By Marius

Obama and Antiochus: the Modern Persecution Complex

Michael Stokes Paulsen, reported in Ben Domenech’s Transom, attempts to draw a shaky parallel between a campaign of oppression carried out by the Hellenistic king Antiochus IV Ephiphanes on his Jewish subject, and the Obama administration’s mandate that church-affiliated organizations cover contraceptives as part of their employees’ health plans:

The story does not have an especially happy ending (at least from a human, secular standpoint). Eleazar is tortured to death, then an entire family of brothers after him. But the story of Antiochus IV Epiphanes, and Eleazar, remains a remarkable two-thousand-year-old parable about tyranny and conscience, about cram-downs, accommodations, deception, and adherence to principle.

There are relatively few instances in recorded modern western history when government has insisted on vindicating its authority and overriding religious conscience for its own sake—purely for the symbolism of power prevailing over conscience.

Indeed. Per Paulsen, forcing an employer to subsidize their employees’ contraception violates religious conscience as surely as commanding a Jew to eat pork. It’s this kind of tortured logic, and apparent conviction that a democratically-elected leader is out to “get” the faithful as surely as an ancient despot, that together signal a religious lobby that’s overplayed its hand. Paulsen’s legal argument is worse, still:

The legal case against the Obama HHS policy was (and remains) shooting-fish-in-a-barrel easy. The policy violates the First Amendment’s Free Exercise of Religion clause, under any interpretation. It is not neutral toward religion, exempts some religious employers and not others, and vests government bureaucrats with broad discretion as to who will be exempted. Even more clearly, the policy violates the “Religious Freedom Restoration Act” of 1993, a federal super-statute that protects religious liberty and applies to the operation of all other federal laws unless a new law explicitly removes itself from RFRA’s requirements. Under RFRA, any federal law or regulation that burdens the exercise of religious convictions must give way to such beliefs, unless justified by a “compelling” interest that can be achieved in no other way. The contraception cram-down cannot possibly pass such a stringent legal test: what makes compulsory contraception, paid for by religious groups, “compelling”? How can it be so important, given other exemptions from the requirement?

The critical legal error duplicates the flaw in the historical analogy: the parallel isn’t to a king commanding his Jewish subjects to eat pork. It’s to a king commanding all of his subjects to provide their household servants with a living wage suitable to buy — if the servants so choose — pork, and preserving the new rule of general application over isolated Jewish objections. HHS’ expanded coverage allows American women to take home more of their paycheck, and spend less on drugs that are either an incident of modern life, part of modern reproductive medicine, or now-standard treatment for regular gynecological conditions (“the Pill” is more than prophylaxis — it’s regularly used as medicine for hormonal imbalances). “Discrimination” against the faithful occurs only insofar as they’re asked to contribute, with the rest of society, to expanding this new coverage to a majority of the workforce. Viewed from this perspective, the burden on religious expression occurs only through the attenuated connection between employer and employee, and only as an incident to otherwise valid and rational regulation, falling squarely into the rule of Employment Division v. Smith, 494 U.S. 872 (1990) (holding that religious belief — here, in the transcendental qualities of peyote — cannot defeat a general rule barring drug use by state employees).

HHS’ expanded coverage requires employers to take no immoral act, other than forfeiting their right manipulate the scope of insurance coverage to control the private moral choices of their non-clerical employees. It makes a full 50% of the population freer, happier, and healthier — but cuts one of the few remaining tethers the religious elites use to control the rest of us. That’s what this fight is really about.

The Populist Case for Tradition

At RedState, that wretched hive of scum and villainy, one poster manages to, between an incomprehensibly wrong argument against the Ninth Circuit’s recent decision on Proposition 8, say something interesting. I recommend you skip over everything but the last two paragraphs, reproduced below:

As I’ve written before, democracy, free markets, tradition and the rule of written law are all valuable for the same reason – they include the largest number of people in the making of decisions. Tradition protects us from the tyranny of small sample sizes, by delivering to us the lessons drawn from experience of prior generations. Tradition is not stasis; it is the gradual accrual of the lessons of trial and error of countless individuals. It changes when new things are proven to work, and old things are found to have become unuseful. In fact, you cannot believe in moral progress of any kind if you do not believe in tradition, only a sort of moral Brownian motion in which nothing learned today has any guarantee against being unlearned tomorrow.

But the myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers. Voters gave us the Bill of Rights; judges gave us Dred Scott. Indeed, if voters’ views of same-sex marriage change, as they have in some states, the law will change with them. But if we continue down the path of decisions like Perry, the voters of tomorrow may find little left they are permitted to decide. And that, far more even than the specific policy question at issue, is something worth getting upset about.

The point on the presumptive validity of tradition is well-taken; indeed, as we’ve noted before, tradition serves as evidence that a certain practice probably used to work. But we’ve also noted, to answer the author’s narrow conception of when tradition should change, that proof of a new, superior value system is probably too high of a standard for the rejection of tradition. Moreover, it’s not one that we’ve followed. Popular rule was, at the time of its institutionalization in the American Constitution, an unproven system; we had no reason to expect that republican democracy would work for a country as large as the United States, but were impelled to the experiment by a conviction that Europe’s tradition of monarchy simply no longer served. Tradition deserves its due, but its presumption of validity does not deserve to endure until something better comes along.

Separately, we’re handed a populist argument for tradition — that:

The myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers.

No, for several reasons. First, the author’s example fails on its face: the Bill of Rights was enacted wholly by an educated, upper-class elite, acting uniformly against the tradition of the previous millennia of human history. Mankind had at that point no history of institutionalized religious freedom, and yet we have the First Amendment; and to the extent that the Bill of Rights was meant to secure the rights of Englishmen, to which the colonists felt themselves entitled, it secured those rights through the novel concept of a government ordained by law and by men, rather than by God. “An insular number of lawyers” crafted the American system, with the ratification of the colonists, after a prolonged, top-down publicity campaign. Our government is the product of hard-won knowledge, thought, and rigorous debate — not simple homespun wisdom.

Further, it’s true that judges gave us Dred Scott. But that blight on American history was emphatically a defense of the status quo – of Southern tradition, but tradition nonetheless And later judges gave us, in anti-populist top-down fashion, Brown v. Board of Education. Any defense of tradition against its sudden modification by “elite” lawyers must contend with this example, among others, or risk entirely dodging the part of the debate that makes it interesting in the first place.

Finally, query whether “traditional values” can actually claim a populist provenance at all. Many modern religious traditions were the creations of elites, ignored by them but imposed on the people, like (for example) the much-eroded “tradition” against divorce. Others were roundly proclaimed, but rarely followed. Abortion is controversial today only because it’s never been talked about openly until the modern era; the practice dates at least to Roman times, where (extremely dangerous) chemical abortions were regularly practiced among the nobility. Maybe that’s not an argument against the moral value of tradition, but it’s proof that viewing tradition as the result of generations of trial and error doesn’t quite hold up.

Modernity requires us to square practices designed for insular, homogeneous communities with an increasingly interconnected and diverse world. Conservatives like RedState would see us abdicate this duty, close our eyes, and pretend to live in an idyllic past that never actually existed. But, it’s good to see that the author is at least consistent: reflexive opposition to a liberating society is the conservatives’ proudest tradition, even if it’s not one that’s served them well.

The Dangers of Constitutional Theology

Rick Santorum’s surprising return to relevance should justify a second look at some of his… crazier beliefs. This The New York Times ably provides, per Molly Worthen, who questions whether his prolonged discussions of “natural law” are anything other than a way to sell Catholic-style theocracy to Tea Party-infused Republicans. I’m more troubled by his recent attempt to characterize the President (through “ObamaCare”) as trading the foundational notion of God-given rights for government-created rights, and his corresponding argument that only the former are permanent, and immune from government interference. The larger thesis, that rights cannot exist without God, shares a thesis with some other conservative schools of thought, all of which ought to in fact be viewed as dangerous to the rights of men.

First, Mr. Santorum appears alone in his belief that God can confer rights on men without mediation through some secular power structure. The Magna Carta itself — from which the rights of Englishmen so cherished by the Founders derive — was drafted to secure to the people, through the crown, rights recognized by God. And Catholic theology plainly holds that Christ’s law can only be discharged through human intermediaries. Even if God creates rights, man administers them.

Separately, Santorum’s conclusion that the creation of separate, government rights somehow dilutes rights of a more permanent basis lacks foundation in American law. The Constitution creates certain rights which the people may not abridge — including, per the Supreme Court and contrary to Santorum’s particularly deranged philosophy, the right to accessible contraception — but these are inherent in the document, based on the theory that the Founders pre-committed us to certain non-derogable rights. As legally permanent, these rights exist on the highest plane of American law. On a lower plane are those created or destroyed with regularity by the Congress: the superstructure built steadily above the “floor” provided by the Constitution. These include, for example, welfare rights, and other “new property” concerns, but go so far as to include various remedial vehicles that exist to discharge other fundamental rights, or to fulfill promises made by the Founders but not brought by them to completion. Among others, the right to discharge debts by bankruptcy is contemplated by the Constitution, but not accomplished by the document itself. If the legislative creation of similar rights consistent with the structure and intent of the Constitution somehow dilutes the whole, the compact cannot be administered without accomplishing its own destruction. Dividing constitutional concepts between the sacred rights created by the Constitution, and profane rights created by constitutional process but somehow inimical to it, simply does not make sense.

This is especially so if the Constitution is itself divinely inspired — as believed by Mormons, and specifically, by devotees of the mad Skousen — since all legislative creations of the constitutional process should share in that grace. But this notion of some latter-day divinity of government is separately problematic. If constitutional rights are made and handed down by God, disputes over government automatically become disputes over religion, investing average political debates with eschatological and doctrinal baggage detrimental to the larger society. (Such magnifying rhetoric explains, for example, how quickly the debate over healthcare reform became a debate over “tyranny.”) The Constitution is emphatically a document for us all, written “to define the liberty of all, not to mandate our own moral code.” If constitutional debates can be resolved by reference to private, factional, or sectarian morality, rather than catholic concepts belonging to all Americans, we have abandoned the notion of a Constitution and a country for all citizens. Though this is, probably, exactly what Rick Santorum has in mind.

The Virtues of Tradition

At her blog “Measure of Doubt,” my friend Julia, a storied and brilliant commentator on science and rationalism (and a damn fine vegan cook), offers an analysis of the value of adhering to tradition, from her perspective as a rationalist. This means ignoring distorting influences, insofar as possible, to make more accurate decisions in life.

Julia’s reader questions whether self-described rationalists erroneously prefer to subvert rather than follow tradition whenever possible, rather than whenever wise — resulting in something like the counterculture fallacy, where social groups attempting to cultivate a unique identity reflexively reject cultural norms, thus creating the very type of static, predictable identity they fled in the first place.

To answer the charge, Julia correctly notes that tradition is, by its very nature, bound up with a strong, countervailing selection pressure favoring the status quo. Thus, even though a tradition’s duration is strong evidence that it was, at some time, probably a good idea, unless updated and checked against dynamic social norms, a practice’s longevity alone is not proof of its continuing validity. If self-styled rational actors appear to avoid tradition, then, it’s only because they more forcefully “update” with new information.

This of course is something we’ve bumped up against before on this site, and something that comes up often in law, where the question of how to value tradition — if at all — functionally determines one’s approach to constitutional decisionmaking. There, reflexive trust for tradition famously ossified into the concept of constitutional “originalism,” where a legal tradition’s antiquity defines its merit, not merely because older concepts often derive from the founding generation, but because the conflation of antiquity with merit serves as an easy, objective way to decide close cases. Rarely will you see the debate broken out more clearly than in Justice Scalia’s famous colloquy with Justice Brennan in Burnham v. Superior Court, 495 U.S. 604 (1990) (analysis). Concurring in the judgment, Justice Brennan makes Julia’s very point, that “tradition is salient not in the sense that practices of the past are automatically reasonable today,” but only to the extent that they have some separate systemic value. The rational jurist will focus almost exclusively on that separate value, resulting in a fundamentally different decisionmaking style, and therefore producing an above-average number of conflicts with more tradition-bound judges.

The same process could explain why, at the personal level, rationality may appear to result in an over-correction away from tradition: deference to tradition is simply so prevalent that, once you abandon the practice, your worldview changes dramatically. But like Julia’s reader, I wonder whether over-selection of subversive cultural choices is in fact a by-product of any movement that conspicuously defines itself as different from the rest. As a matter of human nature, we sometimes prefer identities externally consistent with others to those internally consistent with ourselves (pick any show about “fitting in” to see what I mean, like, oh, I don’t know, Mean Girls or My Fair Lady). My answer — and I suspect Julia’s, too — is that those attempting to make rational life choices must first, and before all other things, be honest with themselves about what they want. That may mean adopting or buying into cultural norms that others might find outdated. But just as it’s not anti-feminist to choose to become a stay-at-home mom, it can’t be anti-rationalist to hew to other traditions (monogamy over polyamory/promiscuity?), provided either choice is made, genuinely, to make you and no-one else happy over the long-term. Sometimes, naturally, the value of a traditional practice only becomes apparent in its absence.

Victory in California: What to Take from the Ninth Circuit’s Decision

Yesterday gave American progressives two strong pieces of good news: first, Rick Santorum swept a few early primary and caucus states, gaining not so many delegates, but considerable momentum, and therefore guaranteeing that the continuing disaster that is the Republican primary season will drag on for… a while.

Second, and more importantly, the Ninth Circuit Court of Appeals sustained Judge Vaughn Walker’s decision of August 2010 striking down, as unconstitutional, California voters’ attempt to end gay marriage in their state (styled Proposition 8). Perry v. Brown follows the tradition of Romer v. Evans, 517 U.S. 620 (1996), the last comparable gay rights case to reach the Supreme Court, where a six-judge majority threw out a Colorado provision which purported to invalidate city- and community-level ordinances prohibiting discrimination against gay citizens. Circuit Judge Reinhardt quoted Romer to build on this sentiment, in his opinion for the 2-1 panel:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California. [. . . .] The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).

Slip op. at 5. Set against this background, Perry‘s holding reinstating gay marriage as a constitutionally protected right in California seems a garden-variety exercise of judicial review. It is, after all, settled law that “we don’t like them” fails to provide a rational basis to strip an otherwise inoffensive class of important rights. But because Perry will likely proceed to the Supreme Court, and to meet the opening conservative criticism, some interesting points about the Perry decision:

• Perry applies rational-basis review: this is as-expected, since homosexuals are not yet a protected class, and reflects the highest possible deference to the people. (Shockingly, Maggie Gallagher appears not to understand this point.) The benefit for plaintiffs is that, although the Court declined to recognize homosexuals as a protected class, they conclude that even indulging in every favorable inference in favor of the peoples’ basis for enacting Proposition 8, the measure fails a basic test of rationality.
• That puts Kennedy in a bind: For Prop 8 proponents, that should sting a little. But it also opens up the possibility for the Supreme Court to reverse, and hold that rational basis review requires broader deference than the Ninth Circuit offered. Interestingly, that would be a hard argument for Justice Kennedy to make. He was the author of the opinion in Romer that held that animus is never “rational,” meaning that, to reverse Perry, he’d have to reverse himself, or weasel his way out of his own logic.
• Threshold issues didn’t matter: contrary to our predictions, the Ninth Circuit disposed of the standing issue summarily.
• The Court is protecting itself: Judge Reinhardt very carefully limits the scope of his holding to the peculiar case of California, where gay marriage was a constitutional guarantee (if only due to the California Supreme Court) before the voters wiped it out. By focusing on the negative nature of Prop 8, the Court avoids (it says) making any argument that could suggest a positive case for gay marriage in those states lacking a pre-existing constitutional right. Slip op. at 6.
• The Court is protecting Judge Walker: the lower court’s decision became a cause célèbre for its extensive factual findings, setting out the value of marriage to gay and straight couples alike, and the motivations behind the enactment of Prop 8. But some legal commentators have questioned whether it won’t be all too easy for higher courts to disregard Walker’s finding, as falling outside the bounds of the traditional types of trial facts to which we afford great deference. Perry compromises, by narrowing the universe of relevant facts, before finding the subset of relevant facts worthy of deference. Slip op. at 32. The effect is to sully Judge Walker’s larger opus, but guarantee that the Supreme Court can’t use Walker’s factual findings against him to (say) order retrial.

The second point dominates the rest, and indicates that this could be an easy (even a 6-3) win for gay marriage advocates. But since, as written, the decision doesn’t declare a positive right to gay marriage, it won’t guarantee nationwide recognition of gay marriage. Even if it will usher in a landslide of parallel litigation designed to settle that very issue.

In Praise of Professional Politicians

One of the Tea Party articles of faith holds that all politicians, but at least legislators, should hold their positions only as part time jobs, meet as few times as possible, and otherwise live normal lives, and hold normal jobs, so they understand the pressures of ordinary Americans and avoid falling prey to “Washington” sensibilities. But even though the idea’s gained some traction in California and elsewhere, it’s a theory endorsed by precisely zero good-government groups, and opposed by sensible libertarians. Why?

The notion of the legislator as a small-scale Cincinnatus, taking up the reins of power as needed but retiring thereafter to his farm, is an ideal realized by Texas, where it’s ingrained in the constitution, but approximated by many other states. (Only ten states have true, full-time legislatures, though at least in New York, the most effective legislators treat their positions as full-time.) And especially in Texas, it’s proved an unmitigated disaster. Ordinary men and women simply cannot be expected to both manage independent lives, and keep up with the realities of governing large-scale polities in the increasingly complex modern era.

Just so, it’s impractical to expect the legislator’s function to be discharged competently by laymen. That’s the theory of a recent lawsuit against the state of Colorado’s process of budgeting-by-referendum, where, plaintiffs contend, taxpayers seem unwilling to either vote the legislature the money it needs to do its job, or allow cutbacks on state obligations (like the PTA in that Simpsons episode). To no-one’s surprise, the motivating goal of modern Republicanism — to “starve the beast” — just doesn’t work, at least in Colorado.

These distinct problems are bound together by a common solution: better ethics rules, and renewed respect for the work of diligent, professional, educated politicians. Government corruption, and the disproportionate influence of lobbyists, are both true threats to American democracy. But ending the profession of civil service, or trading representative for direct government, are both extreme overreactions, akin to killing a patient to cure their cancer. I’ve had the pleasure to work for several politicians who modeled the values of true civil service, working twenty hour days, eschewing high-dollar contributions, and rigorously enforcing a true separation between the work of government and the work of politics. We need to encourage these kinds of servants, and put them in positions of power where they can make a difference, rather than relegating them to the role of the insurgent reformer.

That process starts with reversing Citizens United‘s narrow view of corruption — where only payments directly to the politician, rather than through intermediaries, evidence regulable misconduct — continues with genuine ethics reform, and ends with an electorate that recognizes and values talent in its elected officials, rather than condemning it as “elitism.”

Error Deflection

Because it’s come up a few times, and because I feel like a more life-based post is in order, I’d like to hit on a topic that’s come up before: even and especially when making especially important decisions in politics, or the law, how do we choose between two courses of action?

The concept I use to address some of these questions is “error deflection,” a term borrowed from one of my favorite law school professors. It starts by accepting that we act (always) on the basis of imperfect information, and that, especially with hard decisions, mistakes will often result. (“Bad facts make bad law.”)

Accepting the possibility of error, we change the question from “what should I do?” to, “accepting that I may be wrong, how would I like to be wrong?” Mistakes often have consequences, but they’ll always have different consequences. Choices effect results, in success or in error.

This has the effect of changing a question from one about possibilities, to one about values. For example, many choices are intrinsically about risk: do you preserve the status quo, or try to make it better? Error deflection in these cases is all about you. Do you take chances to build a better world? Or is what you have worth defending, and too valuable to potentially lose?

Others, especially in politics, reduce to questions about worldview. The presumption of innocence is nothing more than a conscious choice to always deflect the risk of error in a verdict towards liberty over safety. If we’re going to be wrong, we’d rather free a murderer than jail Valjean. Similarly, the liberal case in national security chooses to deflect error towards the open society. We’d rather take a 1% risk of a terrorist attack than accept the fact (or, 100% likelihood) of a society that profiles on the basis of race. And we don’t believe the ethical calculus of the presumption of innocence alters just because the magnitudes of risk increase across the board. True, freeing a terrorist is a horrifying prospect; but torturing an innocent man, and keeping him from his family until the “cessation of hostilities” is pretty bad too.

The concept works especially well with murky probabilities. Pretend that anthropogenic global warming is a 50% theory — it’s equally likely, in other words, that mankind is or isn’t affecting the climate. We shouldn’t be paralyzed by indecision, because the question of whether to do something about it, once recast, is easy. A 50% chance of human annihilation is worse than a 50% chance of trying to avoid it and failing, no matter how much it costs Exxon. (This is the case I made a few years ago. I’m just updating it for new readers.)

And, error deflection can be romantic! Should you call the girl? Well, it depends. Would you rather know, or always wonder? (And here’s a song all about error deflection: Fires in France, “Love is Strong.”)

Finally, what about the cases where success is impossible? Well, if you have nothing to lose, you might as well try. Sometimes you have to roll the hard six.

(Photo credit to this person.)

Creative Destruction: the Bain Argument

For a first post back, I’d like to revisit a subject that I missed during my self-imposed exile: Newt Gingrich’s decision to try to flank Mitt Romney from the left as well as the right, but taking a few compelling shots at the latter’s business record. If this is something from which we’ve all moved on, I do apologize: as always, I’ll try to add something new.

*     *     *     *     *

Recent events in this year’s rapidly closing primary season showed erstwhile Republican frontrunner Newt Gingrich at his level best, creating new campaign themes design to sever, with a surgeon’s precision, a candidate from his independent, middle-class, “real-America” support. The problem: this time, Gingrich’s focus was a fellow Republican, Mitt Romney, and the type of bare-knuckle capitalism he made famous, leading to charges that the fiery speaker was “attacking capitalism” itself. This is an overreaction, but a justified one.

The Gingrich argument — that Romney’s past with the corporate raider firm Bain Capital shows a candidate who’s not just comically out of touch, but in fact made his fortune shuttering the kinds of firms that employ average citizens — is not about capitalism. It’s about Romney’s electability, and the many ways his candidacy fails to resonate with those elements of the 99% that comprise the Republicans’ post-Reagan power base. But it raises deeper questions, and Republicans are right to worry, because the Bain argument appears to show a chink in the larger party’s rhetorical front.

Since the beginning of Obama’s term, Republicans have endeavored to present a unified line of battle when defending corporate interests, large and small alike: that’s why, in the hands of John Boehner and congressional Republicans, the regulation of highly volatile, irresponsibly-traded derivatives becomes an existential threat to the free market, and a danger to small business job creation, when in fact it’s no such thing. The result is a political landscape where one is either entirely for the unregulated free market — with all of its excesses — or by opposing one portion of it, entirely against it.

This line makes sense as long as Republicans stay on one side, and Democrats the other. But Gingrich’s attempt to invoke Bain to damage Romney compromises the Manichean simplicity of their argument. If parts of capitalism are flawed, or work against middle-class interests, maybe other parts need fixing too. And if so, does it still make sense to say that all regulations kill jobs? This is the proverbial flank which, when weakened, compromises the integrity of the entire army. Think of von Kluck’s right flank, turned at the first battle of the Marne, to the ruin of Germany’s greater dreams.*

Of course, the Speaker ultimately reversed himself, and gloriously returned himself to the Republican orthodoxy. But the damage is done, and vigilant Democrats should observe the weakness on Romney’s right. If some Republican voters could be turned by Gingrich in such short order, perhaps they could be turned again in the fall.

* – With apologies for the tortured World War I metaphor. I just finished reading Guns of August, and that book is just great.

Sorry!

To those of you who enjoy reading this site, first, thank you. And second, my apologies for the longer-than-expected hiatus. I just took a new job with a, well, anonymous district attorney’s office, and some attendant tasks had to be completed that took up large swaths of my time. But that’s happily now at an end! I hope you’ll keep reading in the future, despite this temporary interruption in posting.

The SOPA/PIPA Question as a Quintessentially American Debate

With apologies, again, for delays. Enjoy this picture of subzero skiing as compensation/explanation for my prolonged absence.

How gratifying to see democracy work as well as it has during the SOPA debate. A cadre of lobbyists devise a plan to protect their interests inimical to both the people, and to the larger society; the people fight back; and with alarming alacrity, at a rate comparable to Republicans abandoning Mitt Romney, the lobbyists’ pet representatives jump ship. This is how it’s supposed to work!

For late-comers, the Stop Online Piracy Act is a bill introduced by the lovable Lamar Smith (R-TX), putatively drafted to end commercialized piracy of American intellectual property, especially by overseas actors (like China). This much of the goal is laudable, and drew presidential approval during Obama’s recent State of the Union Address. But SOPA’s mechanism obliterates the safe-harbor provided by the DCMA (the Act that allowed my old firm to successfully defend YouTube’s continued existence, against the assault of Viacom and other content providers), and contemplates a world where content providers may, by simply lodging a protest, see any site that hosts allegedly stolen content shut down without a hearing or chance of reply. Under extreme interpretations of the bill, as originally drafted, this site could be shuttered, in full, on the basis of a copyright complaint about any picture used here without permission. Like the above.

By this late hour, the threat appears at an end, with the Obama administration issuing a thinly-veiled veto threat. But in retrospect, I urge you to look at SOPA as part of a larger narrative, and one liberals (or progressives, if you prefer) blissfully appear to be making some headway. During the darkest depths of the Bush administration, more than a few commentators drew on Ben Franklin’s famous exhortation:

Any society that would give up a little liberty to gain a little security will deserve neither and lose both.

As a watchword for those worried about the nation’s slow slide into a police state. Freedom, the theory goes, involves risk, but it’s well worth the reward. A free society, which we declare ourselves to be, prefers to allow some chinks in our national security armor rather than to close them all at the price of our liberty of movement, conversation, and discussion.

SOPA presents an identical issue. We’ve come to value the internet as a place for free and unbridled conversation, which knits us closer together and enriches each individual’s cultural experience. The price of that liberty, though, is the continual risk of piracy, and the concomitant loss of profit that entails for content providers. By placing the burden of proof to establish piracy and shut down an offending site on content-owners, the Digital Millennium Copyright Act chose to deflect error towards freedom of expression, rather than airtight protection of intellectual property. SOPA proposed the reverse solution, and failed, to the benefit of all. It’s tempting to view individual skirmishes in the broader political landscape as isolated incidents, but to the extent the defeat of SOPA favors liberty over restraint, it inures to the benefit of the larger society.