...the average profits per partner in the top 50, top 100, and top 200 U.S. law firms in 2004, respectively, were $1.26, $1.01 and $0.83 million. These averages are the averages of the average profit per partner for each firm. The medians of the averages are lower, at $1.08, $0.86 and $0.67 million. These profits accrued to, respectively, 11,034, 17,861, and 26,755 partners. Average profits per partner exceed $2 million for 9 firms; they are at least $0.5 million for 93 of the top 100 firms, and 152 of the top 200 firms...Based on these distributions, we estimate that 14,351 of the 17,861 partners in the Am Law 100 earned more than $0.48 million in 2004...It also is worth pointing out that the 26,000 plus equity partners at Am Law 200 firms earn a total of roughly $22 billion (at $0.83 million per partner). This is the same order of magnitude as the total pay to non-financial top executives, investment banking MDs, hedge fund investors, and PE and VC
investors.
It is no surprise to hear that partner pay is going up in real terms:
...lawyers have experienced a large real increase in pay over the last 10 and 20 years. In 1984, the average profit per partner at the top 50 firms was $0.309 million or
$0.498 million in $2004. By 1994, the average profit per partner had increased to $0.531 million or $0.636 in $2004. And by 2004, the average profit per partner at the top 50 firms had increased to $1.260 million.
More Good Summer TV:
I just finished watching the new series Mad Men on AMC — a show about advertising executives on Madison Avenue in 1960. It is well worth trying. Well written, gorgeously photographed, paced and scored in the style of cinema rather than TV. No doubt, the American Movie Channel required this for their first network series. As the description from the website says, it is from the executive producer and writer of The Sopranos and it shows. One more thing. Don't expect pap. It is obviously going to explore the issues of race, sexism, and antisemitism that was simmering just beneath the surface in 1960. I hope the show does not get too preachy — it has that potential, but the first episode at least did not succumb. Oh yes, unlike Sharon Gless in Burn Notice, the whole cast inhales and exhales copious amount of smoke. It is about a subject other than cops and lawyers, and it is going to be very sexy.
Here is the description:
What you are, what you want, what you love doesn't matter. It's all about how you sell it. From AMC and the Emmy® Award-winning executive producer and writer of "The Sopranos" Matthew Weiner, comes MAD MEN, a provocative new primetime drama about how to sell the truth. Set in 1960 New York, the daring new series is about the lives of the ruthlessly competitive men and women of Madison Avenue advertising, an ego-driven world where key players make an art of the sell while their private world gets sold. The 13-episode, one-hour original program produced by Lionsgate premieres Thursday, July 19 at 10 PM | 9C.
Created, executive produced and written by Weiner, the drama series stars Jon Hamm (We Were Soldiers), Elisabeth Moss ("The West Wing"), Vincent Kartheiser ("Angel"), January Jones (We Are Marshall) and Christina Hendricks ("Kevin Hill"), and guest stars John Slattery ("Desperate Housewives"), Rosemarie DeWitt ("Standoff"), Talia Balsam (All the Kings Men) and legendary stage and screen star Robert Morse ("How to Succeed in Business Without Really Trying"). Michael Gladis ("Third Watch"), Aaron Staton ("The Nanny Diaries"), Rich Sommer ("The Devil Wears Prada"), Maggie Siff ("Michael Clayton") and Bryan Batt ("La Cage Aux Folles") round out the cast.
The Setting: In 1960, advertising agencies were an all-powerful influence on the masses. Personal and professional manipulation and sexual exploits defined the workplace and closed the deals. The high profile Sterling Cooper Advertising Agency created advertising campaigns – from cigarettes to political candidates — better than anyone. It was a time of great ferment. Women had barely begun to come into their own. Librium and birth control were on the move. Ethics in the workplace, smoke-free environments, sexual harassment and ethnic diversity were workshops of the future.
The Premise: The series depicts the sexual exploits and social mores of this most innovative yet ruthless profession, while taking an unflinching look at the ad-men who shaped the hopes and dreams of Americans on a daily basis.
The Players: The series revolves around the conflicted world of Don Draper (Hamm), the biggest ad man (and ladies man) in the business, and his colleagues at the Sterling Cooper Advertising Agency. As Don makes the plays in the boardroom and the bedroom, he struggles to stay a step ahead of the rapidly changing times and the young executives nipping at his heels. The series also depicts authentically the roles of men and women in this era while exploring the true human nature beneath the guise of 1960 traditional family values.
You can catch the premier episode several times between now and Thursday. Here's the schedule. And you can watch a sneak preview of premier episode here, but it does not convey fully how the show feels as it unfolds.
PS: I am almost caught up with my Tivo'd episodes of Rescue Me. It is off the scale this season. I really don't know how writers can write like that. And it takes real actors to deliver these lines so naturally, like its real. Here's a little treat for fans of the show, which looks like it was made with scenes from season one (but if you have not seen the show, you can't judge it from this video, which selects "action" clips, not the dialog that makes this show great):
Update: Rewatching the video I see scenes from other seasons. And there was just not that amount of fisticuffs in one season.
A variety of celebrity candidates have thrown their hats into the ring in the race to become the first President of Red Sox Nation. I was thinking of endorsing the candidacy of one of my favorite ESPN columnists, Bill "the Sports Guy" Simmons. However, I fear that the Sports Guy's candidacy has been irreparably damaged by some negative campaigning by acting president Jerry Remy, the Red Sox announcer. In the unfortunate event that Simmons drops out of the first tier of candidates, I will be forming an exploratory committee to consider the possibility of running myself. We are happy to take your campaign donations!
6. My election will increase the appeal of the Red Sox in the growing Russian Jewish immigrant demographic, not to mention the libertarian, atheist, legal, and nerd sectors. No other candidate can appeal to all these groups at once, I'm willing to bet.
7. Red Sox Nation needs a president who will strike fear into the hearts of the Emperor Steinbrenner and his minions. And, as my mother once put it, "people are afraid of lawyers."
8. I have incorporated the Red Sox (and their rivalry with the Yankees) into a rational choice theory of political behavior. Here again, I'm betting that no other candidate has done anything comparable.
How can someone say, "She Says That as If It's a Bad Thing"?
In English, we say, "She says that as if it were a bad thing."
"As if" should alert the writer that a "contrary-to-fact" construction, requiring the subjunctive mood, will follow.
A few thoughts in response.
1. In English we generally (though I acknowledge not always) say "we say" to mean "we say." The commenter seems to mean by it "we should say according to the rules that I think we should follow." But looking at what we really say (for instance, by using google) reveals that English speakers use both "say that as if it is a bad thing" and "say that as if it were a bad thing" — and apparently use the former more often than the latter.
So say what you will about what we should be saying, but don't dress it up in the supposedly objective garb of what we actually say and don't say. And, yes, this is a prescription, but one with a sound semantic basis: My claim is that "we say" generally comes across to readers as a descriptive claim, and it's therefore confusing and misleading to use it when one can at most support a prescriptive claim.
2. Even if the commenter is talking about what should be said under the "rules" of the language, I'm not sure that he would be right. To begin with, the subjunctive is largely dying, as various usage dictionaries (such as Merriam-Webster's Webster's Dictionary of English Usage) attest. Even if we take a prescriptivist approach, we would have to identify some reason to think that it is still obligatory, and I don't know of such a reason. Surely even hard-core prescriptivists must accept that at some point their prescriptions stop being obligatory — or else we'd have to keep using "thou" / "thee" / "thy" for the second-person singular familiar.
3. On top of that, I'm actually deliberately not trying to make a claim about whether "[the Boston Tea Party] is a bad thing" is "contrary-to-fact." My point is precisely that this view of the Boston Tea Party may well be perceived as a sound evaluation in some places (chiefly east of the Atlantic) and as unsound in others (chiefly west). Even when the subjunctive was more common than it is now, I'm not sure that the subjunctive would have been used in such contexts. Perhaps it would have been, but again that requires evidence and not just assertion.
But in any event, if I can just get prescriptivists to carefully say "we should say" rather than "we say" (when "we should say" is what they really mean), I'd be happy.
From a Reuters article about the Harry Potter publisher's reaction to book reviews published before the book officially went on sale:
A Bloomsbury spokeswoman called the New York Times review "very sad", adding that there was only one day to wait until the official release in book stores around the world. Twelve million copies of the book have been printed for the U.S. market alone.
She likened the events in the United States to the Boston Tea Party, a 1773 protest by American colonists against Britain....
Tip: That doesn't sound as pejorative on our side of the pond as it might on yours.
In any case, here's the Times' substantive response:
"Our feeling is that once a book is offered up for sale at any public, retail outlet, and we purchase a copy legally and openly, we are free to review it," a [New York Times] spokeswoman said.
"We came across a copy of 'Harry Potter and the Deathly Hallows' at a store in New York City and we bought it...."
Northwestern University Law Professor Andrew Koppelman has an insightful post on the role of religion in political discourse. To avoid confusion, it is important to emphasize that neither Andy nor I are proposing government censorship of speech that violates the norm we advocate. The principles we embrace should be promoted through social norms, not government coercion:
A noteworthy development in liberal political theory over the past 30 years or so has been the claim, by such distinguished thinkers as John Rawls, Bruce Ackerman, Ronald Dworkin, Thomas Nagel, Amy Gutmann, Dennis Thompson, Stephen Macedo, David Richards, Charles Larmore, Samuel Freeman, Richard Rorty, and Robert Audi, that in a liberal democracy, political discourse must rely on arguments that are not sectarian and can be assessed in terms of commitments that all citizens can share....
This claim has elicited a bitter response from religious thinkers, who have argued that this deprives politics of important moral resources and denies them the right to state what they believe. This response, which has not slowed the production of these liberal theories of public discourse, gives rise to a puzzle: why did the liberals converge on and keep producing new articulations of a proposal, in the name of social unity and comity, that was so widely received as an insult? ....
I suspect that the answer has something to do with norms of civility that developed in the United States throughout the twentieth century. It is now well settled that it is impolite to challenge someone else’s religious beliefs. Religion is private. Even if you think your neighbor believes really stupid stuff, it’s not nice to say so.....
This formula works only so long as neither of you offers a religious argument that is supposed to govern something that will affect both of you. Suppose, for example, that you propose that homosexual sex be criminalized because it’s an abomination before God. How am I to respond? If I disagree, my obvious answer is to say that your religious beliefs are wrong. By hypothesis, that is what I really think. But it’s impolite to say that. So I have to twist around to find some way to say that your views ought not to govern political decisions, without having to say that they’re false. These political theorists have been doing the twist.
Their strategy has been a disaster, because it has produced the opposite of what they have hoped. A doctrine grounded in universal respect has left a lot of actual citizens feeling profoundly insulted. This suggests that the norm of politeness needs to be revisited. As soon as A invokes religious reasons for his political position, then it has to be OK for B to challenge those reasons.
I agree with Andy's argument. It is reasonable to have a social norm against criticizing others' religious beliefs in political discourse (though not necessarily in nonpolitical debates about the validity of religion itself). However, that norm must be suspended in cases where one side to a political debate is using religious claims to defend its public policy positions. Thus, for example, Mitt Romney's Mormonism should not be an issue in the presidential campaign unless he or his supporters try to use Mormon doctrine to justify his policy ideas or aspirations to office.
It is true that criticisms of religion-based public policy arguments can sometimes descend into bigotry. But the only alternatives are either to give religious policy arguments an exemption from the scrutiny received by secular ones, or to exclude religion-based arguments from public debate entirely, as the liberal theorists Andy rightly criticizes seek to do.
How does this relate to my own earlier-stated views on prejudice against atheist candidates for public office? Very simply, atheist candidates should be evaluated on the same criteria as theistic ones. If an atheist candidate and his supporters offer purely nonreligious arguments for their positions, then his or her atheism should not be an issue, any more than Romney's Mormonism, or JFK's Catholicism. If, on the other hand, the atheist candidate claims that atheism provides justification for his policy ideas, then that atheism becomes a proper subject for public scrutiny. In my view, of course, atheism does not in and of itself lead to any determinate conclusions on public policy issues. One can be a liberal atheist, a conservative atheist, a libertarian atheist, and so on, without in any way contradicting atheism itself. However, atheists who claim otherwise should be treated in public discourse the same way as theists who make similar arguments based on their religious beliefs. A claim that atheism strengthens the case for Policy X can legitimately be met with the response that atheism is itself incorrect.
Content-Based Speech Restrictions vs. Content-Neutral Speech Restrictions:
Content-based speech restrictions imposed by the government as sovereign are almost always unconstitutional, unless the speech fits within one of the First Amendment exceptions. Content-neutral restrictions are often constitutional.
I have argued in earlier posts that the Court has been right to treat generally applicable laws that are content-based as applied much like it treats content-based restrictions generally. And I think the Court should treat generally applicable laws that are content-neutral as applied much like it treats content-neutral restrictions generally. The Court probably would not, and should not, have intervened if Hustler had inflicted emotional distress on Falwell by using loud bullhorns outside Falwell’s house. Nor would the Court have found a First Amendment violation if the NAACP had been sued for organizing a demonstration that blocked the entrance to Claiborne Hardware’s door, or if Schenck had been prosecuted for interfering with the draft by blocking a draft board office.
But why? The law, and thus the lawmakers’ motivation for enacting the law, would be the same in these hypotheticals as in the real cases. The law’s effect would be the same: The law as applied would restrict speech. What then is left to explain the difference? And if indeed the lawmakers’ motivation doesn’t have the importance that some assign to it, then what is the difference even between facially content-based laws and facially content-neutral ones? There are, I think, two main answers to these questions — a conceptual one and a pragmatic one.
The Conceptual Distinction: Under nearly every theory of free speech, the right to free speech is at its core the right to communicate — to persuade and to inform people through the content of one’s message. The right must also generally include in considerable measure the right to offend people through that content, since much speech that persuades some people also offends others. (There might be some limits on this right to offend, for instance if (1) the speaker is communicating to someone who has already said that he doesn’t want to hear the message, and (2) the speaker can stop speaking to this unwilling listener, while still continuing to try to persuade or inform other potentially willing listeners.)
Persuading and informing people may certainly cause harm; the listeners might be persuaded to do harmful things. But the premise of modern First Amendment law is that the government generally may not (with a few narrow exceptions) punish speech because of a fear, even a justified fear, that people will make the wrong decisions based on that speech: “[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.... [I]f there be any danger that the people cannot evaluate the information and arguments advanced by [speakers], it is a danger contemplated by the Framers of the First Amendment.” Thus, punishing speech because its content persuades, informs, or offends especially conflicts with the free speech guarantee, more so than punishing speech for reasons unrelated to its potential persuasive, informative, or offensive effect.
Practical Effects — Content-Based Restrictions as Likely Greater Burdens on Speech: I suspect that the Court’s skepticism about content-based laws (whether facially content-based or content-based as applied) flows in large part from this conceptual distinction. But the conceptual argument is also reinforced by a pragmatic one: Allowing content-based restrictions (whether facially content-based or content-based as applied) is likely to burden speech more than allowing content-neutral restrictions.
(Note that I’ll treat the term “content-based restrictions” as roughly interchangeable with the phrase “restrictions triggered by the communicative effects of speech,” and the term “content-neutral restrictions” as roughly interchangeable with the phrase “restrictions triggered by the noncommunicative effects of speech.” Also, some commentators have also argued that content-based restrictions are more dangerous than content-neutral restrictions, because content-based restrictions often distort public debate by burdening one side of a debate while allowing another to be heard free of any such burden, but others have disagreed; my analysis neither relies on nor rejects the distortion argument — I focus on whether a restriction is likely to substantially interfere (as opposed to only modestly interfere) with the expression of certain facts or viewpoints.)
To begin with, a typical law aimed at noncommunicative effects is unlikely to excessively inhibit the communication of some viewpoint or fact, because many different media would remain available to the speakers. For instance, even a total ban on leafleting, justified by the desire to prevent litter, would still leave people free to communicate their views by the many media that don’t create litter — by displaying signs, using radio broadcasts, advertising in newspapers, and so on.
I think the leafleting ban would indeed interfere with public debate too much, but it can’t even come close to driving certain views entirely from public debate. Moreover, because the content-neutral law can potentially apply to a wide range of speakers, its scope will likely be limited by political forces. Thus, the most severe hypothetical content-neutral restrictions — for instance, a ban on printing, justified by the environmental harms caused by the process of making paper — are sure to remain just hypotheticals: They are politically implausible precisely because they burden so much speech.
On the other hand, a content-based restriction, whether facially content-based or content-based as applied, can outlaw most expression of certain facts or opinions. If a law, such as the laws in Schenck v. United States or NAACP v. Claiborne Hardware Co., bans any conduct that may cause a certain harm, and persuading people to act in certain ways can cause that harm, then any viewpoints that have the potential for such persuasion — the draft is evil, blacks should boycott white-owned businesses — would largely be prohibited. Because the law focuses either on the content of the speech or on the harm that the speech causes, it can block the speech in all media. And because it’s limited to a narrow range of speech, it may face less political opposition than broader bans might provoke.
Even narrower content-based restrictions, such as the laws involved in Cohen v. California or Hustler Magazine v. Falwell, can be quite burdensome. True, such restrictions only limit the particular words (in Cohen) or the level of vitriol (in Hustler) a speaker can use, and don’t ban the expression of a particular fact or idea. But as Justice Harlan rightly concluded in Cohen, even such restrictions can seriously interfere with people’s ability to express the “otherwise inexpressible emotions” that only certain kinds of words can effectively capture. Harsh contempt for a policy (the draft) or a person (Jerry Falwell) is itself a viewpoint that is subtly different from mild-mannered condemnation, and prohibitions on harsh language seriously interfere with the ability to convey this viewpoint.
[Coming Monday: Why can't this be dealt with using an "ample alternative channels" inquiry, under which restrictions — both content-neutral and content-based — would be constitutional if they leave open ample alternative channels for expressing the speaker's ideas, and thus wouldn't impose much of a burden on the speaker's speech? Content-neutral restrictions that leave open ample alternative channels are indeed generally constitutional; not so for content-based restrictions. Does this distinction make sense, or should the rule for content-neutral restrictions also be applied to content-based ones?]
If you are thinking about moving in the foreseeable future, I urge you to bookmark Movingscam.com. Founded by the victim of a moving scam, the site warns readers away from known scammers, provides tips regarding how to find a reliable mover, has a list of reliable movers based on reader feedback, and has a discussion forum where you can ask questions. I've moved several times in the last few years (thanks to visits at Michigan and Brooklyn, to which I brought my family) and found the site invaluable, both with regard to advice provided, and also to correct the power imbalance when a representative of an otherwise reputable mover jacked up the price at the last minute (no reputable mover wants a bad review on movingscam, and the price went back to what was promised).
[1.] The Committee on Non-Governmental Organizations (NGOs), acting on a complaint by China, this afternoon withdrew the general consultative status of Liberal International, a United Kingdom-based body that had won that status in 1995.
By a vote of 13 in favour to 3 against (Israel, United Kingdom, United States), with 2 abstentions (Peru and Romania), the Committee stripped Liberal International of its consultative status with the Economic and Social Council on the grounds that the organization had severely abused that status on 4 March by assisting a ranking official from China’s Province of Taiwan to gain access to a meeting of the Human Rights Council and advocate Taiwan’s membership in the World Health Organization (WHO)...
[Text moved:] The Committee resumed its consideration of a complaint in which the representative of China requested the withdrawal of consultative status from Liberal International, reiterating her delegation’s statement earlier in the week that the NGO, in promoting the secession of China’s Province of Taiwan, had failed to respect that country’s sovereignty and territorial integrity. The NGO’s behaviour was, thus, “severely” contrary to the principles of the United Nations Charter. The Committee had reviewed the case during the past week and it was now time to take action. Any delay would only indulge abuses of such nature.
As the representatives of Cuba, Sudan, Egypt, Angola, Burundi and Syria supported China’s request, those of the United Kingdom, United States, Romania and Israel said Liberal International should have the right to respond to the allegations and requested the Committee defer the matter to a later date.
The representative of the United States, speaking in explanation of position before the vote, said that, while his country acknowledged the “One China” policy, it did not support Taiwan’s application for full membership in the United Nations. However, it did support Taiwan’s meaningful participation in the technical activities of international organizations. The United States also supported Taiwan’s participation in international organizations for which statehood was not a membership requirement. Moreover, Taiwan had made no politically motivated acts against China during the Human Rights Council session.
Stressing that Taiwan’s membership in WHO was in the best interest of public health, he said Liberal International’s actions did not constitute a pattern that would warrant sanctions under Economic and Social Council resolution 1996/31. The Committee should bear in mind that the secretariat of the Human Rights Council had already taken full responsibility of the incident. The United States could not support China’s call to withdraw Liberal International’s status.... [End moved text.]
[2.] As it considered new applications and reclassifications, the Committee granted special consultative status to the following organizations:
-- Inner Trip Reiyukai International, an NGO based in the United States that promotes peace, culture and education through information technology and training, values education, women’s empowerment through education and technology, youth initiatives, multi-faith dialogue, health care for AIDS victims and cultural restoration;
-- National Children’s and Youth Law Centre, an Australia-based organization that provides advocacy, information and education for children, and conducts legal research and policy development to improve laws and policies that impact children and promote their rights;
-- Bangladesh Women Chamber of Commerce and Industry, an NGO that supports women entrepreneurs through training, fair trade participation, exposure to domestic and global markets and loan guarantees;
-- Jamaica Association on Mental Retardation, an organization that aims to prevent and manage intellectual disabilities through advocacy, special education, educational assessment and placement, guidance and counselling, adult services and public education;
-- Microteam Education Apprentissage et Nouvelles Technologies, a Niger-based NGO that promotes new information and communication technology, trains primary and secondary school teachers and pupils to use computers and the Internet, and integrates information technology and the Internet into the country’s education system; and
-- Maryam Ghasemi Educational Charity Institute, an Iran-based NGO that promotes poverty eradication through free and universal education for children and through social development....
[3.] As the Committee took action on the deferred application for consultative status of the Jewish National Fund, the representative said in explaining his delegation’s position before the vote that the NGO had satisfactorily answered the Committee’s questions. It was not a politically motivated organization. Rather, it worked on sustainable development and environmental conservation issues, and the United States supported its application.
The representative of the Palestine Observer Mission said the NGO had not provided information to show it was not active in the Occupied Palestinian Territory. Its activities, including those with the Gizo Park project, violated the Geneva Convention and it should not be granted consultative status....
By a vote of 7 in favour (Colombia, Israel, Peru, Romania, Turkey, United Kingdom, United States) to 8 against (Burundi, China, Cuba, Egypt, Guinea, Russian Federation, Qatar, Sudan), with 3 abstentions (Angola, India, Pakistan), the Committee rejected the Jewish National Fund’s application....
[4.] The Committee also took action on the deferred application for consultative status of the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights, rejecting a motion to close that application by a vote of 7 in favour (Burundi, China, Egypt, Guinea, Qatar, Russian Federation, Sudan) to 7 against (Colombia, India, Israel, Peru, Romania, United Kingdom, United States), with 2 abstentions (Pakistan, Turkey)....
I'm not up on UN-NGO relations, but this struck me as an interesting set of data points -- any thoughts from people who follow the matter more closely than I do?
More on How We've Supposedly Lost Our Traditional Free Speech Rights:
Commenter PGofHSM puts it well, responding to people who don't just complain about current speech restrictions, but argue that somehow we once had free speech but don't any more:
I'm still trying to figure out when the golden age of political free speech was.
A worthy challenge, I think. Let's even set aside sexually themed speech, purely commercial advertising, and epithets -- I think this speech should generally be constitutionally protected, but I'm willing to ignore that speech for purposes of this argument (since some of the people whom I'm generally trying to persuade believe that such speech is too far removed from political matters to merit protection). Let's focus on speech that is related to political, religious, or moral matters. When has such speech in the U.S. ever been materially more protected from government restriction, on balance, than it is now? I don't think there ever has been such a time.
I should say that I have argued against some relatively novel speech restrictions, such as hostile environment harassment law, or the recent broadening of restrictions on expensive speech about election campaigns. My point is simply that on balance speech protections, even when focusing on speech on political, religious, or moral matters, are about as broad today as they ever have been -- the high water mark having largely been achieved in the 1970s and 1980s, and on balance not materially retreated from since then -- and much broader than they often have been.
I just got my hands on my copy of Krattenmaker & Powe's Regulating Broadcast Programming, a very good book on the subject. A few highlights:
The Radio Act of 1927 authorized licensing decisions based on the content of the speech (despite its provision supposedly banning "censorship").
By 1930, the Federal Radio Commission was restricting what it saw as "propaganda stations," on the theory that "there is no place for a station catering to any group" (said in an opinion about a Chicago Federation of Labor station).
By the early 1930s, the FRC was also restricting "bitter and personal" and "ignoran[t]" "attack[s]" on "public officials."
This pattern of restriction continued for the following decades. In the 1960s WLBT, for instance, the FCC took steps (though not very strong steps) to restrict white racist television programming, on the theory that such programming didn't adequately serve black viewers. The D.C. Circuit eventually ordered the FCC to strip the station of its license.
Likewise, in the early 1970s, the FCC expressly warned broadcasters that it was against their public service duties to play songs "tending to promote or glorify the use of illegal drugs," and issued a 22-song "do not play" list, including "Lucy in the Sky with Diamonds," "Mr. Tambourine Man," "Truckin," and others. Radio stations generally complied (at least for a time).
The equal opportunities rules that had required broadcasters who chose to carry certain materials involving candidates to provide equal access to other candidates had been around since 1927. Their high water mark came in 1959, when a news reporting showing "Mayor Richard Daley greeting the president of Argentina at Midway Airport during a snowstorm" was found to trigger a duty to provide equal time to Daley's challenger (apparently something of a joke challenger) Lar Daly; this prompted Congress to provide some exceptions for news reports.
The Fairness Doctrine's "roots go back to the FRC's hostility to 'propaganda stations'"; this turned in 1940 into the decision that broadcasters "could never editorialize," and then was revised in 1949 into the doctrine that broadcasters could editorialize but had to provide access to rival views.
There's more, but this should give people a sense of how restricted broadcast programming has been for nearly all of its existence. I say this not to praise the restrictions; far from it. I'm glad that the Court has cut back on the restrictions, at least apparently imposing a viewpoint-neutrality requirement, and I hope the Court cuts back on them still more. I'm glad that the FCC has repealed the Fairness Doctrine.
But I hope this warns people not to complain that somehow some broadcasting restrictions show that "we don't have freedom of speech in America any more." Whether we're talking about political speech or speech more broadly, broadcast speech is at least as free today from government restriction as it almost ever has been, and considerably freer than it has been at many times in the past.
reports the New York Times; this also shows that checkers is guaranteed to be a draw if both players play optimally. Of course, it must also be the case that chess played optimally is a draw, that chess played optimally is a win for white, or that chess played optimally is a win for black (though the smart money isn't betting on that last one). It's just that we don't know the answer to that yet, or have a program that is guaranteed to win (or not to lose, if the optimal play yields a draw).
Note that, to be precise,
The new research proves that Chinook is invincible in the traditional game of checkers. But in most tournament play, a match starts with three moves chosen at random. In solving the traditional game, the researchers have also solved 21 of the 156 three-move openings, leaving a crack of hope for humans, at least for now.
Though of course that's not much of a crack, given that it seems likely that a computer program will very soon be able to optimally play all the games yielded by those openings, and lose only if the opening is inherently unwinnable and undrawable for it.
Thanks to my friend and computer science professor Haym Hirsh for the pointer.
Libertarian Theories of War:
In my post below I describe the libertarian take on war to be undertheorized. Two VC readers independently pointed me to two different articles by libertarians in a symposium on "War and Liberty," published in The Reason Papers. Though quite different from each other, both offer the type of effort I was calling for. I have only had a chance to read each paper very quickly, but I found them both to be very thoughtful and I wanted to get links to them up here promptly.
The first, War and Liberty, by Aeon Skoble makes many of the same arguments about sovereignty that I made in my post but goes beyond that to present a modified theory of soveriegnty. Here is a bit:
The problem is that the notion of state sovereignty in the modern era leads to a view of the moral equivalence of all states—Communist China is then no different from Republican Switzerland—and this is detrimental to human rights, because it means that a tyrannical state is immune from outside pressures to liberalize. Michael Walzer goes some of the way in this direction, but not to the ultimate conclusion. The argument is that sovereignty needs to be based in service to people, that is, protecting their rights, so illegitimate regimes don’t have sovereignty at all. There’s a Lockean component here also: If rights are conceptually prior to the state, then state sovereignty must derive from a theory of legitimacy which is based on protection of rights rather than from a theory of moral equality of all states.
The rights component gets lost when we adopt a “realist” model of legitimacy, such as actually holding power or being “recognized” by the UN. Now, what are the causes which might count as “just cause”? Least controversial is defense against aggression. The right to respond to force with force seems fairly straightforward, although in a moment I will indicate why it might not be for some. A bit less obvious is defense of another. If B is invaded by A, B might have the right to repel the invasion, but utterly lack the power to do so. C’s assistance would be justified on the grounds that B was unjustified in aggressing against A in the first place. C’s right to use force against A follows from B’s right. More controversial still are interventions; for example, taking sides in a civil war or preventing a genocide or removing a tyrant. It might seem as though only in this last case does it even matter what model of legitimacy we adopt. If A is attacked, isn’t A’s right of selfdefense absolute regardless of whether it is attacked by a republic or a tyranny? Traditional just war theory would answer yes, but I think it actually does matter. Since tyrannical states have no legitimacy, if they are attacked by free states, they cannot claim that their sovereignty is being violated. In other words, intervening to protect rights against a tyrant is not a violation of sovereignty—at least not any kind of sovereignty worth defending. (Nevertheless, the attack would have to satisfy other justice conditions, e.g., it would have to be intended to liberate oppressed people or prevent a genocide rather than to seize raw materials or to acquire territory.)
Some will argue that a free society has no business interfering in other societies’ internal politics. But this is, ironically, or paradoxically, a holdover from the old monarchist mindset. The old order on which traditional just war theory is based, and on which sovereignty is the paramount value in international relations, depends on a moral equivalence between states which is derived from a statist view, not an individualist view. On a non-statist, individualist view, individuals, not states, have rights. States may have powers, but the just powers derive from the consent of the governed. The putative right of any state to sovereignty thus is a function of its protection of the rights of the people in its domain. So a free society may very well have some business “interfering” in tyrannical or genocidal states—namely, the business of protecting life and liberty. The very language—that this is “interference” in a state’s own affairs–implies that the state has some right of action which is presumptively respected, and again, this can only be justified by old-order thinking, not by liberal thinking. (I am not here arguing that they are obliged to do so, only that they are permitted to do so, or that they do no wrong by doing so.)
The morality of warfare is an issue that has long divided libertarians. The spectrum of libertarian opinion on the subject ranges all the way from Leonard Peikoff, who defends the use of nuclear weapons against civilian targets, to Robert LeFevre, who denied the legitimacy of all violence, even in self-defense.
Needless to say, most libertarians fall at various points between these two extremes — though the divisions have become sharper since the 9/11 attacks. (One of the more ironic manifestations of these divisions is that French libertarians are far more likely to support current US foreign policy than American libertarians are; perhaps anti-government thinkers tend to be more attracted to whatever position their own government opposes.)
What view of warfare is most consistent with libertarian principles? Here I shall distinguish between libertarianism as a normative ethical theory — a theory of justice — and libertarianism as a descriptive social theory. Libertarians disagree with one another as to the extent of the former's dependence on the latter; utilitarian libertarians profess to believe the dependence total, while natural-rights libertarians profess to believe it nonexistent, but in practice both groups tend to treat the dependence as partial, and so will I.
Deontological Considerations
The non-consequentialist core of libertarian ethical theory is an egalitarian commitment; specifically, a commitment not to socioeconomic equality but to equality in authority. Indeed, libertarians' lack of enthusiasm for enforced socioeconomic equality stems precisely from their concern that it can be achieved only at the cost of this for libertarians more fundamental form of equality.
The libertarian "non-aggression principle" expresses the conviction that forcibly to subordinate the person or property of another to one's own aims is to assume an unjustifiable inequality in authority between oneself and the other. And it is because this equality in authority likewise holds between private citizens and public officials that governments are forbidden to exercise any powers not available to people generally; libertarianism requires not just equality before the law but equality with the law.
It follows that a consistent libertarian theory of warfare must apply the same prohibitions and permissions to governments and private individuals alike. In this respect it will be radically different from nonlibertarian theories, which typically grant government actors more latitude in the use of violence than private actors; a libertarian theory must be equally permissive — or equally restrictive — with both. A consistent libertarian cannot, for example, accept a mere apology as sufficient recompense when the US military accidentally bombs the wrong target and kills fifteen children in Afghanistan[5]unless she is prepared to be equally tolerant when Uncle Zeke's backyard bazooka target practice accidentally takes out a passing school bus. It can make no difference whether the perpetrator is or is not an agent of the government; nor can it make any difference whether the victims are or are not citizens of that government.
I really need to subscribe to The Reason Papers, which are edited by Aeon Skoble.
Who Is Ali Al-Marri?:
Today's Washington Post has a fascinating report about Ali Al-Marri, the subject of the Fourth Circuit's recent decision on the government's power to detain enemy combatants.
Can the FBI Install Spyware on Your Computer Without A Warrant?:
Kevin Poulsen has an interesting piece at Wired.com on a recent criminal case in which the government obtained a search warrant and remotely installed spyware on a target's computer. The program reported back a wealth of information on how the computer was being used, including IP addresses, the MAC address, etc.. No contents of communications were obtained; this would have required a Title III order rather than a traditional search warrant. The warrant affidavit is here.
Given that the government obtained a probable cause warrant and didn't collect the contents of any communications, it's hard to find a legal problem with what the government did. At the same time, the story does make me wonder if something like this was used in the United States v. Forrester case I blogged about earlier. I never did find out if the Forrester case involved monitoring at the ISP or involved spyware installed on the suspect's personal machine. But if it was the latter, I tend to think a warrant probably was necessary and the court's decision probably was wrong.
Why might it matter whether the government installed the device at the ISP or on the suspect's machine? It's true that the government ends up with the same information either way. But the Fourth Amendment usually focuses on how information is collected rather than what information is collected. The fact that the government can buy the morning newspaper at a corner store without a warrant doesn't mean that they can break into your home and read your copy without obtaining a warrant first.
More broadly, I tend to think that the most persuasive rationale for the third-party doctrine underpinning Smith v. Maryland (and thus Forrester) is that the recipient of a communication is a party to the communication that can consent to monitoring. When a communication is received by its intended recipient, that recipient has control over what to do with the information received much like the recipient of a traditional letter. Thus in Smith v. Maryland, the phone company could record Smith's telephone numbers because it was the end recipient of the communication -- the communication about the numbers to be dialed -- from Smith to the phone company.
Spyware is different. If the government places spyware on a private machine, it is not working with a party to the communication. Rather, it is intercepting the contents of communications between the parties, the user and the ISP. I think it's much harder to apply the third-party doctrine in that setting. You end up having to say that the possibility the government could get the ISP to conduct the monitoring means that the government doesn't have to try. But consent is consent in fact, not a likelihood of consent if the government had tried to obtain it. Given that, I'm dubious that spyware is covered under the rationale of Smith v. Maryland. As a result, I tend to think a warrant is probably needed to install spyware without the ISP's involvement even if non-content information was disclosed (note that a warrant was obtained in the case covered by Wired). It's not an open and shut case, but I think a warrant is probably needed.
Anyway, sorry if these ideas are hard to follow; I'm working on an article about the third party doctrine and my views are still forming, so some of my comments may seem disjointed. Finally, thanks to Dan Solove for the link.
Executive Privilege and Contempt Prosecutions:
The Washington Post has a front-page story reporting the Bush Administration's view that once the President has ordered a subordinate to exert executive privilege, a U.S. Attorney can't bring a criminal case against that subordinate when Congress refers the case to the U.S. Attorney for a contempt prosecution. It's not clear to me if "can't" means "won't," or if the claim is that if he does, the courts must dismiss the prosecution; I gather it's the former, although presumably the difference doesn't matter here.
I have no expertise in this area, so I don't know how significant this story is. My amateurish guess is that this just adds another layer of litigation to the coming legal battles: it means that after the U.S. Attorney refuses to prosecute, Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury. Courts then have to deal with that issue first, which could take a while as it works its way through the appellate process. That's my guess, at least; I'm sure Marty Lederman and others will be able to say much more.
Antiwar Libertarians and the Reification of the State:
I hesitated writing my WSJ op-ed, Libertarians and the War because I knew it would provoke a strong reaction from antiwar libertarians, many of whom have been my friends and colleagues for a very long time. That it did. Therefore, I am grateful for the many emails and blog posts thanking me for pointing out that some libertarians disagree with Ron Paul's stance on the war. But I am even more grateful to the many antiwar libertarians who avoided personal attacks and leveled their critique at what they perceived to be my argument rather than against me personally. And I am pleased that very few read my op-ed as an "attack" on antiwar libertarians generally or Ron Paul in particular. To the contrary, one cannot claim as I did that reasonable libertarians can disagree about the Iraq war and, at the same time, dismiss all antiwar libertarians as unreasonable. And I went to some lengths to specify areas of agreement shared by both libertarian supporters and opponents of the Iraq war.
Where most antiwar critics of my op-ed have gone wrong, however, is in asserting that I was attempting to refute their antiwar stance or was offering a defense of the Iraq war on libertarian grounds. That would have been difficult enough to do in a 1400 word op-ed; but was impossible in the 215 words I devoted to why some libertarians disagree with Ron Paul. It should be no surprise, therefore, that they found these 215 words unpersuasive. My sole aim in my op-ed was to inform readers that they should not assume that Ron Paul speaks for all libertarians because it is an undeniable fact that he does not. I have the emails and blog posts to prove it empirically!
[WARNING TO READERS I: LIKE MY WALL STREET JOURNAL COLUMN, WHAT FOLLOWS IS ALSO NOT A DEFENSE OF THE IRAQ WAR! WHILE MY COLUMN WAS ABOUT "LIBERTARIANS AND THE WAR," THIS POST IS ABOUT "LIBERTARIANISM AND WAR." I am sincerely interested in hearing antiwar libertarians' reactions to the analysis below, about which I am genuinely puzzled and have an open mind.]
While a few emailers and bloggers merely asserted that no "true" libertarian could support the Iraq war, the substantive responses to my actual thesis about libertarians and the war were very few. These arguments came largely from radical (or anarchist) libertarians. I have some genuine questions about the coherence of the radical libertarian antiwar position as it is typically presented — questions that would not apply to the same degree, if at all, to a limited state libertarian or minarchist, the antiwar positions of whom this post does not address.
[WARNING TO READERS II: THE TERM "RADICAL LIBERTARIAN" IS NOT BEING USED IN ANY WAY PEJORATIVELY. I AM MERELY DISTINGUISHING THEM FROM LESS RADICAL LIBERTARIANS. AND THIS IS NOT AN "ATTACK." I AM MERELY RAISING SOME QUESTIONS ABOUT THE COGENCY OF THEIR STANCES ON WAR. AND IF YOU DO NOT HOLD THESE VIEWS, THEN I AM NOT WRITING ABOUT YOU.]
In addition to arguments about the costs and risks of wars in general and/or a particular war, the radical libertarian antiwar position typically includes a strong assertion of the following two propositions:
(1) War is Inherently Unjust. Some radical libertarians are antiwar because they say that war is an inherently unjust activity because it is engaged in by governments who are inherently unjust and illegitimate. Moreover government-waged war — that is, "war" as they define it — unavoidably kills innocent persons and violates their rights. Because the U.S. government is illegitimate (as all governments are), so is the war in Iraq (as all government-waged wars are). Whether or not this argument is correct, standing alone, it is entirely coherent.
(2) Foreign Governments are Sovereign. But judging from their emails and blog posts, many radical libertarians who hold position (1) at the same time adopt a hyper-legalistic view of what constitutes a "war of aggression" in which states are treated as though they were individual persons. In other words, they adopt the Westphalian view of nation states and sovereignty, which was devised to recognize and protect the autonomy of the government rulers "their" territory. When making this argument, these radical libertarians treat foreign governments as "sovereigns" to be respected (by the U.S. government) unless they commit or imminently threaten an act of aggression against the territory of another sovereign. Systematically violating the rights of their own subjects or citizens is a wholly internal domestic matter. In essence, these foreign governments are treated IN PRINCIPLE as the just owners of the territories they govern. And their conduct is to be judged by the same rules of self-defense as are individuals.
As with stance (1), whether or not this argument is correct, standing alone, it is entirely coherent. Indeed, it is the mainstream position of international law, or was the mainstream position before the rise of the concepts of collective governance by international organizations like the United Nations and by the doctrine of internationally recognized "human rights," both of which significantly qualified and greatly complicated the Westphalian notion of sovereignty. So it is noteworthy that, when assessing the conduct of the United States government, radical libertarians are committed, not to the current views of international law (as qualified by collective governance and human rights), but to an unqualifiedly pure Westphalian theory.
One might say that, when dealing with issues of (American) foreign policy, these libertarians reify (foreign) states and treat them like individuals, with all the natural rights of individuals. Even if you try to rephrase stance (2) in terms of "the People" of the respective states, at its core, I do not see how this stance can be anything other than deeply, expressly and quite literally "nationalist" — which seems an odd stance for a radical libertarian. (More moderate libertarians do not have this problem; they have others, but this post is not about them.)
There may be many prudential reasons for treating states like people in the international arena, and I am not arguing one way or the other on the usefulness of this way of thinking. I am just noting that radical libertarians seem to hold a particularly ardent version of this commitment to nation states when they assess American foreign policy. And that seems to be in tension with their stance (1) in which all governments are illegitimate, and equally so.
In addition to these two tenets, antiwar radical libertarians also typically hold the following two positions:
(3) The illegitimacy of the United Nations. Many of these same antiwar radical libertarians, Ron Paul included, are ardently opposed to the United Nations as any sort of governing or ruling authority. This stance I believe to be not only coherent, but entirely correct. But as I will note below, this separates them from the currently prevailing view of international law and, as a result, they can make no recourse to lack of authorization by the United Nations or even violations of United Nations directives in offering criticisms of American foreign policy.
(4) The existence of fundamental human rights. I doubt that any radical libertarians would question the existence of fundamental "human rights." (Indeed, that is part of their argument in (1) above that all war is unjust because it violates the rights of innocents.) Again, I think this stance is not only coherent, it is correct. But again, this means that their strong commitment to state sovereignty in stance (2) puts them at odds with today's international law that recognizes the legitimacy of sometimes protecting human rights by militarily interfering with the sovereignty of a government who has not attacked or threatened to attack another nation state.
That many radical libertarians today simultaneously hold all four of these views is an artifact of the particular evolution of American libertarian thought over the past sixty years, coupled with an undeveloped and inadequate theory of legitimacy. I address the issue of legitimacy in Part I of Restoring the Lost Constitution (you can read a free version of the argument here), which some have mistaken as a repudiation, rather than a refinement, of radical libertarianism, a misunderstanding that stems from many radical libertarians' failure to appreciate the inadequacy of their conception of legitimacy (but this is beyond the scope of this blog post).
THE PROBLEM(S): While each of these stances, standing alone, is coherent, I have trouble understanding how radical libertarians can coherently hold all four positions. In particular, as already noted, stance (1) seems to be in severe tension with stance (2). How can ALL governments be fundamentally and EQUALLY illegitimate (when assessing the propriety of the U.S. government) but all (foreign) governments--no matter what their form or conduct--must be treated AS A MATTER OF PRINCIPLE (as opposed to prudence) as sovereign owners of their territories whose jurisdictions over "their" people are absolutely inviolable unless they attack the territory controlled by another sovereign government?
There is also seems to be some tension between stance (2), according absolute sovereignty to government rulers of whatever stripe, and stance (4) affirming the fundamental human rights of all persons. This tension only increases when we consider these sovereign governments are wholly illegitimate according to stance (1), but they still cannot be stopped from violating fundamental rights (stance 4) within their sovereign territory by other equally illegitimate but also sovereign governments.
Are these foreign governments illegitimate for some purposes or in some contexts and legitimate in others? If so, what is the source of the latter legitimacy that seems inconsistent with stance (1)? And why then might not the U.S. government be legitimate in some respects while being illegitimate in others? To be clear, I am not asserting any answer to these questions. I am only noting that combining stances (1) and (2) seems to require a more nuanced or complicated view of legitimacy than either stances (1) or (2) standing alone. Any such distinction would greatly complicate many radical libertarians' implicit theory of legitimacy according to which all governments are EQUALLY illegitimate.
Moreover, I don't see how radical libertarians can accept stance (3) rejecting entirely the legitimacy of the U.N. and at the same time criticize the action of the U.S. government as "illegal" because it lacks U.N. authorization, or even that it affirmatively violates U.N. resolutions. While I doubt that this sort of criticism is often made by radical libertarians, it is worth noting that they cannot rely on a purely positivist conception of international law to assess the "legality" of U.S. foreign policy because international law today DOES recognize the U.N. and current international law also sometimes views as legitimate military interference with sovereign states to protect fundamental human rights against, for example, genocide. To the extent they want to make claims about the "illegality" of the conduct of the U.S. government, therefore, radical libertarians need to make a NORMATIVE argument on behalf of an PURE Westphalian theory of sovereignty that is no longer recognized by international law, if it ever was. And this is an odd stance for a radical libertarian.
Can a radical libertarian argue that the U.S. government exceeds its powers under the Constitution when it uses its military aggressively? I don't see how without implicitly conceding some DEGREE of legitimacy to the Constitution. Not only would this violate stance (1) by which all government are equally illegitimate, but many radical libertarians are quite hostile to the Constitution, preferring the Articles of Confederation. But would not that mean legitimating the governments of the separate states in violation of stance (1) in which all government are equally illegitimate? How did state governments get to be legitimate governments according to a radical libertarian?
There is one obvious rejoinder a radical libertarian could make to reconcile logically all four of these positions. If ALL wars waged by states are inherently unjust because states are inherently illegitimate and the rights of innocents are always violated by state wars (stance 1) then, a fortiori, an aggressive war by one state against another must also be unjust (stance 2). In essence, stance 2 is simply collapsed into stance 1 as a special case. Because all wars by states are unjust, this includes aggressive wars against sovereign states.
But this rejoinder won't work for most radical libertarians because it proves too much. Stance (1) would oppose ALL wars INCLUDING WARS OF SELF-DEFENSE which stance (2) and most radical libertarians purport to allow. Now I realize that some fraction of radical libertarians, whose opinion I respect, believe that there is no such thing as a just war, but most radical libertarians (including most critics of my WSJ op-ed) allow the legitimacy of a defensive war and oppose only wars of aggression. Some antiwar libertarians who oppose the Iraq war as aggression, for example, supported the war in Afghanistan on "self-defense" grounds. And those who didn't say they would support a war that was truly in self-defense. They simply deny that the war in Iraq fits that description. Yet if they also accept stance (1), as they appear to, then ON THEIR ACCOUNT because a defensive war is waged by an illegitimate government and the rights of innocents were inevitably violated, it too must be opposed.
What if radical libertarians tried to salvage the legitimacy of a just defensive war (and the U.S. Constitution too?), by jettisoning or softening stance (1)? We would then be back to arguing whether a particular war is legitimately an act self-defense, even if it will harm the innocent and even if it is waged by a government. (More on this below.) And to salvage the Constitution the radical libertarian might have to acknowledge that, while all governments may be UNJUST to the extent that they confiscate their income by force and put their competitors out of business by force, some governments are nevertheless more LEGITIMATE than others, and a particular ACTION by a government could be JUST even if the government (qua government) that performs the just action is not. But all this is going to greatly complicate any blanket condemnation of wars waged by governments who may be legitimate to a greater or lesser degree, and some illegitimate altogether and deserving (in principle) of no respect whatsoever, even from other governments.
Perhaps most obviously, it is not clear how radical libertarians can be committed to stance (2) and continue to claim they are radical. Given the nature of government, radical libertarians should be wary of the reification of states as though they were individuals entailed by stance (2). Once stance (2) affirming the sovereignty of states is relaxed or jettisoned altogether, however, analysis of national "self defense" becomes far fuzzier than when we speak of individual self-defense, if for no other reason that persons residing in other "nations" have fundamental human rights that may be violated by those who govern the territory. These innocent persons may justly call upon others to assist them in protecting their rights, and welcome this assistance even at some risks to themselves, and even if it comes from a rival government.
Because of radical libertarians commitment to human rights (stance 4), and their skepticism of the legitimacy of any government (some version of stance 1), any such discussion of self defense should be cautious about relying too heavily on the fine points of a purified version Westphalian international law — or about assessing governments by the specific doctrines that have arisen in civil societies to assess personal defense of self and others. Perhaps these concepts transfer over perfectly, but that cannot be assumed. And they should also avoid any reference to the United Nations (see stance 3) and take into account the human rights (stance 4) of foreigners who are oppressed by "their" governments.
Any such discussion among principled libertarians would be pragmatic, based on an assessment of those policies that tend to advance liberty versus those that tend to retard it (and some antiwar blogger response to my op-ed take exactly this approach), and one's opinion will vary greatly with one's beliefs about the facts of a particular situation, as well as the respective natures of the governments involved. And it can also be principled.
But any such discussion will unavoidably be VERY complex. I cannot even begin it here. I can only raise a few simple questions about the coherence of radical libertarians' antiwar stances. Indeed, this overly long blog post only begins to examine the complexity of libertarianism and war, a HIGHLY under-theorized topic, that merits the attention of radical and moderate libertarians alike.
But for those poor dedicated readers who have gotten this far, perhaps this post will make it easier to appreciate just WHY even radical libertarians can AND DO disagree about the war in Iraq. And maybe also that at least some antiwar libertarians have not completely reconciled their antiwar stances with their libertarianism. Speaking for myself, I know I do not have a fully developed theory of libertarianism and war.
Pitfalls of Public Opinion Polling in a Repressive Society:
This recent survey conducted in Iran claims that most Iranians believe that their authoritarian government is actually largely democratic, support the government's efforts to develop nuclear weapons, and are hostile to the United States (hat tip: Jeffrey Friedman).It is perfectly possible that these poll results really do reflect the majority opinion of the Iranian public. However, the researchers failed to consider an important factor that might bias their results: Iran is a repressive dictatorship where the government often punishes those who express dissident views that question the official line.
In such an environment, Iranians who disagree with the government's positions might hesitate to express those disagreements to foreign pollsters. They might instead toe the official line in order to protect themselves from the secret police. Obviously, good pollsters will promise respondents anonymity. But Iranians - who have lived in a police state for decades - might well distrust the sincerity of such promises. For all they know, the "pollster" who has contacted them is actually a government agent trying to ferret out dissent. Even if they believe the pollster to be sincere, there is still no guarantee that the conversation between pollster and respondent won't be overheard by the secret police.
Fear of punishment gives inhabitants of repressive societies strong incentives to lie to pollsters if they disagree with the government line. Public opinion scholars have long been aware of this problem. For example, this classic study of Nicaraguan public opinion under the Sandinista communist dictatorship showed that many Nicaraguans were only willing to express their true opinions about the government if they believed the pollsters to be affiliated with anticommunist opposition parties. In his brilliant 1995 book Private Truths, Public Lies, economist Timur Kuran documents numerous similar examples of people in repressive societies hiding their true views in order to avoid punishment by the state.
None of this proves that citizens of repressive societies never genuinely support their rulers. Adolf Hitler was genuinely popular in 1930s Germany, for example. It does, however, show that researchers should not take pro-government poll responses in such countries at face value. Scholars have understood the problem for a long time. There is no longer any legitimate excuse for polling organizations to ignore it.
I don't blame Iranians who may have lied to Western pollsters out of fear. I do blame pollsters who fail to consider the possibility that such lying may affect their results.
The California Supreme Court issued an interesting decision this week on the enforceability of liability waivers in standard form contracts. At issue in City of Santa Barbara v. Superior Court, -- Cal.Rptr.3d -- (2007 WL 2027806), was a release from liability for "any negligent act" signed by a parent as part of an enrollment contract that allowed her daughter to participate in a camp for disabled children run by the city of Santa Barbara. The court ruled, 6-1, that the contract was enforceable as to allegations of ordinary negligence, but not gross negligence. This wasn't surprising; it is standard hornbook law that such waivers in the context of recreational activities are enforceable as to ordinary negligence but not as to gross negligence, although a few jurisdictions won't even enforce waivers for ordinary negligence. But it is interesting that, according to the court, it had never actually addressed this issue (although for decades Witkin on California Law has claimed that the majority rule applies in the Golden State).
One interesting issue is the logical coherence of the doctrine in this area. Why enforce liability releases even for ordinary negligence? It might make sense to enforce releases of narrow waivers of liability concerning specific conduct, on the ground that the consumer might be able to avoid some harms more cheaply than the seller can prevent it, and the parties should be able to contract for this efficient state of affairs: for example, a ski resort operator might state that it does not check the slopes daily for rocks, and the customer is precluded from suing if he crashes into one. But when the customer waives liability for all negligence, he usually will have no idea what precautions the seller otherwise would be taking but is declining to take as a result of the waiver. In almost every case, it will be cheaper for the seller to exercise ordinary care than for a consumer to compensate by taking extraordinary precaution if that consumer has no idea of what precaution to take.
One might argue for enforcing general releases on strict freedom-of-contract grounds: i.e., that the buyer and seller should be allowed to enter into any agreement that they find mutually agreeable. This seems problematic to me on the ground that bounded rationality limits the number of attributes buyers consider when they make purchasing decisions, and that the terms in the "fine print" will rarely be factored into the decision making process -- a topic I've written about extensively in law journal articles. Regardless, however, the freedom-of-contract argument doesn't provide a justification for enforcing releases from ordinary negligence but not from gross negligence.
One logical reason to distinguish between waivers of ordinary negligence and gross negligence liability is to counter the hindsight bias likely to affect juries. Perhaps we think that, after an accident occurs, juries will be likely to judge the seller's reasonable actions to have been unreasonable and, thus, negligent. Viewed this way, the doctrinal distinction between levels of negligence merely allows the seller with a good lawyer to ensure it will not be held liable for reasonable activity that led to an unfortunate outcome.
Whatever the justification, for the distinction between levels of negligence to have any practical value, it is important for there to be real difference in judicial treatment of complaints that allege ordinary negligence and complaints that allege gross negligence. Otherwise, an injured consumer who signed the waiver can get to a jury merely by using the term "gross negligence" in his complaint. It is true that defendants will get the "gross negligence" jury instruction rather than the "negligence" instruction, so the jury will be told to use a higher standard in judging liability, but this alone is cold comfort to a defendant if the hindsight-biased jury views the defendant as a wrongdoer and is free to award compensation to the injured plaintiff or his grieving family. For the distinction between ordinary and gross negligence to really have bite, courts must be willing to grant summary judgment when the facts fail to demonstrate "want of even scant care" or "an extreme departure from the ordinary standard of conduct" -- the definition of gross negligence according to the California courts. Here, the California courts really blew the decision. The facts indicated, at most, quite ordinary negligence, yet the Court of Appeal refused to grant summary judgment for the City, and the Supreme Court didn't review that part of the decision below, considering only the question of whether liability for gross negligence can be disclaimed.
Here are the pertinent facts: The plaintiff's 14 year-old daughter, Katie, suffered from seizures, yet the plaintiff affirmatively requested that Katie be allowed to swim in the camp's pool and dive off the diving board, and she declined an option to have Katie wear a flotation jacket while in the pool on the ground that she judged Katie to be a strong swimmer. Notwithstanding the parent's lack of concern, the City assigned a college-student employee who had served as a special-education aide and received special instruction on handling seizures to personally supervise Katie, and only Katie, in the pool. (In addition, the City had five lifeguards supervising all the children in the pool.) Katie suffered a mild seizure lasting only a few seconds one afternoon. The aide kept Katie out of the pool under observation for 45 minutes, and then determined that Katie was fine. She then allowed Katie to return the pool, but she required Katie to rest for several minutes after diving into the pool and swimming to side. The aide sat at the edge of the pool watching Katie at all times. On Katie's second trip into the pool, the aide briefly took her eye off of Katie. By the time she and the lifeguards could locate Katie, Katie had drowned.
By taking her eyes off of her charge for even a few seconds, the aide was arguably negligent, but if this constitutes "gross negligence" the distinction between the categories is meaningless. Nevertheless, the Court of Appeal held that the facts alleged were sufficient for a jury to find gross negligence, and thus it refused to grant summary judgment.
And they must also cease broadcasting any movies where Fred was an actor, such as The Hunt For Red October where he was a carrier admiral.
Because we don't have freedom of speech in America any more.
The first paragraph is right, but the second one misses the boat. Remember that radio and television broadcasting was heavily regulated in the U.S. -- considerably more heavily than it is today -- nearly from its birth. The "equal opportunities" rule is quite old. Its exceptions for news are actually a Congressional liberalization of the rule following an FCC decision in the late 1950s that applied the rule even to certain news coverage of candidates. The Fairness Doctrine, in various of its guises, was around for decades until it was repealed by the FCC in the late 1980s.
The underlying ideology behind all these restrictions, which is chiefly that the communications spectrum is scarce public property that is held more or less as a public trust by the licensees, and that the licensees must therefore be subjected to various restrictions and access mandates -- even when those mandates deter the licensees from carrying certain speech -- has thus been around as long as broadcasting has been. In some measure, recent decades have seen something of a retreat from the high-water mark of such restrictions.
Nor can one say that somehow free speech protection was pure until the 1920s or 1930s in the non-broadcasting media, and the broadcasting restrictions were a retrenchment from traditional protection. Before the 1920s and 1930s, courts upheld various restrictions on advocacy of illegal conduct, broad libel rules that had the effect of deterring not just falsehood but opinion and true statements, obscenity laws that went far beyond hard-core porn, restrictions (often enforced by judges using criminal contempt power) on coverage of trials and criticism of judges, and a wide range of other restrictions. And movies essentially lacked any First Amendment protection from the 1910s to the 1950s.
So one can certainly argue against restrictions on broadcasters; I sympathize with these arguments, and there's some reason to think that the Court would, too, if such a case came before it. But there's no justification for casting this as some sort of recent loss of traditionally recognized free speech protections. Where it comes to broadcasting, the general trend has been towards more protection of broadcaster rights (especially with the abolition of the Fairness Doctrine, though with a bit of recent retrenchment on vulgarity and nudity), not less.
Valerie Plame Wilson and Joseph Wilson sued Vice President Dick Cheney and several other Executive Branch officials for their alleged complicity in the disclosure of Valerie Plame's work for the CIA. Today, the U.S. District Court for the District of Columbia dismissed the claims. The opinion is here. Howard Bashman rounds up preliminary news coverage here. Whatever one thinks of the whole Plame affair, I do not think there was ever much argument that this lawsuit was a bit of stretch.
Opponents of the use of the Due Process Clause to protect substantive rights, notably Robert Bork (see, e.g., Coercing Virtue p. 55), trace the origins of "substantive due process" to Scott v. Sandford. This is disingenuous (or perhaps ignorant) on two levels. First, there is ample evidence that Scott did not originate that the concept of due process protected rights from arbitrary government interference, especially with regard to vested property rights. Second, while Bork and others make it seem as if the due process issue was a major part of the Scott holding, in fact Justice Taney only addressed the due process issue very briefly, as part of an illustration of the fact that Congress does not have plenary powers over territories that have not yet become states. Taney's opinion for the Court is over fifty pages long, and the entire discussion of due process takes place in just one paragraph on the fiftieth page of the opinion. Here, in context, is all Taney had to say about due process:
But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.
A reference to a few of the provisions of the Constitution will illustrate this proposition.
For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.
These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
The main historical significance of Scott's discussion of due process, then, is not as the case that invented "substantive due process," as Bork would have it, but quite the opposite--it indicates that by 1856 the concept of due process was already seen as encompassing substantive rights, and that this was sufficiently well-established that Taney felt comfortable using this an offhand example of limitations on Congressional power.
UPDATE: A comment points out that Justice Scalia has said: "You know what Dredd Scott was? Dredd Scott was the first case to use the horrid term 'substantive due process.' Which has been the source of all of the inventiveness of the Supreme Court in developing 'an evolving standard of decency.'" Apparently, Scalia needs to read the actual Scott opinion, and some constitutional history, instead of The Tempting of America. Scott was not the first case to use the concept of SDP, and it definitely did not use that term. Indeed, the phrase "substantive due process" wasn't invented until at least the 1930s. This leaves the Lochner critics who commonly chastise the Court for relying on the "oxymoron of 'substantive due process'" looking rather silly, as the Justices of the Lochner Court would not have been familiar with that phrase.
Must NBC Stop Running Law & Order Episodes With Fred Thompson if He Announces His Candidacy,
or else face the obligation to give rival candidates equal time? The answer is yes, under 47 U.S.C. § 315(a):
If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any –-
(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),
shall not be deemed to be use of a broadcasting station within the meaning of this subsection....
Entertainment programming is not included within any of these exceptions; and the FCC and the courts have ruled that appearances as actors or entertainers are covered as "use [of] a broadcasting station." See, e.g., Paulsen v. FCC, 491 F.2d 887 (9th Cir. 1974) (entertainment appearances by comedian and jocular Presidential candidate Pat Paulsen); In re Weiss, 58 F.C.C.2d 342 (1976) (broadcast of movies in which Ronald Reagan had acted); In re Culpepper, 99 F.C.C.2d 778 (same); 100 F.C.C.2d 1476 ¶ 34(d) (1984) ("If an actor becomes a legally qualified candidate for public office, his appearances on telecasts of his movies thereafter will be uses, entitling his opponents to equal time, if the actor is identifiable in the movies"); id. ¶ 34(e) (taking the same view for ot