Ok, so, I get both the legal and the substantive beefs people have with Citizens United.  I’m basically a “political speech? well, bugger off” sort of guy, so all this business about whether corporations are +3 paladins or whatever just doesn’t interest me, but I understand the arguments. Bracketing all that, though, if you really think this is a death knell for democracy… why do you even believe in democracy? The status quo is that corporations influence  politics by straight bribery, thinly concealed by various means.  The CU ruling means that, alternatively or additionally, they can throw money at making some kind of explicit argument on the teevee.  In our sad flawed little world, the bigger megaphone means they have more influence than some dude in Hyde Park who might have a better argument.  But if that wrecks democracy, then democracy has no justificatory value at all.  You have to pick.

On the one hand, maybe for all our folly we’re basically engaged enough—or the people who decide to vote are engaged enough—that we can sift through the media maelstrom and figure out, on average, whose principles, character, and record best represent our community. On the other hand, maybe we’re a bunch of chimps who will vote for the shiny thing.  I incline toward the latter, but I’ve never been all that big on the intrinsic virtues of democracy.  I just have trouble wrapping my head around the view that combines these two beliefs: (1) The wisdom of the people, on the whole, justifies not just the installation of Candidate A over Candidate B, but a whole array of coercive state policies, and also (2) We’re really easily led, and will sell our firstborn to Altria if a slick ad says to. It seems strange for both those things to be true.

Sonny Bunch over at America’s Future Foundation gets all wound up over the idea that copyright is centrally about creating an instrumental incentive for production:

Yes, copyright was created in part because there were concerns that authors wouldn’t bother creating new work if they were consistently stolen from, leading to Yglesias’s oddly solipsistic reading of intellectual property law. But, more importantly, copyright law evolved because we think that artists, writers, musicians, and others have a right to profit from their labors. It’s a crazy idea, I know.

Call this the Lockean theory of copyright—a theory conspicuously absent from the Constitution’s Copyright Clause, which ties “exclusive rights” to the promotion of artistic and scientific progress. The thing is, this reading seems to make patent law a gross violation of the same right. Doesn’t it “rob” those who independently replicate a patented invention the right to profit from their labor?

Also, one wonders: How much do they have a right to profit? Assuming Sonny’s not going Marxist on us, I expect he doesn’t mean “commensurate with the amount of labor invested.”  He means, one supposes, whatever the market will bear. But what the market will bear depends pretty heavily on the precise contours of the copyright. How broad are fair use exemptions? How long is the term? (And if IP is really just like physical property, why are there fair use exemptions or terms?) If copyright isn’t mostly about incentives, by what standard do legislators decide these things? Does a 14 year term respect the right or violate it?  There are, of course, always fuzzy boundary questions when it comes to any sort of right. But a range between 14 years and life-plus-70 isn’t exactly a boundary question. How does Congress establish the morally correct level of protection to reflect in the law?

But wait, it gets weirder! Because this Lockean labor right is also supposed to extend to sound technicians and producers, who are apparently “robbed” by piracy.  Except… they have no copyrights; they provide a service for a fee to the actual copyright owner. If they’re being robbed, then the guy who makes off with my laptop is actually robbing Steve Jobs too!  Who knew?

The New York Times on China’s hacker underground:

Three weeks ago, Google blamed hackers that it connected to China for a series of sophisticated attacks that led to the theft of the company’s valuable source code. Google also said hackers had infiltrated the private Gmail accounts of human rights activists, suggesting the effort might have been more than just mischief.

A sophisticated zero-day exploit simultaneously targeting dozens of major tech firms?  Yes, now that you mention it, I suppose it is possible this wasn’t just some kids fooling around in the basement.

At the risk of rambling on redundantly, I want to stress one thing about my attitude toward the Citizens United case: We’ve been focusing on this question of “corporate personhood” because that’s the legal frame we’ve been handed, but it’s pretty much irrelevant to my thinking about this question. The root conviction here is just that when someone has produced an unflattering political documentary about a sitting senator who is seeking higher office, and the government seeks to prohibit it from airing just because the person to whom it pertains is seeking political office, that cannot possibly be compatible with the First Amendment. Who produced or funded it are beside the point.  Now, if you tell me that with such-and-such a fact pattern, given a framework of other legal decisions, this result requires the court to treat corporations as bearers of First Amendment rights, so be it. If you tell me the courts have an alternative means of reaching the same result while denying that corporations have such rights, fantastic. I have no real independent commitment to a position either way on this question, except insofar as it appears to be necessary to avoid carving a huge loophole in protections for political speech.

If we just work from the text of the First Amendment, it seems perfectly possible to go another route, because unlike (say) the Fourth Amendment, it doesn’t technically grant speech and press rights to persons; it just prohibits a category of government action: “Congress shall make no law…”  It immunizes an activity, not a class of actors.  Again, I’m happy to take the path of least resistance here.  My understanding is that “corporate personhood” for constitutional purposes is not a novel result, and indeed, that all nine Supreme Court justices agreed that First Amendment rights were implicated here. The dissenters just thought campaign finance law served a “compelling interest” that justified overriding the right to free speech. But if people are unhappy with that legal concept, I’d be delighted to take the alternate path to the same outcome.

Something that’s implicit in a lot of defenses of the Citizens United ruling I’ve seen in the past day is probably worth noting explicitly: The ban on independent corporate/union expendituures for “electioneering communications” that the court struck down was actually quite narrow.  Basically it covered TV and radio advertising, and didn’t touch myriad other forms of political persuasion that rely equally on corporate money. Political magazines, books, radio programs, Web sites, TV shows, theatrical films, and so on are all put out by corporations that, in many cases, take money from still other corporations.  Mostly we’ve been pointing this out as a kind of reductio: “Your argument works exactly as well for all of these other forms of speech, but nobody thinks a ban on the New York Times would be constitutional just because it’s published by a corporation.”  (The responses to this seem to consist of some very confused ideas about what the word “press” in the First Amendment means.)

But I think it’s probably worth probing the underlying intuition here: Why is it that so many people who clearly do think books and magazines and talk radio shows enjoy unambiguous constitutional protection, despite being corporate funded or operated, are simultaneously absolutely sure that paid broadcast spots are in an utterly different category? If one is above all concerned with exacerbating the translation of economic inequality into political inequality, it seems rather odd.  In effect, it means you only get to use your corporate money to get your agenda on the airwaves if (like GE or Time Warner) you’re big enough to buy them wholesale. But that’s OK, because you can pump money into all those other means of trying to influence voters; it’s just broadcast advertising that’s out. So I’d like to flip the reductio question around and ask: Given that people seem to mostly agree that all this other stuff constitutes protected political speech, why do so many people have such a different attitude about paid ads?

My hunch is that it has something to do with the imagined audience.  Political content is generally sought out and consumed by people who are already politically engaged and informed, and probably have some settled partisan commitments already. Broadcast ads basically deliver a vague positive or negative association, maybe by force of sheer repetition, to people who might not otherwise be paying any attention. So there’s a temptation not to think of it as speech—at even a debased sort of attempt at reasoned persuasion—but rather as a kind of low-grade brainwashing. That might not be far wrong, but I dislike the idea of importing a pessimistic view of our savvy as citizens into our thinking about the protection due political speech, even where the pessimism is defensible.

For those who didn’t want to sit through the full panel, here’s an eight minute excerpt:

Federal prosecutors have convened a grand jury in the investigation into Arizona thug Joe Arpaio. I suppose he’s unlikely to spend his last  pathetic years chained to a peg in the ground in some sweltering “tent city”—but one can dream.

There’s a running conversation over at the Corner about the parallels between opposition to torture and pacifism, which is really just a thinly-veiled version of one of those tendentious hypotheticals about the nuclear bomb in Manhattan whose location (you know with apodictic certainty) can only be uncovered through the judicious application of thumbscrews. As such, the analogy suffers from the same two defects: One empirical, one conceptual.

The empirical problem is this popular but stunningly stupid version of cost-benefit analysis that fails to seriously consider costs.  Which, I guess, makes it “benefit analysis.”  In other words, if it seems as though torture ever yields important and actionable intelligence more quickly than alternative methods, we’re supposed to take it for granted that this completes the necessary utilitarian analysis.  And this is just absurd. How does torture affect the willingness of enemy combatants to surrender? How much does it complicate our relations with allies? How many people does it help to radicalize against the United States? How many non-radicals does it leave sufficiently disgusted that they’re less motivated to assist the U.S. in fighting radicalism in their communities?  You’ll notice that torture-fans never really attempt to deal remotely seriously with any of these questions; they just babble inanities about how Fanatics Will Hate Us No Matter What. Which, of course, some will—but that’s hardly to the point, is it?

The conceptual mistake is to suppose that we’re faced with a binary choice between a pure consequentialism that just mechanically adds up all the yums and ouches or a kind of absolutist deontology that hews to a principled rule, and damn the consequences.  The point of invoking pacifism is to imply that if you want to consider any non-consequentialist moral properties of certain kinds of acts, you’re compelled by relentless logic to the most extreme possible position.  The thing is, pretty much nobody really thinks this way. Most people—the vast majority—will say it’s immoral to secretly chop up a healthy vagrant for organs to save five other people. We’re not just interchangeable tokens in some great social calculus, but individuals with individual rights that must be respected—rights that trump maximization of social welfare.  Except that if suddenly we’re sure we could save a thousand or ten thousand or ten million people by killing one innocent, most of us will at some point say, reluctantly, that it ought to be done after all.

This is supposed to be theoretically unsatisfying because it seems inconsistent—if the weight of the numbers can outweigh those supposed rights after all, what’s so special about ten thousand or whatever other number? Why not five? But the demand for consistency here is misplaced.  Our seemingly incoherent intuition here is grounded in the sense, which I think is correct, that consequentialist and deontic approaches both capture some sort of important moral truth, but that the two frameworks are (or have thus far seemed) incommensurable or incompatible in some deep way.  The best we can do is to say that sometimes one will seem more appropriate, sometimes another. But it’s pure question-begging to insist that the internal standards of one framework or the other be used to determine where that transition point between approaches lies.  That’s just tantamount to saying that the standard-setting framework is really paramount after all.  I prefer the position that’s less theoretically tidy if it has the advantage of not being obviously wrong: At some point the consequences are so extreme that you ditch rights talk and just count noses—but it’s not a point we often encounter, even in counterterror policy.

I haven’t seen Sherlock Holmes yet, but I’ve seen way too many writers who ought to know better pitching the so-contrarian-its-now-CW line that Guy Ritchie’s transformation of Conan Doyle’s überrational sleuth into a two-fisted brawler is actually faithful to Conan Doyle’s original stories. After all, Holmes is described as being not just a skilled boxer, but a master of singlestick, fencing, and “baritsu.” In a few brief scenes over the course of of 56 short-stories and four novels, we even see him employ these skills.

It’s also true that in several of the Gospels, we get some version of a story in which a hungry Jesus gets pissed that a fig tree hasn’t grown any figs for him yet, and zaps it with Jesus-magic. But while I can imagine a cinematic adaptation where the Passion of the Christ turns out to be miraculous weed-whacking, it would be a Life-of-Brianesque farce, not a sincere attempt at interpretation.

There are, incidentally, all manner of allegorical readings of the fig tree story, but I’ve always liked the rather more straightforward one: That it really is an aberration, the point of which is to draw your attention to how aberrant it is. Let’s face it, you’d been bitten by a radioactive Holy Ghost, this is exactly how you’d use your divine abilities: You’d wither inanimate objects in fits of pique, sling Avada Kedavras at babies on planes, burst the heads of queue-cutters like eggs in a microwave, and generally act like the superpowered anime badass Jesus from that last Left Behind book. The fig story reminds you that Jesus could act this way, has all the emotional plumbing that would motivate him to act this way, but doesn’t act this way, because he’s Jesus, and you aren’t.

This is probably not the right way to read the Gospel story, but I do think it works for the Holmes stories. The rare fight scenes establish that merely physical challenges are no real challenge at all for Holmes: He wins his fights quickly and handily. Combat is just one more discipline he’s studied and mastered. But they also underscore, by their very rarity, that Holmes could be much more of an “action hero”—and chooses not to. He’s capable of throwing a punch with the best of them when it comes to that, but usually manipulates circumstances so as to render such crude displays unnecessary. Despite being an expert marksman, he typically relegates pistol-brandishing duty to Watson or the police, leaving him free to deliver witty remarks to their quarry.

I’ll still go see it, of course; by all accounts it’s a ripping yarn. But I’ll think of it as the story of a Victorian action hero who, by sheer coincidence, shares a name with that detective fellow.