Eugene Volokh's Blog, page 2692
October 13, 2011
Bill Introduced to Repeal the Durbin Amendment
Co-Sponsored by Reps. Jason Chaffetz (R-Utah) and Bill Owens (D-N.Y.). Text here. Not likely to go anywhere now, I assume.
Talk on Jefferson, Copyright Law, and the Net:
If any of you happen to find yourself in the neighborhood, I'm giving a talk this evening at The David Library of the American Revolution, in Washington Crossing, PA, entitled "The Continuing Saga of Thomas Jefferson and the Internet" — my favorite subject, as you know. It's a little off-the-beaten-path, I realize, so here's a text of the talk I'll be delivering:
The Continuing Saga of Thomas Jefferson and the Internet
Talk Delivered at The David Library Lecture Series
on "The Unfinished Constitution" Washington Crossing PA
I want to cover a lot of ground tonight, and I want to make some connections that might be new to you. I want to focus on two parts of our Constitution, one familiar, one not-so-familiar. The familiar one is the provision prohibiting Congress from making any law "abridging the freedom of speech or of the press" – the First Amendment. The not-so-familiar one is the provision granting to Congress the power "to promote the Progress of Science" by "securing to Authors the exclusive Right to their Writings" – the so-called "Copyright Clause" of Article I Sec. 8.
The interplay between these two provisions – one a grant of power to the government, the other a prohibition on government's use of power – is complicated, fascinating, and even profound.
To begin with, there is, and always must be, tension between them. It's built in, as it were. Copyright law restricts free expression – indeed, that is the very point of copyright law. That's its job. Copyright works by giving Authors certain exclusive rights – monopoly rights – to their expression, and it allows them to restrict the speech of others where that speech conflicts with those exclusive rights. I cannot reproduce today's New York Times and distribute it to my friends or put it on my Facebook page – copyright restricts my freedom to speak. I cannot walk into a bar at Washington Crossing and sing my version of Bob Dylan's Like a Rolling Stone (though I have a terrific cover version of the song . . .) – copyright restricts my freedom to speak. I cannot take the final scene from the Harry Potter motion picture and insert it into the video I'm making on the occasion of my parents' 50th anniversary – copyright restricts my freedom to speak. I cannot translate Jonathan Franzen's Freedom into Italian – copyright restricts my freedom to speak. If I do any of these things (without the permission of the copyright holder), I'm subject to legal sanction. That's how copyright works – by restricting expression.
In fact, the Copyright Act specifically authorizes the seizure and destruction of books, DVDs, and the like – one of the very few places in our law that does so. US marshals can (and do) take books and throw them into the incinerator. Now, they only do so, mind you, on court order, after due process; I'm not suggesting that we live in some sort of barbaric, book-burning society. Not at all. But the fact remains that our copyright law permits the destruction, in certain circumstances, of books and newspapers and CDs and DVDs and . . . , and there is an obvious tension between such law and the freedom of speech protected by the 1st Amendment.
At the same time, of course, copyright law also encourages speech, and the production and dissemination of expressive communications – music and sculpture and news reporting and movies and all the rest. It is and was intended to be, as the Supreme Court put it recently, one of "the engines of free expression . . . by establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."
Like I said – it's complicated.
I want to look tonight a little more closely at that tension between copyright and free expression, As I said, it is a tension inherent in the very notion of copyright law; so it's always been there, ever since we've had copyright law – and because one of the very first bills enacted by the very first Congress in 1791 was a Copyright Act, we've had copyright for a long time.
It's only recently, however – I'd say the last 20 years or so – that we've begun to look carefully at this tension, and to consider and to worry about its broader implications. This is due largely to the rise of the Internet and related digital technologies, which has moved copyright law from the outer periphery of the legal universe (and the outer periphery of our culture) to the very center of both. We all now have the ability at our fingertips to make millions of copies, at virtually no cost, of pretty much anything we can get onto our computers – songs, movies, software, articles, photographs, etc. – and to distribute those copies to millions of people around the globe – again, at virtually no cost. Pretty much all of that (whether you know it or not) is copyright-protected information; that's just the way copyright law works these days. Somebody owns the copyright in just about everything you have on your computer, and just about everything you find on the Internet.
The scope and shape of copyright law thus has a very significant and substantial impact on the shape of the Net – on what you can find there, how you can get it, etc. And as the Internet has become a more important feature of our world, so too has copyright law become a more important feature of our legal world. For those of you in my generation, I would venture to bet that copyright law never came up during your breakfast table conversations with your family when you were growing up (unless your parents happened to be in the publishing or the entertainment business); but I bet your kids talk about copyright law – about file-sharing, re-mixing videos, and all the rest – maybe a lot. Maybe they've even heard about the Pirate Party – a political party in Sweden that has just gotten enough votes to be represented in the Swedish Parliament, and whose platform, basically, is: No More Copyright.
In pre-Internet analog days, this tension and conflict between copyright and free speech was an interesting but fairly insignificant question; today it has taken center stage.
As it happens, no one had more interesting or influential things to say about both of these subjects – copyright and the freedom of speech – than Thomas Jefferson. [Having just written a book about Jefferson and spent 12 years or so immersed in his work, I find that's often true; there's an astonishing range of things – from meteorology to linguistics to gardening to cryptology to paleontology and many others – which turn out, when you start to look closely at them, to have Jefferson's fingerprints all over them.]
On the one hand, Jefferson was our first great free expression and First Amendment absolutist. Freedom of expression was a central tenet – really, the central tenet – of Jefferson's creed.
To preserve the freedom of the human mind & freedom of expression and the press, he wrote, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, and speak as we think, the condition of mankind will proceed in improvement. . . .
Diffusion of knowledge among the people is the only sure foundation that can be devised for the preservation of freedom and happiness. And then, his now-famous words: Were I faced with a choice between a government without newspapers, and newspapers without government, I would not hesitate for a moment to take the latter."
The first object of government is to leave open to all the avenues to truth, and freedom of expression and freedom of the press are the most effectual means for doing that. The United States, he wrote, will demonstrate to the world the falsehood that freedom of [speech, and] freedom of the press are incompatible with orderly government.
And it was Jefferson's election in 1800 that enshrined these principles into our government and our law – at a time when that was by no means foreordained. Adams and the Federalists, you may recall, during John Adams's first (and, thankfully, only) term as President, enacted the most extraordinary restriction on the freedom of speech the United States had ever seen or ever was to see. The Sedition Act of 1798 made it a federal crime, punishable by 2 years in prison, to criticize the government — to "write or utter or publish," any "malicious writings against the government of the United States, or either House of Congress, or the President," or anything that would "bring them into disrepute." Dozens of U.S. newspaper editors and pamphleteers had been rounded up and tossed in jail under its terms.
The Sedition Act would have destroyed the United States before the United States had even had the chance to really become the United States. The election of 1800 was very much a national referendum on the Sedition Act, and Jefferson prevailed; and his very first act, upon being sworn in as President, was to sign the bill repealing it.
Protecting the freedom of expression was a task of the very highest order, in Jefferson's view, because freedom of expression was a natural right, belonging to all. It is not given to us by law, nor is it derived from law. It is just in the "nature" of things, part of the way the world is constructed, derived not from the laws of Man but "the laws of Nature and of Nature's God": if you bring two human beings together, they will think, and they will attempt to communicate with one another about what they are thinking. They'll do that without any law to help them. Humans communicate with one another not because the law enables them to do so; they communicate with one another because—well, because that's the kind of beings we are, and that is what is in our nature. Law's job is not to enable that communication, but to protect it when it does occur.
Copyright, though, is different. Copyright is what Jefferson called – and I believe he was the first person to point this out and make this distinction — "social law." Copyright does not derive from the nature of things, from the way the world is, or is constructed, because it is in the nature of things that ideas move freely from one person to another. As he memorably put it in an 1813 letter that has become one of the foundational documents for intellectual property law in the US:
If nature has made any one thing less susceptible than all others of exclusive property, it is the "idea." That ideas should freely spread from one to another over the globe seems to have been particularly and benevolently designed by nature. Ideas are like the air we breathe – incapable of confinement or of exclusive appropriation, and expansible over all space.
The only way to keep an idea to yourself is to . . . well, to keep it to yourself. The moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Once it gets loose, it is like the air we breathe, expansible over all space, incapable of confinement.
And, like fire, ideas don't get "used up" as more people use them: The peculiar character of ideas is that no one possesses an idea the less because others possess more; he who receives an idea from me receives instruction himself without lessening mine, just as he who lights his candle at mine receives light without darkening me.
Copyright, in other words, doesn't come from the laws of nature, it comes from the laws of man. It is not, like freedom of expression, antecedent to the law, but entirely dependent on it.
What difference does all this make? A great deal. It does not mean that we should get rid of copyright law –it's not an anti-copyright (or pro-copyright) notion. But it does mean that copyright law should always serve free expression, and not vice versa. It means that when these two great forces come into conflict with one another – and as I said, they do with some frequency nowadays – we know where we stand. We have our thumb on the scales on the side of free speech; we need to be vigilant and alert to the circumstances where copyright law is not serving the cause of free expression, where it is interfering with our right to speak and communicate with one another, and we need to adjust it accordingly.
To put it bluntly: When we're destroying books under the authority of copyright law, we not only need to be sure that they're the right books; we need to be damned sure.
To get a better sense, perhaps, of what this might mean, and a better sense of the complicated ways in which copyright and free expression are intertwined on the Net, I want to tell a copyright and free expression story.
In the mid-90s, when the Internet was just becoming "the Internet," this fixture in our lives, many people began to realize that copyright law could strangle the medium before it even got going. As I mentioned, just about everything on the Net is protected by copyright – I'm not talking about bootleg songs or pirated DVDs, I'm talking about everything – every email you send, every blog posting, every picture of your children and grandchildren you post on Facebook, every product review you leave at Amazon.com, every video of stupid pet tricks posted to Youtube. All of it.
Hundreds of millions, probably billions, of such copyright-protected works have been making their way across the Internet since I began this talk.
Copyright means that you need permission from the copyright holder when you "copy" a work that is protected by copyright. Yet the very act of transmitting every one of those files from one place to another on the Internet involves making dozens of "copies," as the message makes its way from server to server across the Net. If the Internet Service Providers who are moving these files across the Net have to obtain the permission of the copyright holders before they do all this (as it appeared, in the mid-1990s, to be the case) if they're liable for all those copies they're making, . . . many people, by the mid 90s, started to realize that we won't have much of an Internet if that's the case, because nobody in their right mind would go into that business.
"We understand," the ISPs said, "that some of the stuff – maybe lots of the stuff – that we're passing along from one user to another is infringing someone's copyright. But we're just standing in the middle, passing things along from user to user. Don't hold us responsible for that – not if you want to have a robust Internet."
So in 1998, Congress did a very smart thing. [We criticize them when they screw things up (and we can do so freely, thanks in large part to Jefferson) – we should dispense praise when they get it right]. In 1998 Congress passed a law – the DMCA – giving "providers of online services" an immunity from the claims of copyright infringement based on the actions of their users. We would suspend ordinary copyright law, in other words, weaken it, in order to allow these entities to do their indispensable work in creating this robust free-speech-enhancing place.
This immunity from copyright claims has been an astonishing success. It is in large part responsible for the explosion, over the last 10 years or so, in "social media" and "user-generated content" (or "Web 2.0") services and applications. Facebook, Myspace, Twitter, Youtube, Craigslist, Tumblr, Blogger, Flickr . . . hundreds of thousands of sites, some of which are household names around the globe, all of which share one common characteristic: they provide no "content" of their own, but rely entirely on their users, who are charged with making the site valuable and engaging and attractive for other users.
Without the DMCA immunity from copyright liability, you wouldn't get any of them. They couldn't exist. Why not? Because without an immunity, their potential liability for their users' infringements, at the scale at which they operate, would be astronomically large. The amount of stuff posted to YouTube every month is greater than the combined output of all US TV networks since their inception – if YouTube (or Facebook, or Craigslist, or . . .) were liable for even a tiny fraction of that, their copyright liability for a single day's worth of uploaded content would be measured in the hundreds of millions or billions of dollars. Without the immunity from copyright infringement claims, allowing users to communicate and to exchange content freely with one another would be unthinkable; no rational investor would have provided financing for, say, the Facebook business plan without assurances on that score, some protection against the outsized risk.
It was a brilliant stroke – a truly Jeffersonian stroke – adjusting copyright law in the interest of free expression.
[Among other things, it explains why virtually all of UGC/Web 2.0 sites with global reach started in the United States – because United States law gave them this immunity from copyright liability]
And the events of the past year show us just how significant a development this was. Without the DMCA immunity, there's no Facebook, YouTube, Blogger, or Twitter; and you can make a very strong argument that without Facebook, Youtube, Blogger, or Twitter, Hosni Mubarak is still the President of Egypt. For the first time in a history stretching back over 5000 years, ordinary Egyptians were able to freely communicate with one another, thanks to Facebook, and Twitter, and YouTube, and that has, in fact, changed the world we live in.
A direct line, in other words, connecting US copyright law – and a little, hidden-away provision of US copyright law, at that – and the Arab Spring uprisings. Jefferson – the Jefferson whose motto was
Malo periculosam libertatem quam quietam servitutem.
[I prefer the tumult of liberty to the quiet of servitude.]
would be thrilled, and proud.
The Myth of Systemically Risky Institutions
I had the pleasure of sitting next to my friend Peter Wallison at dinner last night and he reminded me of a great AEI Outlook he published last month on "The Error at the Heart of the Dodd-Frank Act." The question he poses is brilliant for its simplicity and seems to be exactly the right question. So let me set it up.
The key idea of the bank bailouts and then Dodd-Frank is that there are some financial institutions that are "systemically risky." As I understand the theory, the basic idea is that some large institutions are so "intertwined" with others that the failure of one will lead to the failure of others as a result of a domino-type theory. The failure of Lehman Brothers and the supposed subsequent market response is cited as the example that presumably demonstrates this.
For current purposes I will accept arguendo the conventional wisdom about the failure of Lehman Brothers spooking the markets, even though I find John Taylor's critique of that argument to be highly persuasive. But that's not my focus here.
So here's the testable hypothesis Peter frames: "Name one major institution that failed because Lehman Brothers failed." Or more precisely–name one institution that failed (or would have failed) because it was so intertwined with Lehman Brothers that it was unable to sustain Lehman brothers collapse. Peter doesn't see any; nor do I.
So what really happened, as Peter notes, was not a problem of intertwining, but rather a common shock that hit all of the banks at once, the souring of the mortgage market. But that is not a problem of intertwining. That is a problem of a common shock, exacerbated by regulatory rules (such as Basel II) that encouraged homogeneity among banks' asset-holdings and mark-to-market accounting rules that magnified the effect of the common shock. But this has nothing to do with "too big to fail" or "systemic risk"–the common shock would have the same effect whether there were 10, 100, or 1000 institutions if they all have the same balance sheet structure and mark-to-market accounting rules that magnify the shock.
The reality, Peter notes, is that large financial institutions are so diversified that it is absurd to think that the failure of one (such as Lehman) could possibly take down others through their "intertwining."
By contrast, if the problem is a common shock problem, this leads to an entirely different set of policy responses, such as eliminating regulations that encourage the uniformity in bank balance sheets. Or as one person recently said it to me more succinctly, once rules are set up (like Basel II), they create uniform arbitrage opportunities as a result of mispricing (such as the mispricing of AAA-rated bonds under Basel) and so bank balance sheets tend to herd in the same direction which works great when things are going great but creates a huge amount of correlated risk when things turn bad. Second, of course, we want to be wary of rules such as mark-to-market that then amplify the impact of those highly-correlated risks.
I don't know that Peter has settled the question definitively, but it seems to me that he has asked the right question.
More Evidence of the Repressive Nature of the New Egyptian Government
In a recent post, I cited evidence suggesting that the new Egyptian government is degenerating into a military dictatorship at least as bad as the Mubarak regime that was overthrown earlier this year. Jeff Jacoby compiles some additional relevant points:
[T]he "spirit of Tahrir Square'' has ushered in neither liberal democracy nor a rebirth of tolerance for Egypt's ancient but beleaguered Christian minority.
One of the country's leading liberal reformers, Ayman Nour, said Monday that with the latest bloodshed, the military has lost whatever goodwill it accrued last spring. The ruling Supreme Council of the Armed Forces almost surely doesn't care. In the eight months since Mubarak's ouster, the military has tried and convicted some 12,000 Egyptian civilians in military tribunals, often after using torture to extract confessions. The country's hated emergency laws, which allow suspects to be detained without charge, not only remain in force, but have been expanded to cover offenses as vague as "spreading rumors'' or "blocking traffic.'' And just as Mubarak did, the generals insist that government repression is all that stands between Egypt and social chaos.
As for Egypt's Coptic Christians, their plight has gone from bad to worse. Post-Mubarak Egypt has seen "an explosion of violence against the Coptic Christian community,'' the international news channel France 24 was reporting as far back as May. "Anger has flared up into deadly riots, and houses, shops, and churches have been set ablaze.''
With Islamist hardliners growing increasingly influential, hate crimes against Christians routinely go unpunished. Copts, who represent a tenth of Egypt's population, are subjected to appalling humiliations.
As Jacoby notes, the violence against the Coptic minority appears to enjoy substantial public support. That reality reinforces my longstanding concern that prospects for liberal democracy in Egypt are undercut by the intolerant nature of majority opinion in that country, as well as the superior ruthlessness and organization of antiliberal forces.
The Question Is Whether "Kafkaesque" or "Orwellian" is the Appropriate Adjective:
I've blogged about this a couple of times before [here and here, for starters], but this is, alas, an issue that is not going away. The federal government appears to have decided that the best way to control unlawful conduct on the Net is to use the technique of "domain name seizure" — using some variant of the criminal forfeiture laws to proceed against alleged wrongdoers by persuading a court to "seize" their domain names — that is, to order their domain name registry or registrar to pull the name from the database so that, Internet-wide, a request for the website at that URL will come back empty.
It is a nightmarish scenario (literally), and we should all be up in arms about it. I've never paid much attention, to be candid, to the law of criminal forfeiture — but I'm going to start now. If you want a sense of what "law" looks like in a regime like this — where prosecutors can waltz into a judge's chambers without the inconvenience of having a lawyer on the other side, or even a defendant that has notice that there's a proceeding against him/her, and walk out with an order that makes your website vanish from the Internet; a regime under which you can wake up one morning and find that you have been "disappeared" without anyone having even given you any advance notice that you were in trouble with the law — take a look at some of the documents filed in the case of the Rojadirect.com website. [The case, in the Southern District of NY, is captioned "Puerto 80 Projects v. US," — the facts are nicely summarized in this brief, and a collection of related documents can be found here]. Prof. Mark Lemley is representing the owner of the seized domains, which is encouraging — Lemley's an outstanding lawyer, and the court will hear good arguments why the seizure process is both outrageous and unconstitutional. Lemley and I (along with Dave Levine) co-authored a Law Professors' Letter in opposition to Senator Leahy's "Protect-IP Act", which would authorize these seizures in cases where the feds have evidence that a site is "dedicated to [copyright or trademark] infringing conduct." The Letter (on which we collected over 100 signatories) is posted here.
As it happens, I reread Kafka's "The Trial" this summer, in a wonderful and highly recommended new translation by Breon Mitchell. It turns out that it's actually quite hilarious — as in laugh-out-loud funny. I recall reading once that Kafka used to read his stuff out loud for friends and that they'd all end up laughing hysterically — same for Chekhov — but I never really understood how that could be true until I read this version.
But if we reserve the adjective "Kafkaesque" for the truly dark side of the developments he describes — that dreamlike terror that comes from having sinister forces in the State apparatus focused on your destruction and having no way to find out why, or what you can do about it — I think a world in which prosecutors are routinely proceeding in this way merits use of the term.
Day 3—The Alternatives to Judicial Engagement Are Unsatisfactory
As discussed in my first two posts, the Institute for Justice coined the term "judicial engagement" out of our conviction that judges are not properly enforcing constitutional limits on government power. This is not merely a disagreement with particular interpretations or results, but rather a belief on our part that in many settings — including, for example, rational basis review — judges are not actually judging, but are instead going through the motions of judging in order to reach an essentially preordained outcome favoring the exercise of government power.
There are three main alternatives to judicial engagement, and I find all of them unworkable.
The first and most popular approach is to simply embrace the status quo, with courts providing conscientious, fact-based review of government action in some cases, and an ends-oriented, rubber-stamp simulacra of "review" in others. As noted in yesterday's post, the Supreme Court has effectively deleted an array of power-limiting provisions from the Constitution — including the Privileges or Immunities Clause, the Contracts Clause, the public use provision of the Fifth Amendment, and any real semblance of enumerated federal powers. I do not believe those results represent defensible interpretations of the Constitution, and a jurisprudence that embraces them seems to me self-evidently defective.
The second proposal is to amend the Constitution, an idea that generated much enthusiasm among participants on the "Enumerated Powers, Tenth Amendment, and Limited Government" panel at last year's National Lawyers Convention of the Federalist Society. The basic problem with this approach is that there appears to be no way to phrase a government-limiting constitutional amendment of general applicability with sufficient clarity to prevent proponents of judicial restraint from eventually substituting their own preference for majoritarianism, as I believe they have done in the areas listed in the preceding paragraph.
For example, after a spirited exchange with a retired state supreme court justice at an event earlier this year, I asked the justice whether he would enforce an amendment that specifically noted the concerns surrounding judicial enforcement of unenumerated rights and explicitly instructed the courts to enforce them anyway. He said he would not enforce such an amendment. It appears to me he is not alone in that conviction, and I see little reason to believe that judges who perceive no significant, judicially enforceable structural limits in our existing Constitution could be persuaded otherwise by any amendment.
The third and final proposal is the least practical, and that is to encourage members of the legislative and executive branches to pay greater heed to constitutional limits on their own power. There may have been a time when this was merely naïve, but developments in public-choice theory have pretty well destroyed any plausible case for political self-restraint. And you honestly can't blame politicians for constantly pushing the boundaries of their power; indeed, that's precisely what the Framers expected them to do. As commentators have repeatedly explained (including my colleague Steve Simpson), it is simply not realistic to expect political bodies to voluntarily obey constitutional limits on their own authority. The countervailing pressures and incentives are too pervasive and too strong. A persuasive argument can be made — indeed, has been made by Professor Todd Zywicki and others — that there are systemic failures in the political marketplace that cause it to produce more government than people want, regardless of their efforts to stop it through the political process.
America has more government today than the Constitution authorizes, and many of us consider that to be a matter of real concern. But the problem is not with any fundamental defect in the Constitution itself or with some deficiency in the Framers' insights about government. The problem is that judicial abdication has transformed the Constitution from a charter of liberty into a nearly limitless font of government power. The only effective remedy for that is an engaged judiciary that recognizes its duty is to enforce constitutional limits on government power, not delete them.
NOTE: I will be debating judicial engagement versus judicial activism with Ed Whalen at the Georgetown Law Center today at noon. The event is open to the public, so please stop by if you're in town and are interested in the topic.
October 12, 2011
Incentivizing Terrorism
I was not planning to write a post on the Israeli government's recent deal exchanging over 1000 Hamas prisoners for kidnapped Israeli soldier Gilad Shalit. I was certain that someone more prominent would write a column explaining why this was a terrible decision. But even conservative commentators like Jennifer Rubin are praising it as a testament to Israel's concern for the lives of its people. The US government has also praised the agreement.
I understand the emotional appeal of securing the release of a young soldier who has been in captivity since 2006. Nonetheless, the Israelis should have said "no." Far from saving innocent life, the deal puts at risk many more innocents than it saves. It also incentivizes future acts of hostage-taking by Hamas and other terrorist organizations.
Among the Hamas prisoners released in the deal are dozens who have committed brutal acts of terrorism against civilians in the past. If even a few of them commit further terrorist atrocities in the future, the resulting death toll is likely to far outweigh the benefit of saving Shalit. Moreover, such a lopsided deal (trading hundreds of hardened terrorists for an ordinary soldier) incentivizes future hostage-taking. Hamas officials have already said that the deal encourages them to kidnap more Israelis. If one hostage is worth 1000 prisoners, what can they get for two or three or ten? As one Hamas leader puts it, "[s]omeone who agrees to release 1,000 prisoners will agree to release 8,000 in the future." If even a right-wing Israeli government that has otherwise taken a hard line against Palestinian terrorism is willing to go for such a deal, what about other liberal democracies? The precedent set by the Israelis is likely to endanger other nations as well as themselves.
Both the Israelis and other democratic states (including the US) have signed bad deals to get hostages back in the past, and such agreements have repeatedly backfired. For example, President Reagan gave Iran arms in exchange for American hostages held in Lebanon, only to see Iranian-backed terrorist groups seize more hostages as a result. But it's hard to think of another hostage deal more ridiculously lopsided than this one, though a few previous Israeli exchanges come close.
Finally, it should be emphasized that Gilad Shalit is a soldier. The moral significance of that status seems to have been ignored. The job of soldiers is to protect innocent civilians from attack, sometimes at the risk of their own lives and freedom. Soldiers' acceptance of these risks is why we rightly hold military service in such high respect. Although Shalit was apparently a draftee, he volunteered to serve in a combat unit, thereby accepting the attendant risks (the moral issue might be different had he been forced to take that risk against his will). To put numerous civilians at risk of future terrorist attacks in order to save a single soldier is a reprehensible reversal of moral priorities. It is similar to starting a fire that endangers civilians for the sake of rescuing a firefighter.
Shalit's plight has been highly visible to the public for several years, and his friends and family have understandably been pressuring the Israeli government to secure his release at any price. By contrast, the identities of the future victims of the terrorists released in the deal, and the future hostages who will be taken as a result of it are as yet unknown. Because we don't yet know who they are, the media can't cover them and their relatives can't lobby to protect them. It is a classic example of public opinion focusing on the seen while ignoring the unseen.
I don't blame Shalit's family and friends. Most other people in their position would feel the same way. But the Israeli government, like any government, has a broader duty to all of its citizens. It failed in that duty when it put numerous civilians at risk in order to secure the release of a single soldier.
UPDATE: Here is yet another Hamas leader stating that the deal proves that kidnapping works, and promising to take more hostages in the future:
Senior Hamas leader Khalil al-Hayya says the Shalit-for-terrorists deal proves kidnapping works, and he promises more abductions. The Israeli Cabinet late Tuesday night approved freeing kidnapped soldier Gilad Shalit for 1,027 terrorists and security prisoners.
Al-Hayya, a Gaza legislator and a senior academic and political figure, told the Chinese news agency Xinhua, "Our prisoners can only be released through this way. The release of prisoners will lead to a bigger victory and will break forever the siege that had been imposed on the Gaza Strip for five years."
Last week, he urged Palestinian Authority terrorists to kidnap more Israeli soldiers to gain the release of all prisoners, including terrorists, in Israeli jails.
"The one and only solution is more resistance against the Israeli oppression, and more abduction of Israeli soldiers and settlers," he told the Al Quds satellite television network.
It's worth noting that, in Hamas' terminology, all Israeli Jews are "settlers" and not just those who live on the West Bank.
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"Conduct Unbecoming a Teacher"?
From Board of Ed. v. Hurley-Richards (Ky. Ct. App. Sept. 2, 2011):
On February 3, 2009, Richards arrived at Cardinal Valley Elementary School, where she was a teacher. After seeing that there did not appear to be a hall monitor, she posted herself in the hallway as the hall monitor. Three sibling children, MK, a fifth-grader; ZK, a second-grader; and EK, a kindergarten student, were present in the hallway and ZK and EK were running. Richards instructed ZK and EK to go back up the hall and walk back down properly, without running. ZK ran down the hallway again. When Richards reprimanded him, he responded that she could not tell him what to do. Richards instructed MK and EK to go to breakfast so that she could speak with ZK. MK and ZK then began pulling EK in separate directions with ZK pulling EK's hair. Richards, who had one arm full of school supplies, placed her other arm around ZK and proceeded to direct him toward the school's office. ZK protested, and physically resisted being directed toward the office. At one point ZK remarked to Richards that she was choking him and Richards responded that she was not hurting him. The incident was witnessed by another employee, Sheri Hall, who testified that it appeared as though Richards had ZK around the neck. Hall did not intervene. Upon entering the office, Richards reported the hallway incident to the Principal and left....
Richards was fired, and an administrative tribunal later agreed that she engaged in "conduct unbecoming a teacher" (which, under Kentucky law, is a basis for disciplining a teacher) but reduced the penalty to a year-and-a-half-long suspension, finding:
As the student was being guided to the office, he resisted and turned to go back toward the cafeteria. At this point, Richards' arm was across ZK's front, sliding up and around the neck/shoulder area as she physically directed him toward the office. This may have been perceived as choking. She continued to speak loudly to the student....
Richards had no intent to harm the child and did not physically harm the child, but she demonstrated conduct unbecoming a teacher in using poor judgment in continuing to coerce ZK toward the office once he complained about choking.
A Kentucky Court of Appeals panel, by a 2–1 vote, held that the discipline was unjustified:
The tribunal concluded that Richards had engaged in "conduct unbecoming a teacher" pursuant to KRS 161.790. KRS 161.790(1) allows a teacher's contract to be terminated for various causes, one of which is "[i]mmoral character or conduct unbecoming a teacher." KRS 161.790(1)(b). The phrase "conduct unbecoming a teacher" has never been given a more expansive definition. However, when viewing the subsection as a whole, "conduct unbecoming a teacher" means something more than one incident of physically coercing an unruly child to the office. The grouping of "conduct unbecoming a teacher" in the same subsection as "immoral character" implies that "conduct unbecoming a teacher" is the type of conduct which has the appearance or suggestion of immorality or conduct equally egregious. In fact, prior teacher disciplinary actions, based upon a finding of "conduct unbecoming a teacher," have always involved some sort of dishonest or corrupt behavior. See, e.g., Gallatin County Bd. of Educ. v. Mann, 971 S.W.2d 295 (Ky. App. 1998) (teacher falsified employee time records); Board of Educ. of Hopkins County v. Wood, 717 S.W.2d 837 (Ky. 1986) (teachers smoked marijuana off campus with two 15-year-old students); Board of Educ. of Laurel County v. McCollum, 721 S.W.2d 703 (Ky. 1986) (teacher falsely called in sick in order to work another job); Hutchison v. Kentucky Unemployment Ins. Com'n, 329 S.W.3d 353 (Ky. App. 2010) (teacher's behavior, leading to six violent and threatening criminal convictions, compromised her ability to be an example to the school community); Dixon v. Clem, 492 F.3d 665 (6th Cir. 2007) (teacher took photographs of female student while she was wearing no clothes above her waist). The factual findings provide no indication that Richards exhibited any such conduct.
As the trial court observed, there is a clear disconnect between the tribunal's factual findings and its suspension of Richards. Such an outcome is arbitrary and [should therefore be] reversed ....
As someone who has recently spent a good deal of time around 8-year-olds, I found the opinion interesting. And it seems to be sound, assuming the facts are as reported.
Kentucky Antidiscrimination Law Doesn't Bar Discrimination Based on Litigiousness
So says Flint v. Coach House, Inc. (Ky. Ct. App. Sept. 30, 2011), quite correctly. (Many antidiscrimination laws bar retaliation for filing a complaint alleging prohibited discrimination based on race, religion, sex, and so on; but antidiscrimination laws generally do not bar retaliation for simply filing lawsuits on other topics.)
Corey Robin, The Reactionary Mind from Burke to Palin
This book is getting a fair amount of attention, including this scathing review in the New York Times. In 2010, I wrote about a ridiculous piece on Ayn Rand published by Robin, and it's worth reposting now.
I just came across this essay in The Nation by one Corey Robin about Ayn Rand.
I think Robin is serious, but the piece works best as a satire of a certain type of right-wing hit piece on left-wing intellectuals.
Mocking the subject because she has many Hollywood devotees who don't seem that bright? Check!
Suggesting that the subject's personal idiosyncracies discredit her intellectual contributions? Check!
Finding a random Hitler quote that sounds like something the subject might say, to suggest that the subject, despite her strong antifascism, was really a fascist? Check!
Ridiculing the subject for not appreciating how the country she grew up in gave her the opportunity to thrive, which she then used to attack the country's political system? Check! (Though this is the first time I've heard someone suggest that an intellectual should be grateful for growing up in the USSR. Among other things, Rand apparently should have been grateful to the Bolsheviks for "subsidizing theater for the masses." Yet, I really don't think this is meant to be a satire.)
An obscure academic dismissing one of the twentieth century's most influential writers as a "mediocrity," without any indication that the author really understands his subject's appeal. Check!
I don't think I'll be picking up The Reactionary Mind any time soon.
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