The sleep needs of adolescents

HISD is considering moving HS start times EARLIER next year (look down toward the middle). But recent research implies that high school students do better later in the day; apparently puberty shifts the 'chronotype' of adolescents to an 'evening preference'. Some districts have shown improvement in student participation and behavior with later times. Other studies have shown a correlation between sleep deficit and reduced creativity and performance.

Of course changing start times for high school students also impacts school faculty and staff, and parents and families. Students may find it difficult to have after-school jobs, long extra-curricular activities, or away-games against schools in other districts. Nevertheless, it appears that with enough planning, the overall effects can be positive for all involved.

I recommend you read the article from the March 2011 issue of "Educational Researcher." Some of the references in the article may be available online if you can't get the link above; please see below.

• Black, S. (2000). A wake-up call on high-school starting times. Education Digest, 66(4), 33–38.
• Blatter, K., & Cajochen, C. (2007). Circadian rhythms in cognitive performance: Methodological constraints, protocols, theoretical underpinnings. Physiology and Behavior, 90, 196–208.
• Bonnet, M. H. (2000). Sleep deprivation. In W. C. Dement (Ed.), Principles and practice of sleep medicine (3rd ed., pp. 53–71). Philadelphia: Saunders.
• Cajochen, C., Blatter, K., & Wallach, D. (2004). Circadian and sleep-wake dependent impact on neurobehavioral function. Psychologica Belgica, 44, 59–80.
• Cajochen, C., Khalsa, S. B., Wyatt, J. K., Czeisler, C. A., & Dijk, D. J. (1999). EEG and ocular correlates of circadian melatonin phase and human performance decrements during sleep loss. American Journal of Physiology, 277, 640–649.
• Carskadon, M. (1999). When worlds collide: Adolescent need for sleep versus societal demands. Phi Delta Kappan, 80(5), 348–353.
• Carskadon, M. (2002). Adolescent sleep patterns: Biological, social, and psychological influences. Cambridge, UK: Cambridge University Press.
• Carskadon, M. A., & Acebo, C. (2005). Intrinsic circadian period in adolescents versus adults from forced desynchrony. Sleep, 28(Abstract supplement):A71.
• Center for Applied Research and Educational Improvement. (1998a). School start time study. Final report summary.
• Center for Applied Research and Educational Improvement. (1998b). School start time study. Technical report: Vol. II. Analysis of student survey data.
• Chandler, M. A. (2009, January 6). Fairfax plan would delay high school start at no cost. Washington Post.
• Crowley, S. J., Acebo, C., & Carskadon, M. A. (2007). Sleep, circadian rhythms, and delayed phase in adolescence. Sleep Medicine, 8, 602–612.
• Dahl, R. E. (1999). The consequences of insufficient sleep for adolescents: Links between sleep and emotional regulation. Phi Delta Kappan, 80, 354–359.
• De Gennaro, L., Ferrara, M., Curcio, G., & Bertini, M. (2001). Visual search performance across 40 h of continuous wakefulness: Measures of speed and accuracy and relation with oculomotor performance. Physiology and Behavior, 74, 194–204.
• Dement, W. C., & Vaughan, C. (1999). The promise of sleep: A pioneer in sleep medicine explores the vital connection between health, happiness, and a good night’s sleep. New York: Delacourt.
• Dinges, D. F., & Kribbs, N. B. (1991). Performing while sleepy: Effects of experimentally-induced sleepiness. In T. H. Monk (Ed.), Sleep, sleepiness and performance. Human performance and cognition (pp. 97–128). Oxford, UK: John Wiley.
• Edgar, D. M., Dement, W. C., & Fuller, C. A. (1993). Effect of SCN lesions on sleep in squirrel monkeys: Evidence for opponent processes in sleep–wake regulation. Journal of Neuroscience, 13, 1065–1079.
• Fischer, F. M., Radosevic-Vidacek, B., Koscec, A., Teixeira, L. R., Moreno, C. R., & Lowden, A. (2008). Internal and external time conflicts in adolescents: Sleep characteristics and interventions. Mind, Brain, and Education, 2, 17–23.
• Giannotti, F., Cortesi, F., Sebastiani, T., & Ottaviano, S. (2002). Circadian preference, sleep and daytime behaviour in adolescence. Journal of Sleep Research, 11, 191–199.
• Kirby, M., & D’Angiulli, A. (2009). Timing (not just amount) of sleep makes the difference: Event-related potential correlates of delayed sleep phase in adolescent female students. In N. A. Taatgen & H. van Rijn (Eds.), Proceedings of the 31st Annual Conference of the Cognitive Science Society. Austin, TX: Cognitive Science Society.
• Kryger, M. H., Roth, T., & Dement, W. C. (Eds.). (2000). Principles and practice of sleep medicine (3rd ed.). Philadelphia: W. B. Saunders.
• Kubow, P. K., Wahlstrom, K. L., & Bemis, A. E. (1999). Starting time and school life: Reflections from educators and students. Phi Delta Kappan, 80, 366–371.
• May, C. P. (1999). Synchrony effects in cognition: The costs and a benefit. Psychonomic Bulletin and Review, 6, 142–147.
• May, C. P., Hasher, L., & Foong, N. (2005). Implicit memory, age, and time of day: Paradoxical priming effects. Psychological Sciences, 16, 96–100.
• Millman, R. P., Working Group on Sleepiness in Adolescents/Young Adults, & AAP Committee on Adolescence. (2005). Excessive sleepiness in adolescents and young adults: Causes, consequences, and treatment strategies. Pediatrics, 115, 1774–1786.
• Mitru, G., Millrood, D. L., & Mateika, J. H. (2002). The impact of sleep on learning and behavior in adolescents. Teachers College Record, 104, 704–726.
• National Sleep Foundation. (2005a). Changing school start times: Arlington, Virginia.
• National Sleep Foundation. (2005b). Changing school start times: Denver, Colorado.
• National Sleep Foundation. (2005c). Changing school start times: Fayette County, Kentucky.
• National Sleep Foundation. (2005d). Changing school start times: Jessamine County, Kentucky.
• National Sleep Foundation. (2005e). Changing school start times: Wilton, Connecticut.
• National Sleep Foundation. (2006). Sleep in America Poll.
• Noland, H., Price, J. H., Dake, J., & Telljohann, S. K. (2009). Adolescents’ sleep behaviors and perceptions of sleep. Journal of School Health, 79, 224–230.
• Owens, J. A., Belon, K., & Moss, P. (2010). Impact of delaying school start time on adolescent sleep, mood, and behavior. Archives of Pediatrics and Adolescent Medicine, 164, 608–614.
• Petros, T. V., Beckwith, B. E., & Anderson, M. (1990). Individual differences in the effects of time of day and passage difficulty on prose memory in adults. British Journal of Psychology, 81, 63–72.
• Schmidt, C., Collette, F., Cajochen, C., & Peigneux, P. (2007). A time to think: Circadian rhythms in human cognition. Cognitive Neuropsychology, 24, 755–789.
• Taylor, D. J., Jenni, O. G., Acebo, C., & Carskadon, M. A. (2005). Sleep tendency during extended wakefulness: Insights into adolescent sleep regulation and behavior. Journal of Sleep Research, 14, 239–244.
• Wahlstrom, K. (2002). Changing times: Findings from the first longitudinal study of later high school start times. NASSP Bulletin, 86(633), 3–21.
• Wahlstrom, K. (2010). School start time and sleepy teens. Archives of Pediatrics and Adolescent Medicine, 164, 676–677.
• W.A.K.E.: Worried About Keeping Extra-curriculars. (n.d.). Disruptions.
• Wright, K. P., Jr., Gronfier, C., Duffy, J. F., & Czeisler, C. A. (2005). Intrinsic period and light intensity determine the phase relationship between melatonin and sleep in humans. Journal of Biological Rhythms, 20, 168–177.
• Wrobel, G. D. (1999). The impact of school starting time on family life. Phi Delta Kappan, 80, 360–364.
• Yoon, C., May, C. P., & Hasher, L. (1999). Aging, circadian arousal patterns, and cognition. In D. Park & N. Schwartz (Eds.), Cognitive aging: A primer (pp. 151–170). Philadelphia: Psychology Press.

Distinguishing Snyder from Rosenbloom

University of Houston Law Center's Professor Leslie Griffin of the Religion Rogue blog analyzes the recent Supreme Court decision in Snyder v. Phelps in the context of an earlier case, Rosenbloom v. Metromedia. Professor Griffin suggests the Court may be moving toward a Free Speech analysis suggested by Justice Brennan in Rosenbloom, which protects speech about matters of "public concern" even when it causes harm to private individuals. I believe that Chief Justice Roberts's opinion in Snyder is written in such a way that its analysis is distinguishable from Justice Brennan's.

The speech in Rosenbloom which Justice Brennan suggested was protected was about Rosenbloom himself; he was described as "a main distributor of obscene material in Philadelphia." I believe that stands in contrast to the facts considered important by the majority in Snyder. As Justice Alito points out in Part IV of his dissent, the majority first confines their analysis to the placards at the funeral, putting aside the events before and after (which included a press release and an internet "epic"). Even in that limited context, the Court had to further decide that the "predominant theme" of the speech was of public concern, since some of the signs could also reasonably be interpreted as referring to the plaintiff or his family. The result was a conclusion that the speech in Snyder wasn't really about the plaintiff at all, which I believe is how the Chief Justice could conclude that it was in the category of speech afforded the most protection by the Supreme Court. I believe this is an important distinction between Rosenbloom and Snyder; if that's true, then we may not yet know if this court might adopt Justice Brennan's reasoning in a case applied to speech either about or targeted at a private individual.

American Academy of Actuaries on Social Security

Who would be in a better position than the American Academy of Actuaries to evaluate a benefit plan like Social Security? I suggest reading this report on Social Security from the Academy, which explains why a safety net program like this needs to be a defined benefit plan instead of a defined contribution plan. From the abstract:

As originally conceived, Social Security provided monthly benefits for life to covered workers who ceased employment after attaining age 65. Benefits were calculated by a formula based on each worker’s employment history and were payable for life, regardless of how long the worker lived or the amount of taxes paid on his or her behalf while working. Thus, there was at best an indirect relationship between taxes paid and benefits received.

Plans such as this, where the benefits are determined according to a formula and generally paid for life, are called defined benefit plans. By contrast, plans that pay benefits based on amounts accumulated in an individual’s account are called defined contribution plans (or individual account plans).

Much has changed since Social Security was created. The program has expanded to cover new classes of beneficiaries, such as spouses of retired workers, surviving spouses and other family members of deceased workers, and disabled workers and their families. Many U.S. workers have also earned benefits under employer-sponsored defined benefit plans. These developments account, in part, for the fact that the elderly now have the lowest poverty rate among all age classes.

However, over the past 25 years, many employers have dropped sponsorship of their defined benefit plans in favor of defined contribution plans. Many Americans are now saving for their own retirements through employer-sponsored 401(k) plans (a type of defined contribution plan), individual retirement accounts, and personal savings. Some people believe that Social Security would also work better if converted, in whole or in part, to a defined contribution structure.

After careful study of the issues involved, the Social Insurance Committee of the American Academy of Actuaries has concluded that the defined benefit structure is preferable to the defined contribution structure for providing basic retirement benefits under Social Security. Because of its ability to tailor benefits that meet the needs of beneficiaries in different circumstances and its inherent risk-sharing attributes, the defined benefit structure is more efficient at providing the floor of retirement and disability protection needed by U.S. workers, particularly those least able to supplement their Social Security benefits from other income sources. This conclusion is only strengthened by the trend toward defined contribution structures among employer-sponsored retirement plans, since this leaves Social Security as the only remaining defined benefit plan for many workers. This is not to suggest that a defined contribution approach should not be a part of Social Security reform, but this committee would support it only as a supplement to the benefits provided under a basic defined benefit program.

The cost of public education

A friend has re-posted some charts from a CATO Institute article on costs associated with public education. As you can probably guess, the article has a particular point it's trying to make; I'd like to point out some things that might be helpful before you read it.

The article refers to data collected from the NCES 2009 Digest. When you notice that the number of public school employees is growing at a faster pace than the number of enrolled students, it would be helpful to know the breakdown in the increase of employees - how many are teachers, staff, administrators, etc. That's available in this table from the National Center on Education Statistics (NCES) which shows that at least between 1990 and 2007 teacher salaries represent a pretty constant 61% of expenditures. Other subgroups (administration, staff, food services, transportation, etc.) keep pretty constant ratios as well.

How does this compare to private/religious school staffing at the same level? You can actually test that with this table, which shows that the number of teachers in the public sector rose 50% between 1980 and 2009 - but so did the number of teachers in private schools. The number of students has increased by roughly 26%. The net effect has been to drive down student/teacher ratios from 18.7 to 15.3 in the public sector; in the private sector the ratio went from 17.7 to 12.8.

On the bottom chart in the CATO article: As the source says: "Total expenditures for public elementary and secondary schools include current expenditures, interest on school debt, and capital outlays." Capital outlays include new technology, internet access, textbooks and materials, laboratories, school buildings, etc. Schools would, for example, save a huge amount of money by replacing obsolete Windows and Macintosh computers with state-of-the-art Linux machines. Table 182 confirms the graph; expenditures per pupil doubled from 1980 ($5695/student) to 2009 ($10,041/student).

But compare that to private schools: table 27 shows an increase in overall private school expenditures (in constant dollars) of 150% between 1980 (est. $20B) and 2009 (est. $50B). That compares to the public schools which increased 130% over that period, from $262B to $600B.

Does the increase in costs raise scores? chart 123 shows the scores stay pretty constant from 1992 through 2007. The overall scores for private schools are higher per grade; but that may be an effect of a self-selecting population. More interesting are the jumps from 4th to 8th grades (keeping in mind these are comparing apples to oranges to some extent, as students move around). Public schools increase the scores by 50 points over 4 years (a 1994 4th grader to a 1998 8th grader), and so do the private schools. As a percentage, the public schools raise scores 25% over the 4 years, while private schools raise them a little over 20%. That's an interesting result given the popularity of the new "value added" calculations used to assess teachers and schools.

Moving students from public schools to private schools would apparently increase the number of teachers required to maintain their low student/teacher ratio. How will that drive down the cost of education, other than by paying teachers individually less? Would increasing private school costs and lowering public school costs reduce the price of education overall - or would it instead shift the cost more directly to parents and reduce the cost to taxpayers without children? It would be a policy decision to decide if that's equitable - spreading what would essentially be the same cost over a smaller group of people.

Open source and 17 U.S.C. 203

Section 203 of the US copyright statute* is an interesting provision which allows an author to terminate the right to use a work 35 years after the grant was made. There are good policy reasons behind this rule; an author may not be in an equal position to bargain with a publisher, and the value of a work may not be apparent when the grant is first made. The rule allows an author to re-negotiate for more compensation if it turns out that the right they sold (or gave away) turned out to be more valuable than initially thought.

Does this introduce any uncertainty in the rights you receive when you use free software? Do programmers and companies now need to worry that they can use free software for at most 35 years before the author has the right to tell them to stop? What about other software which builds on top of the first work - can the rug be pulled out from under them at that point, if the author decides they want to revoke the rights granted to you and instead sell the right to use software?

I believe there is little to no risk imposed by Section 203. First, 203(b)(1) specifically says that derivative works created before the revocation may continue to use the underlying work/code. This would generally protect anyone who has created any material modification of the work, or who has included it in a compilation (for example, a CDROM or other collection). A Freedom Toaster might be an example; any Linux distribution such as Debian GNU/Linux would be another.

Second, section 203(a)(4) (and 37 C.F.R. 201-10) impose strict notice requirements on an author, including, for example, a requirement that the revocation be in writing and that delivery be made by US mail or in person. These might make it expensive for a programmer to contact each grantee to revoke their rights.

The third consideration is interesting; section 203(a) states the requirement that the grant be "executed by the author." Both the GNU Public License (GPL) (section 2) and the Creative Commons licenses state that when you distribute/convey a work to someone else, the recipient is granted a license directly from the author(s); the GPL specifically states that no sub-licensing is involved. This seems to imply that an author could revoke the license to use their piece of free software as long as they comply with the rest of the provisions of section 203 and with the C.F.R. Of course, that would require an author to know exactly when you received the software; the 35 years runs from the time of the grant, which they may not know if you got the code from source other than them. Consider too: what would happen if you receive a revocation from an author and a subsequent copy of the work under the GPL? Would the terms of the GPL mean that the author has agreed to re-license the work to you, as is allowed under sections 203(b)(3)-(4)? That interpretation seems consistent with the language in the statute.

Finally, the "life cycle" of software is fairly short; it's pretty unlikely that a piece of code will remain valuable for more than 35 years. Nevertheless to remove risk entirely, it might be prudent for a recipient to document when they first receive a work under a free software license and to plan to replace the code in 35 years if it's still in use.

For all these reasons, I believe the risks to recipients of free software from provisions in section 203 are minimal, can be easily avoided, and can likely be ignored pretty safely.

*In case you were wondering: section 304 paragraphs (c) and (d) only allow authors to terminate grants prior to 1/1/1978. The first version of the GPL was in 1989, well after that date, so those provisions don't apply here. It's my assumption that 1989 is the first time a free software license was used for works in the United States.

Sticks and stones

may break your bones, but names can never hurt you; the Supreme Court decision in Snyder v. Phelps reminds me of the schoolyard taunt. The opinion seems to take great care to point out that all that was analyzed was the picketing activity of Westboro Baptist Church at the funeral of Matthew Snyder; the broader context of the conflict between Snyder and Phelps, which included television and internet publications, was explicitly not discussed by the majority or the concurrence. This case involves the interaction between two different parts of the law.

The first is an area of torts law; the lower court found that the Church had intentionally inflicted emotional distress (IIED) on Albert Snyder, the father of the Marine whose funeral the Church picketed, and one of the persons targeted directly by the Church's related writings. IIED requires a jury to decide that intentional, extreme, and outrageous conduct by the defendant caused severe emotional harm to the victim. In this case, the jury in the lower court did find the behavior of the Church outrageous, and awarded Snyder damages. The right of Snyder to sue for these damages is established by the State.

The second is First Amendment jurisprudence - in this case, the right to speak freely. The Court has allowed the State to constrain that right in certain cases, on a continuum from most protected to least protected. When the government attempts to interfere with the most protected speech, the Court applies the highest level of scrutiny, and the government usually loses. In this case, the Court looked exclusively at the behavior of the Church at the funeral and decided that the picketers were in a public place, making statements of broad public concern, not ones exclusively targeted at the Snyder family. Because this falls into the category of "most protected speech" the government must show that any restriction on it is very narrowly tailored to serve a compelling interest.

There are a number of things to look at in a decision like this. First, the dissent argued that the speech involved in the conflict between the Church and Snyder could reasonably be characterized as targeted when analyzed as a whole (including the television and internet postings). The majority decided that the predominant theme of the messages on the placards at the funeral were speaking to issues of broad public concern - America's tolerance of homosexuals. It's clear that what you include in the analysis will affect the outcome in a decision like this. Targeted speech of a certain kind was considered less protected in a case called Chaplinsky v. New Hampshire; that lower level of protection may have made a difference in this case.

Next, the compelling interest in this case would be the State's desire to protect its citizens from emotional attack. The Court has spoken in this area earlier in a 1988 case called Hustler Magazine v. Falwell. There the Court looked at speech that was targeted at a public figure. Despite the targeted nature of the piece, the Court decided that the State's interest in protecting the emotional well-being of a public figure could not overcome the speaker's right to create the parody in question. Had the Court in Snyder v. Phelps decided that the speech was targeted at Snyder and that Snyder was not a public figure, they might have given some guidance about the balance between the State and the speaker in this different configuration. Instead when they decided that the Church's message was of broad public concern, they put the speech into a category which the State is rarely allowed to regulate, because the Court believes the government may not interfere with the free discussion of ideas important to a politically informed citizenry.

Finally the Court addressed the issue of whether the definition of IIED was narrowly tailored enough to survive the strict scrutiny it imposed. In a statement which echoed a similar analysis in last year's United States v. Stevens, the Court reiterated that it was inappropriate to allow the over 50 jurisdictions in the United States to apply what are essentially local criteria in restricting speech. In the Federal statute at issue in the Stevens case, punishment could be imposed when the material was "illegal in the State in which the depiction is created, sold, or possessed", giving up to three different jurisdictions a chance to criminalize the video; in this case, each local jury could apply its own definition of "outrageous conduct" as described above. The majority decided that such a definition did not give enough guidance about what speech should be punished, and thus could reach even the speech in this case, which they decided was highly protected.

Although the opinion said multiple times that the decision was very limited to the facts in this case, we may be seeing a clue that IIED cases will be analyzed very strictly in future speech cases. On the other hand it may be that this analysis only implicates speech of public concern in a public forum, and that the outrageousness requirement may survive a lower level of scrutiny in different circumstances. If such a case comes up, we may see if the Court decides that some words, like sticks and stones, can hurt you, and be punished.

Infringement risks using free/libre software

A recent article on the IP Info Blog outlined some potential risks for companies using free/libre software in the products they distribute. I have a quick response.

An entity which does not desire to disclose code or otherwise conform to copyleft obligations in products it distributes to others should be able to minimize their risk of infringement by interacting with GPL code using only standardized, royalty-free interfaces (such as POSIX for the Linux kernel). I don't think it would be unreasonable to invoke copyright law's merger doctrine when using header files which implement such an API; there are only so many different ways you can implement such a freely usable interface. This may be an argument Google might employ were it to be challenged for its distribution of Android (with the Apache license) on top of a modified version of Linux (which it continues to distribute under the GPLv2, as it's required to do).

Any other interaction would apparently involve a lot more risk, probably enough to convince such an entity that it should not use code covered by the GPL or some other "copyleft license" at all. I believe that result would not be incompatible with the intent of the authors who release their code under such licenses.

Judge Posner channels Roald Dahl

In 2004, Neil Gaiman sued Todd McFarlane for a declaration that he was co-author of a set of characters from the Spawn series. Judge Posner wrote the opinion, in what ends up being a fairly conversational fashion. The details of copyright ownership analysis are technical, but the tone of the opinion sounds a bit like he's explaining the outcome to you over a beer.*

One of the issues in the case is whether a particular character can be copyrighted at all. Some characters are generic; others are described in detail with immediately identifiable attributes (Harry Potter's scar); and most fall somewhere in between. One of the characters in dispute was known as "Medieval Spawn," a fairly generic term; that might have been an issue, but Judge Posner points out that the Lone Ranger's name wasn't widely known (it's John Reid!), but he's a recognizable character. Most amusing is the Judge's discussion of the difference between characters in books and characters presented in visual form (comics, movies, TV, etc.). After a long passage on page 661 from The Maltese Falcon describing the detective character Sam Spade, Judge Posner says:

Even after all this, one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like. A reader of unillustrated fiction completes the work in his mind; the reader of a comic book or the viewer of a movie is passive. That is why kids lose a lot when they don't read fiction, even when the movies and television that they watch are aesthetically superior.

Apparently the actual published opinion (not the one on Google Scholar) has a picture of each character attached, each in its own appendix. I guess they were copied with permission of both parties, or their inclusion is considered fair use.

* I'm not sure if Judge Posner drinks beer or not. It's just an expression.

Freedom of speech

Justice Holmes, joined by Justice Brandeis, in his dissent in Abrams v. United States:

... But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Justice Brandeis, joined by Justice Holmes, in his concurrence to Whitney v. California:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

On Sarah Palin and inspiration

This response to a friend's blog re-post got too long for the comment box. There are a few questions to explore:

1. Was Sarah Palin responsible in any way for the Giffords shooting?
2. What about her free speech rights?
3. How does this compare to Mark David Chapman reading Catcher in the Rye?

Was Sarah Palin responsible in any way for the Giffords shooting?

18 U.S.C § 2(a), which is an example of a statute criminalizing aiding and abetting a crime, reads as follows: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." The key words a jury would consider in this case are probably counsels and induces. A prosecutor would work to convince a jury that Palin's writings and rhetoric convincingly counseled violence or induced it in the attacker. It's not a requirement that Palin be a necessary element; it's not necessary to prove that this attack would not have happened without Palin's contribution. A jury would just have to decide that Palin suggested or supported such an action.

Frankly, it's pretty unlikely any jury would reach that conclusion.

What about Sarah Palin's free speech rights?

The Supreme Court decided in Brandenburg v. Ohio that some violent speech is protected by the First Amendment to the US Constitution. The Court decided that States could only criminalize speech "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This is a high bar for a prosecutor to reach in this case. Palin's web site was not apparently inciting imminent lawless action, and I don't think a jury would find that it was likely to do so either. While the web site listed individual lawmakers by name, and included gun sights targeting their districts, there was no direct call for violence, and most reasonable visitors would likely understand by the context that this was a political "call to arms" since this was published by the Palin PAC.

However the case isn't quite that open and shut. In 2003 the Supreme Court issued a relevant decision in Virginia v. Black, a case involving a statute criminalizing cross burning. While the defendants there claimed the statute infringed their right to free speech, the Court upheld the State's right to criminalize this form of expression because it was a "true threat"; the history of cross burning made this activity less an expression and more an intimidation. Here there is no statute prohibiting a publication of individual names with violent imagery, so Palin is not violating any law. However, if there were such a law, a prosecutor defending a conviction might look for evidence that such web sites have led to violence (e.g., against abortion providers) and try to make a similar argument.

Can you compare the Giffords shooting to the death of John Lennon?

Not really; an ambitious prosecutor would point out some salient differences. In particular, Sarah Palin did mention individuals by name, and placed gun sights (a symbol associated with violence) on their specific districts; Salinger's character did not shoot anyone, and especially did not mention John Lennon or anyone remotely like him. Because of these important differences, you can't say that just because it's unreasonable to associate Salinger with Mark David Chapman, it's therefore unreasonable to say Sarah Palin influenced Jared Lee Loughner. I think it's more compelling to do the analysis of her case on its own.