Information Value and Free Speech

Note: These are some ideas that I've been kicking around lately. It's certainly possible that other people have devoted more substantive thought to this than I have and articulated it better. I don't claim these as original ideas - I've directed no research towards this question, so I have no idea who may have already said what about any of this. On the other hand, it's also possible that there's not much merit in this, and that nobody has spent time thinking about it. Anyways, this post falls into the category of "random thoughts."

Let's start with the premise that information is valuable. This proposition is likely as close to being universally accepted as anything can be. Whether you're gathering military intelligence or stock tips, having knowledge is an advantage.

The next premise is that information dissemination used to be a very expensive venture. Imagine the costs associated with transmitting a large volume of information over a great distance one thousand years ago. Let's say a phonebook, from Baghdad to Reykjavik, in the year 1000. (Ignore the anachronism for the sake of illustration.) You're in Baghdad, and you need to get all the information contained in that phonebook, consisting of thousands of names and numbers, to someone in Reykjavik. You don't have a printing press, so you're going to have to pay somebody to copy out all of those thousands of names and numbers by hand. Then you're going to have to arrange for the copy to be conveyed halfway across the world. This will entail horses, ships, and other not-so-fast modes of transportation. This is also happening in an era where bears, bandits, and storms carry a real risk of your courier getting killed and this information being lost en route. So, if you want to really make sure that your phonebook gets to Reykjavik, you would be well-advised to at least duplicate your efforts: multiple hand-made copies, multiple couriers, multiple ships/horses. Result: it's very expensive to get that phonebook to Reykjavik. Given the expense of all this, you're going to be very reluctant to transmit information unless it's actually valuable in some sense.

But technological progress has made the transmission of information cheaper. Let's say we're trying to get that phone book from Baghdad to Reykjavik 500 years ago instead of 1000. It's still going to be fairly expensive, but far less so than it was 500 years earlier. By 1500 you've got a printing press, so you're not going to have to spend so much time and money getting the book transcribed by hand. You've got better navigation technologies, so ships are less likely to sink on the way there, and you're less likely to feel the need to duplicate your efforts. It's going to be cheaper and easier still in 1600, in 1700, and so on.

Today, getting that information from Baghdad to Reykjavik now happens literally instantaneously, and at no measurable cost to the transmitter. Forget horses, ships, printed or handwritten copies and the rest - this is now a matter of clicking a mouse. Today, information transmission is cheap, fast, secure, and generally easy.

This is where I feel like I'm on shakier ground. Let's say the cost of transmitting a piece of information to one million people is X. Let's say the aggregate value of transmitting that information is Y. A rational person will only transmit that information if Y>X.

I posit that right now, in 2010, X is (for many people) close to zero, because communications technology has reached a point where it is basically free to communicate instantaneously with a wide number of people. So if X is zero, information with any positive Y value at all will be worth transmitting. Put differently, in this day and age there is no piece of information that is too worthless, trivial, or frivolous to communicate across great distances to many people. (For the record, I am a big fan of free speech and reducing barriers for communications. The advantages are obvious and manifold. Right now, though, I'm taking a look at the other side of the coin.)

One problem with this analysis is that characterizing information as valuable or frivolous begs two overlapping questions: First, valuable to whom? Second, how to measure value? I'm not really sure how to answer these. On one hand, I intuitively feel like society is made better off by the publication of information relevant to healthcare reform than by photographs of Paris Hilton in a compromising position. Yet the paparazzo who snaps the picture of Paris Hilton will almost certainly be paid more for his work than a Washington correspondent who gets a scoop on healthcare reform.

Additionally, I firmly believe that we are collectively worse off when people on any side of the political spectrum deliberately muddy the waters with disinformation. But while disinformation is not valuable to society, it may have value to the disseminator: it may give a politician a lead in the polls, or a talk radio host a ratings boost, or it may forestall regulation and thus boost a corporation's profits. So there's a real problem related to even the most approximate form of value calculation here. Maybe this is such a case-by-case, context-specific inquiry that it's impossible to impose a standard.

But leaving that aside for the moment: what if the cost involved in disseminating information has, in the past, played some sort of gatekeeper function, by keeping "worthless" information out, and ensuring that anything that was widely disseminated had some value? If that's true, and the cost of dissemination has dropped to almost zero, then there's no longer any kind of gatekeeper. Anybody can put anything out there, and we're constantly bombarded with nonsense - including, perhaps, this blog post.

So here's my final, non-rhetorical question: do the scope of our free speech laws still make sense? If we no longer have a cost-based gatekeeper, should the law play that role, by stepping in to redraw the line in a spot that makes more sense for the world we live in today?

The most cited example of the limits of free speech is that nobody has the right to shout "Fire!" in a crowded theater. I would argue that in this day and age, many of the communications that influence the course of national politics would fall into this same category. For example, when someone who knows better goes on national television or talk radio and announces that the President is an Indonesian-born Muslim who intends to use health care reform to create death panels, that is going to cause panic and confusion - much like shouting "Fire!" in a theater. Today the whole country, maybe even the whole world, is the theater. And the internet, along with a perpetually hungry 24-hour news cycle, has given more Americans than ever before the capacity to shout whatever they want. Perhaps the law ought to be more concerned with the consequences. To paraphrase the junior senator from Minnesota: we're entitled to our own opinions, but we're not entitled to our own facts.

"The responsibility to govern is now yours as well."

So far it seems that Republicans were unswayed by this week's State of the Union address. This is unsurprising. Minority Whip Eric Cantor went so far as to say that he didn't appreciate Obama's lecturing tone. Fair enough. Likewise, while he didn't say it in so many words, President Obama doesn't appreciate Congressional Republicans failing to act like adults who were elected to govern. Hence the lecture. Act like children, and like children ye shall be treated.

Anyways, the tone of Obama's speech suggested that he was most concerned with keeping Democrats working hard for the solutions America desperately needs and trying to inoculate them against catching a case of midterm election fright and "run[ning] for the hills." Any Republican cooperation, he seemed to imply, would be welcome but unexpected.

Here's a bit that I really liked: "If the Republican leadership is going to insist that 60 votes in the Senate are required to do any business at all in this town -- a supermajority -- then the responsibility to govern is now yours as well."

In the first part of the statement, Obama stresses that the fact that the Senate currently needs 60 votes to pass a bill has nothing to do with the Constitution. The only significance to the number 60 is that which is given to it by the Republican vow to filibuster against pretty much anything Democrats propose. As we've seen, requiring 60 votes to get something done apparently results in worse, not better, legislation, as it forces Harry Reid to pander to Joe Lieberman and Ben Nelson. All that political horse-trading and back room dealing that the Republicans are complaining about? All a direct consequence of their filibuster threat.

The second part of the statement, "responsibility to govern," hints at that. Again, I don't see this to mean that Obama really expects Republican collaboration on anything (with the exception of climate change; moderate kudos once again to Lindsey Graham for actually doing his job). Rather, I suspect that Obama is signaling that if the Republicans choose to do nothing except try to hold up his agenda, they will be responsible nonetheless for whatever has to happen for the legislative branch to function, whether that's the afore-mentioned horse-trading and back room deal-cutting, or using the controversial reconciliation maneuver to get around the threat of a filibuster.

So, summing up and translating what I hope Obama is saying with that statement: We have a majority in the Senate, which is all that the Constitution says we need to pass laws. If you refuse to acknowledge the legitimacy of that majority, refuse to contribute meaningfully to policy-making, and try to use the rules of the Senate to keep us from governing, we will govern on our own. If that means cutting deals and using the rules of the Senate to our own advantage, the ultimate responsibility for that rests with you, and we will make sure that the voters know it in November. And don't even think about trying to tell them otherwise.

So, if Republicans think they can keep up with the obstructionism and win big in November, I think they'll be badly disappointed. It's been a rough year for Obama agenda-wise, but we're talking about a smart and ambitious leader who showed during the campaign that he learns from his errors quickly. Can you name a single mistake he's made twice? Shifting his focus to job creation is a smart move that forces Republicans to explain to voters why they're holding things up, whereas healthcare put the burden on the Dems to explain what they were even trying to accomplish.

Obama is still facing a tough fight in getting his agenda through Congress, but it looks to me like he knows what he's doing. Let's not forget that as much as he's an Ivy League intellectual, an idealist, and a gifted orator, the President is also a graduate of the Chicago School of Bareknuckled Politics. He knows how to win a fight.

Barack Obama, the State of the Union, and the Winter of our Discontent

For the sake of full disclosure, let me say that I like Obama. In fact, I like Obama a lot. I voted for him, I gave money to his campaign, and I worked for his campaign as a legal observer in New Hampshire on Election Day. That complex and nuanced worldview of his makes me suspect he's one of the smartest presidents we've ever had. This isn't to say that I support all of his policies wholeheartedly and unquestioningly - Afghanistan is one I've been questioning lately - but given the thought processes he brings to bear on the issues, I tend to pretty much agree with his agenda.

Tonight's State of the Union address reminded me of all of this. Our president sees the big picture, how all the pieces fit together, and what we need to do to get those pieces on the table. There are definitely obstacles to such an ambitious agenda, even a really terrific speech doesn't change that. It's going to be tough - but it's doable.

Last week, taking a long view of things, it was hard to see the U.S. as anything but a superpower on the decline. But after tonight's speech, I can see another way to fit where we are now into the bigger picture. Here's what I hope the historians have to say in a couple of generations:

After the fall of the Soviet Union, America found itself in a previously unheard of position: a sole superpower, a hyperpower, even, facing a world without a single nemesis that could rival the Soviet Union. The end of the Cold War seemed to vindicate the supremacy of capitalism and of American military might. America's leadership went on a deregulation binge, and in the absence of a powerful rival the old Cold Warriors who still formed the bulk of the country's military policy establishment started looking for ways to project American military power even further across the globe.

By the end of the first decade of the twentieth century, capitalism woke up with a hell of a hangover. The military establishment came dangerously close to irreparably botching the war they'd chosen (Iraq), and found themselves even closer to disaster in the war they hadn't planned on (Afghanistan).

America adjusted. Saying farewell to an attitude that promised opportunities without consequences, they elected a president who saw problems with solutions. Obama reigned in the banks and took his military policy cues from professional soldiers, like Petraeus and McChrystal, instead of civilian ideologues like Rumsfeld and Armitage. Looking at what needed to be done, he harnessed the energies of a dynamic democracy of 300 million people behind an ambitious agenda that launched America into the twenty-first century, leaving the twentieth century behind. And as the policies worked, the fearmongering of Glenn Beck, Sarah Palin, Rush Limbaugh, and Michele Bachmann largely ceased to resonate with voters who were once again optimistic about their country's future.

I don't expect this all to happen just because Obama made a good speech. But the speech was a reminder that it can happen, and that for all its troubles, America remains a place with most of the best advantages that any country can have. After a speech like that, it's hard not to feel at least cautiously optimistic about the future.

Thoughts on the Supreme Court

I've grown weary of the Supreme Court. Maybe part of this is just the cumulative fatigue of the two and a half years I've spent reading their opinions. Or maybe I'm just jealous that the nature of legal writing requires me to eschew adjectives and use only the shortest words I can find, no matter how unappealing they may be, while Justice Kennedy gets to write like a paid-by-the-word 19th-century novelist. And Citizens United certainly doesn't make me any fonder of the Roberts Court.

In any event, I question whether the Supreme Court is what it ought to be. Sometimes I think about the Court as a kind of Council of Elders, appointed for life to interpret the sacred writings of our forefathers and force the modern world to reconcile itself to their vision. Uniquely qualified to tell us what Madison and the rest would have thought about issues that they could not have possibly contemplated arising in their tiny agrarian republic, the Council of Elders issues unreviewable decisions based on judicial philosophies that often have little to do with the world as it is. The good news here is that there's at least a level of independence to the court under this view, since some of the underlying judicial philosophies defy easy liberal/conservative categorization. The bad news lies in the disconnect between the Court and the country that feels the effects of its decisions.

Other times I think about the Court as a superlegislature. With the power to ratify the laws it approves of and veto the rest, it is as nakedly partisan as any other branch of government. Presidents choose their nominees from the pool of people best positioned to hold the party line for future decades. The good news here is that the rules of the game, while unofficial, are known to all, so no one party is really rigging the system at the expense of the other. The bad news is that a disingenuous system like this somewhat undermines the dignity of the institution.

Yet the appointment of Justice Sotomayor is a welcome reminder that the way individual judges approach their duties can still yield positive results, even in a flawed system. Her now-infamous "wise Latina" comment bothered me at first, but having spent a lot of time thinking about the type of thinking that it reflects, I now think, or at least hope, that it signals the kind of jurisprudence that I'd like to see more of. I don't think that we gain much by expecting our judges to not be human. Experience breeds understanding, and need not be mutually exclusive with objectivity.

Increasingly I wonder whether our political institutions still have the capacity to accomplish their prescribed tasks, or whether the country has changed so much since the framing of the Constitution that our tripartite system in its current form is still up to the challenge. Judicial activism is a term with pejorative connotations, but I have a hard time opposing a philosophy that actually strengthens the connections between our highest court and the world we live in.

Striking at the Heart of Democracy? Well, Maybe...

Verne hitched himself a few inches across the desk, and stuck a large finger at Bunny's face. "Kiddo," he said, "get this straight: I can buy any officials, just the same as I can buy any politicians, or anybody else that a bunch of boobs can elect to office. And I know what you're thinking - here's an old cow-puncher, without any fine ideals, and he's got a barrel o' money and thinks he can do anything he pleases with it. But that ain't the point, my boy - it's because I had the brains to make the money, and I got the brains to use it. Money ain't power till it's used, and the reason I can buy power is because men know I can use it - or else, by Jees, they wouldn't sell it to me. You got that?"
- Oil!, by Upton Sinclair

By sheer coincidence, I happened to read this passage yesterday, just a few hours after the Supreme Court's ruling in Citizens United v. Federal Election Commission hit the news. Oil! is the basis for P.T. Anderson's There Will Be Blood, but other than a few characters and the physical setting, there aren't many similarities between the book and the film. The main point of conflict in Sinclair's novel is between capitalism and labor. Standing in for capitalism is the massive Southern California oil industry, portrayed as an entity wealthy and powerful enough to essentially buy the American government and use it to advance industry interests abroad and at home, while running roughshod over anything standing in the way. The above excerpt is a diatribe delivered by an oil boss who has just engineered the election of Warren G. Harding, gloating over his ability to covertly keep the labor unions under control. It's a fairly bleak picture of the United States as capitalist dystopia.

The fact that Sinclair engaged in a fair bit of hyperbole and oversimplification doesn't greatly undermine his point, and I think that it remains a relevant one. Right now, the Obama administration is struggling to pass what ought to be common sense reforms in the wake of the financial crisis, and currently doesn't have anything much stronger than moral suasion to get the financial world to change its ways. In the face of intense populist anger and high unemployment, the big firms still feel secure enough to give out bonuses that strike many as obscene. All of this begs the question, who exactly is setting the agenda? I'm not sure I'd go as far as Sinclair did in venturing an answer, but in the midst of economic devastation and political confusion, Wall Street is still going strong, and Wall Street looks pretty confident that they're going to get off with little more than a congressional slap on the wrist for transgressions that call for significantly more than that. Cui bono?

Bottom line: with a capitalist system as robust as ours, the amount of money that can be amassed behind a particular agenda is staggering, and the court's ruling has only made it easier for monied interests to do what they've already been quite successful at doing. Frankly, I'm not sure that this is ultimately likely to significantly alter the status quo. Our elected officials in both parties have been getting hefty support from big business for decades, and in return they've gone to bat for those interests in Washington. Need examples? Look no further than Chuck Schumer and Wall Street, Joe Lieberman and insurance, Lisa Murkowski and oil, and Robert Byrd and coal (although to his credit, Byrd has recently changed his tune somewhat.) While The New York Times characterized the ruling as "strik[ing] at the heart of democracy," I question whether this decision truly reflects a change in substance, or merely a change in form. This is not to suggest that the court's ruling is really consistent with the ideals of democracy, but it doesn't appear to be wildly inconsistent with the way things have been getting done in the United States for some time.

As for the Supreme Court's reasoning, I'm not sure it's even worthwhile for me to have an opinion on it. If you want to know how I feel about the Supreme Court in general, check back in a couple of days.

We Might Not Win This One

Lately I've had this vague sense that future generations of historians will look back at this era and say that the United States had the misfortune to face a number of threats to its existence at the very moment that it was least equipped to deal with any of them. One party is trying to govern, the other is opposing nearly everything that party does, and independents apparently don't have enough faith in either one to give them more than a year or two to produce results.

In the electorate, the body that's been charged with the not insignificant task of choosing our leaders, it is almost impossible to make out anything meaningful in the cacophony of what passes for debate today. The media has transformed politics into a spectator sport, where you score points by kneecapping your opponent, not by governing. Yes, politics has always been, and always will be, a necessary feature of the process of governance. It's inescapable. But it has become an absolute monster, devouring time, energy, and money, and leaving our elected officials with time for little else.

Most of us alive today can't remember a time when the United States wasn't going strong. Even in our rough spots, we were better off than pretty much any other country on earth. Economic slumps came periodically, but the economy always bounced back, stronger than ever. Even our biggest foreign policy setback, the Vietnam War, bloodied our nose, but it didn't knock us down. To some extent, America is a victim of its own success. Our track record has given us a collective sense of invincibility. Indeed, there is a shocking degree of complacency among Americans today, a sense that it's all right to ignore the facts and vote with a gut full of misguided rage at the changes we're all living through, because we'll all muddle through in the end, because we're America.

But that's not how it works. We don't get to win just because we're America, and the American Century didn't happen by accident. History isn't some scripted drama, where the United States sails through various crises, always destined to emerge victorious and lead the world, no matter what else happens. In every major crisis we faced and emerged from, the outcome was in doubt, and without strong leaders, we might not have come out on top. We got to where we were at the end of the 20th century through sound policies and solid leadership, not by taking our cues from talk radio and Fox News.

But Glenn Beck and Sarah Palin are the symptoms, not the problems. Maybe it's a failure of education, or maybe the amount of information that we're saturated with on a daily basis has left us largely incapable of abstract thought. Or maybe the pace at which the world is changing scares people so much that they reject the uncertainty of meaningful inquiry and cling to political dogma and the comfort that it offers. Whatever it is, it is frightening and widespread.

Let's not kid ourselves. We're looking at a devastated economy, a strong and resilient Taliban, and an Al Qaeda that is still very much a threat. In short, we are facing a national crisis, and the United States has become borderline ungovernable. Yes, we're America, and yes, we tend to come out on top. But we might not win this one.

Reflections on the Congressional Train Wreck

I've been back in the US for a while now, and between work and law school I haven't had much of a chance to travel. So, I'm going to try my hand at making this a non-travel blog for a while.

These days, I find that reading the news is like watching a train wreck. I don't want to do it, because it's only going to leave me feeling unsettled and intensely aware of both my own mortality and the immensity of human folly for the rest of the day, but it's impossible to ignore. There's also the whole "as a voter in a democratic republic, I ought to be informed" argument. But there aren't any elections anytime soon, so maybe I could make a New Year's resolution not to read the news for a couple of weeks. As resolutions go, this one would be pretty self-indulgent, aimed more at obtaining a bit of peace of mind and not so much at improving myself as a person. It's hard to argue that being informed is a vice.

At any event, the train wreck that's on my mind today is Congress. Maybe if I write about it I can get it off my mind long enough to get some work done. That might be better than just not reading the news.

Right now, Congressional Republicans are pursuing a Taliban-esqe strategy. I certainly don't mean the comparison in any moral sense. While I'm not on board with the "conservative platform" I would never compare it to the morally abhorrent agenda that those lunatics in Afghanistan and Pakistan call an ideology. That type of hyperbole simply isn't constructive. Rather, I mean to say that the Taliban and Congressional Republicans are playing the same game. For each group, "winning" is a matter of denying victory to the other side. They don't have to actually bring anything constructive to the table, they don't have to offer any solutions to a problem. All they have to do is keep the people who actually are trying to accomplish something from doing so. The Taliban simply has to keep the US and NATO from accomplishing their military objectives, and the Republicans simply have to filibuster long enough to prevent the Democrats from actually governing.

Leaving aside the (admittedly debatable) merits of the healthcare bill for the moment, there is something incredibly screwed up about this. I've been trying to think it through. Let's ignore the massive deficits of the Reagan and George W. Bush administrations for the moment and accept, arguendo, the assertion that the Republican party is not simply trying to score a political victory against President Obama, and is in fact about fiscal responsibility and small government. Fair enough. I accept that. In fact, I really like the idea of small government. In an ideal world, Ron Paul would be my favorite politician. I would love it if, with the exception of minimal taxes that went to pay for basic national defense and infrastructure, the federal government left me entirely to my own devices and didn't ask me to pay for a whole raft of things that I didn't think we should have.

But we don't live in an ideal world. This sounds like a statement of the obvious, and it should be, but it also seems to be a point that's been lost on a great many American politicians. After the New Deal, there's just no getting around the fact that we have a huge, expensive federal government that is such a constant presence in all of our lives that we're not always aware that it's there. Whether you believe that it ought to be there or not is just as irrelevant as whether or not you believe in gravity. It's there, and it's not going away. Any kind of political solution that doesn't at least accept this fact as a given is just as impractical and dangerous as jumping off a roof and not accepting the fact that you're going to fall.

Thus, you would think that any political platform advocating small government and offering it as a viable solution would be limited to fringe candidates from third parties that will never win any significant election. But small government is the rallying cry of one of the two major American political parties, and the implications are troubling.

How do you manage a system using an ideology that is inherently opposed to the very system you are trying to run? It brings to mind a quote from The Onion in reference to Bush's nomination of John Bolton as Ambassador to the UN back in 2005: "Appointing Bolton to the UN is like appointing a fish to ride a bicycle that he hates and wishes to destroy." That puts it pretty succinctly. Reagan's famous quote that "government is the problem" is a self-fulfilling prophesy that creates a vicious cycle when adopted by people elected to govern. If you come into office believing that government is incapable of solving problems, then of course you're not going to try to appoint competent problem solvers to government positions (see Michael Brown, appointed as head of FEMA to George W. Bush). Then, when a crisis arises, and the government fails to address it adequately (see Hurricane Katrina), you can say "See? I told you so," and rest comfortably on your earlier assertion that government is incapable of solving problems. QED.

So where does this leave us? With a legislative process in which only one party seems interested in actually governing. Meanwhile, any Republican in the Senate who actually shows an interest in governing (i.e., actually doing their job) risks being branded a traitor to the cause (see Lindsey Graham on climate change). This is not good for democracy. Right now we have a single-party state with all of the disadvantages thereof (lack of vigorous and meaningful policy debate) but none of the advantages (actually getting something done).

So, this is what I want to see happen to the Republican Party: First, I want to see the party tear itself to shreds in internecine fighting. I want to see midterm elections in which the tea party extremists on the far right turn out in record numbers in the primaries to nominate whackos who will prove unelectable to national office rather than incumbents. Democrats who might have been crushed by electable Republican incumbent can then eke out wins over the teabaggers, go to Congress, and actually give the Democrats enough votes that they can govern America without having to pander to [EXPLETIVE DELETED] like Joe Lieberman. Maybe pass a few pieces of legislation on crucial issues before it's too late. Then, I want the Republican party to take a good, hard look at itself, get its shit together, and actually stand for something other than obstructionism again. Until they do that, the country is not going to be in great shape.

OK, writing that actually helped. Now I'm going to try and finish some papers so I don't have to take any work home for the holidays.