize the church's nonprofit status . . . .

. . . .As tax-exempt organizations, churches are barred from campaigning for candidates. The IRS has previously investigated churches for perceived political activity. A sermon before the 2004 presidential election by a former rector at All Saints Episcopal Church in Pasadena prompted an IRS probe that is unresolved.

So the IRS does take these 501(C)(3) violations seriously.

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Asinine program for estimating "trustworthiness" of Wikipedia entries

A UC Santa Cruz press release says,

The online reference site Wikipedia enjoys immense popularity despite nagging doubts about the reliability of entries written by its all-volunteer team. A new program developed at the University of California, Santa Cruz, aims to help with the problem by color-coding an entry's individual phrases based on contributors' past performance.

The program analyzes Wikipedia's entire editing history--nearly two million pages and some 40 million edits for the English-language site alone--to estimate the trustworthiness of each page. It then shades the text in deepening hues of orange to signal dubious content. . . . . . .

Other sites already employ user ratings as a measure of reliability, but they typically depend on users' feedback about each other. This method makes the ratings vulnerable to grudges and subjectivity. The new program takes a radically different approach, using the longevity of the content itself to learn what information is useful and which contributors are the most reliable.

"The idea is very simple," de Alfaro said. "If your contribution lasts, you gain reputation. If your contribution is reverted [to the previous version], your reputation falls." . . . . .

The program works from a user's history of edits to calculate his or her reputation score. The trustworthiness of newly inserted text is computed as a function of the reputation of its author. As subsequent contributors vet the text, their own reputations contribute to the text's trustworthiness score. So an entry created by an unknown author can quickly gain (or lose) trust after a few known users have reviewed the pages. (emphasis added)

This computer program is one of the dumbest ideas I have ever seen. The longevity of a Wikipedia entry has nothing to do with its trustworthiness. In fact, some Wikipedia articles are locked up to prevent editing by anyone except Wikipedia administrators -- in that case, bad information and serious omissions can continue undisturbed in a Wikipedia article forever. Also, a lot of Wikipedia editing does not involve complete deletion but just involves alteration of existing material (when I edit Wikipedia, I try to just add my own material while avoiding changing existing material). The creators of this computer program obviously have no understanding of the way that Wikipedia operates.

I made the following suggestion for improving Wikipedia fairness and reliability: When an item is in dispute, just add the item to Wikipedia along with a note saying that the item is disputed and links to external websites where the item is discussed or debated. This would have the following advantages: (1) the disputed item would get a hearing; (2) there would be no suggestion that the item is endorsed by Wikipedia; and (3) Wikipedia would not be cluttered up with long discussions or debates about the disputed item. My suggestion was ignored.
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What's in a name?

Right now there is a big dispute going on over the origin of the term "intelligent design." See here, here, and here.

So who cares what "intelligent design" is called? As Juliet said in the play "Romeo and Juliet," What's in a name? That which we call a rose, by any other name would smell as sweet." And the corollary is that a skunk by any other name would stink as bad.

By making such a big stink over the term "intelligent design," the Darwinists are creating confusion in the English language by encouraging ID proponents to use some other term. Part of the problem is niggling questions like, "who is the intelligent designer?", "what does the intelligent designer look like?", and "who made the intelligent designer"?". Judge Jones' infamous Kitzmiller v. Dover decision has made a big contribution towards discouraging use of the term by ID proponents. The term "sudden emergence theory" has been proposed as a substitute for "intelligent design." IMO the term "intelligent design" was a poor choice because it implies the existence of an intelligent designer, but I use the term so that people will know what I am talking about. Yet another part of the problem is that the term "intelligent design" has been misused as a general term to describe all criticisms of Darwinism, including non-ID criticisms.

Today there is no universally accepted catch-all term that covers all scientific and pseudoscientific criticisms of Darwinism, including ID and non-ID criticisms; the terms "creation science" and "scientific creationism"used to be such terms, but these terms were outlawed by the Supreme Court in Edwards v. Aguillard (BTW, these terms also refer to creationist ideas in non-biological scientific fields, e.g., geology and astronomy). Part of the problem is that Darwinists have made a big stink over use of the terms "science" and "scientific" in referring to ideas that suggest creationism, but bad science as well as good science can be called "science" and "scientific."

Another example of a misused term is "judicial activism"; it used to simply mean a lack of judicial restraint, but the term has been so badly misused that we just don't agree anymore on what the term means. Judge Jones is definitely an activist judge because he showed no restraint in his Kitzmiller v. Dover decision; for example, he did not have to rule on the scientific merits of intelligent design and irreducible complexity, but he did. However, he asserted in the Kitzmiller opinion that he is not an "activist judge" and he later defined "activist judge" as meaning that the person using the term disagrees with the judge's decision! That is no definition at all. And I can think of much better terms -- many of them unmentionable -- to describe Judge Jones.

There is also the Darwinists' objection to the use of the term "Darwinism." "Darwinism" simply means evolution by random mutation and natural selection. The term "neo-Darwinism" is sometimes used instead.
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The mother of all quote mines

One of the worst things about originalism -- the notion that our interpretations of the Constitution should be based solely on the beliefs and intentions of the Founders -- is that it has created an incentive for the distortion and fabrication of history. The following quote mine, from an article in Talk2Action, is a particularly good example of originalism-inspired misrepresentation of history:

I'll be writing much more over the next few weeks about the numerous instances of Christian nationalist revisionism found in Ten Tortured Words, but will end for now with a striking example of Stephen Mansfield's own brand of word torturing, in the form of the following Madison "quote," found on page 146.

Religion is the basis and foundation of government. -- JAMES MADISON

Where does this quote come from? Well, according to Mansfield's note, Madison's Memorial and Remonstrance Against Religious Assessments. Here is the untortured paragraph from that document, with the words assembled by Mansfield to create his quote in bold.

15. Because finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience" is held by the same tenure with all his other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consider the "Declaration of those rights which pertain to the good people of Virginia, as the basis and foundation of government," it is enumerated with equal solemnity, or rather studied emphasis.

Of course, the fundies are not the only ones who distort and fabricate history to promote their originalist agenda. Here is the example that I have oft-quoted from the infamous Dickinson College commencement speech of Judge Jones:

. . . .we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry."* At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things," to secure their idea of religious freedom by barring any alliance between church and state."*

As I hope that you can see, these precepts and beliefs, grounded in my liberal arts education, guide me each day as a federal trial judge.

*Quotations from The Founding Fathers and the Place of Religion in America by Frank Lambert (Princeton University Press, 2003).

A lot of Judge Jones worshipers have told me that I misinterpreted the above quotation -- they just can't accept the fact that their hero would say something so stupid. He was clearly biased against the Dover defendants. I think that Judge Jones himself realized that his Dickinson College speech went over like a lead balloon -- so far as I know, he never repeated that "true religion" stuff.

BTW, though Judge Jones said that his notion about the "true religion" of the Founders was learned in his undergraduate days, he was actually quoting from a book that was published long after he graduated.

Originalism sucks.
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Cheri Yecke's Wikipedia bio is now "protected"

A while ago I posted some articles about the Wikipedia bio of Cheri Yecke, a candidate for the office of state commissioner of education in Florida. Wikipedia is blocking rebuttals of political attack ads in the bio. This is engaging in political activity in violation of Wikipedia's IRS status as a 501 (c)(3) non-profit organization.

I sent in formal complaints to the IRS but still have not heard back from them. I guess that was wishful thinking on my part.

Unfortunately, Cheri Yecke was unable to give me much help because she was very ill -- still, though, she should have found others who could help, like an attorney.

Cheri Yecke's Wikipedia bio is now "protected," meaning that only Wikipedia administrators can edit it. If you go to her Wikipedia bio, you will see that the "edit this page" tab is not there.

Wikipedia's blockage of my IP address is no longer effective because my ISP proxy's IP address has changed. I will never, ever use my real name on Wikipedia ever again.

I hope that Cheri Yecke has recovered and I will try to contact her again.

For more background info, click on the labels below.

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Fatheaded Ed's anti-fundy bigotry

Ed "I don't need a policy against arbitrary censorship of blog visitors' comments because everyone agrees with me" Brayton said on his blog,

I merely said that the NCBCPS [National Council on Bible Curriculum in Public Schools] board includes several TV evangelists -- and it does. The point being that if you're going to put together an objective, scholarly curriculum, as the Supreme Court requires, then your board should be made up of real scholars rather than apologists and preachers (not to mention bad actors).

Where are the "several TV evangelists"? The NCBCPS has two boards, a board of directors and a board of advisors, and Ed does not say which board he is talking about. According to the bios of the nine members of the Board of Directors, only one is a TV or radio evangelist (though at least one other has appeared on evangelistic broadcasts). Out of 46 members of the Advisory Board, only two are identified as being in broadcasting evangelism. The Advisory Board has 13 legislators. The occupations of many on the Advisory Board are not identified, but Ed, if you claim that there are several TV (or radio) evangelists there, it is your job to identify them. As usual, Ed is just talking through his hat. Ed just pulls his "facts" out of thin air and censors anyone who challenges them or would challenge them. Ed has zippo credibility.

Ed's view that fundies should be barred from participation in public life is contrary to the "endorsement test" as enunciated by Justice O'Connor in Lynch v. Donnelly:
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The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive [465 U.S. 668, 688] entanglement with religious institutions. . . . . . . . The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Furthermore, the "purpose prong" of the Lemon test applies to the purpose of government officials, not private individuals. And the Lemon test has been on the way out for years, anyway.
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Crazy pro-Darwinist op-ed

A recent Boston Globe op-ed titled "Understanding evolution is crucial to debate" says,
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RESIDENTS of Massachusetts might feel safe from the clashes over teaching evolution in school districts across the country. In this state, home to so many great universities, one wouldn't expect anything less than a top-notch science curriculum.

Well, the universities in states where there have been big clashes over teaching evolution in the public schools -- e.g., Pennsylvania, Kansas, Ohio, Georgia, and Michigan -- aren't bad. Anyway, none of those clashes over teaching evolution have concerned the issue of whether evolution should be taught -- they have all concerned the issue of whether evolution should be taught dogmatically.

In fact, Massachusetts students are supposed to begin learning about evolution and have access to impressive materials before they even reach second grade.

Egads -- they start brainwashing them that young in Massachusetts?

But that doesn't let parents or anyone else off the hook. A well-thought-out curriculum in science does not guarantee that evolution will be taught in all its glory -- or even coherently.

"In all its glory"? Evolution? LOL What "glory"? No scientific theory is more mickey mouse than evolution. All evolution theory tells us is that random mutations occur (duh) and that fitter organisms are more likely to survive than less fit organisms (duh again).

The op-ed says,
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Darwin's brilliant theory, a powerful and central concept in biology, offers a path toward understanding everything else: the history of our universe, the world we inhabit, and ourselves.

There we go again with that "grand overarching unifying theory of biology" crap again. And here is a new wild claim -- that Darwinism "offers a path toward understanding everything else: the history of our universe, the world we inhabit, and ourselves."

Even Massachusetts teachers licensed for biology don't have to take a course in evolution, although they must pass a test that includes questions on the topic.

Are courses specifically about evolution required even for biology majors in college?

As evolutionary science accelerates, however, antievolutionists are pushing back -- and exploiting the questions that recent discoveries have raised.

Well, if the questions are there, why shouldn't they be exploited?

Some teachers assign their evolution module a slot at the end of the year, then run out of time. Some speed right through it.

Why spend a lot of time on something that most people don't need to know? Only biologists need to have a good understanding of Darwinism, in order to understand cladistic taxonomy.

When confronted with students' probing questions, the AAAS discovered, teachers find themselves at a loss.

Of course the teachers find themselves at a loss -- often there are no answers.

As one of their complaints, intelligent design proponents claim that schools should do a better job of explaining evolution. They may very well be right. While people who believe in the scientific method do not accept the antievolution lobby's claim of "irreducible complexity," are they prepared with a coherent response? They might say "survival of the fittest" with conviction but only have a hazy recollection of terms like "descent with modification," "natural selection," and even "mutation."

None of those terms is a coherent response to the "the antievolution lobby's claim of 'irreducible complexity'."

It is evident that the op-ed's author does not understand evolution herself.
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Establishment clause anti-rip-off bill adds two Senate cosponsors, now has 19

S 415, the new Senate bill that would bar attorney fee awards in establishment clause cases, added two new cosponsors in July and August and now has 19 cosponsors in addition to the sponsor. I checked some other bills at random and found that 19 is a high number. A study showed that the average numbers of Senate cosponsors for bills that passed the Senate and for bills that were enacted into law were much lower.

In the last Congress, the same bill passed the House by a large margin but the Senate bill was not voted on by the Senate judiciary committee.

I would greatly prefer a bill that would cap attorney fee awards in both establishment clause and free exercise clause lawsuits, but I consider the current bills to be better than nothing. Also, I think that the bills should not mention the Boy Scouts -- that is completely unnecessary.

It is completely ridiculous that the Dover school district ended up paying $1 million in an attorney fee award to the plaintiffs in a lawsuit over a little one-minute statement about intelligent design.

Other articles about these attorney fee awards may be found by clicking on the post label below.

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Fatheaded Ed misinterprets Lemon test's "purpose prong"

Fatheaded Ed Brayton says in a post on his blog,
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On August 12th, I posted quotes on my blog from the NCBCPS [National Council on Bible Curriculum in Public Schools] webpage that clearly have implications for any purpose prong analysis of that curriculum. On the front page, they reprinted a column written by Chuck Norris, one of their advisory board members, that included Norris declaring that this curriculum was, "Your first step to get God back into your public school." Within a few hours of that post going up, the NCBCPS edited their front page to remove that quote, while leaving in the rest of Norris' article.

I neglected to archive the page when I wrote it, but this can be confirmed by looking at the original text of Norris' column, which is still available at the Worldnetdaily site. The phrase "Your first step to get God back into your public school" is in big bold letters as a column heading near the bottom of the article. This is just more historical revisionism from a group that is famous for it, of course, but it may not look too good to the judge in the case. I'll make sure this information gets to the attorneys.

The purpose prong of the Lemon test applies only to government officials, whereas the NCBCPS is not a government agency and its staffers are not government officials. And even if the NCBCPS policy is considered to be a factor in any lawsuit, the NCBCPS cannot be held accountable for the views of all of its staffers. Norris's views about getting god "back into your public school" were deleted from the NCBCPS website and so are not official NCBCPS policy. Also, the lousy Lemon test is on its way out, anyway. Not all judges are as dumb as Judge Jones.
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Originalism sucks

There is a lot of discussion of originalism going on at the Balkinization blog. Here are my thoughts about orginalism:

(1) A lot of people dive headfirst into applying what they believe to be the beliefs of the Founders without first considering whether we should even be following those beliefs in the first place.

(2) There is no consensus about the beliefs of the Founders, and current views about those beliefs are often severely distorted by bias. For example, the Founders are viewed as everything from a bunch of bible-pounding holy rolling fundies to a bunch of godless blasphemous atheists. In one of the worst examples of originalism, Judge John E. Jones III said in a Dickinson College commencement speech that his decision in the Kitzmiller v. Dover intelligent design case was influenced by his notion that the Founders believed that organized religions are not "true" religions.

(3) The Founders were not monolithic in their beliefs.

(4) After a span of two centuries, it is difficult to discern the beliefs of the Founders, particularly the lesser-known Founders.

(5) The Founders would not have been happy living under all of our principles, so why should we be happy living under all of theirs?

(6) The Founders made mistakes and omissions. For example, the Founders failed to write the Constitution in a way that would have prevented the Civil War. The courts had to add an imaginary "dormant" comment clause -- i.e., a general prohibition on state interference with interstate commerce -- because such a clause was not contained in the Constitution.

(7) Many issues today were not even on the radar screens of the Founders, e.g., environmental problems and freedom of expression on the Internet.

(8) It is argued that originalist interpretations can be overridden by amendment of the Constitution, but amending the Constitution is extremely difficult. There has been no significant amendment of the Constitution since the 1971 amendment which lowered the voting age to 18.

I am certainly interested in knowing the opinions of the Founders, but IMO we should not be bound by those opinions and those opinions should be taken with a grain of salt. It has been said that originalism can be a form of judicial activism, and I agree. IMO the overemphasis on orginalism is going to lead to a backlash against the Founders.

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"Fairness Doctrine" articles on Balkinization blog

I have been doing a particularly large amount of commenting under the first two Fairness Doctrine articles -- Part I and Part II (a Part III is planned) -- on the Balkinization blog.

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Update on court opinions' citations of blogs

One of my main arguments in favor of a "fairness doctrine" for blogs -- i.e., a law prohibiting arbitrary censorship of blog visitors' comments -- is that blogs are being authoritatively cited by court opinions, scholarly journal articles, the official news media, etc.. Obviously, the purpose of such censorship is to present just one side of controversial issues and so blogs that practice such censorship obviously lack fairness and have low reliability and so should never be authoritatively cited. I am amazed that I have to explain this to people -- this is not rocket science.

One of the blogs that arbitrarily censors my comments is Law Blog Metrics, which posted the original study on court opinions' citations of blogs. They never gave a reason for blocking my comments. And not that I think any blog with unlimited Internet access is really private, but Law Blog Metrics happens to be run by a public university, the Univ. of Cincinnati, which makes their arbitrary censorship especially bad.

Though there was a recent news story that someone traveled 1300 miles to burn down the house of an Internet rival, a lot of people have told me that they don't believe that arbitrary censorship of blog visitors' comments really happens on the Internet.

No authoritative citations are more authoritative than authoritative citations by court opinions. There is no reason why a single authoritative citation -- even if nonbinding -- could not be the deciding factor in an important judicial decision. Law Blog Metrics' original study of court opinions' citations of blogs, reported in Aug. 2006, has now been updated on the Concurring Opinions blog. The original study listed 32 court opinions' citations of blogs and the update adds 16 from the last 12 months -- hardly a flood of citations. This is a drop in the bucket compared to the numbers of court opinions' citations of law journal articles. In comparison, an August 2006 article lists 489 citations of law blogs by law journal articles. A previous article on this blog gives some reasons for the low number of court opinions' citations of blogs.

A visitors' comment on the Concurring Opinions blog says,
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One of the interesting things about citing to a blog posting is not only that the blog may disappear, but that it can be changed. Edited. After the citation. What then?

One of the bloggers responded,

I searched for and read these citations, so I would like to make a few observations. Only in a few of the citations did the courts actually quote from the blog posts. Quoting could solve the editing problem to some extent, because even if the blog post is not static, the original quote would appear in the case. A few of the citations included the date that the blog was accessed. This should probably be required for citing blog posts, as well as any internet source. However, finding the posts (whether they are original or not) can be a problem. Only a few of the cases cited the date of the post. All provided links to the post, but in many cases the links did not work and I looked in the blog archives.

That sounds like an awfully sloppy way to make authoritative citations in court opinions. Also, quoting the blog is not enough because the context of the quote may be important. The Harvard Law Review Association's sixteenth edition of The Bluebook: A Uniform System of Citation (the Bluebook) gives some guidelines for citations of Internet sources, e.g., blogs:

Rule 17.3.3 sets forth citation rules for "Internet Sources," a welcome and much needed addition to the Bluebook. Though this rule admonishes readers to use "transient" Internet citations only when alternative printed sources are either unavailable or nonexistent, I suspect many legal professionals will want to "bookmark" this rule.

A citation to a source on the Internet should contain the author's name if available, the "title or top-level heading" (this could range from the name of an entire Web site to the title of an article within a huge Web site), and the URL or "Uniform Resource Locator" (the unique electronic address that points to the source). The citation should also contain the date of publication if available; otherwise, the date "last modified" by the author or the date "visited" by the person citing the source will suffice. Thus, a citation to the American Bar Association's recently published report on citation issues would look like this — ABA Special Committee On Citation Issues, Report And Recommendations (May 23, 1996)

IMO it would be a good idea to have a special place for archiving cited blog articles and other Internet sources, e.g. Wikipedia articles. The direct links of cited Internet sources should be archived as well.
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Problem in posting comments

I have been having a problem posting comments on Blogger.com blogs -- the comment entry page often just keeps refreshing itself repeatedly without stopping. I find that hitting my ISP screen's "refresh" button usually causes this to promptly stop. I am wondering if anyone else is having this trouble. If you are unable to post a message here, you can reach me at LarryFarma@aol.com.

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Neutral site for discussions censored on Balkinization blog

Update: It looks like Balkinization is fully open to commenting again. Some commenters there -- including myself -- complained and apparently persuaded the bloggers there to relent.

I am establishing here a neutral site for discussions that have been censored on the Balkinization law blog. One of the Balkinization bloggers, Marty Lederman, wouldn't even allow a discussion to start. Another Balkinization blogger, eponymous blogger Jack Balkin, cut off a discussion because of the following bigoted comment. The comment is so extreme that at first I thought it was sarcastic but after I read other comments by the same commenter I realized that it was not sarcastic:
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"That's right, Bart. Bush should have just gone the whole way and interned every Arab-American under existing Supreme Court precedent."

The above statement is particularly offensive because it shows extreme prejudice against people on the basis of their ethnicity and national origin. Nonetheless, it was wrong to throw out the whole barrel of commenters just because of one bad apple. For the following reasons, there should be no arbitrary censorship of visitors' comments on blogs:

(1) The more popular blogs have become major de facto public forums. Balkinization is ranked as number four in average daily visits (3727) among law blogs that have at least one blogger who is a law professor.

(2) Blogs are being authoritatively cited by court opinions, scholarly journal articles, the official news media, etc., making it particularly important that the cited blogs be as fair and reliable as possible. Visitors' comments enhance fairness and reliability by correcting factual errors and presenting different opinions. In a list of law blogs cited by law journal articles, Balkinization was tied for 3rd place with 32 citations out of a total of 489 citations.

The Balkinization articles where discussion is censored are:

Secret Court Strikes Down Bush NSA Program, Leading to Latest Fuss About FISA

The FISA Fix

What's the Legal Significance of the Data Mining?
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Sleazy PZ again causes surge in visits

Sleazy PZ Myers' Pharyngula blog gets so much traffic that his mere mention of his "killfile dungeon" -- where I have the honor of being at the top of his list of banned commenters -- caused a tremendous surge in the daily number of visits to this blog. To see this surge, click on the SiteMeter icon at the bottom of the left sidebar, then click on "visits -- Previous 30 days" in the sidebar. The "By Referrals" list told me that most of the extra visits came from PZ's blog. I certainly don't mind the extra traffic -- as more people learn about this blog, I think that more people are going to start coming here to see the alternative views that they can't see on other blogs because of arbitrary censorship.

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Conservative dominance of talk radio

I have yet to see anyone even attempt to rebut the claim that talk radio is dominated -- monopolized would be a better word -- by conservative talk shows. As I said, it is often difficult or impossible to decide what is "liberal" and what is "conservative," but by any standard, conservative talk radio's dominance appears to be astonishing. One article says,

Nationally, virtually all of the leading political talkshow hosts are right-wingers: Rush Limbaugh, Sean Hannity, Michael Savage, Oliver North, G. Gordon Liddy, Bill O’Reilly and Michael Reagan, to name just a few. The same goes for local talkshows. One product of the post-Fairness era is the conservative “Hot Talk” format, featuring one right-wing host after another and little else. Disney-owned KSFO in liberal San Francisco is one such station (Extra!, 3–4/95). Some towns have two.

When Edward Monks, a lawyer in Eugene, Oregon, studied the two commercial talk stations in his town (Eugene Register-Guard, 6/30/02), he found “80 hours per week, more than 4,000 hours per year, programmed for Republican and conservative talk shows, without a single second programmed for a Democratic or liberal perspective.” Observing that Eugene (a generally progressive town) was “fairly representative,” Monks concluded: “Political opinions expressed on talk radio are approaching the level of uniformity that would normally be achieved only in a totalitarian society. There is nothing fair, balanced or democratic about it.”

For citizens who value media democracy and the public interest, broadcast regulation of our publicly owned airwaves has reached a low-water mark. In his new book, Crimes Against Nature, Robert F. Kennedy Jr. probes the failure of broadcasters to cover the environment, writing, “The FCC’s pro-industry, anti-regulatory philosophy has effectively ended the right of access to broadcast television by any but the moneyed interests.”

Instead of denying the dominance of conservative talk radio, conservatives try to excuse that dominance by claiming that it is counterbalanced or even overbalanced by liberal dominance in other areas. Columnist George F. Will said, "Conservatives dominate talk radio — though no more thoroughly than liberals dominate Hollywood, academia and much of the mainstream media." But what is "thorough" about liberal domination of these other areas? Will gives no examples of how these other areas are dominated by liberals. Do Hollywood movies and TV shows try to send a liberal message? Are Hollywood entertainers and executives mostly liberals, and if they are, then how do they exert liberal influence? As for the mainstream media, how biased are typical news reports? To conservatives, any negative news report about the Bush administration is evidence of extreme bias. Are the editorials, op-eds, and letters to the editor in newspapers and magazines overwhelmingly liberal? And what is the evidence of liberal bias in academia? I am not talking about moderate biases in these other areas -- I am talking about extreme bias such as exists in talk radio.

I tried to explain this conservative talk show dominance by claiming that the radio stations and commercial sponsors are trying to promote the conservative talk show hosts' pro-business positions on the environment, labor, business regulations, business taxes, the fairness doctrine (yes), etc.. But publicized commercial sponsorship of a very narrow-minded conservative talk show host could backfire by antagonizing many of the sponsor's potential customers. And conservative positions on many controversial issues -- e.g., abortion, separation of church and state, and gay marriage (except in regard to fringe benefits for gay employees) -- are of no use to big business but could antagonize many of a publicized sponsors' potential customers. So I suspect that a lot of commercial sponsorship of radio talk shows is secret -- i.e., not announced on the radio.
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I'm trying to hijack Balkinization thread too!

I haven't succeeded yet -- I am just trolling my lure of a brief remark about my proposed blogging "fairness doctrine" (a law that would prohibit arbitrary censorship of blog visitors' comments) in four long comments on a Balkinization blog thread about the broadcasting fairness doctrine. So far I haven't gotten any strikes, though. That is the proper way to troll -- instead of changing the subject outright, just drop small inconspicuous hints in comments that are otherwise completely on-topic.

One of my comments concerns a 2000 D.C. Circuit federal court of appeals decision that appears to contradict the Supreme Court's 1969 Red Lion decision.

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Stopping the Mad Bookstore Misshelver

An article in a blog titled "Biologists Helping Bookstores" says,
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Barnes & Noble in the cultural wastela-, er, heartland of Irvine. I drop by the lone bookstore in the huge outdoor mall, The Spectrum. Bracing myself, I approach the science section.

The science section is tiny, only two small aisles three shelves high, but it doesn't take long to come across a miscategorized book - and it wasn't what I expected. God is not Great by the celebrity atheist Christopher Hitchens.

Seeing as my aim is to re-shelve religion and/or philosophy books to the correct part of the store, I am duty-bound to act. This is a book on atheism from a non-scientist, and it simply does not belong in the science section. Science is a secular process and has nothing to do with the question of the existence, or the non-existence, of a God. It is thus relocated to the Philosophy shelves upstairs. "But what about Dawkins?!" I hear you cry. Dawkins is another well-known atheist, I agree, but he is best known as an evolutionary biologist and his books are strongly evolution-themed.

Let's see what else we can find.

I think I might have picked a bad week to start this quest. Behe's new book must have been just released: Four copies of The Edge of Evolution were discovered once more in the science section.

I flip a copy and read the back. Here's the beginning of the first quote from the back cover: "Until the past decade and the genomics revolution, Darwin's theory rested on indirect evidence and reasonable speculation..." (Dr. Philip Skell, Evan Pugh Professor of Chemistry, Emeritus, at Pennsylvania State University, and member of the National Academy of Sciences). That's not true! I am emboldened by this bare-faced lie from this well-respected elderly chemist, pick up all four copies, and stroll upstairs.

Now, I aim for accuracy in my recategorization, and I was still slightly mad at the lies on the back cover (read the "Editorial Reviews" at Amazon for a sampling), so I sought out the most appropriate section of the store: Behe's lie-covered volume now rightly resides in the Religious Fiction section . . . . A job well done.

A comment in the article's comment thread says,

Moving books to another section of the store is not "helping" or "making a statement"; it is making a mess. It makes finding a book much harder for the employee who has looked it up in the computer because it's not where it's supposed to be. It means the possibility of a lost sale because the book cannot be found, at least for the moment.

It not only could mean a lost sale, but could also mean a lost customer. One of the main reasons why people still buy books at bookstores instead of buying books online is that books can be thoroughly examined before purchase at a bookstore.

This stupid fathead is going to start a misshelving war, with Darwinist books being reshelved in other sections. Two can play this game.

BVD-clad blogger Sleazy PZ Myers of course heartily approves of this misshelving -- he says, "I thought we all did this. You mean most people don't?" Several commenters on his blog -- including a bookstore employee -- brag or boast that they have done this misshelving themselves. Some of these vandals have also misshelved books in libraries.

The greedy Darwinists are not satisfied with their little "victory" of getting Of Pandas and People "removed" from Dover classrooms (of course, as we know, the book wasn't really "banned," because Wickedpedia and the American Library Association refused to put it in "banned book" lists).

One way for the bookstores to put an end to this nonsense is to put the misshelved books in the best-seller sections or other special displays.
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