Buy My Book!!
After having worked on it for about a dozen years of so (more like fourteen, but who's counting?), my book, In Search of Jefferson's Moose: Notes on the State of Cyberspace, is finally going to see the light of day some time around the middle of January.
The book has a simple premise: to recreate Jefferson’s analysis of the New World (as he set it forth in his Notes on the State of Virginia) for the "new world" of cyberspace. It sounds pretty outlandish, and I guess it is — but I think it actually works pretty well (though I leave that to you to decide that for yourself). Along the way, we uncover some pretty interesting things about the Internet, and about Jefferson — about network design, Jefferson’s plan for governing the Western Territory, about the protocol stack and the canals of France, about distributed routing, end-to-end design, and the Louisiana Purchase. And about why Jefferson had a moose shipped to him in Paris while he was serving as US minister to France, and why we should care about that.
Early reviews (a.k.a. "jacket blurbs")(including one from the VC's own E. Volokh!) have been pretty complimentary:
“Now and then, ingenious insight yields an authentic work of genius. David Post’s musing about cyberspace, the law, history, and a great deal more has produced such a work, conceived and written in the finest Jeffersonian spirit.” Sean Wilentz, Princeton University, author of The Rise of American Democracy and The Age of Reagan
“Reading this beautifully written and extraordinary work today is what it must have been like to know or read Jefferson then. Post has crafted an experience in understanding that allows us to glimpse the genius that Jefferson was, and to leave the book astonished by the talent this extraordinary writer is.” Lawrence Lessig, Stanford University, author of Code and Other Laws of Cyberspace and Remix
“A fresh, insightful, and eminently readable look at cyberspace policy. It’s surprising and fascinating how much the debates of 200 years ago continue to be relevant today and continue to be echoed today, even in media about which Jefferson and Hamilton could not have dreamed.” Eugene Volokh, UCLA, founder, The Volokh Conspiracy
"Jefferson’s Moose is brilliant - and a joy to read. It is the book of a career: sweeping in scope, without dropping a stitch of detail. No one but David Post could have produced this sparkling analysis of the relationship between the world and worldview of Thomas Jefferson and today’s puzzles of cyberspace.” Jonathan Zittrain, Harvard University, author of The Future of the Internet — And How to Stop It
I figure that any book that Sean Wilentz, Larry Lessig, and Euguene Volokh all like must have something going for it . . . I also think that VC readers are pretty much in the bullseye of my target audience — I imagine that there are lots of you who consider yourself serious Jeffersonians out there (and I can promise you all that you'll learn something new about a side of Jefferson you didn't know too much about), and the fact that you're a VC reader probably means you have more than a passing interest in the Internet and things cyberspatial. There's lots of stuff in there to debate and discuss; I'm setting up a book website (now under construction) for that purpose, and I'm genuinely hopeful that the book will help return Jefferson to the center of the intellectual debate about governance and society.
As I mentioned, the book won't be out for another 6 weeks or so, but if you're an early adopter type, you can pre-order it here:
Don't worry — I'll remind you again. :) But I'm looking forward to hearing what you all have to say about the book, and the overall project.
[Thanks to early commenters -- I'll have more to say about how the book evolved over time, and how one writes intelligently about something that changes as quickly as the Internet changes, in future postings.
And because it's not clear that the image link to the pre-order page is working properly, here's another, more straightforward bit of HTML code that should take you there:
In Search of Jefferson's Moose: Notes on the State of Cyberspace
Obscenity Conviction for Adult-to-Adult E-mail About Sex With Children:
A Fourth Circuit panel just upheld the conviction, by a 2-1 vote.
There's more to the case, including actual child pornography, and obscene cartoons that depicted children (which are punishable as obscenity, albeit with a higher punishment because of the subject matter, and not as child pornography, since no actual children were shown). But the constitutional disagreement between the majority and the dissent focuses on the text in the e-mail. The text apparently wasn't an attempt to conspire to have sex with children, or an attempt to seduce someone who the sender wrongly thought was a child; the prosecution was simply based on the theory that the text was obscene, and therefore criminally punishable.
The Supreme Court precedent, I should add, is on the majority's side: Even receipt of text, and not just distribution of material or receipt or pictures, can be punished if the text is obscene — i.e., if
- "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest [i.e., a 'shameful or morbid interest in sex,' as opposed to ''good, old fashioned, healthy' interest in sex'],"
- "the work ... describes, in a patently offensive way [under contemporary community standards], sexual conduct specifically defined by the applicable [obscenity] law," and
- "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
See generally Kaplan v. California, 413 U.S. 115 (1973)
. Query whether the precedent is right, either as a substantive matter or as a matter of whether the obscenity definition is too vague to be constitutionally permissible, whether as to pictures or as to text.
Thanks to Damon King for the pointer.
More on Obscenity Conviction:
Eugene has already commented on the recent Fourth Circuit decision in this case (US v Whorley), but I wanted to add a comment, because there's something that really bothers me about this case. The defendant was convicted of "knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting
minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1462" -- the Protect Act of 2003. It's an outrageous and appalling precedent -- if, under current Supreme Court precedent, it is not unconstitutional, it damn well should be, and in any event it is shameful for Congress and the President to have enacted it. Why not criminalize obscene thoughts? Why not make it a crime to picture, in one's head, minors engaged in obscene acts? The reason is not that there are profound problems of proof involved in getting inside peoples' heads (though there are), the reason is that the government has no right to control what goes on inside my head. And it is a small step -- an insignificant step, in my view -- from that to the criminalization of a drawn cartoon -- the visible expression of what was going on in some cartoonists' mind. Bad law.
Update on Obscenity Conviction:
Timothy Sandefur pointed me to a related post on his blog here, where he describes in some detail an even more appalling case involving criminal prosecution for purely textual descriptions of children engaged in obscene acts.
[And note to commenter "Anonn": sorry, but i really do not consider that my use of the word "damn," though you apparently find it deeply offensive, constitutes an "obscenity.']
Jefferson and Free Speech:
One of the threads in the comments on the postings regarding a recent obscenity conviction (upheld by the 4th Circuit) for "receipt of obscene cartoons" involved my friend Mr. Jefferson, and his views on the First Amendment and "the freedom of speech." One reader added a helpful link to Jefferson's Kentucky Resolutions, in which he argued that the Sedition Act, "which does abridge the freedom of the press, is not law, but is altogether void, and of no force."
I always like to comment on Jeffersoniana, and in this case his views really do help to explain my own. I spend a fair bit of time in my book on Jefferson and the Internet -- you haven't forgotten to get a copy of my book, have you??! -- talking about Jefferson's free speech positions, both because they're interesting in and of themselves and because they're of particular relevance to the many speech-restricting laws that have been enacted in response to Internet communication. I devote a chapter late in the book to comparing Jefferson's views on free speech law with his views on intellectual property law -- the two issues that "have been featured in virtually all of the Internet’s Big Cases, the legal disputes generating lots of public debate and commentary, the ones that made it onto the onto the docket of the Supreme Court or the front page of the New York Times, during the first couple of decades of its existence."
Here's an excerpt (Jefferson's words in italics) [I've posted a copy of the free speech discussion at the Jeffersonsmoose.org website, if you want to see the full discussion]:
In no subjects in the law was Jefferson more interested, and about no subjects in the law did he have more interesting and important things to say, than these two [i.e., free speech and intellectual property]. His views regarding the line between permissible and impermissible speech were pretty simple – there shouldn’t be any line, because there shouldn’t be any impermissible speech. Jefferson was America’s first, and probably its greatest, First Amendment absolutist; he wasn’t kidding when he said were it left to me to decide whether we should have a government without newspapers or newspapers without government, I should not hesitate a moment to prefer the latter. Not even a moment!!
To preserve the freedom of the human mind & freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, & speak as we think, the condition of man will proceed in improvement.
It was all an inter-connected whole, for Jefferson – republican self-government, freedom of speech, freedom of conscience, and freedom of the press. You couldn’t have one without the others; they were inextricably bound together into a single system, and they would stand, or fall, together. The principle of self-government – government not imposed on the governed but operating with the consent of the governed – meant that everyone had a stake, and an equal stake, in governing: The true foundation of republican government is the equal right of every citizen in his person and his property, and in their management. The mother principle, he called it: Governments are “republican” only in proportion as they embody the will of their people and execute it. Everyone, henceforth, gets to form his or her own opinions on all questions of public import, and regarding the administration of the laws: No other sure foundation can be devised for the preservation of freedom and happiness [than to] enable every man to judge for himself what will secure, or endanger, his freedom.
It is honorable for us to have produced the first legislature who had the courage to declare that the reason of man may be trusted with the formation of his own opinions [and] that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual way hitherto found is the freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions. . . .
Unrestricted public discourse, and an unfettered press, were the only “avenues to truth,” because nobody ever knows, in advance, where the truth may lie. Reason and free enquiry are the only effectual agents against error. In a Jeffersonian world, the government simply has no role to play in telling us what we may think or what we may say. Freedom of discussion, unaided by power, is sufficient for the propagation and protection of truth. It is error alone which needs the support of government. Truth can stand by itself. Governments may trample upon these rights of free speech and free thought and free inquiry by force, but they can never do legitimately, by right.
The right to speak and to think as we wish is a “natural right”; it is neither given to us by law, nor derived from law, but antecedent to it – lower down in the protocol stack, if you will, than law. It derives not from the statute books but from what Jefferson called, in the Declaration of Independence, the laws of Nature and of Nature’s God – it is just in the “nature” of things, the way the world is, that if you bring two human beings together, they will think, and they will attempt to communicate with one another about what they are thinking, even without any law to help them. . . .
Humans communicate with one another not because the law enables them to do so; they communicate with one another because – well, because that’s the kind of beings we are, and that is what is in our nature. Law’s job is not to enable that communication to occur but to protect it when it does occur – that is one of the “objects for the protection of which” we make law. . . .
And finally, some powerful positive feedback: only by forming a government that doesn’t trample upon these rights can we preserve our ability to create a government that doesn’t trample upon these rights. Where the press is free, all is safe. Our liberty depends on the freedom of the press; it cannot be limited without being lost. Limit our freedom to think and speak as we wish, and republican government can’t work – that is, it can’t produce a government that will protect and preserve our right to think and speak as we wish.
No other sure foundation can be devised for the preservation of freedom and happiness [than to] enable every man to judge for himself what will secure, or endanger, his freedom. Without this no republic can maintain itself in strength. [The United States] will demonstrate the falsehood of the pretext that freedom of the press is incompatible with orderly government. To open the doors of truth, and to fortify the habit of testing everything by reason, are the most effectual manacles we can rivet on the hands of our successors to prevent their manacling the people with their own consent. Where the press is free, and every man able to read, all is safe. . . .
To a Jeffersonian, then, free speech questions are always simultaneously (a) of supreme importance and (b) pretty easy. The answer always (or almost always) is simple: The more protection for, and the fewer the restrictions on, speech, the better. Lay down true principles, and adhere to them inflexibly.
[Not so for intellectual property, by the way -- but that's a different matter entirely]
I just got word that Amazon.com has started shipping copies of my book about Jefferson's moose, the Internet, and how they're connected. So now I join the ranks of published authordom, and I can start doing what every other published author of whom I'm aware does once his/her book hits the streets, namely obsessively tracking the sales ranking on Amazon . . . It's quite astonishing that a small cottage industry has emerged to let authors keep a watchful eye on the ever-changing Amazon numbers -- sites like Title Z, Rankforest, Sales Rank Express, TicTap, and dozens of others, at which you can plot, graph, compare, track, etc. etc. the hourly-updated sales figures. The process has, I'm told by others who've been through this, an oddly hypnotic power . . .
I'll spare you more book promotional hoopla -- I've already used up some VC space doing that (see chained posts), and there's a book website with more info. You can order the book here (if for some inexplicable reason you hadn't already ordered a copy). It's a good read -- I can promise you that you'll learn something interesting about Jefferson you didn't know before, and something interesting about the Internet you didn't know before, and a connection between the two you hadn't made before. As they say: "Guaranteed, or your money back." [Which always makes me ask: Are those alternative options?]
And Washington, DC VC-ers, please note -- I'm going to be talking about the book at a Cato Institute "book forum" event at noon on February 4th; Clive Crook of the Atlantic (and the Financial Times) is going to be a commentator, and it should be a fun event. If you're in the neighborhood, do come.
Jefferson's Moose Sighting, Washington DC:
A reminder to all our Washington DC-and-environs VCers: A week from this coming Wednesday (Feb. 4th) I'm going to be talking at a Cato Institute Book Forum about my book, In Search of Jefferson's Moose: Notes on the State of Cyberspace."It should be an interesting event: Cato has rounded up two outstanding commenters -- Jeff Rosen, whom I'm sure most of you are familiar with from his work on legal subjects in The New Republic and The NY Times and elsewhere (and who has also written widely and well on cyberspace-related issues), and Clive Crook, a Senior Editor at the Atlantic and Washington columnist for the Financial Times (whose work you may not be familiar with, but he's a very sharp guy with a very interesting perspective on US politics and history).
I'm genuinely looking forward to hearing what they have to say. One thing about my book: it's a hard book to talk about to an audience of people most of whom (as I have to assume) haven't (yet!) read the book. The book's about a way of thinking about the Net -- a Jeffersonian way of thinking -- and it doesn't so much try to persuade the reader to engage in that way of thinking as it just plunges in and begins starts thinking about problems that way. If I could explain it in fewer than 200 pages, I would have done so - but I can't. That's why I had to write a book, rather than a blog posting or a law review article, about it. So, knowing that Jeff and Clive (both of whom have read the book) should ensure some kind of push-back on the ideas in the book, sufficient at least to generate some interesting discussion.
You can sign up for the event here (there's also going to be a live webcast available on that page on the day of the event). [Cato events are free, but require pre-registration). Come if you can (and introduce yourself - it's always nice to put faces to names for the people one only knows on the Net).
[And in the buzz-generating department, there's an essay over on Concurring Opinions (in their "Bright Ideas" series) about how I came up with and use the moose metaphor in the book; and Adam Thierer's got a review over at the Technology Liberation Front]
And Speaking of My Book:
[I warned you I could be shameless about promoting this book of mine . . .]
Maybe everyone already knows this, but it was news to me: the price that Amazon charges for individual books fluctuates (rather widely) from day-to-day. For instance, (and I assume this is generally the case), I've noticed that my book, which lists for $27.95, has been priced as low as $18.45, and as high as $22.75. That's a pretty big swing, percentage-wise.
There are a couple of interesting things about this. It's a very risky strategy, it seems to me. Having the ability to instantly recalculate the price charged for goods can be very efficient, of course, in allowing a merchant to respond to fluctuating changes in demand and fluctuating price points. On the other hand, it is a strategy that can only work well when it's not widely known that it is taking place. It's the opposite, if you will, of those "price guarantees" that many merchants offer -- consumers hate feeling like they've overpaid for goods (even if the dollar amount is relatively small, nobody likes the feeling of having been "stiffed"), and if they are reassured ex ante that they are protected against that risk they will be more likely to part with their money. Conversely, the knowledge that the price might drop at any moment gives them the incentive to defer their purchase -- perhaps indefinitely.
Have I blown their cover? Or was this in the category of common-knowledge factoids that somehow I had just missed picking up?
[And please note -- I am not unaware of the cruel irony that, if I'm right that this isn't widely known, this posting itself might have the perverse effect of reducing everyone's incentive to buy my book by making it more widely known (and thereby giving all you potential purchasers the incentive to defer your purchase . . .). Probably not the greatest marketing strategy, for me -- but chalk this one up to my naive Jeffersonian belief that, in the final analysis, more information is always better than less. Plus, what's a few bucks among friends?]
Obscenity Conviction for Adult-to-Adult Noncommercial E-mail About (Fantasy) Sex With Children:
I blogged last December about the Fourth Circuit opinion (U.S. v. Whorley) upholding this conviction; yesterday, the Fourth Circuit denied rehearing en banc, with only one vote in favor of en banc review -- that of Judge Gregory, who dissented from the panel opinion. Here's most of his dissent from the denial of rehearing; I think the majority have the better view of the matter under existing First Amendment precedents, and I doubt that the Supreme Court will agree to hear the case to revisit or limit those precedents, but I thought the argument was nonetheless worth noting:
Dwight Whorley was convicted on twenty counts of violating [the federal ban on transporting obscenity in interstate commerce] for communicating by e-mail with consenting adults about their personal and private fantasies. The offending e-mails were purely textual and did not include any images. They implicated no commercial interest and, although the e-mails described fantasies about sexual conduct involving children, the children referred to were imagined, not real. It is undisputed that the e-mails did not involve any victimization or exploitation of actual children....
This is a difficult case. The e-mails were admittedly transmitted and received through channels of interstate commerce and were found by a jury to be obscene under the obscenity test laid out in Miller v. California (1973). One might say that this absolves us of the need to look any further into the potential constitutional harms inflicted by the application of 18 U.S.C. § 1462 to Whorley's conduct. Haven't we long said, after all, that the First Amendment does not protect obscenity? Yet, "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end." Ashcroft v. Free Speech Coalition (2002). I am hard-pressed to think of a better modern day example of government regulation of private thoughts than what we have before us in this case: convicting a man for the victimless "crime" of privately communicating his personal fantasies to other consenting adults.
In Stanley v. Georgia (1969), the Supreme Court extended First Amendment protections to the possession of obscene materials in the privacy of one's home. Since then, our obscenity jurisprudence has not allowed Stanley to reach much beyond its facts. As the panel opinion notes, the Supreme Court "has repeatedly rejected the notion ... that as a matter of logic, because the First Amendment prohibits the criminalization of private possession of obscene materials within the home, there exists a correlative 'right to receive' obscene materials." Yet, I am aware of no case that, in limiting Stanley, deals with circumstances like this where the sending or receiving of the obscene materials involves neither a commercial transaction nor any kind of victim. In fact, I have difficulty seeing what interest the government could possibly have in regulating this particular conduct of Whorley's other than some sort of "indirect harm" theory of the type rejected by the Supreme Court in Free Speech Coalition.
In that case, the Court considered the constitutionality of a definition of "child pornography" in the Child Pornography Prevention Act of 1996 that would have covered "a range of depictions, sometimes called 'virtual child pornography,' which include computer-generated images, as well as images produced by more traditional means." Noting the clear state interest in prohibiting the production or distribution of images that "are themselves the product of child sexual abuse," the Court could identify no similar interest in regulating "virtual child pornography" since it "creates no victims by its production." The Court then rejected the Government's claim that this kind of pornography can indirectly cause harm by creating "some unquantified potential for subsequent criminal acts." The Court found that "[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it .... [because] [t]he government 'cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.'"
Similarly, here, I see no interest in regulating the sending of private e-mail fantasies about imaginary children beyond the perceived desirability of censoring these kinds of thoughts. Free Speech Coalition makes clear that the First Amendment protects against this kind of censorship premised on speculative and indirect theories of harm.
One might argue that this case is distinguishable from Free Speech Coalition because here we are dealing with material that has been found obscene and thus is not entitled to any First Amendment protections to begin with. But, as the Supreme Court recognized in Stanley, while "the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity[,] .... the assertion of that interest, cannot, in every context, be insulated from all constitutional protections." Free Speech Coalition and Stanley, taken together, stand for the proposition that when the government's only interest in regulating obscenity is to protect people from their own thoughts or to censor thoughts that have an unquantifiable potential to induce future bad acts, the First Amendment shelters individuals from this kind of state intrusion on their personal privacy. "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds ." Stanley; cf. United States v. Reidel, (1971) (suggesting in reversing dismissal of indictment for mailing obscene circulars that the case might be different if defendant had "complaints about governmental violations of his private thoughts or fantasies").
The Supreme Court has long recognized that "constitutionally protected expression ... is often separated from obscenity only by a dim and uncertain line" and thus we must be careful that "regulations of obscenity scrupulously embody the most rigorous procedural safeguards." Where the state has a legitimate interest in regulating obscene materials -- for example, where those materials are being commercially traded and/or where those materials are the product of the abuse or exploitation of their subjects -- the First Amendment's protections may not apply. But where the only articulable interest in regulation is a fear of the expression of certain kinds of thoughts, even obscenity must be given a constitutional safe harbor. "Stanley rests on the proposition that freedom from governmental manipulation of the content of a man's mind necessitates a ban on punishment for the mere possession of the memorabilia of a man's thoughts and dreams, unless that punishment can be related to a state interest of a stronger nature than the simple desire to proscribe obscenity as such." Reidel (Harlan, J., concurring).
In today's world, our e-mail inbox, just as much as our home, has become the place where we store the "memorabilia of [our] thoughts and dreams," and the same principles that animated Stanley call now for Stanley's extension to the circumstances of this case. A failure to recognize Stanley's applicability to non-commercial, private e-mail communications in which the government has no legitimate interest dangerously restricts the use of today's dominant medium for exercising freedom of speech.
The Supreme Court's obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this kind of governmental intrusion into individual freedom of thought are incredibly worrisome. This is an important and difficult case, and one that I strongly believe merits rehearing by this court sitting en banc. My colleagues apparently disagree, and I therefore urge the Appellant to seek certiorari from the Supreme Court.