Nowhere Near Any Road to Damascus

I'm not going to spend a lot of time or effort dealing with the current situation in Syria — I know enough to know that what I do know about that area, regime, etc. (which is one helluva lot more than the average bear, policy wonk, or media dork) is not sufficient to make a detailed decision, and will no doubt become obsolete within a week or so of this blawg posting regardless. I find it rather unsatisfying — and I say this without prejudging whether it would be a good idea (in a policy sense or otherwise) — that the discussion is about action against a purported monolithic regime and not against responsible person(s). Leaving aside that no organization bigger than that necessary to run a local animal shelter is truly monolithic, it's rather disturbing that rendition to the ICC in the Hague is not being mentioned at all... it's as if we're afraid to discuss the monsters in our midst unless we can take down a whole herd of monsters at once with shock and awe. I'm not saying that a "more surgical" option is necessarily better or worse — only that it's troublingly absent from the conversation.

• RIP Seamus Heaney, a Nobel Prize-winning poet.
• Libraries and bookstores are really dangerous... sometimes more literally (and literarily) than not, as with a German bookshop in a rather unusual location.
• A European defender of the public library demonstrates the same kind of insularity that Americans are so often accused of (too often correctly) when he proclaims:

  The idea of the library as "the living room in the city" was first promulgated in 1970s Scandinavian library design, as architects responded to users' wishes to stay longer, have a coffee, and enjoy storytelling sessions, lunchtime concerts or attend book-reading groups. Visiting Örnsköldsvik library in northern Sweden, close to the Arctic Circle, I noticed users brought their slippers and a packed lunch. This new understanding of the library space is formalised, for example, in Rem Koolhaas's Seattle library, where three of the five floors are designated as The Reading Room, The Living Room and The Mixing Chamber.

  (emphasis added) Really? It seems apparent that Mr Warpole never went to the old Seattle Public Library (a 1960s-era building) or the main St. Louis Public Library in the early 1980s (retaining its 1950s layout). He also somehow fails to understand the public-accommodation aspect of American university libraries, such as the Undergraduate Library at the University of Washington just down the road from the old Seattle Public Library (again, a 1960s-era building). There's very much a not-invented-here-in-the-Old-World flavor to his entire article. And that's sad in itself, because the very point of a library open to the public is that it brings the rest of the world to the community.

• "Success" and "talent" are often... distinct. A few years of representing authors who've been screwed by The System demonstrates that pretty definitively. When even the Financial Times admits that they're not the same (Exh. A: Whitney Houston v. Mahalia Jackson) — and when careerism (even in academia) is an adequate substitute for rigorous thought — the discussion gets rather interesting (in the sense that word would be used in a graduate seminar — "you're utterly insane, but I'm too polite to diagnose you just because you've merely said something utterly insane"). We wring our hands over the worth of an English degree while simultaneously applying incoherent and incompatible methods to determining what one reads to get that English (or any other) degree. Consider the purported foundational works in "American literature" for a moment, and ask yourself whether a student (or scholar) with limited time would not be better off studying European works of the same age... but for the political necessity of American exceptionalism in the American university and the politically imposed role of producing graduates ready to engage in Coolidge's prescription for the nation (how'd that work out in 1929, anyway?). Of course, even a cursory look at where the money goes explains a great deal about the doublethink behind all of this...
• Sometimes, though, one must take one's amusement from other places, such as radical changes of context. The Ninth Circuit ruled this morning that the goose's liver's producers are cooked (PDF) — however tasty the liver itself. A California statute prohibited anyone from selling foie gras produced by overenlarging the goose's liver anywhere within the state. Naturally enough, out-of-state producers of foie gras (which is hardly a staple item in any kitchen) via the rather unnatural process used sued, alleging a variety of grounds for holding the statute unconstitutional. The unintentional hilarity of the opinion arises from the dead-serious, deadly-boring prose used to discuss a hyperbolic, emotional issue. And there's a similar tinge to the Eleventh Circuit's ruling yesterday on landmark designations of religious building by disgruntled former congregants who just happened to be a majority of the city council (PDF), which unintentionally recalls seventeenth-century Amsterdam and Prague. Of course, spotting that would have required at least one of the litigants to be looking beyond their own immediate self-interest, which is rather ironic in itself considering the subject matter.

The Price of Superheroism

One of the real problems with art/literature/culture in the comics world — and by no means am I excluding H'wood interpretations of comics — concerns the single most-common superpower possessed by the various heroes (and, for that matter, the various villains). In fact, it's an almost universal superpower, to some degree or another. So, then, what superpower do the following individuals share?

• Iron Man (Tony Stark)
• Batman (Bruce Wayne)
• Nick Fury
• Dr. X (Charles Xavier)
• Wonder Woman (Diana Prince)
• Green Arrow (Oliver Queen)
• Aquaman (Arthur Curry)

Yes, they all have the same superpower: Unlimited liquid financial support that they neither need to earn¹ nor account for to anyone else. The closest that any of them come to "accountability" is Nick Fury's occasional battles with oversight committees (that he always wins), and perhaps Diana Prince's purported occasional social-life struggles. The rest of them routinely take on Apollo Program-scale projects out of pocket change... and never have to worry about the mortgage, the annual performance review (even "working stiffs" like Hal Jordan, Clark Kent, and Peter Parker never seem in danger of actually losing jobs that — not coincidentally — have neither productivity requirements nor actual supervision), or worst of all the collateral damage caused by their "heroic" activities. Brad Bird's The Incredibles sort of hinted at this latter issue, but didn't follow through very convincingly; there's no sign that Mr. Incredible's pay is being garnished to pay for the damage he's caused over the years, or even during the film itself. Consider, for example, one of the least-unrealistic environments: The Buffyverse. Sure, Buffy had a few financial problems after Joyce's death... but they all came to nothing via deus ex financia, even without going back to court to make Buffy's father pay Dawn's child support (or, for that matter, without Buffy's father trying to take custody of Dawn so that he didn't have to keep paying child support).

The irony that these superheroes essentially share their superpowers with their opponents appears to have escaped just about everyone, and reveals that much of what is going on is pre-Magna Carta England: The superheroes and supervillains are battling between themselves in baronial-faction wars, and the damned peasants had just bloody well better stay out of the way until they're needed as levées that actually do not effect the outcome. The end of the most-recent Superman film epitomizes this: Superman (literally) destroyed his "village" to save it; the less said about Alexander Luthor, Jr.² the better. The superheroes never stick around for the rebuilding effort. The way they deal with the shell-shocked veterans of their wars makes the Veterans' Administration look good... and believe me, that would have been a superheroic achievement itself even in the 1980s.

What is perhaps worse is what this attitude implies for heroic efforts in the "real" world. Hancock misfired primarily because it did not follow the hero far enough into the gutter, let alone into bankruptcy court. It's not that comics and related artforms don't have "tortured" heroes with consciences³ — they occasionally do, or least pretend they do for some divorced-from-reality version of "conscience" — it's that nobody notices the mass of problems around them. That failure to notice collateral damage is bad enough; failing to notice the quiet lives of desperation of those around them is, perhaps, worse. Nobody notices that any of the mechanics or secretaries at Ferris Aviation, or Stark Industries, or Queen Consolidated, struggle routinely; there's no attention paid to the hot-dog-cart guy from whom Clark and Lois occasionally (one must assume) buy lunch. Because their concerns don't directly impact the heroes, they simply do not exist... and the heroism of standing up to immediate crises gets lost entirely.

Admittedly, this is all in the context of works of fiction; and even in "real life," we don't pay much attention to things that, well, don't come to our attention. *cough*Veterans' Administration*cough* That's not the same thing, though, as consciously denying their existence. Perhaps that is the real price of superheroism: Ignorance of even the clear, direct economics outside of one's own tunnel-visioned view of existence. That's not to say that there are no "higher values" worth fighting for; it's only to say that there's a price for doing so, and that price is perhaps more easily measured than many ideologues might expect. "Truth, Justice, and the American Way" probably costs a few subsistence-level farmers a year of crops, or worse, leading to some awfully lean winters — and probably disease and starvation — in the unnamed locations where superheroes go to fight their incredibly destructive battles; it's time to admit it.

---

1. Indeed, most of these superheroes obtained their virtually unlimited resources through inheritance from prior generations (without too much examination of how those fortunes were built) — and even when the resources aren't formally liquid/cash, the Diana Princes and Arthur Currys of the superhero pantheon tend to be rightful hereditary rulers. Everything that Tony Stark has is built on what he inherited from his father, and it's frequently even more extreme (as in the Xavier, Wayne, and Queen families).
2. Or, perhaps, the Koch brothers...
3. It perhaps says more about the writers than the heroes themselves, but that's a complex argument for another time at a literary conference. This is a particular problem with H'wood — an environment in which virtually no one with decision authority has any way to relate to being poor as anything other than a pretty damned good piece of writing. Even in "poverty-stricken" environments like the Baltimore of The Wire, the spaces are too big and too clean so they can easily maneuver the bloody cameras and lighting rigs...

Miranda Warning

The "detention" of a reporter's partner at Heathrow because that reporter had a part in the Snowden contretemps angers me a great deal. Unfortunately, it is also merely a more-visible-than-usual, but almost expected, consequence of the interplay among three cultural factors that are unrelated to actual security, but nonetheless dominate the mindset of all national security apparatchiks^*. Within that warped little world — a world that believes it encompasses all —

• Political and personal reputation are essential elements of national security. From this perspective, what is even worse than rumors is confirmation that rumors that a significant portion of people — or, at minimum, significant personages — believed, with at least some factual support, to be true all along. This is an extension of the "all secrets have value" meme that has taken hold of world (not just Western) politics since the adoption of the printing press made it relatively easy and cheap to disseminate secrets once discerned.
• The ends have nothing whatsoever to do with the means used to achieve them. That is not to say that there is never a necessity to evade the strict (and often not-so-strict) requirements of the law to protect the foundational systems for the rule of law. Such evasion must be explicitly considered by all involved, must come only after trying just about everything practicable short of that point, and above all must be vanishingly rare. It cannot become sub rosa, the first option, or above all routine, merely because it's more convenient or perpetuates/advances power and ambition.
• No individual is ever accountable for anything. Ever. Except, that is, if it is politically convenient to throw that individual under the steamroller of institutional politics. This has less to do with ideology than with the self-perpetuation of the unelected, secretive, shadowy national security apparatus. "Intelligence" and "special operations" and "counterterrorism" are the last refuge of "I was only following orders, or at least I was only being creative in support of mission requirements."

Somewhat cynically, one might consider this the British intelligence community's attempt to demonstrate that it's got assholes just as big and brazen as those in the US after the unlawful, unjustified by any need, and ultimately counterproductive pretrial treatment of Bradley Manning. Listen, guys, Manning was always going to get what was coming to him — he was held accountable for his violations of the rule of law, however twisted the law and circumstances may have been. As a smart, if amoral, political operative once said on The West Wing, "A truly self-sacrificing act usually involves some sacrifice." The corollary for national security apparatchiks is a bit more verbose: "Selecting the lesser of the evils usually involves accepting that all of the choices being considered are evil" — and that runs exactly counter to each of the three cultural factors I described above.

Shakespeare's Miranda presents a warning of change, of time, of the inability to permanently control others so long as we recognize that those others are individuals and not merely extensions of ourselves. When the US courts drew a line over treatment of Ernesto Miranda, they implicitly warned of the need for the State to explicitly warn people that the State's interests and presumptions might not match those of the people under State scrutiny. It is perhaps too early to discern the implications of Britain's treatment of David Miranda... except that once we untangle everything (or even just a lot of things under circumstances preventing us from knowing everything — just like in the shadowing world of intelligence) we'll find corollaries of both.

---

^* This invocation of the Cold War is with malice aforethought. This isn't just about national interests; it's about ideology, and hypocrisy in the face of ideology, and ideology as the toreador's cape distracting from the naked steel of power.

The Distributive Properties of the Arts

Put down the fountain pen and step away from the insurance forms...

• I was never a fan of their instruments — I always preferred the heavier keyboard action of a Yamaha — but it's sad to see Steinway & Sons sold to a hedge-fund mogul. That's not because the arts and business somehow have no proper relationship (that way lies starving artists), but because it reflects problems with distribution that will not be magically solved by an owner with deeper pockets. The real problem with Steinway — for at least three decades — has been that it's incredibly difficult (and overpriced) to actually get ahold of one. Put another way, pianos don't travel well... but that's been absolutely necessary to get them to potential purchasers.
• Then there's the "publish or perish" problem, for insanely variable values of "publish" and "perish."
• One of the consequences of the inability to truly "distribute" singular works of fine art is "access control." We often call centralized access control a "museum." And sometimes, museum owners go bankrupt.
• As a potential refutation of the "all publicity is good publicity" meme, consider what happens when people are exposed to art alongside the canon. In this instance, the examples are perhaps too extreme... but they're nonetheless revealing. On second thought, given some of the publicity efforts I've seen out of H'wood, I take that back!
• Then there's copyright, tattoos, personal expression, and the very meaning of "distribution" — or, as the Berne Convention puts it, "ma[de] available to the public", for some value of "public".

Excluded Middles

Jim Hines's cartoon summary of the public brouhaha¹ concerning sexual harassment/misconduct at speculative-fiction-oriented conventions is a sadly accurate depiction of reality. And it's certainly not limited to speculative-fiction-oriented conventions — consider the depressing evidence amassed by Senator Gillibrand on sexual harassment in the military, and remember that that's from an unusually open and honest set of sources that is unusually willing to engage in self-examination and take internal corrective measures. The less said about the legal profession's role, responses to this particular issue regarding others, and own problems, the better.

Jim's cartoon accurately depicts several unsatisfactory aspects of the brouhaha, largely because virtually everyone engaged in it is excluding the middle and refusing to acknowledge that anyone else's position might have any hint of truth, let alone might reflect real concerns. Breaking down each of the three panels, choosing randomly whether to start on the left or the right side of the panel, demonstrates that the conversation depicted cannot and will not lead to any improvements for damned near anyone. Flipping a coin and coming up with "tails"...

• Panel 1, right — the responders — reflects the "black hat/white hat" theory of character all too accurately. To put it in another, current, context, those responders are implicitly arguing that because Mayor Filner is in favor of political and social ends of which they approve, he can't possibly have any character flaws. Or, perhaps, it's like Patton and his infamous temper. Sorry, guys (and it's almost all guys), but character does matter... and if you need some real proof of that, consider how much of modern "progressive" politics rests on policy and legislative initiatives pushed by Richard Milhaus Nixon, whose character flaws were so deep that they cannot redeem those initiatives (and arguably taint them today).

  Panel 1, left — the complainant — reflects a clear misunderstanding of fears of persecution, whether justified or not. Birmingham Sixes exist, and there's a natural tendency to presume that "worthies" (see the preceding paragraph) do not have those flaws and therefore are more subject to "false" complaints. This is entirely understandable: No victim should be required to be entirely rational and even-handed when reporting an incident. (Honestly, no victim can be — from sexual harassment to genocide — and we ignore that at our peril.)

• Panel 2 (flip: heads ) left — the complainant — reflects the kind of middle ground that often gives middle grounds a bad name. On one hand, there's an understandable desire to avoid reliving the incident, and to look forward to prevention. On the other hand, the timidity of the statement's presentation invites precisely the kinds of responses (even those offered in good faith, which one cannot judge from the cartoon) that become great big stinking barrels of red herrings. It's just bad communication strategy, and perhaps the worst of all worlds. If you really want proof of that, just look at the recent mistreatment of Ms Matthesen before the perp's name leaked.² Her story instantly became more "credible" once a name was out. Keep in mind that this is, in the end, a decision only a victim can make; third-party accusers should be more circumspect absent immediate danger of escalation by the perceived perpetrator.

  Panel 2, right — the responders — reflects ignorance of three serious problems with communication of complaints in general, but especially complaints concerning sex. First, there's the presumption that any amount of detail would be sufficient to convince some "defenders" (and they tend to be the loudest ones) of what actually happened; consider the "defenses" offered concerning Bosnia before the prececessor of the International Criminal Court... Second, there's the presumption by those who have never been victims of serious misconduct that the victim can, in fact, accurately recall every one of those details afterward, in the face of all the objective evidence that eyewitness testimony is often unreliable (even from trained observers). Third, there's an undercurrent that the victim "needs" to relive the event again, in detail, for the fact of the event to matter. To anyone.

• Panel 3 (flip: tails) right — the responders — reflects what happens in a vacuum: Somebody comes along to fill it. In this instance, it's an abuse-of-power vacuum. Blaming victims is never ethically, morally, logically, or rationally appropriate — but it's a common reaction nonetheless. It's also entirely understandable (if still wrong) coming from people who have never, themselves, been recognizably victimized; that is, it's also entirely understandable (if still wrong) coming from people who are, or perceive that they are, on the strong end of the power spectrum. More disturbingly, it's also understandable (if still wrong) coming from people who have experienced, or believe they have experienced, "reverse discrimination" in any context, especially when that discrimination extended from viewpoint disapproval to viewpoint suppression.

  Panel 3, left — the complainant — reflects a common response to abuse, and particularly among victims who have observed previous incidents (whether or not concerning them individually), or even heard of previous incidents (real or imaginary), in which the real "witch hunt" was of the victim. This extends from high school "slut shaming" to the tactics engaged in by too many defense counsel in sexual misconduct trials concerning a high-power/prestige accused abuser. That a nonzero proportion (however small) really does involve objective "innocence" of the accused just reinforces this in a particularly vicious positive feedback loop.

There are really two excluded middles here. First, there's the excluded middle of communication: That we're supposed to be learning something, even if it's distasteful and about people we otherwise admire. Sometimes that includes the victim; as a particularly distasteful example, not every sexual encounter of even a sex-addicted "escort" (if one exists, and regardless of gender/orientation) falls outside of any reasonable definition of "rape." The cartoon all too accurately depicts the unwillingness of anyone to learn. In this instance, I'm not blaming the complainants at all; I'm blaming the people who set up the systems in which complainants must complain. The people who have no understanding whatsoever of trauma, of PTSD, of what it actually takes to verify anything, and are concerned almost entirely with public relations aspects of misconduct complaints and their own potential liability (see footnote 2 below).

Second, and far more damaging (and damning to us all), there's the excluded middle of responses, and of time. The implicit assumption of the responders is that the only thing that matters, or will happen, is individual punishment of the accused, and those responders for whatever reason identify to at least some extent with the accused. That identification may come from the conduct; it more often comes from the consequences, particularly from misguided "zero tolerance" policies (and especially those "zero tolerance" policies that impose maximum punishment for each "offense"). The implicit assumption of the complainant is that the incident was isolated and personal, because to her (or him) it was... and anyone who believes that looking more broadly at context is easy just needs to look at the misguided, more-extreme Zionist policies that come disturbingly close to slipping yellow armbands onto Palestinians. Instead, everyone in this brouhaha seems concerned only with one point in time and one particular incident/response cycle.³ The punishment aspect should be our primary concern if, and only if, we believe that some form of "deterrence" is not only the most effective, but virtually the only, way to prevent future problems. As flawed as humanity is, I think it is better than that... but it requires more effort, more time, and more admission of self-imperfection to fill in this particular middle, which has far more than fifty shades of grey in it.

Better communication and broader horizons, combined with attention to context and efforts to alter it. What a shock that I'm advocating that particular response to a society-level problem... or that I'm unwilling to advocate a universal solution without allowing for any possible exceptions. Then, during the better part of a decade as a commanding officer, I was involved as a decisionmaker whose options were severely restricted by a smaller-than-optimal toolbox in more than one incident involving accusations of sexual harassment — and worse. There are no victors here, and trying to convert the brouhaha to a win/lose argument is illogical, unethical, and stupid. If that means that I'm "insensitive" to someone's needs, for some value of "someone," so be it; I'm imperfect.

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1. Why am I using a silly word about a serious subject? Primarily, because almost all of the "serious" words have been coopted by one or more "sides" on the issue. If I call it a "controversy," I'll be accused of minimizing it. If I call it a "conversation," I'll be misrepresenting it because there's so little communication actually occurring. If I call it an "outrage," or anything else with overt emotional content, I'll be accused of prejuding not just the general issues, but the individuals involved. That this all sounds like posturing at recess at a particularly class- and ethnicity-divided elementary school is not a coincidence: Ultimately, I believe that a certain immaturity is behind most of the rhetoric and solutions spewed forth from almost everyone on what is truly a serious issue and problem.
2. Let's just say that Ms Matthesen was misled by more than one individual/organization to whom she turned and leave it at that, ok? Unlike a victim in one of these situations, I have specific confidentiality obligations that prevent me from saying an awful lot more than that.
3. Indeed, that's the main reason that Senator Gillibrand's initiative to take criminal prosecution decisions concerning sexual misconduct away from unit commanders is wrong. Not only will it not work — it will just create cultural barriers making it even harder for victims to walk into the JAG's office, and if you don't think the "customer base" of a JAG's office is part of the rumor mill you've never been on a military installation — but it entirely avoids the necessity of changing the entire culture. She would have been better off proposing that West Point be closed, on the ground that we're getting lots of excellent officers through ROTC who do not go through a training program that begins with six weeks of counterproductive, inexcusable abuse... but West Point is in her state, so I didn't really expect that. I certainly don't expect acknowledgement that there's a cultural problem in the way we commission officers from the senior commissioned-officer leadership that benefitted from the (largely undeserved) promotion advantages of that West Point source of commissioning! (And I think the same — perhaps even more so — concerning Annapolis and Colorado Springs; after all, I personally know both complainants there... and commandants there.)

Applewood-Smoked Link Sausages

This platter is going to meander a bit and reach a huge rope sausage not divided into convenient bite-sized chunks.

• I'm no fan of the "nail theory" of anything complex ("For the want of a nail, the kingdom was lost"... and, therefore, the nail is the single most important thing in history), such as the dominance of Europe in producing the present world culture/civilization/whatever. Nonetheless, sometimes it's fascinating to consider complex interplays that revolve around single, discernable changes; adult lactose tolerance as a causal factor in European civilization is a good example.
• Civilization doesn't come just out of a milk bottle; it also comes out of madness, or at least conditions commonly referred to as "madness."
• On the other hand, it doesn't take descent into the depths of depression (or ascent into the low-oxygen heights of mania) to act and speak entirely irrationally regarding the arts... especially when there's outsider money involved.
• Ultimately, this is why democracy is having such a difficult time putting down roots in noncolonial Africa and Asia (not that it's easy in the ex-colonies... or for that matter the ex-Soviet Union!). It's a huge advance for a social grouping — and the arts are, if nothing else, a reflection of a social grouping's attitudes — to tolerate dissent. That's not enough for democracy to flourish, though; one must embrace dissent; one must be fascinated — not repulsed — by monsters; one must consider that, in the bowels of {insert religious icon here}, one might be wrong.
• Nonetheless, I refuse to discard my children, even when I'm done with them. Believe me, that made that cross-country move last year rather difficult...
• Here's another example of what's wrong with inherited wealth: Masterworks sequestered away by social parasites.
• Is the Internet a replacement for the awl bidness? There's a more-than-merely-credible argument that it already has, at least in the US. Even the Department of Justice's politically-hamstrung Antitrust Division proposes treating the Apple of 2013 like the Standard Oil of 1942 (and it's no coincidence that points to a wartime crackdown), implicitly acknowledging the importance of "information economy" practices to the overall economy. (Not to mention that it prevents the rise of another potential counterweight to the Koch brothers, whose fortune is founded in old-school energy monopolies, but that's a cynical view for another time.)
• Duelling briefs on remedies in the Wormyfruit litigation reflect another aspect of information-as-a-source-of-monopoly as a cultural problem, not just an economic one. The government's suggestion (PDF) includes a long-term monitor to keep the gangrene at Apple from spreading. Apple, in opposition, continues to proclaim its innocence (PDF) in a way that just reinforces my conclusion that the "defense" it presented at trial was always aimed at the remedy and not at liability.

  And none of it matters in the end. It is probably beyond the power of the court to order the firing and permanent barring from the industry of the individual wrongdoers and their closest allies at Apple (not to mention that it depends upon defining "the industry" in the first place). The radical structural remedy of divestiture of content from hardware is a non-starter after the failure of the AT&T breakup to sustain itself against financier and politician pressures... not to mention the failure of the Microsoft action to change that bit of overreaching. The DoJ's proposal doesn't go far enough to actually both fix the problem and prevent recurrence (even at/with Apple alone), and the Apple "proposal" is for the wagging of a finger under the nose.

  One must debride this wound before any healing can begin, let alone long-term rehabilitation. (I do not prescribe a course of leeches: We already have more than enough of them in the arts, including — in most instances — both the publishers and the entire respective distribution systems.) In this instance, that means permanently removing certain empire-builders from the potential empire. If Mr Jobs were still alive, that would include him; it definitely includes Mr Cue, Mr Saul... and some of their counterparts at the publishers. But that's not something that antitrust law allows, because antitrust law isn't concerned with the impulse toward building empires; it is concerned with the actual effects of empires, with little attention to potential effects or to the inimical effects of building the empires in the first place. This is, perhaps, inevitable from a legal theory that largely evolved in nations with long traditions of "landed fortunes" as the foundation of social leadership. It is also, perhaps, inevitable in a society that accepts Lord Acton's aphorism about power itself corrupting... which is demonstrably, historically wrong; it is the striving for power that corrupts, not power itself (if it was power itself, we would have no myths concerning "benevolent dictators" to draw upon).

  I'm much more sympathetic to the DoJ position as being consistent with the judge's findings of fact and conclusions of law than I am with Apple's. Apple continues to deny responsibility despite Jude Cote's finding — albeit without using the "L" word — that most of the executives from most of the companies involved lied about the price-fixing conspiracy. That, by itself, deserves fairly harsh sanctions... if only as deterrence against others, for some hopeful value of "deterrence." The key point is that there are no good guys here.

  [W]hile the two-year prohibition against Publisher Defendant interference with retail price competition was intended to serve "as a means to ensure a cooling-off period and allow movement in the marketplace away from collusive conditions," there is reason to believe the Publisher Defendants may be positioning themselves to pick things back up where they left off as soon as their two-year clocks run. The e-book distribution contracts that the Publisher Defendants have entered into under their consent decrees are disappointingly similar to one another. And, multiple Publisher Defendant CEOs have come to court and offered non-credible testimony on Apple’s behalf, with one even claiming that he was proud of his actions, both at the time he took them and still today. Ensuring that Apple can discount e-books and compete on retail price will make it more difficult for the Publisher Defendants to prohibit other retailers from doing so, and will help to ensure that the ongoing effective relief consumers are currently enjoying under the Publisher Defendant consent decrees does not prove entirely ephemeral.

  DoJ Brief (Doc. 329) at 6 (citations and footnote omitted; emphasis added). "Conscious parallelism" my ass — those publishers do not have similar cost structures, business structures, product lines (except in the fact of "e-books"), or much of anything else that would drive similarity in e-book distribution contracts without at least implicit collusion, helped along by the revolving-door nature of executive positions among the publishers.

  Apple's response is, to say the least, inconsistent with the factual record.

  Similarly, prohibiting Apple from negotiating certain terms that are available to its competitors, such as retail price MFNs with non-defendant publishers, or restrictions on their own ability to set prices and offer discounts after the publisher consent decrees expire, would place Apple at a competitive disadvantage by limiting its flexibility to choose a business model. These provisions seek to punish Apple and harm competition rather than correct any wrongdoing or benefit consumers.

  Plaintiffs’ proposal that Apple’s commercial approach to existing e-book apps be frozen in amber for 10 years also is unrelated to any violation found by the Court and is not necessary to “forestall future violations” of the antitrust laws. There are a host of legitimate reasons why Apple, in operating the App Store, might seek over time to alter terms or even seek to migrate e-book apps to the iBookstore. There is no connection between Apple’s treatment of then-existing e-book apps and the actual antitrust violation that the Court found, and the Court should therefore reject the proposed injunction.

  Apple Resp. (Doc. 330) at 16–17 (citations and footnote omitted). Curiously, Apple's piece repeatedly cites to Mr Cue's testimony as justification for its positions, ignoring the court's factual finding that he was not a credible witness... which sounds a lot more like the politics of medieval/Renaissance Europe than it does of representative democracy — the Earl's eldest son remains the Earl's eldest son, regardless of his misconduct short of treason, and we must therefore treat him with the respect due his station.

• It's just too bad the DoJ is unwilling to apply the scrutiny it has afforded e-book distribution to television distribution. A pox on all of them. A pox previously not isolated by the CDC and thus outside the scope of available vaccines on all of them. <SARCASM> I'm so glad that my present cable provider — one I'm seriously thinking of switching away from due to its own incompetence and bad practices — isn't involved in this particular fight, but will only take advantage of it for its own nefarious purposes. </SARCASM>

"Boobies" Are Not Inherently Lewd or Obscene

...although it took over one hundred pages for the Third Circuit — in a split opinion — to reach that perhaps overobvious conclusion.

In the misleadingly-titled B.H. v. Easton [PA] Area School Dist., No. [20]11–2067 (en banc) (PDF) (3d Cir. 05 Aug 2013), nine of the fourteen active judges on the United States Court of Appeals for the Third Circuit held that a bracelet reading

I ♥ boobies! (KEEP A BREAST)

does not so seriously threaten the cultural and instructional environment at a Pennsylvania middle school, nor pose a significant threat that it will "substantially disrupt the school," that it justifies advance censorship by the school district. The court held that:

If speech posing such a “grave” and “unique threat to the physical safety of students” can be categorically regulated only when it cannot “plausibly be interpreted as commenting on any political or social issue”—and that regulation nonetheless “stand[s] at the far reaches of what the First Amendment permits”—then there is no reason why ambiguously lewd speech should receive any less protection when it also “can plausibly be interpreted as commenting on any political or social issue.” One need not be a philosopher of Mill or Feinberg’s stature to recognize that harmful speech posing an “immediately obvious” threat to the “physical safety of students” presents a far graver threat to the educational mission of schools—thereby warranting less protection—than ambiguously lewd speech that might undercut teaching “the appropriate form of civil discourse” to students. It would make no sense to afford a T-shirt exclaiming “I ♥ pot! (LEGALIZE IT)” protection while declaring that a bracelet saying “I ♥ boobies! (KEEP A BREAST)” is unprotected.

Slip op. at 46–47 (citations and footnote omitted).

My own opinion would have been much shorter, and would explicitly have drawn in the political background concerning female parts in Pennsylvania and New York as judicially-noticed fact demonstrating that the bracelet is inherently a matter of political speech on a matter of public concern, and suggesting that the United States Attorney investigate the school officials for sex discrimination in violation of Title IX. But then, I'm not a fan of old white men making all of the policy decisions concerning young women in the first place... even if demographically, I'm getting perilously close to that description myself ("old white men," not "young women").

The amazing bit, though, is the dissent, which reflects a rather ahistorical view of "political", "speech", "public concern", and basic biology that would have been more at home during the heyday of the Comstock Act.

Notwithstanding the facts supporting Plaintiffs' case, I conclude that "I ♥ boobies!" can reasonably be interpreted as inappropriate sexual double entendre. In the middle school context, the phrase can mean both "I support breast-cancer awareness measures" and "I am attracted to female breasts." Many twelve- and thirteen-year-old children are susceptible to juvenile sexualization of messages that would be innocuous to a reasonable adult. Indeed, at least one bracelet wearer acknowledged that "immature" boys might read a lewd meaning into the bracelets and conceded that she understood why the school might want to ban the bracelets, and other students parroted the phrase on the bracelets while conveying sexual attraction to breasts. Another school administrator has concluded that the bracelets at issue here "elicit attention by sexualizing the cause of breast cancer awareness." And as Judge Crabb, the only other federal judge to consider these bracelets, put it, "hints of vulgarity and sexuality" in the bracelets "attract attention and provoke conversation, a ploy that is effective for [KABF‘s] target audience of immature middle [school] students." Finally, as the Gender Equality amicus brief points out, breasts are ubiquitously sexualized in American culture.

Slip op. at 99–100 (Hardiman, J., dissenting) (citations omitted, boldface emphasis added). That is, because some other people who are not "like" the plaintiffs might consider these bracelets lewd, obscene, and referential to body parts of women that polite twelve-year-old boys don't talk about, the school district was justified in suppressing political speech on a matter of general public concern. After all, that some students "are susceptible to juvenile sexualization of messages that would be innocuous to a reasonable adult" does not imply the converse. Riiiiiiight.

The dissent tries to cloak itself in concern that any opinion in favor of greater speech rights for students will run counter to the murky trend and possibly to strained interpretations of precedent. This is fundamentally inconsistent with a judge's primary duty: To decide. If precedent were always clear, we wouldn't need judges in the first place — administrative referees could just determine what the facts were and apply the clear precedents. The corollary of having a duty to decide is that sometimes one will be second-guessed and considered "wrong," for some value of "wrong"... such as Justice Harlan being "wrong" in his dissent in Plessy. The rhetorical strategy behind the dissent in B.H. presumes that judges can — indeed, should — avoid deciding, under the assumption that means never being wrong. That's how Plessy, and for that matter Dred Scott, stayed on the books as clear precedent for so long.

Canary Row

Of late, there have been substantial arguments — some in good faith, some… not so much — about whether Private Manning and Mr Snowden were "whistleblowers." I don't think they were; they were, instead, canaries in the military-intelligence complex coal mine. The critical question is what dangerous condition their songs signal.¹

There are two reasons that I do not think of Manning and Snowden in particular as whistleblowers… and one overriding imperative that says that they're something else. First, their data-gathering was far too incidental, far too broad-based, far too indiscriminate; both walked away with data dumps, not careful gathering of evidence concerning a particular hidden ill. Second, both of them were working with and around data that they weren't supposed to have in the first place. A whistleblower is an otherwise-authorized person whose ethics are inconsistent with what they encounter. Manning was at most a file clerk, and shouldn't have been mucking around in State Department materials in the first place; Snowden, as a low-level analyst at a contractor, never should have been granted access to policy documents. But more importantly, neither Manning nor Snowden really revealed much of anything that wasn't already known and accepted outside of their respective "employers"; all they did was provide some confirmation on the basis of official documents.

That said, they each demonstrated that there's a helluva lot of carbon monoxide in the military-intelligence complex coal mine. Manning demonstrates that the military does an execrebly poor job of handling the "need to know" part of managing sensitive information; Snowden demonstrates that civilian contractors are, if anything, worse.² In particular, nobody at the contractor employing Snowden had a need to know about the rationales used to gather the data — and especially not a low-level analyst.

The real problem is that there have been no apparent steps taken to prevent recurrence of the Manning/Snowden situations (or worse, involving actual operational data). I really don't expect much, if any, effort to change inside the military, particularly at overseas stations; the nonmilitary departments have gotten so used to DoD "management" of their information systems (not just the electronic ones, either) since the fall of Saigon that I expect there are at least a dozen Manning-type situations a year. Former colleagues of mine have indicated that Snowden's employer got/is getting a slap on the wrist, but that other outside contractors have picked up/will pick up the slack. What this says about the wisdom of outsourcing intelligence activities is left as an exercise for the student — or, perhaps, someone who thinks that the underappreciated Rubicon was all too credible.

In the end, I think Manning and Snowden are just canaries signaling much deeper, more-disturbing problems. The question is not what we do with these canaries; it's what we do with the miners and the mine.

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1. I know full well that miners were made aware of gas buildups when the canaries stopped singing. Just invert your ears; that's actually a rather good analogy for what was going on anyway.
2. They also demonstrate the idiocy of overclassification, in different ways. Perhaps "overclassification" isn't the right word; perhaps "misclassification for political purposes unrelated to national interest" is better; but it's also a mouthful of euphemisms that will cause near-terminal hypersomnia if used often enough to make a difference. The key point is this: In both the Manning and Snowden situations, the only forseeable damage that the releases thus far made could cause is embarassment of certain officials... and if you really think that a true enemy didn't already know everything they've released, you're far more trusting than I.

Flowing Like a River to the Sea

Time is indeed the theme today... time like one gets from this illustration, I suspect.

• Here's another look at something that gives lawyers a (well-earned) bad reputation: the internal incoherence of the billable hour. The key conclusion that one can draw from this piece is that the methods of the assembly line are not applicable to all aspects of the economy, and particularly not to those aspects of the economy that require judgment. This is contradicted by — ironically enough, considering the profession of the article's focal point — overdivision of task work into constituent parts for separate accounting.

  Quantity of useful work performed is often not separable from difficult- or impossible to measure qualitative and judgment inputs into that work... and trying to pretend otherwise isn't just dishonest, it's counterproductive. This is perhaps most obvious in the arts; consider the difference between Mary Doria Russell's first-novel masterwork The Sparrow and this piece of utter, "mass-produced" garbage from an author who professes to know better (incorrectly on the basis of both that essay in Atlantic Monthly and the book in question). These two contemporaneous works represent roughly the same amount of "work" (as measured by hourly input), with vastly different outcomes.

  Perhaps some of this problem — particularly in the arts — comes from parents' and commercial entities' desire to see that the "children" are being productive members of society. One would have thought that between respective masterworks from Charlie Chaplin and Harold Lloyd that would not have any current value... and one would be utterly wrong. It has a value of just about $26 an hour — that is, what many insurance adjusters make.

• Then, "parasite journalism" — a wider problem than mere plagiarism, because one cannot plagiarize ideas and one cannot copyright facts — also seems a bit hourly-rate driven.
• The flip side of compensating based on hours expended is measuring sales achieved within specific periods. The obvious refutations of this meme are The Wizard of Oz, The Hobbit, The Recognitions, even Harry Potter and the Philosopher's Stone, and... that is, it makes no sense whatsoever. Leaving aside the probably "divide by zero" problem: It's measurable, therefore it must be significant, right? Can anybody who has taken even a basic course in statistics answer that? Anyone? Bueller?
• Then there are even stranger aspects of time, like studio heads claiming that a movie "underachieved" because it was released on "a bad date" — instead of admitting that perhaps (just perhaps) it wasn't the date but the idea and the execution and the entire marketing campaign. Of course, it can't be any of those last three things because those are traceable to someone who has to take responsibility.