Chief Justice Roberts teaches a language lesson: "The noun 'crab' refers variously to a crustacean and a type of apple, while the related adjective 'crabbed' can refer to handwriting that is 'difficult to read'..."

"... 'corny' can mean 'using familiar and stereotyped formulas believed to appeal to the unsophisticated,' which has little to do with 'corn,' ('the seeds of any of the cereal grasses used for food'); and while 'crank' is “a part of an axis bent at right angles,' 'cranky' can mean 'given to fretful fussiness."

And the point is, a corporation may be a "person" within the meaning of the Freedom of Information statute, but that doesn't mean it's gets in on the "personal" privacy referred to elsewhere in the statute.

[I]n ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. ...

"Person" is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning.”... “Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.

Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, "I have something personal to tell you," we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, "that’s personal." A company spokesman, when asked for information about the company, would not.

Crisply explained!

IN THE COMMENTS: rhhardin said:

While he's got the FCC's attention, mention that the "fucking" in "fucking brilliant" is not an adjective.

Ha! He's referring to this FCC opinion:

The complainants allege that the licensees named in their respective complaints aired the “Golden Globe Awards” program, during which the performer Bono uttered the phrase “this is really, really, fucking brilliant,” or “this is fucking great.”...

The word “fucking” may be crude and offensive, but, in the context presented here, did not describe sexual or excretory organs or activities. Rather, the performer used the word “fucking” as an adjective or expletive to emphasize an exclamation. Indeed, in similar circumstances, we have found that offensive language used as an insult rather than as a description of sexual or excretory activity or organs is not within the scope of the Commission’s prohibition of indecent program content.

"Fucking" can be an adjective, as in "You're a fucking crank," "Watch out for the fucking crab," or "I can't believe you're serving fucking corn again," but in the Bono boast, it's a fucking adverb.

In the new "informational privacy" case — Justice Scalia talks about evaporated, refreshing, Lincolnesque honesty; pontificating in the guise of judicial minimalism; and what I think are McGuffins.

"I agree with the Court, of course, that background checks of employees of government contractors do not offend the Constitution," writes Justice Scalia in a concurring opinion in NASA v. Nelson, a unanimously decided case issued this morning:

But rather than reach this conclusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government’s interests in data collection against its contractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist.

Scalia notes the "remarkable and telling fact," which he says he has never seen before in the Supreme Court, that the party saying his rights have been violated does not — even once —cite a constitutional text in his brief:

To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.

Regrettably, this Lincolnesque honesty evaporated at oral argument....

Questioned at oral argument, Nelson's lawyer said what you'd expect him to say: the Due Process Clause. And then Scalia goes on to say what you'd expect him to say, disparaging "the infinitely plastic concept of 'substantive' due process."

Scalia also attacks the majority's "judicial minimalism" — manifested in its failure to say whether at some point — though not in this case — there may be a violation of a constitutional right to informational privacy. It's "not actually minimalist" to decide cases this way, Scalia says, because the Court took the opportunity able "to pontificate upon a matter that" — if there is no such right — "is none of its business: the appropriate balance between security and privacy." And if there is such a right...

I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right while coyly noting that the right is “assumed” rather than “decided.” Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.

Alfred Hitchcock line of jurisprudence...  I think that has something to do with McGuffins.

ADDED: I moved the erstwhile title of this post into the first line so I could write a more exciting headline. I've got to push myself to be more sensationalistic. I hope you appreciate the effort.

2 Harvard law students sue Janet Napolitano and the TSA administrator over the airport scanning and groping.

They say it violates the 4th Amendment.

IN THE COMMENTS: lyssalovelyredhead said:

On a related note, I heard from a lawyer today... that his client, an employer, is being sued by a frequent flying employee, who is alleging forced flying under these conditions constitutes hostile work environment.

"Don't touch my junk." It's the new "Don't Tread on Me."

Says Charles Krauthammer.

Don't touch my junk is the anthem of the modern man, the Tea Party patriot, the late-life libertarian, the midterm election voter. Don't touch my junk, Obamacare - get out of my doctor's examining room, I'm wearing a paper-thin gown slit down the back. Don't touch my junk, Google - Street View is cool, but get off my street. Don't touch my junk, you airport security goon - my package belongs to no one but me....

Do you remember how the government presented this newly intensified bodily search? Why did the Obama administration — which I associate with opposition to enhanced interrogation techniques used on terrorists — adopt enhanced pat-downs on ordinary citizens to protect us from terrorists? Was it done because of the introduction of the enhanced imagining scanners? I really don't know. Did the government explain this to us when I wasn't paying attention? Because I monitor the news for hours every day, and I don't know the explanation.

It seems to me that these 2 things happened together: new machines that see you naked and newly intense body searches. Am I wrong to believe that the new groping procedure was intended to get more people into the scanners they would otherwise resist? Someone, at some level of the Obama administration, decided that the only way to channel people into the see-you-naked machines was to make the alternative more offensive to nearly everyone. Personally, I'd take the grope over being seen naked, but I did a poll yesterday, and I see that the scanner is significantly more popular than the grope.  I suspect that was the calibration. And I suspect that if too many people choose the grope over nakedness, the plan is to intensify the grope until they get the scanner acceptance rate they need.

But why were the scanners introduced when they had to know people didn't want them? With healthcare reform, the Obama administration became associated with ramming things down our throats. The government knows what we should want and doesn't bother to find out what we do want or even to persuade us to want what they think we should. The scanners are the ultimate graphic example of forcing something on us without asking. We're only asked: Well, would you prefer to have us feeling all around your genitals? That's the kind of consent of the governed we're facing these days.

But why push the scanners on us? Do you remember hearing Obama or Janet Napolitano or anyone say anything persuasive about why these machines were bought? (Suddenly, I want to follow the money. For that, I will  move to a new post.)

(In my unscientific poll, 73%  of those who would keep flying, picked the scanner over the grope. I suspect the government needs a better acceptance rate than that to keep the lines flowing and justify the investment in the machines. But most of those of us who picked the grope haven't been groped yet, and if being seen naked becomes the norm, more of us may fall into that brain-dulled line that shuffles into the machine.)

John Tyner, the young man who resisted the TSA's groin-grope, will now be probed.

"Michael J. Aguilar, chief of the TSA office in San Diego, called a news conference at the airport Monday afternoon to announce the probe. He said the investigation could lead to prosecution and civil penalties of up to $11,000."

Love the use of the word "probe."

There's some really deep feeling brewing out there about the TSA's newly intensified searches of airline passengers. I'm wondering what potential this very particular issue has for skewing politics more generally.

Think about why this issue has such a strong emotional impact: The government wants to see you naked or grope your genitals. It is conditioning an important aspect of personal freedom — flying in airplanes — on your resigning yourself — and your children — to sexual assault. I was chatting with someone the other day who seemed more angry about this than any other political issue.

Now, I think this TSA issue has the potential to affect the political orientation of many individuals. How might the political parties and other political participants seize this opportunity?

"I don't think that the government has any business seeing me naked as a condition of traveling about the country."

Don't get snippy. It's either see you naked or feel you up. Just kidding. You also have the option not to travel by plane.

What will you do?
	Go through the "naked" screener thing.
	Submit to the quick feel-up.
	Not fly.
pollcode.com free polls

ADDED: "The 'don’t touch my junk' guy speaks."

The 5-year-old boy who chose to be Daphne from "Scooby-Doo" for Halloween.

And the mother who chose to blog about it.

So now there's a viral photo on the internet of a boy dressed as a girl and endless speculation about what that all means.

1. Did the mother invade her son's privacy? By blogging about the issue of a very young boy who wants to pretend to be a girl? Or was it the photograph? Or was it wrong even to invade the child's fantasy world by speculating about his sexual orientation? The mother's blog post was titled "My Son Is Gay." Do we owe children restraint in thinking about what sexual behavior they will find compelling when they grow up, and if we do, don't we all violate that duty in one way or another?

2. Consider the notion that a costume of a perfectly nice girl was perceived as an unusually scary Halloween character. Kids dress as devils and monsters and dead people all the time, but to be a pretty girl — if you are a boy — is terrifying. As the blogger noted, a girl dressed as a male character would not stir the same anxiety in the grownups. What does this say about sexism? Is there a special aversion to females, that manifests itself when a male associates with female things? Or is it that people have a special aversion to male homosexuals and are really pretty much okay with lesbians?

IN THE COMMENTS: Big Mike said:

I'm glad I'm at home when I followed your "perfectly nice girl" link because some of those cartoons are definitely NSFW.

I've changed the link to the Wikipedia article on Daphne Blake. Previously, it went to the results of a Google image search on: Daphne Scooby Doo. I'll just add the "bestiality" tag to this post to indicate what you would have seen if you scanned the page too long.

"How would you feel if some dude you knew was out to get you moved 15 feet away from your kids? How would you feel?"

Sarah Palin's reality show:

ADDED: I must say... Palin ought to move to a more secluded house. I'm not saying Joe McGinness isn't a jerk, but even assuming perfectly nice neighbors, she ought to have more privacy. Also, I love that she calls her patio "the cement slab."

AND: The nugget of propaganda delivered by this homey reality show is that Sarah Palin regularly sits down and does her own independent, studious research and writing.

IRONY: McGinniss's lawyer accuses Palin of invading his privacy:

Mr. McGinniss was not asked if any production crew could videotape him as he read a book on the secluded deck of the house he was living in at that time. He was not aware that any camera crew was in fact videotaping him. Mr. McGinniss had a reasonable expectation of privacy under those circumstances. The mere taking of the video therefore gives rise to an actionable claim for invasion of his privacy. The publication of the video on your website and in the television show constitutes an additional wrong – the unauthorized use of the likeness of Mr. McGinniss. Finally, the manner in which Ms. Palin describes Mr. McGinniss in the episode is defamatory: Mr. McGinniss has never invaded the Palins’ privacy, contrary to the many statements made by Ms. Palin and her husband, both prior to this television production, and now repeated in the episode referenced above.

Firesheep.

Eek.

I'd kind of already given up my once-raging habit of hanging out in cafés on café WiFi. Oh, how I loved free WiFi. And now, it's all over.

"Best to assume that we're under surveillance of one form or another most of the time."

Some advice from a professor in an article about that Duke student whose 42-page sex diary went viral on the internet. It's really sad. You know, in the old days people had God — or even just a conscience — to create that sense that they were under surveillance. And some people fretted that the government would be watching us all the time. And now, in our spiffy but impoverished age, we're supposed to manufacture responsibility out of the idea that anything can leak out into the internet.

I found that article via Instapundit, whose teaser was "INSTITUTIONALIZED SEXISM: Duke Contacting Those Affected by Sex 'Thesis.'" Sexism, eh? Maybe you can explain that to me. Are we supposed to think the university would celebrate or excuse a male student who wrote up the details of a lot of sexual encounters with female students? I get the impression Duke is trying to be equal toward the sexes by figuring out what they'd do if a bunch of female students got their privacy invaded this way and then applying the same treatment to the men.

And I still find it hard to believe that the woman — Karen Owen — wrote out her 42-page sex diary just to share it with a few friends. I imagine her laughing over the professor's advice. It may be in her interest to look like the poor girl whose friends opened her diary to the world. Look at the publicity and the readership she's getting for what was substantial literary work (plus field work!). My hypothesis is she's savvy.

The NYT likens real, consensual sex to a false allegation of rape and frets once more about privacy and the internet.

"Duke Winces as a Private Joke Slips Out of Control," reads a NYT headline. I wondered what Duke winced? John Wayne is too dead to wince, and who cares what some Euro-aristocrat feels? Turns out it's Duke, the University, and the article is about that college girl who made big, detailed PowerPoint presentation about her sex conquests and sent it out to "a few friends" by email, whence it migrated to the web, purportedly to her shame and dismay. Supposedly, the young woman — Karen Owen — didn't mean for her hilarious writing to go viral. Is that so? My experience with writers is that they want readers. But that's a side issue ignored by the NYT, which is fixated on Duke University:

On campus, students were abashed, if not a bit fatigued by the notoriety.

Just four years ago, the Duke men’s lacrosse team was embroiled in scandal when a woman falsely accused three Blue Devils players of having raped her at a party where she was to perform as a stripper. One year later, the charges against the players were dropped and the prosecutor in the case, Michael B. Nifong, was disbarred.

What?! Why liken real sex between consenting individuals to a false charge of rape?! "Notoriety" — that's a ridiculous umbrella term.

Seven of the 13 athletes Ms. Owen wrote about were — or still are — on the lacrosse team. This incident has angered many of those who are already sensitive to their image, according to students and alumni who know them. The lacrosse players contacted would not comment.

Huh? So... those 7 guys aren't the ones who were falsely accused of rape, are they? And are the lacrosse players really so "sensitive" that it bothers them for people to know that they had actual sex with classmates?

On campus, other students had plenty to say.

Kishan Shah, 18, a pre-med student from Carmel, Ind., said the university should not revoke Ms. Owen’s degree, but “they should let her know that she has disgraced the school.”

Who suggested the crazy punishment of revoking her degree? And since when do we punish people for talking about their sexual encounters? If she's lied about someone, maybe they have a defamation claim, but it's hard to see how a young man is hurt by the rumor that he had sex with a woman, even if she thinks he wasn't a good enough lover.

Mike Lefevre, a 21-year-old senior and the president of the student body, said that people were not sure whom to be more concerned about. “Should we be more worried about the young woman’s privacy or worry about the individuals who were named?” he said. “It’s not so clear to us who was the victim, and who we should reach out to.”

Give me a break. If you do things with people, they can talk about it. These days the talk is on the internet. Get used to it. If you don't like it, try limiting your sexual encounters to people who love and respect you. And quit whining.

"The electronic lynch mob that has attacked and harassed me—you should see the emails sent to me personally!—has made my family feel threatened and insecure."

Cries U Chi lawprof Todd Henderson, whom I'm accused of being insufficiently empathetic toward. Ah! I love the smell of irony in the morning. A libertarian demands that the community coalesce and feel for the poor rich-but-not-that-rich man. Last night, I tweaked Professor Jacobson for babying Henderson, and this morning I see his update:

[T]he issue is ... serious, and has nothing to do with whether one agrees with Henderson's assessment of his reality.  Criticizing someone's views is one thing, reaching out and touching him is something else, as are deliberate attempts to damage his reputation based on false or misleading characterizations, which we all know takes place in the blogosphere.

Touched him? Where? I have an anatomically correct blogger doll, and maybe you can point to the spot. What does it take to get something specific around here? Henderson's good-bye-to-all-you-mean-people post says "you should see the emails sent to me personally!" and my response is: Okay, show me! Don't just tell me about your feelings: Give me the concrete facts or I don't know what you're talking about. Electronic lynching. Come on. You went on the internet — and from a position of considerable power. You made a good argument, and you got a response, one that you had to know you'd get. All is normal on the web as far as I can see.

Henderson admits:

The reason I took the very unusual step of deleting them is because my wife, who did not approve of my original post and disagrees vehemently with my opinion, did not consent to the publication of personal details about our family.

And there is the real problem. Henderson displayed very personal details about his family without asking his wife's permission. She has reason to be royally angry with him. I'm not going to ask to see a transcript of the dialogue the couple had about the blog post, but I'll bet it hurt a whole hell of a lot more than whatever is in those emails that we also haven't seen. Don't write about your family on the internet unless they consent. That is a basic responsibility that Henderson lost track of. To point to the vigorous pushback of political debate about taxing the most well-off citizens is to distract from that fundamental problem.

Now, I can read the mocking on other blogs. This ABA Journal piece sent me to Michael O'Hare and Brad DeLong. O'Hare digs into the numbers that Henderson himself provided:

Why a couple with a half-million dollars of debts decides it needs a million-dollar house in Chicago, where the Hyde Park average price "near their work"  is a third of that, is not entirely clear....

This leaves about $90,000, a lousy $245 a day,  for food, clothes, vacations, cable TV, and like that...

So how does our third-of-a-million-a-year law prof/doctor couple and their three kids, barely scraping by already and falling before our eyes to the very bottom of the top 1% of US families by income, make out under Obama’s rapacious soak-the-rich commie attack on all that is holy and American and fine?...

His taxes will go down $3700... And this guy is threatening to fire the gardener and the house cleaner, take the kid out of art class, turn off his cell phones, and try to raise competent adults with only basic cable.  Prof. Henderson, I’m ashamed to share my profession with you.

That is completely fair and astute comment. If O'Hare is wrong about Obama's taxes, he should be corrected. But I can see why Henderson can't fight with O'Hare: He'd have to have an endless public discussion of how he spends his money on himself and his family. It's humiliating and absurd, and his wife is pissed. (You want expensive? Try divorce.)

DeLong said:

Professor Xxxx Xxxxxxxxx's problem is that he thinks that he ought to be able to pay off student loans, contribute to retirement savings vehicles, build equity, drive new cars, live in a big expensive house, send his children to private school, and still have plenty of cash at the end of the month for the $200 restaurant meals, the $1000 a night resort hotel rooms, and the $75,000 automobiles. And even half a million dollars a year cannot be you all of that.

But if he values the high-end consumption so much, why doesn't he rearrange his budget? Why not stop the retirement savings contributions, why not rent rather than buy, why not send the kids to public school? Then the disposable cash at the end of the month would flow like water. His problem is that some of these decisions would strike him as imprudent. And all of them would strike him as degradations--doctor-law professor couples ought to send their kids to private schools, and live in big houses, and contribute to their 401(k)s, and also still have lots of cash for splurges. That is the way things should be.

But why does he think that that is the way things should be?...

Is it pathetic that somebody with nine times the median household income thinks of himself as just another average Joe, just another "working American"? Yes. Do I find it embarrassing that somebody whose income is in the top 1% of American households thinks that he is not rich? Yes.

Again, fair and deserved criticism. Henderson had to expect it, but he doesn't want to have to deal with it. He can't really. He just plain lost a fight. He hurt his cause. And I'm still not empathizing.

The Squirrel Rights Song.

"We didn't sign a release!"

"Don't Be Evil?"

Nice — evil? — viral video for getting people to promote the cause of "Do Not Track Me" legislation. Via Wired:

It’s not the first anti-Google antic from the group, which is largely funded by legal fees, the Rose Foundation, Streisand Foundation, Tides Foundation and others. Last month the group announced it had parked outside lawmakers’ Washington-area residences to determine whether they had unsecured Wi-Fi networks that might have been sniffed by Google as part of the internet giant’s Street View and Google Maps program.

UPDATE, 9/4/10: Google just updated its privacy policy.

"[E]very functioning society needs a 'backstage' where people can let their hair down and speak without observing social proprieties."

Writes Glenn Reynolds in an op-ed about the Journolist:

But journalists have been destroying that backstage for everyone else for decades. Why should they be permitted to keep one, when no one else is?

No doubt publishing these never-intended-for-publication remarks is, at some level, unfair: The list members were just venting to their friends. But, of course, so were lots of other people whose off-the-cuff remarks have been blown up into national stories by journalists over the years. And efforts to covertly shape the news, hurt competitors, and influence elections (JournoList members referred to themselves as the "unofficial Obama campaign") aren't the sort of thing that journalist think deserve privacy the rest of the time when they're done by people who aren't journalists.

Eliminate cash and you eliminate (much) robbery.

It would also cut down on street musicians and panhandlers. And what else? Privacy:

"If it's impossible to pay cash when you buy stuff, it's also impossible not to leave electronic footprints behind you, and the electronic footprints from what you buy put together can tell the entire story about your life. This can be very sensitive information... Most people don't want this total surveillance society."

Government computers, government employees, private email, and state open records laws.

The Wisconsin Supreme Court rules in favor of individual privacy.

Why did it take police 4 days to gain access to this man's phone records....

... which turned out to be the way to locate him and save his life?

Thomas Wopat-Moreau, 22, lost control of his BMW sport wagon along the Taconic State Parkway, 40 miles south of Albany, after storming out of a party in East Fishkill early Sunday morning, state police said.

The vehicle flipped over, went airborne and soared down an embankment - finally coming to rest in heavy vegetation about 480 feet from the highway....

Lacking feeling in his legs and suffering from internal injuries, Wopat-Moreau crawled away from the wrecked BMW... beat his way through waist-high marsh grasses, but could only make it 150 feet away from the BMW.

For four days, as dehydration set in and insects swarmed, Wopat-Moreau survived on swamp water and a gritty determination to live. 

"We are not living off the grid as much as we are creating a new grid, a more wholesome grid."

Conservative Christians drop out.

"We are following a different path that we think is healthier, promotes better families, and better communities."...

"Christians should be looking for a way to take care of one another without forcing their neighbor to contribute to their welfare. In essence that's coveting your neighbor's goods through the agency of the governments you create."...

"Making the government an idol is the problem. That's what stands in the way of Christian sanctification... It's hands off mainly things like our family, our children, our bodies, our health, and even our money, the fruits of our labor. These don't belong to government."...

"We originally anticipated thousands and thousands of people overwhelming these smaller counties.... We had people moving, that were moving, but they were kind of putting the cart before the horse, because they weren't living independently. They were just showing up and saying 'Okay, where's my house and where's my job?' We're like, 'Uh, no, it doesn't work like that. '"....

"Personal secession are things like homeschooling, house churches, home gardening, home-based economics, just regaining privacy and a sense of community rather than worrying about what's going on in Washington, D.C... What's the latest thing from the Supreme Court?"

"It doesn't matter what an animal does, or where it does it, it will be deemed fair game for the documentary."

"Human notions of privacy which rest on ideas of location or activity are ignored in terms of animals."

An academic agonizes.

Imagine the roles reversed. The animals somehow take over and they are making David Attenborough-style videos about human beings.... Well, picture this, but with people: