A Prophylactic Against Backlash.

In a local-interest-story-goes-national, an Old Dominion schoolboard hit the emergency brake after parents got their delicates in a pinch over a homework assignment.

ATSRTWT

I'm not quite old enough to remember the anti-Catholic sentiments that accompanied the Irish and Polish immigrant waves of the early 20th c, but it does occur to me that there's some pretty decent longstanding arrangements between secular education authorities and their ecumenical brethren. The idea of keeping religious instruction out of public schools is as felicitous as keeping, say, discussions of paleontology out of the pulpit. Some domains are not compatible. I thought commonplace pedestrian United States jurisprudence learned that lesson during the fiasco of the Scopes trial.

Maybe I was wrong.

Exodus 20:8-11, y'all.

Amendment 1 to the United States Constitution, y'all.

High Hermeneutics

When you read the word "satire," tell me: what springs to mind? Do you imagine the aroma of freshly-roasted Irish baby? Do you recall that four legs are good, yet two legs are better? Do images of Dorian Gray fill your memory? Would it offend you if I claimed that Swift, Orwell, and Wilde were plebeian satirists, that if you want the good stuff, you have to look a little deeper?

Middle-tier satire will still be eminently accessible to the pedestrian reader. A pusillanimous high school student is quite capable of recognizing that Inferno is much less an ecstatic religious treatise than it is a savage condemnation of 13th century Italian aristocracy. Mediocre college sophomores are more than adroit enough to grasp that Niccolò Machiavelli wrote The Prince not as actual advice to the Medici family, but rather to mock an entirely different cohort of corrupt Italian aristocrats two centuries after they failed to take Dante's hint. Same goes for Chaucer: if the Knight's tale doesn't convince you he's taking the piss out of Feudal notions of propriety, the Reeve's Tale surely will.

But top-shelf satire? That rarefied spirit? That hermeneutic philosopher's stone? That ambrosial bathtub gin nearly impossible to brew without a pint of divine genius? That stuff is hard to find. It's harder yet for most folks to enjoy properly. I confess without great embarrassment that a great deal of the finer satire the world of literature has to offer will often escape me. I occasionally see some double meaning in Coleridge or Wordsworth. Milton was so peerless in concealing his savage condemnation of the Stuarts to the extent that even an attentive reader might mistake Paradise Lost for an actual account of Lucifer's fall. And Joyce? Impenetrable. Half the time I read Finnegan's Wake, I imagine it's a fever dream brought on by whiskey and tuberculosis. The other half, I think he's playing a great practical joke on the popular press and his peers. Of course, these interpretations are far from mutually exclusive, which makes him one of the rare masters of the form.

Masters which now include one "Jencey Paz."

Writing at The Yale Herald, this lugubrious essay manages to accomplish in a mere ten paragraphs what it takes Ann Coulter an entire novel-length book to achieve [ed.: the link appears to be broken, excerpts are as-is. Apologies for the inconvenience]. What Paz appears at first glance to deride is the shrinking violet sensibility recently popular on college campuses:

Today, when a group of us, organized originally by the Black Student Alliance at Yale, spoke with Christakis in the Silliman Courtyard, his response once again disappointed many of us. When students tried to tell him about their painful personal experiences as students of color on campus, he responded by making more arguments for free speech. It’s unacceptable when the Master of your college is dismissive of your experiences. The Silliman Master’s role is not only to provide intellectual stimulation, but also to make Silliman a safe space that all students can come home to. His responsibility is to make it a place where your experiences are a valid concern to the administration and where you can feel free to talk with them about your pain without worrying that the conversation will turn into an argument every single time. We are supposed to feel encouraged to go to our Master and Associate Master with our concerns and feel that our opinions will be respected and heard.

Good stuff so far. Middle-tier, if you will. But what elevates Hurt at Home to TOP KEK-grade satire is that it has the audacity to take on a pernicious, yet cherished political metaphor: that of organization-or-nation-as-family. Witness:

My dad is a really stubborn man. We debate all the time, and I understand the value of hearing differing opinions. But there have been times when I have come to my father crying, when I was emotionally upset, and he heard me regardless of whether or not he agreed with me. He taught me that there is a time for debate, and there is a time for just hearing and acknowledging someone’s pain.

I have had to watch my friends defend their right to this institution. This email and the subsequent reaction to it have interrupted their lives. I have friends who are not going to class, who are not doing their homework, who are losing sleep, who are skipping meals, and who are having breakdowns. I feel drained. And through it all, Christakis has shown that he does not consider us a priority.

Whatever else you might believe about the Ivy League institutions, you have to appreciate any school that can produce students who can produce such sublime satire. I aver here and now, my beloved readers, that I have with my own two ears heard Very Serious Thinkers fall prey to the bizarre assertion that the family is different only in scale to the state, that the relationships that blood kin share are only a matter of scope difference to the anonymous community. I have seen with my own two eyes words written by Humans to be Taken Seriously that the nation is basically just an extended family. That parents must expunge the fallacy that their children belong to them. And as the little child proclaimed the emperor has no clothes, a Yale student has unceremoniously mooned the great nattering mass of aspirant despots who seek dominion with sleazy appeals to faux kinship.

And the best part? Otherwise bright people appear to have fallen for the ruse. Cervantes at his best couldn't have hoped for more success. I doff my cap, Jencey Paz. You are a modern virtuoso of satire. Please, for the sake of the art, continue to write. The world is richer for having you in it.

It's been fun watching some of the campus conflict from afar. Viewed as unstructured negotiation, it's obvious that there are some pretty severe strategic lapses on both sides. The transaction of higher education services appear to be less and less euvoluntary over time, at least on the aggrieved margin.

Late Night, with your host Sam

rts: Coasean comparative analysis of internet-famous twerps & propensity for being censorious bog wastrels.

— Absquatulous Meme (@Spivonomist) September 30, 2015

It's insomnia season at the Wilson household, and with it come the predictable eddies of madness. It occurred to me after reading a modest proposal by a fellow better known these days for Twitter altercations than for his short turn on a network game show that Internet celebrity provides very different institutional support than traditional celebrity.

The gist of the proposal: eliminate legislation that protects domain holders from liability for content posted by third parties. In other words, Blogger would be liable for what Mungo and I post here at EE. Think for a moment what the equilibrium would be in this game. Buzz in when you have the answer.

Now consider the organizations that support screen acting. Between the acting guilds, the agents, the publicists, the studios, and the ad hoc support networks that many top-tier celebrities have, famous actors have as much in common with regular people as Count Chocula has with Nosferatu. They enjoy, should they elect to avail themselves of it (ahem James Woods) a great deal of protection from the frothy purulence of hamfisted critics. Petty Internet celebrities, contrarily, enjoy no such organizational support. Constituents are too diffuse and too fleeting to effectively organize to provide reliable content filters. It is natural that otherwise gentle, sensitive people be spared harsh, direct criticism from semi-literates. In the absence of such a mechanism, it follows that these gentle, sensitive souls might neglect the difficult (?) task of following the implications of their proposals to their conclusions and instead petition the sovereign for redress.

Scurrilous blather is vexing. Perhaps the next generation of autoblocking technology will allow for a more comfortable browsing experience without resorting to scorched-earth changes to Internet jurisprudence. Perhaps.

For legal analysis:
Ken White comments here
Scott Greenfield here

And He Made A Fig With His Fist

I have written about the institution of dueling before. It occurs to me after reading this that had dueling survived the civilizing purges of the Progressive Era, the public would, on the margins, be robbed of the pleasure of witnessing a temporary bureaucrat speak with deliberate insolence to members of the neos aristoi. Under a dueling standard, Varoufakis would have issued what US jurisprudence refers to as "fighting words."

As is, he's just delightfully snotty.

Whether the Greek people will be better off is a matter for macroeconomists to decide.

"I shall wear the creditors’ loathing with pride."

The Thing Itself

Commissioner of the Oregon Bureau of Labor and Industries Brad Akavian dons his Jacobin fête-cap to issue the following order against notorious cake bigots Aaron and Melissa Klein.

viz:

h/t Kelsey Harkness

Pseudonymous friend of EE Adam Blackstone recently suggested to me that competing philosophies have no natural limits to their quest for victory. In a private individual, excessively berating and then silencing a thoughtcriminal would be barbaric. For an government official to do so is downright despotic.

 Plus ça change, plus c'est la même chose, mes amis.

It should be enlightening to follow the case on up the ladder. So we've got that going for us at least.

Free To SLAPP

As the valiant M-Razz persists in his efforts to preserve the integrity of anti-SLAPP legislation in the Silver State, consider the ongoing strife weathered by Cody Wilson. Mr. Wilson posted instructions on how to 3D print a single-use firearm. The State Department ordered the materials taken down under international arms trafficking regulations.Bless his heart, but he's fighting them with a 1A defense.

I'm sure I needn't remind you that SLAPP stands for "strategic lawsuit against public participation." A SLAPP suit is tort action designed to get someone to cease and desist by tying them up in an expensive, time-consuming legal proceeding. Most folks would sensibly cease and/or desist in otherwise protected critical speech if it meant avoiding the harrying frustrations of an encounter with the state's justice system. Enter anti-SLAPP. Prominent defenders of speech (I loathe the term 'free speech' more with each passing day) like Randazza or Ken White at Popehat or others in my 1A twitter blawgophere favor harsh penalties for vexatious litigants.

I too favor harsh penalties for vexatious litigants. However, the most vexatious of all are overambitious law enforcement agencies with scant regard for constitutional jurisprudence. Prenda or Roca Labs might end up in hot water for frivolously seeking to silence people they don't like, but it'll be a cold day in hell when State Department officials face the same administration of justice. Furthermore, that's a feature of the sovereign immunity doctrine. The public has no interest in law enforcement agencies scared of their own shadow. I submit for your consideration that the problem with state-sponsored harassment of Mr. Wilson lies not with executive function, but with the malcompetent ambitions of legislators so eager to appear "productive" that they pass rafts of poorly-considered, incoherent, unnecessary legislation to appeal to ill-informed, irrational constituents to cement their tenure and guarantee their legacies. Substantive due process in the legislature is an impediment to having a library named after you someday.

Anti-SLAPP statutes go a long way towards making public participation more euvoluntary. Pity we can't take the last few tottering steps and constrain the wild ambitions of the sovereign while we're at it. #BTFSTTFG

Them's Fightin' Words

Lindsay Wise & Jonathan S. Landay Gertrude on the Fighting Words exception to First Amendment.

You don't have to be a 1A attorney to understand the jurisprudence behind this particular exception. Why not try the easily-accessible Wikipedia article? Or if you're interested in writing on the issue in public, perhaps you could drop a line to an attorney who actually practices law in the area. Or perhaps you could read one or two of the recent SCOTUS opinions on it.

At least a little something, yes? A smidge? I'm no lawyer, but I also insist on at least the illusion of due diligence. Can we at least perhaps all agree that if Snyder v Phelps found in favor of the WBC, then inviting an inflammatory Dutch politician to speak should count as protected speech?

There is a great deal that is unsavory and ugly about mean-spirited speech. But much worse is using the lethal might of the state to silence matters of opinion. It is occasionally just to silence others with the threat of death. Consider carefully what those occasions might be, Ms. Wise, Mr. Landay. For when you grant to the state such authority, you may not always get to choose who wields it. You may find that this exchange ends up being less than entirely euvoluntary.

I SLAPPED a Man in Reno Just to Watch Him Cry

Old-timey country lawyer Marc Randazza comments on... let's call it "unfortunate" Nevada Senate Bill 444, designed to overturn much of the anti-SLAPP law passed in 2013.

Here's Mr. Randazza in his own words:



Here's the opposition:



I don't know about any of you, my cherished readers, but I'm still enough of a red-blooded American to get all a-tizzy when I listen to appeals to English common law jurisprudence. I'm still enough of an Aristotelian to get a bit misty over the fundamental precepts of proportionality in justice. I'm still just barely enough of a Burkean, a Humean, a Buchananite to find petty dominion, bullying, discrimination under the law, and a wanton, reckless disregard for the philosophical underpinnings that brought us both substantive and procedural due process offensive that I can't help but cheer for M-Razz and jeer at the uncivilized bullies in suits seeking to return to the Silver State the ability for malicious goons to expropriate the wheels of justice for censorious intent.

But that's just me. I'm one dude. There are probably a few other like me, but judging by the primary research I've done with public survey data, we are few, and we are far between. The proxy variable I use for robust public 1A support shows a lower than 25% support rate for freedom of expression.

A government constituted for the people and by the people cannot indefinitely bear the full weight of public opinion. I commend any and all involved in the efforts that got the '13 law passed. But frankly, I find it surprising that it ever got through, and I'd find it more surprising if it weathered this assault or others like it. Critical speech just doesn't feel euvoluntary when you're the one being criticized. And over the long arc of civilization, such tender sentiments will slowly puree the hard facts demanded by the machinery of justice.

Spit on hands, hoist the black flag, and hie thee to a-watering the tree of liberty, ye slubberdegullions, lest Enlightenment principles of jurisprudence vanish from the earth anon.

Fear and Loathing on the MTA

At the V-Consp, David Post notes a curious case. AFDI wants to advertise on the back of NYC MTA buses. And the content isn't what you might call "friendly." Indeed, it's exactly the sort of inflammatory rhetoric the First Amendment needs to protect (recall that inoffensive, anodyne speech is the mild farina of euvoluntary rhetoric, requiring no Constitutional protections at all, since no one has cause to object).

Private entities have, with the exception of unprotected classes of speech, full editorial control over the content that appears on their property. If MTA weren't owned by the city, they could tell the AFDI or the Muslim Brotherhood or PETA or the FBI, or whatever other hate group* du jour to roll it up, bundle it with a quick burning fuse, stick it where the sun don't shine, and light it on fire.

Commercial advertising may be crass, uncouth, or unlovely at times. But it's not even remotely as ugly as political speech. Private transit services, whatever their perceived flaws, have little incentive to run advertising that threatens to alienate riders. Residual ownership internalizes the costs of venomous rhetoric. Perhaps that might be an overlooked check mark in favor of privatizing public transit.

See Munger for more on the political economy of public transit (links and other information below the 'play' button)

*please recall that "hate group" is a relative term. I cast no aspersions here, merely note that nearly any vocal advocacy group with a bent towards adversarial rhetoric can plausibly be considered a "hate group" to someone.

Euvoluntary Exchange vs Doux Commerce

In the darkest depths of Mordor, I met a girl so fair. But Gollum and the Evil One crept up and slipped away with her
-Actual lyrics from the Led Zeppelin song "Ramble On"

Ash nazg durbatulûk, ash nazg gimbatul, ash nazg thrakatulûk, agh burzum ishi krimpatul.
-Inscription on the One Ring from JRR Tolkien's Fellowship of the Ring.

ITN, a journalist out trolling for inflammatory comments stumbles on a podunk mom-and-pop pizza joint and asks the woman behind the counter—get this—if they'd be willing to cater a gay wedding. The woman behind the counter says "no." The story gets published. All hell breaks loose. Somehow, even this guy gets involved:

Austin Kasso is, according to his Twitter profile, "23 years old. Founder & Executive Director. Check out our Fund-a-Farm Urban Development project at [URL omitted]." Mr. Kasso was caught making a specific threat, one that probably (though it's up to the justice system to decide one way or the other) lands pretty squarely in the "unprotected" bin of the 1A exceptions, and now he's drawn the ire of a totally different mob, one that as of the time I post this, has poured half a million dollars into a GoFundMe project.

You might be wondering by now why I haven't included links to relevant articles and suchlike. My reason is fairly simple: this episode is contemptible. The whole thing is shameful and it's far worse for being a pustulent chancre symptomatic of a greater illness wracking Western commerce.

"What illness?" you ask, innocently, coyly even, brushing aside a lock of hair to peer coquettishly into my narrowed eyes. Good question. Let me digress with a little public choice economics.

Back up a little, squint your eyes, and see the Platonic form of bureaucracy. An elite interest wants something done, and they lack the resources to see to it themselves. A mandate is drafted, experts are hired, and badges issued. The principal checks back up on the agent once in a while, but they usually lack the in-depth operational knowledge needed to hold their ward accountable. When this is attached to the political process, the bureaucracy has a tendency to ossify and metastasize thanks to a combination of risk aversion (who in their right mind would want to give up a job that lets you boss around ordinary citizens?) and ambition (who in their right mind would not want to increase the scope of their petty dominion?). At least in theory, politically-empowered bureaucracies have some check on the scope of their ambition: they have actual flesh-and-blood principals who can in extremis revoke their charter. Mob-empowered bureaucracies are another matter. In a culture war, anyone can pick up a sword and a shield and wade into the fray. "Social Justice Warriors" are accountable only to the limits of their own conscience.

Though the first casualty may be Truth, you can be sure that the Valkyries tending the Culture War has swooped in to spirit a much more lamentable fallen soul to Valhalla: the gentleman with the invisible hand guiding anonymous, impersonal, anodyne commerce where the Jew, the Gentile, the Muslim, the Slattern, the Aristocrat, the Awkward, the Hateful, and the Virtuous may gather in blessed, simple peace to transact for mutual benefit, regardless of race, of creed, of nationality, of faith, of all the petty, niggling trifles of life that divide us elsewhere. Check your cultural baggage with the market warden, folks. Or at least that's how it ought to be. That's the legacy we inherited, and it's the legacy we now seem hell-bent on squandering.

The Internet Hate Mobs have metastasized. And they have chosen their battleground: commercial spaces.

I never thought I'd write this, but I live in an America where buying a pizza is no longer a euvoluntary exchange.

Hail Eris.

P.S. Mr. Kasso, you uh, you better call Saul. And reconsider your threats of defamation lawsuits. Friendly advice. Love, Spivonomist.

Feel Good, Inc.

Writing at Bloomberg, Cass Sunstein decries corporate First Amendment defenses against compelled speech. In other circumstances, I might point out that any time any American purchases anything in the US, thanks to the arcane, circuitous quasi-federalist tax system that includes block grants to states, she supports foreign conflicts whether she wishes to or not. I for one loathe that my time and treasure support, directly or indirectly, the ongoing drone campaigns in the Near East. I struggle to retain my composure when I remind myself that the drumbeat of war again directs its thudding bass towards our perennial enemies in the Fertile Crescent. In a stunning reversal, it's Iran this time. Or Iraq again. Who can keep track? We have always been at war with Eastasia.

But that's not what catches my eye this bleak, blue Monday. Instead, consider this exchange between Clark of Popehat fame and Ken|Patrick (probably Patrick) of also Popehat fame. The short version runs something like this:

Patrick: Did you guys see the new Taco Bell commercials? Great stuff, man.

Clark: I did see them. They're in bad taste. I agree with Sam.








[some pro-, some anti- remarks from others]

Patrick: You guys are off your rockers. Do you also think DPRK_News is reprehensible? How about Mel Brooks's The Producers? Did you laugh at Springtime for Hitler? Why are those okay but the Taco Bell ads are offensive?

Clark: Aesthetics.

This was a fine place to conclude the disagreement. Once it's no longer a matter of a dispute with a factual basis, de gustibus non est disputandum rules the fort. And here, it's extremely easy to forgive ardent defenders of robust first amendment protections to fail to see the sliver of light that separates commercial and private speech. Indeed, I tend to agree with the legal arguments that make no distinction between a citizen qua citizen and a commercial interest in the eyes of an impartial system of justice. If an act is otherwise acceptable, adding the exchange of money to the activity does not alter my jurisprudential moral calculus.

But I must confess to harboring a double standard when I vacate the halls of justice. Patrick's honeypot Twitter account is not, despite the well-deserved popularity of the Popehat brand, the public face of a Fortune 500 company. Popehat products are tailored for well-educated punters. Taco Bell is tailored for... well, Taco Bell customers. I'm sure that they're fine people, Stuart. Good Americans. But they genuinely don't know what the Communists are doing to the soil.

So I (and Clark, evidently) have a moral intuition that tells me that this commercial speech is categorically different than Hogan's Heroes depiction of Nazis as bumbling goofballs rather than the banal, bureaucratic, institutional evil they were. There's some moral intuition that tells me it's just crass to hawk flatus fuel using the aesthetic of mass institutionalized murder in a way that doesn't also apply to either parody or naive appropriation. I suppose I have an analog to a fair use doctrine in mind, and Taco Bell fails to meet my standards, while Patrick's own mockery easily makes the cut.

But I'm careful to distinguish between my private opinions as a Concerned Citizen and what I might bring as a petition to the sovereign. My aesthetics, my moral intuitions are mine and mine alone. If I am incapable of moral suasion, that's either the tarnish on my silver tongue, the recalcitrance of my interlocutors, or as astonishing as it may sound, the possibility that I am simply wrong.

"Conflict mineral" disclosure requirements seem to occupy a similar space at the crossroads between law and common sense morality. If the issue of mining in war zones (or in areas where slavery still exists) is important enough to bring to the attention of the public, direct intervention by the legislature is one way to get there. Another would be to form an independent certification board, like exists for Fair Trade coffee or consumer electronics. "This xylophone certified conflict-free" could easily be another sticker on whatever goods get shipped hither and yon. I think there is good reason to be suspicious of handing this responsibility over to the government mostly because determining which areas end up on the list of no-no regions would be of great interest to the political ambitions of the State Department, and I pay just enough attention to politics to know that giving additional censure authority to the Henry Kissingers (or the Hillary Clintons if you're so inclined) of the world is perhaps a little unwise.

Commerce with firms who use conflict minerals might not be euvoluntary, but that emphatically does not imply that it should be political. Imagine that your worst political enemy might wield this tool. And then wait a few years, for it's sure to happen.

Involuntary Exchange

What do you think, folks? Does Matthew B. Crawford raise an interesting point here? Is attention a commons? Is the national vigor sapped by prolific advertisement?

Firms contract with property holders to hawk their wares. In a general equilibrium, consumers pay less out of pocket for ad-subsidized goods and services. But is it really a "choice" when advertising comes bundled with the ordinary activity of living one's life? Sure, you can freely choose your ideal mix of Hulu and Netflix (mine is 0% to 100%, in case you're curious), but when you're obliged by the necessities of living to trawl the aisles of your ad-laden supermarket, the choice has been made on your behalf, yes? Opting out is particularly expensive. More so, perhaps for folks on limited budgets?

Then again, what's the alternative? Ban commercial speech? Or regulate it for content somehow? I'm sure that a venerable bastion of civilization such as the NYT would shudder at the thought of so disgracing the spirit of the First Amendment, yes?

Also, I urge you to please excuse the tomfoolery of this graf [emphasis added]:

A notable feature of many formerly Communist countries is the apparent absence, or impotence, of any notion of a common good. Self-serving party apparatchiks have been replaced by (or become) quasi-free market gangsters. Many citizens of these countries live in the environmental degradation that results when economic development is left to such interests, with no countervailing force of public-spiritedness. We in the liberal societies of the West find ourselves headed toward a similar condition with regard to the resource of attention, because we do not yet understand it to be a resource.

It is clear that Mr. Crawford never enjoyed a stroll within a hundred meters of the Neringa. One of the greatest jokes played on Anglophone audiences was when Sean Connery, playing a Lithuanian submarine commander in The Hunt for Red October told the moviegoer surrogate that he enjoyed fishing in that river as a boy. Soviet industry had turned it into blackened, acidic sludge twisting though the concrete demense of Vilnius. Since 1991, it's enjoyed a bit of a comeback and when last I visited, it no longer reeked unto the gods themselves. The same is generally true of the rest of the country. Littering is way down, citizens are much more frugal about energy consumption (an old habit of Soviet-era Baltics was to run the heat full-blast with the windows open in the winter), and the old Chernobyl-style reactors are all either shut down or in the middle of decommission. To claim that the Communist era was one characterized by a clean environment and the subsequent Capitalist era is one of degradation is so completely counter to the truth that one must wonder if Mr. Crawford is having a bit of a jape with readers.

Tee hee.

Gossip

Is gossip euvoluntary? Gossip raises or lowers someone's relative social status without their knowledge or consent.

Gossip is dang close to ubiquitous among humans. It certainly predates civilization (pre-writing cultures in the Amazon Basin and on Papua New Guinea gossip just as much as your nosy Aunt Gertrude) and it definitely happens in early childhood.

The just-so story of atavistic gossip is something like this: subsistence foragers desperately needed to know whom to trust. Successful bands developed keen senses for when (and how) to communicate important social information relatively error-free. Gossip emerged from the selection process, together with all the attendant hedging (admissions of third-hand sourcing, "I heard", &c) and clear signals that the speaker is gossiping rather than doing some other sort of talk.

Q: do all the tacit norms surrounding gossip help keep it euvoluntary? I think folks understand that the problem isn't so much with the gossip as with the behavior that triggers it. And as long as everyone's in on what gossip is, what it means, and how (un)reliable it is, is it really a problem?

Ignoring for the moment that it's utterly impractical to attempt to curb gossip, I don't think anyone really wants to ban it. Sure, you'll hear folks in leadership positions urge people to exercise restraint, but very rarely do you find any sincere attempts outside of, say, military basic training to quash gossip.

Hm. Maybe if we thought about prices more like we think about gossip we wouldn't get so bent out of shape every time we think the rent is too damn high. Maybe what those prices are doing is hen-clucking around the water cooler about the relative value of that apartment.

No Encryption, No Devotion

UK Prime Minister David Cameron:

In Crisis and Leviathan, US economist Robert Higgs describes how state authorities will use high-profile current events as pretext to seize ever-greater legislative authority over the constituency. When the crisis has passed and attention is elsewhere, the "emergency" powers are almost never relinquished.

There is much to be said for analyzing politics as if it were exchange between state and citizen. Modeling state agents as anodyne, disinterested merchants is probably misleading. They are almost certainly motivated in part by a drive to provide for the common weal, but it is difficult to accept the proposition that they have no interest in dominion over subjects.

I invite my readers to indulge in a little forward induction. With what probability are you willing to post content to the Web that might be interpreted as critical of your government? Does the answer to this question change depending on who's in office? What principles of governance would you choose if you did not know beforehand what sort of people would hold the scepter of rule?

If speech, particularly political speech, is to remain free, citizens must remain vigilant against censorious intent. The free, euvoluntary flow of ideas depends on it.

False or Unfalse

I am a child of my upbringing, so when I think of statements that cannot be falsified, my thoughts inevitably turn to Mr. T and his stern warnings about the perils of jibber-jabber. Indeed, I pity the fool who listens to anyone making weaselly, motivated, partisan claims about stock market movements, alleged effects of policy on quarterly growth, or spurious remarks about employment rates. In short, most of what passes for financial or economics journalism is so obviously tripe that I honestly have to wonder at the good sense of the people who consume it.

"The stock market rallied following blah blah blah from the President today" is less informative than the nether bellowing of a porcine oaf. At least in the event of a noisy fart, listeners can conclude that at one point, the issuing individual enjoyed a fine meal. With financial soothsaying, the wind and volume accompany nothing.

So here's the common-sense jurisprudence question: should market-watching geese be subject to false advertising statutes? If their inane proclamations induce individuals to trade based on naught but empty bellows, shouldn't they bear some liability? Or is the soul of commercial regulation located only in the profit center? Does it matter whether or not commercial speech is made by a third party who does not stand to profit directly?

If it does matter, what does that say about citizen jurisprudence towards third party review sites like Yelp or Zillow or whatever?

The public (and the Supreme Court) have already decided that some forms of commercial speech are not protected by the First Amendment. If deception were the only issue, most financial journalists would be liable in tort. It appears that you need to combine deception and profit-seeking to run afoul of the popular sentiment. Curious.

Hate Speech

If freedom of expression can be sacrificed for criminalising incitement & hatred, Why not for insulting the Prophet of Allah? #ParisShooting
— Anjem Choudary (@anjemchoudary) January 7, 2015

Absolutely correct. A spot-on argument for why hate speech statutes are ruinous. If you grant one group exemption from criticism, you must ultimately grant all groups such immunity.

Speech is not euvoluntary, which is why free people need so desperately to defend it vigorously.

Drop The Internet And Put Your Hands Where I Can See Them

"Revenge" porn is the sort of thing that should offend anyone with even the barest hint of a conscience. But should it be a criminal offense?

The Illinois General Assembly and Governor Quinn think so. Recently signed into statute law, Public Act 098-1138 makes the non-consensual dissemination of private sexual images a crime (h/t E.N. Brown).

Ignore for a moment the vague wording of the statute ("'Intimate parts' means the fully unclothed, partially unclothed or transparently clothed genitals, pubic area, anus, or if the person is female, a partially or fully exposed nipple, including exposure through transparent clothing." [emphasis added]) and consider instead the common-sense jurisprudence.

I don't pretend to understand folks' penchant for taking nude photographs or video. There already exists oceans of pornography cheaply and readily available and let's face it: most amateur photographers don't know the first thing about lighting, framing, mise en scene or the countless other photographic and cinematic tricks to making others look good on film, particularly when disrobed. Still, it is evidently a choice people make, and I have no particular moral authority to gainsay what private people elect to do with their time and talent. Even if it is sending each other grainy, wobbly shots of their grubby buttholes or whatever. What I don't quite grasp is how this sort of thing isn't resolvable in tort. It seems far more akin to a strain of defamation law than to an actual jeopardize-the-community crime.

Whatever the case may be, the Governor's office has held up the statute as a model for the rest of the country. And if it manages to survive First Amendment challenges (I am not willing to bet one way or the other on this, though I confess at least a little skepticism to its robustness), I think it may well have a chance to do just that.

Why? Because BATNA disparity. Though less so than yesteryear, there's still a very large downside to having your nude pictures publicized, a downside that does not exist for the one doing the publicizing. This statute, or ones like it, aim directly at this imbalance. The moral intuition is clear: BATNA parity. If for no reason other than this, it'll be a rousing success.

As for the unintended consequences? Well, I'm sure those will sort themselves out eventually. It's not like America is running short on prison space or anything, nor that public defender offices are desperately overbooked and understaffed. And hey, SWAT raids never go wrong, so why not just criminalize more behavior ordinarily reserved for tort, right? Cops don't accidentally kill or maim non-threatening civilians. This is America, after all.

Black List Down

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Twenty-nine states have enacted statutes against blacklisting. Each and every one of them restrains employers from preventing former employees from being hired elsewhere. Each and every one of them owes its pedigree to anti-conspiracy jurisprudence. The economics are easy enough to understand: blacklists destroy the implicit wealth of targeted individuals, obliging them to accept lower wages at no substantial cost to the conspirators. If you're a regular reader, you should instantly pick up on the BATNA disparity tucked neatly away there. If you're an employer, workers are easy enough to replace (or so goes the legislative intuition), but if you're a worker, you could be completely barred from your profession. Yikes!

As you know, the Supreme Court has roundly rejected prior restraint.

These 29 legislatures, in an uncommon fit of forward induction, have therefore been sharp enough to limit blacklisting bans to actual employers, and not to private citizens. Walter Sobchak is still at liberty to carefully write down the names of everyone who's offended him and publish it in the local paper. He might still be liable under defamation statutes, depending on what else he writes, but unless he's an employer, he won't trigger blacklist statutes.

The question I found myself asking yesterday after Popehat patiently and carefully explained all this to a #GamerGate activist is whether or not the moral intuition, if not the actual jurisprudence underpinning anti-blacklist statutes applies to privately-maintained lists. If I, a private citizen, create a public list of people who are heretical in mine eyes, and this list becomes extremely popular, perhaps even gaining a universal following among leaders of the industry I work in, isn't the effect to the people on the list exactly the same as if an employer had done it? Wouldn't I be just as complicit in ruining the career prospects of the people who've offended me?

A few possible differences:

1. Employers can maintain hidden blacklists, and there's no way to tell for sure whether or not the names on it constitute a protected class. Publicly visible blacklists kept by ordinary citizens are open to review and scrutiny.
2. Corporate blacklists can be used to sustain anti-competitive collusion. One of the solutions to a repeated PD game (at least on the margin) is to have a coordination mechanism. A blacklist can serve precisely this function. Put a name or two on there strategically to punish conspiracy defectors, and you raise the ex ante probability of sustainable cartel behavior. Private individuals have no incentive to dally in boardroom shenanigans.
3. My list is entirely opt-in. It's merely an offer. Acceptance of its elements must necessarily be voluntary. I am unable to withhold significant future commerce in the event that an employer crosses the picket line so to speak. I have precious little market power, in other words.

Perhaps you might add to this list. Perhaps not. Perhaps you'd quibble with the logic of the items in this list. I know I would. I'm not all that fond of the idea of protected classes, for example. Still, I am at no more liberty to influence the public jurisprudence than I am to influence the public taste for television programming. What I can do is attempt to parse the prevailing sentiment in an effort to predict what sort of legislative tomfoolery we might see rollin' down the pike.

On the one hand, social media does seem to be increasingly salient in employment selection/termination practices (Pax Dickinson, eg). On the other hand, it's dang hard to muster much public sympathy for the low-caste males that end up on mass Twitter block lists. What legislator would go to the mat for some douche cannon who takes preternatural glee in leveling vague (or sometimes very clear and targeted) rape and murder threats at women? My best guess? Privately-maintained block lists aren't likely to be non-euvoluntary enough to incite legislation unless and until someone starts a practically effective one (i.e. one that employers begin to honor) that actually targets people who are in an honest-to-Jim protected class.

No one would be stupid enough to do that though, right? 

Right?

h/t K.W. (Patrick maybe? Naw, Ken for sure. Like 90% sure it's Ken.) and Randi Harper.

Stuart Smalley Political Economy

Those of you old enough to remember Al Franken before he morphed into a Skeksis and took his rightful place in the US Senate may recall his SNL character Stuart Smalley, whose flaccid mantra was "I'm good enough, I'm smart enough, and doggone it, people like me." It was a funny enough pastiche at the time, woven from the unbearable sadness of broken, low-status people shambling their way through the aftermath of trauma (Franken says that the character emerged from his experiences in Al-Anon meetings).

The humor, and I feel a little foolish for having to point this out, arose from the unmanly, servile, wimpish nature of the character. Smalley was constantly trying to rebuild his self-esteem, and that's silly because self-esteem is silly.

Well, it was anyway. Wunca-ponna time. I know this will sound like intergenerational bellyaching, but I'd like you to consider the content of the material Patrick at Popehat has lately taken to lambasting.

See the thing in all its glory.

Young Mr. Zach Traynor flirts with his totalitarian instincts on the dance floor of self-esteem. To him (and judging from an admittedly non-representative sample of people his age, many of his peers), the threat of physical violence is a distant memory of a Whiggish past, gone but not forgotten, rearing occasionally in the periodic school shootings that have become a numbing part of the relentless news cycle. No more swirlies, no more noogies, no more fistfights by the bleachers. We used to knock the books out of your hands. Now we tweet mean things about you. Isn't that still bullying? If you troll me, do I not bleed?

The Straussian reading of Traynor is this: the American public has chosen to move up Maslow's pyramid. Violent crime is way down, particularly from the excesses of the last quarter of last century. Social media has drastically reduced the search costs of ad hoc communities, so that previously outre interests now have gigantic annual conventions in major cities. Honestly, if you would have told me while Franken was still on the air in a pastel sweater that American men would be congregate once a year dressed up as My Little Pony characters, I would have gone all British and accused you of taking the piss. The only frontiers left for bullies to ply their craft is in the rarefied vapor of self-esteem and self-actualization.

And yes, it still sucks. Getting stuffed in a locker sucks too, but assault is a crime. Making speech a crime has horrific consequences that should be obvious to anyone over the age of five.

Still though, making speech a crime is a choice that the public could make. It's possible that given enough time, public opinion could drift far enough into Traynoresque tyranny that we could see a repeal of the First Amendment. He's a Dartmouth student, he and his peers will inherit the keys to the Constitution soon enough. I'd be curious to see if he and his ilk end up successful whether or not the next round of censorious intent will be leveled at the next layer of Maslow, if folks who dare impede personal perfection through criticism or other barrier-erecting will end up tasting hobnails.

Speech is not euvoluntary. Well, at least the speech that most desperately needs protecting. Tender feelings are hurt when people make harshly critical remarks. There's little mutual felicity exchanged when Serrano submerges a plastic Christ in his own urine. But I encourage you, dear reader, to recall that when you petition the state to intervene, you are affirming that in the limit, you are willing to kill to enforce the statute law you wish to enact. Do not forget that in a confrontation with agents chartered to enforce statue legislation, sufficient resistance ends one way: with the perpetrator shot dead.

Mr. Traynor, are you willing to kill American citizens to preserve the self-esteem of others?

Did They Vote? A Petty Rant.

You can take the boy out of Oregon, but you can't take the... actually no. You can take the Oregon out of the boy. Witness, dear friends, what hath wrought Representative Ben Unger, D-Hillsboro: https://didtheyvote.org/. Did they vote? And what does this charming wee application do for yon Oregonians away in yonder Oregonia? It links up voter records to Facebook profiles. You can hop on there, and as long as you're a registered voter in the Beaver State, you can browse the other Beavers on your friends list to see who's already cast a ballot this year.

It's difficult for me to articulate how much I condemn this. It isn't so much that it bears the stench of the totalitarian tactic of turning brother against brother or children against parents. It isn't even so much that the party ostensibly opposed to oppression and domination would turn to a crude tool of distributed shame to achieve their craven ends. It isn't even that the sort of low-information voting this is likely to spur will do little more than put extra noise into an already noisy processing. No, the thing that gets my goat is that it turns both voting and public shaming into a game. There are leader boards—MOTHERF***ING LEADER BOARDS—that display how many finger wags folks have sent to "delinquent" citizens.

Long time readers of EE will know how seldom I deploy the term "apoplectic." Perhaps it's because I've had a somewhat hectic week and my natural defenses are down, but this news trifle comes dang close to making me apoplectic. I take informed voting seriously, as should any responsible citizen in a democracy. By all means, vote if you're informed about the candidates, their positions, and the likely impact your vote will have on policy. Vote if the issues are salient to you. Vote if you're not alienated by the unspeakable things politicians spend your money on. Vote if you think it will make a meaningful difference in your life. But if you head to the polls because your Facebook friends sent you a PM, it's time to re-evaluate your relationship with your system of government. And if you're one of the goons sending messages, perhaps it's time to pause and give some meaningful consideration to the sort of leadership you want to see in the nation's capital. Is someone who cheerfully turns a social network into a petty Red, White, and Blue version of the Stasi really the sort of person you want to see wielding the riding crop of power?

A peaceful society is one that invites. Embroidered on the stoop mat in front of a shop is a single, warm word: "welcome." You are welcome to come in and browse our wares. Find what you like, and we shall exchange value for value. In front of Congress is no such felicitous invitation. The Congress is by necessity an authoritarian assembly. Its pronouncements carry the weight of law and are each ultimately punishable by death. Using the cute little tricks (naming, shaming, gaming) of the marketplace in a fatal arena is a grotesque misapplication of scope, an unjust abuse of power, and a dishonorable act by any reasonable standard of conduct for free citizens in a democratic society.

If anything should be tenderly protected as a euvoluntary act in a system of representative government, it should be the ordinary act of of voting.

"What do you say, Angus?"

"People, if crap like this can happen, why do we even have a Federal Elections Commission at all?"