Media

In Full Defense of This American Life

About a month and a half ago, Ira Glass and the crew of This American Life came upon a story that seemed almost too perfectly designed for the show’s introspective, vaguely counterculture hipster aesthetic: the tale of a die-hard believer in Steve Jobs’ Apple discovering that those hallmarks of the intelligentsia, iPads and iPhones, are made possible only by work conditions approximating slave labor.

It’s a sordid tale, initially popularized by a well-known off-Broadway show, “The Agony and Ecstasy of Steve Jobs.” It also was, it turns out, too good to be true. This American Life published a retraction this week, along with an apology from the story’s originator.

The incident would be unremarkable — journalists make mistakes every day, even big ones, even consciously — except for the deathly seriousness which Glass and company treat the issue. The show ran a full “retraction” episode, analyzing what went wrong, and where, and offered profuse apologies to the listening audience. This despite the fact that the This American Life team neither deliberately nor negligently misled their audience, and Daisey’s track record for fooling everyone. TAL was an intermediary, as always, relaying someone else’s story in partial reliance on the teller’s integrity; and TAL attempted to fact-check the substance in the first case, and readily warned listeners that not all details were verifiable.

Critics may — but shouldn’t — see this incident as a blemish on the show’s stellar record. In his response, Glass does more than correct the record and model journalistic best practices. He offers a commentary on the problems of journalism itself and, consciously or otherwise, invites silent comparison to peer broadcasters who either refuse to retract stories, or bury the retraction on A30. Effectively, in the show’s greatest tradition, he takes a regular occurrence in American life, steps back, and explores it in depth and personal way. Glass made himself the story, and showed us how he learned from it. Such open introspection should make “Retraction” the show’s finest hour.

The Problem of the Palin Ponzi Scheme

Sarah Palin’s decision not to run could push her to the top of the vice presidential slate, where (with the right nominee) she could reprise her role as the extremist spoiler that tanked a mainstream candidate. Here’s hoping.

But in the interim, all that’s certain is that she’s managed to successfully cash in on the uncertainty surrounding her potential presidential bid without going through the hard work of actually running for something, holding public office, or making a difference. Jon Stewart details the absurdity of it all — especially in light of misleading fundraising letters her personal PAC has put out over the past few months. From one:

Someone has to save our nation from this road to European Socialism. Do you think it should be [ex-]Governor Palin?

If so, can you send your best, one-time gift to SarahPAC today to help her elect more common-sense conservatives — and show her that we support her if she decides to run?

Now there’s certainly nothing illegal in any of this fundraising — when I use the word “Ponzi Scheme,” I use it as loosely as Governor Perry — but this sort of inducement to give someone money, to perform a discretionary act that they have no intention of ever performing, feels a lot like the kind of securities fraud that gets companies investigated, and directors thrown in jail. At the very least, it’s slimy. Voters spend money to “convince” Sarah to run, and in exchange, get nothing more than another visit from the Grifter Express, and the peace of knowing that someone cares enough about their loose cultural beliefs to take their money and use it to write Facebook posts. I suppose that’s something, but it’s not much.

What Sarah Palin has become, and what we’ve allowed her to become through this “will she or won’t she” dance, is a political version of Kim Kardashian or Paris Hilton, “famous because she’s famous,” consuming public money and attention in exchange for the sheer joy of knowing she exists, and witnessing her wacky hijinks. She’s an entertainer, taking in the political energy of her supporters and converting it into spectacle. We should ignore her, until she decides to do something useful.

That we don’t, though, says something. It speaks to a vacuum on both sides of the aisle — of ideas on the Republican side, and of leadership on the Democratic side. There’s no space for such demagogues in a healthy democracy.

The Jerry Bruckheimer Ad

Rick Perry drops one, titled “President Zero”:

It’s the rare campaign that goes negative in its first public offering. Perry’s is also the first experiment with this type of ad, post-Tim Pawlenty, and outside of Sarah Palin’s odd “remember-that-I-still-exist” variants. What I’m getting at is, this is an affirmatively new way to campaign, and one that attracted nothing but negative attention in its last, limited engagement. The lesson I would draw is that the country doesn’t respond to true negative ads, which is what this is, aside from a few dog whistles to the radical right (“who doesn’t apologize for America…”).

Early negativity also feels “off” for a primary election: Republicans are entitled to bet, at the general phase, that voters want “anyone but Obama.” But since the Republican candidate will be, by his* very definition, not Obama, I would expect the players to attempt to state a positive case explaining their ideas for the country — not try to simply distinguish themselves from the President in as strident and offensive a manner as possible.

But, then again, expecting anything but the absolute worst from Republicans really is what got us into this mess in the first place.

Science and the Public: the Prevalence of Discredited Mythology

Observers on the modern era will agree that one of the greatest weaknesses of democracy is the public’s inability to responsibly discuss science. As an example, this week saw the release of a study conclusively refuting the alleged “link” between vaccines and autism, and revealing England’s Dr. Wakefield, the originator of this pernicious lie, as a paid, deliberately mendacious hack.

But, look at the poll attached to the Daily News’ article. Immediately after reading an article revealing the “link’s” fraudulent origin, a staggering 12% still say they believe that vaccines cause autism, and 19% want to see more studies.  This despite the absence of any non-fraudulent study, ever, linking vaccines to autism. Compensating for the unscientific nature of internet polls, this is still a substantial delusion. Why?

Two theories (and I welcome more). First, we as a country are deeply distrustful of certainty. This is a consequence of the country’s foundational anti-elitist spirit, which proves to be our greatest strength at the best of times, but our greatest weakness during the rest. Despite a basis in earned knowledge, and the best of intentions, scientific advice is still a statement that you know better than someone. We bristle at such proclamations.

Second, we believe in fairness, again a noble sentiment perverted to evil ends. A great deal of life takes place in shades of gray. President Bartlet (ah, the quotable West Wing):

Every once in a while, there’s a day with an absolute right and an absolute wrong, but those days almost always include body counts.

Unfortunately, we forget this lesson when we need it most, and remember it at all the wrong times. Science is not subject to fairness review. Except on the cutting edge — the debates the scientific community largely conducts in private — as applied to policy construction, there’s a right answer and a wrong answer. Like 2+2=4, natural selection explains life on earth, and “creationism” does not. And yet science reporting tends to insist on a second side of the story, because only two things make news: controversy, or hysteria.

There’s no real solution to this problem. Education, as always, is the silver bullet, but that’s a whole other thing.

The Necessity of Public Radio

In last week’s Journal, a conservative commentator makes the “free market” case for defunding NPR, not because it’s “liberal” (read: fires bigots for being bigots), but because government funding presents an insurmountable barrier to entry to other, would-be “quality,” for-profit broadcasting providers.

Safe to say this guy isn’t getting Carl Kassel’s voice on his home answering machine. But he’s also wrong, for two reasons.

First, his argument seems to be premised on a fallacy. If NPR exists only because of government money, such that pulling government funding would kill the network, this seems to be a concession that the “quality” broadcasting model isn’t sustainable on private funds alone. If that’s true, NPR is preventing precisely no profitable businesses from entering the market, because the necessary predicate to the argument, that NPR fails on private money alone, proves that the author’s business model is simply not sustainable. Maybe the paltry amount of money NPR receives from the government is enough to give the network a competitive edge it’s able to leverage to keep out competitors. But that’s not the argument that’s being made here, and it’s separately wrong.

Second, regardless of the amount of money NPR needs from the government, the network’s ability to avoid the free market, in part, is probably uniquely responsible for its ability to provide the kind of quality content our author purports to be interested in offering. Faced with the corrosive influence of the Fox model, and the need to appeal to the lowest common denominator, very few businessmen will be able to, or even try to, resist the temptation to pander. Quality, nonbiased reporting is quite possibly one of those rare commodities for which the public will not pay, but which it desperately needs: if we can’t legally regulate speech content whatsoever (even through network ownership caps or “fairness doctrines”), the unavoidable conclusion is that the vigorous American first amendment has turned  “good journalism” into a public good. Private actors have no incentive to produce it; therefore, the government must.

Public broadcasting, then, is the best of several bad solutions to a very serious problem. How does a free nation remain free, when that very liberty depends on its citizens doing something that many would rather not do — remain informed about world events — and the government can neither force nor incentivize citizens towards that goal? The right’s feeble constitutionalism, possibly by design, can offer no answer to this difficult question.

Oh, and a closing note: to the author’s passing criticism, that the Public Broadcasting Act may fall outside of Congress’ enumerated powers, the general welfare clause (Art. I, § 8, cl. 1) sweeps pretty broadly. And besides, no private actor would have standing to challenge the Act’s constitutionality. Even a prospective competitor’s interest — the closest one gets to a cognizable, redressable injury here — is by definition prospective and therefore insufficient.

Regulation & the Search for Truth

Why do we have a First Amendment — and, particularly, the “freedom of speech” (whatever that means)? Because the Amendment is vague, thus permitting (and requiring) judges to consider policy when applying it, different answers to this basic question compel different legal results. If we conclude that the Amendment exists to vindicate freedom for its own sake, it’s hard to justify banning any speech, ever, unless it creates an extrinsic harm. Given that justification, no-one would doubt a legislature’s ability to ban child pornography, but that’s about where their authority would stop. Even the regulation of true subversive advocacy (“Let’s assassinate the President — now.”) becomes questionable.

If, on the other hand, we conclude, as Meiklejohn did, that the right to free speech is primarily justified by its instrumental value — namely, by freeing the people to speak their minds, we prevent the intellectual stagnation that characterizes theocracies and other restrictive cultures — the reach of the Amendment becomes a question of balance. This kind of rule would forbid the government from taking a stand on individual issues (no true censorship), but permit regulation of objectively harmful speech, and encourage the generation of rules that, while incidentally restricting speech, channel the public discourse towards productive goals.

The jurisprudence we have tends to approximate the former rule, at least in application. Consequentially we look very skeptically at any government participation in the “marketplace of ideas” — even when it would probably improve the quality of public discourse. For example, the confluence of Citizens United and the death of serious media ownership caps functionally obliterates whatever “intellectual antitrust” law we ever had. We no longer have any real safeguard against a single actor, or small set of actors, acquiring a monopoly on public thought.

There’s not inconsiderable evidence that we’re worse off for that, too. Narrow presentation of major political issues follows as a direct consequence of the narrow media options. The Obama administration can be forgiven, then, for thinking of ways to salvage the admitted public value of independent newspapers, and investigative journalism as a concept, but — and on this, Hot Air comes close to being right on something (ugh) — that’s all for naught if a valuable medium has to take government money to maintain its existence. Those and similar suggestions in a recent FTC working paper on the subject (pdf) will have to go. But others are worth considering — tax breaks to news organizations, for one, where balanced with a serious second look at market consolidation rules, could encourage new, independent, and competitive news entities, to counter the monopolistic and anti-intellectual power of media monoliths. This will mean making peace with the somewhat counterintuitive notion that government regulation over the processes of content production can, when done properly, validate capitalist values like competition, thus energizing the national discourse while undermining and de-necessitating actual government control over the substance of the media. After all, no-one actually wants content regulation.

For years we’ve convinced ourselves that a rigid formalism, opposing all government influence on the media, is the only way to prevent the main harm to be avoided by the First Amendment — the notion of enforceable orthodoxy, which simultaneously stagnates and restricts the intellectual culture that a democracy demands of its citizens. But if corporate monopolies can, de facto if not de iure, create the same harm by dominating content, it’s time to abandon that brightline and experiment. That may mean tolerating some mistakes along the way — so long as they’re made for the right reasons.

Faulting NYT’s Kagan Coverage, Already

In their immediate lead on Elena Kagan, the current Solicitor General and Obama’s reported nominee to the high court, the New York Times reports the following while canvassing Kagan’s views on selected issues:

Judicial Activism

In Ms. Kagan’s written responses to Senate questions during her confirmation for solicitor general, she disagreed with the view that the courts should take the lead in creating a more just society. “I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”

Solicitor general confirmation hearing, 2009

In so doing, the Times engages in the Republican fiction that “judicial activism” is, and should be, an issue. It shouldn’t be an issue — at least as traditionally framed by conservative politicians — because it shouldn’t be controversial when courts enforce positive rights, even when doing so overrides the legislature, and we shouldn’t be surprised when courts engage in substantive lawmaking incidental to the resolution of a particular dispute, because this is precisely the role that the Founders expected the federal bench to play. By discussing “judicial activism” as such, the Times accepts that there is a controversy when there should be none. You might as well report as newsworthy that a given scientist “believes” in evolution. We shouldn’t care when federal judges, or candidates for the bench, embrace their constitutional role, even if that role has become somehow controversial.

There’s a measure of redemption in the Times‘ positive framing of the definition of judicial activism, as the notion that “the courts should take the lead in creating a more just society.” But even this concedes that “activism” means the Court leads society forwards, when what conservatives call “activism” is really about leading us back to foundational principles, like equality. This is why Democrats lose debates: we accept the other side’s premise, even though doing so means we’ve already lost.

Oversimplifying the Bench — Again

Yesterday, Politico purported to cover a “controversy” over Goodwin Liu, a young, brilliant law professor recently appointed by President Obama to the Ninth Circuit. The appointment, of course, is stalled, because to the Republican Party, nothing — not staffing the TSA, or filling the federal bench — could possibly be as important as revitalizing the flagging culture wars.

I say “purported” because, throughout a three page article covering the issue, we learn nothing about the man at the center of it, Goodwin Liu, what his legal philosophy is, and why it’s controversial enough to spawn a legitimate controversy, nor are we linked to resources that we can investigate, to form our own opinions. Instead, we hear simply that Liu has made “incendiary statements on issues such as affirmative action, school busing and constitutional welfare rights.” But any statement on these issues is a fortiori “incendiary.” Especially when framed as such. This is the Politico metareporting style at its finest — assume a story, and report on the fallout, thus depriving the audience of the right to make a choice about whether to care, and whether those who do care ought to, as well.

We might forgive this practice elsewhere, but when it comes to the federal bench, it’s an especially grievous dereliction of duty. Judicial issues uniquely lend themselves to mischaracterization. The issue of “welfare rights,” which Liu is apparently accused of defending, presents the paradigmatic case. To nonlawyers, combining the word “welfare” with “rights” triggers concerns about the overextension of the welfare state, and suggests a failure to incentivize productive behavior (layman’s terms: “GET A JOB!”). To even a first-year law student, though, the question is more complicated, presenting a valid and vital field of research. Legally, the question of “welfare rights” is never whether or how to imply entitlements: it’s how, and when, an extant entitlement can be extinguished. This isn’t a political question; it’s a constitutional one, and there’s no real argument that it’s not. Basic procedural due process requires some form of notice and review before any vested right can be revoked. See Mathews v. Eldridge, 424 U.S. 319 (1976).

Politico surely has a staff of lawyers. At least, they must, to sue all the small-time bloggers who use names that sound like theirs. So they’re able to look in to exactly what Liu has written, and tell their audience whether this a real controversy, or a made up one. They just don’t care to do so, because that’s not the point of their publication, and in fact, it’s not the point of any right-wing attacks on prominent jurists. Responsible inquiry is the enemy of the knee-jerk reaction upon which the Republican Party now relies.

Keith Olbermann is Officially Our Erick Erickson: to Hell with them Both

Whether it’s Jonah Golberg and Glenn Beck making “liberals” out to be “fascists,” or Keith Olbermann and Erick Erickson comparing their least favorite Supreme Court decisions to Scott v. Sanford (“Dred Scott”), it ought to be possible to criticize our political opponents without comparing them to the worst parts of human history.

Keith Olbermann’s equivalence between Citizens United and Dred Scott is particularly reprehensible. Although I most certainly don’t, if you buy Erickson’s premise — that every fetus is a human life — it actually makes sense to compare Roe to Scott, as a matter of scale if not of taste. But despite the obvious flaws in Citizens United, and the deleterious effects it shall surely work on the political process, it comes nowhere close to the evils of Scott, which literally multiply with every reading. The time has come for us to stop tolerating extremists on either side. If we’re going to boycott Glenn Beck, we should at least try to moderate Olbermann, or push him out of the mainstream.

Systemic Flaws in American Party Politics: A Facebook Vignette

When Scott Brown beat Martha Coakley in last week’s special election, I was mad. So mad, in fact, that I posted this to my Facebook wall:

Republicans have never truly governed this country: all they’ve ever done is sell failed policies with divisive rhetoric, pass the buck to [Democrats] to fix it, wait for their failures to drown us, and trust the public’s memory to be short enough to let the cycle repeat. All Scott Brown’s election proves is that sometimes, that’s enough.

I stand by the general sentiment. So did a few others. But this “status update” ultimately provoked a debate that endured for more than seventy-five comments. Admittedly, there are probably better venues for this kind of debate. Like Twitter! One comment, though, deserves a wider audience, and a more substantial reply. From “S.R.,” a 2L at Michigan Law:

While the commentary on this post feigns a dialog, it is emblematic of the deeply rooted animosity and lack of honest discussion in American politics. Let’s all take a deep breath and consider the message underlying [the author's] upset tirade.

I am going to put myself out there and support [the author's] characterization of the Republican Party (1980-Present). He did something that Democrats do rather poorly: he conjured up a clear archetype of the opposition, used general language to define it, and ran with it. This is a basic rhetorical method which conservative news and radio pundits, political strategists, and politicians do very astutely. What some call fear-mongering, is really just schematizing. Humans think by putting things in boxes. Republicans have discovered that by defining general boxes in an “us v. them” framework, they can develop coherent, persuasive political messaging without proposing policies. This may seem like an attack on the GOP, but I say this with awe and respect. By conjuring up an image of Democrats as liberal spending, taxing, defense-softies, Republicans can literally sit back and watch Democrats manifest these qualities — sometimes at no fault of their own — thereby undermining their ethos. By undermining the appearances of Democrats, the Republican Party can systematically take apart the Democrats and sway public opinion to their favor without doing anything.
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