Balkinization  

Saturday, January 24, 2004

JB

Stonewall on 9/11?

Several people in the blogosphere are upset that the media have given George W. Bush a pass on stories indicating that he was AWOL when he was supposed to be serving in the Texas National Guard.

Quite frankly, I'm much more upset that the press is giving Bush a pass on his repeated attempts to stonewall and derail the investigations of the bipartisan commission on 9/11, and to keep any report that might be critical of the Administration secret until after the November elections.

The story about Bush being AWOL tends to prove only that he's a hypocrite, something which many people already suspected. The stonewalling of the 9/11 commission, however, raises much more serious questions about how democracy is supposed to function. The point of regular elections is to hold government officials accountable for their mistakes. Letting officials hide potentially damaging information about their actions with impunity undercuts the premises of democratic government. Where is the media on this one?

Particularly because the election of 2000 was hotly disputed, Bush's legitimacy as president stems from his ability to rally the country in the wake of 9/11. It would be ironic indeed if that event was caused in part by the negligence of his own officials. The public has a right to know if anything like that is the case, and they have a right to know it before the November elections.



JB

Could the Federal Marriage Amendment Pass?

Eugene Volokh has been concerned that the Federal Marriage Amendment, which I've discussed in a previous post, has a decent shot at passage. I don't think there is a very good chance at all. Let me explain why.

Article V was designed to make it very difficult to amend the Constitution. If you compare the number of bills that have become federal law (endless) with the number of amendments that have been enacted (27, and some would say only 26), you will see that the requirement of a two thirds majority of both Houses of Congress plus three quarters of the states makes a big difference. Note as well that 10 of the 27 amendments were virtually contemporaneous with ratification and were part of the price of ratification. Three more were the result of a Civil War. So if you take those thirteen away, you get only 14 amendments during periods of relatively normal politics in 216 years of the Constitution's history. Most constitutional change has occurred through Article III, not Article V. One reason why courts make constitutional law in the way that they do is because our Constitution is so difficult to amend. Judicial review (as we have it today, not as it was originally imagined) is an institutional alternative to Article V amendment.

But I digress. The requirement of two thirds plus three fourths is even more stringent than it first looks. For an amendment can fail if one third plus one of either the Senators or Congressmen oppose it. It can also fail if one house of the state legislature in 13 states fails to ratify. Nebraska has a unicameral legislature-- all the rest of the States require the concurrence of both the House and the Senate in order to ratify. Thus, counting Nebraska, there are 99 state legislative houses. (49 x 2 plus 1). If only 13 of these houses (in 13 separate states) fail to ratify, the amendment fails.

When you put it this way, it's a wonder that any constitutional amendments ever pass at all. Because of the many veto points in the amendment process, it takes overwhelming public support for an amendment before it can be ratified. So even if we see polls showing that 55 percent of Americans are opposed to gay marriage, that does not necessarily translate into two thirds support in both the House and the Senate. And it certainly does not mean that there will not be 13 states where one or the other house does not support the proposed amendment. I would wager that for the FMA to pass, there would have to be 70 to 80 percent support in public opinion polls. I don't think there is that degree of support.

There is one final consideration that I think strongly suggests that the FMA will never be ratified: Mores change over time. Although court decisions protecting homosexual rights usually produce temporary spikes of opposition, the long term trend is toward increasing acceptance of homosexuality in the United States. As time goes on, public discomfort with the idea of same-sex marriage will almost certainly decrease, and support for the amendment will become increasingly lukewarm. Moreover, although there are exceptions, the younger the age cohort polled, the more tolerant the group is toward homosexuality. As older people die off and are replaced with socially more tolerant ones, the trend toward acceptance is likely to increase. That means that time to pass something like the FMA is now. The longer the proponents wait, the fewer Americans will think it is a good idea.

All this could change if the Supreme Court of the United States were to hold that the U.S. Constitution requires that states must award marriage licenses to same sex couples. But that is not going to happen anytime soon. Instead, my prediction is that the question of same-sex marriage will be worked out at the state level for years to come.


JB

Kay: Iraq Had No WMD's When War Started

David Kay, head of the Iraq Survey Group, an arms inspection team has concluded that Iraq had gotten rid of its WMD's years before the war began, the New York Times reports:

David Kay, who led the American effort to find banned weapons in Iraq, said Friday after stepping down from his post that he has concluded that Iraq had no stockpiles of chemical and biological weapons at the start of the war last year.

In an interview with Reuters, Dr. Kay said he now thought that Iraq had illicit weapons at the end of the 1991 Persian Gulf war, but that the subsequent combination of United Nations inspections and Iraq's own decisions "got rid of them."
. . .

Scott McClellan, the White House spokesman, said the administration stood by its previous assessments that Mr. Hussein had both weapons programs and stores of banned weapons.

"Yes, we believe he had them, and yes we believe they will be found," Mr. McClellan said. "We believe the truth will come out."

With Dr. Kay's departure, the administration on Friday handed over the weapons search to Charles A. Duelfer, a former United Nations weapons inspector who has expressed skepticism that the United States and its allies would find any banned chemicals or biological agents.


At some point, the Administration is going to have to fess up. The only question is when.



Friday, January 23, 2004

JB

What I learned about blogging in a year

On January 10th, Balkinization celebrated its one year anniversary. That is when the blog began; my first substantive post was not until January 13th. In this posting, and a few later ones, I hope to share some of the things I learned about blogging and Internet speech generally from my experience as a blogger.

The development of the blogosphere mitigates, to a considerable degree, two key concerns about freedom of speech on the Internet. University of Chicago legal scholar Cass Sunstein made both of these points eloquently in his book Republic.com. The first concern was that the public sphere would become fragmented because there were so many speakers, no common sources that everyone was exposed to, and new filtering technologies allowed people to filter out the speech they did not like and only read the topics and opinions that interested them. The second concern was that people would become increasingly extreme in their views because there is no Internet equivalent to the fairness doctrine. Liberals would listen only to liberals, conservatives would listen only to conservatives, and the resulting ideological division would produce ideological polarization with increasingly extreme positions, further fracturing the public sphere and preventing democratic deliberation. For this reason, Sunstein at one point suggested requiring people with websites to include links to people with contrary views, or, if that posed constitutional difficulties (it would) at the least giving tax or other incentives for people to add links to others. Sunstein imagined a sort of Fairness Doctrine in Cyberspace. When it was pointed out that Cass didn't have any such links on his own site, he promptly placed a link to Richard Epstein and Catharine Mackinnon on his home page.

In hindsight, both of Sunstein's concerns about freedom of speech seem overstated and his proposed remedy seems not only ineffectual but beside the point because it misunderstood how the Internet differs from traditional mass media. The development of the blogosphere helps us see why this is so.

Let me preface my remarks by noting the obvious: Not all political speech on the Internet occurs through blogs or though technologies similar to blogs. But a very significant amount does. Indeed, I'd say that the blog and its cousins (including threaded discussions and comments sections on political websites that allow for links) are the most characteristic form of Internet political commentary. So paying attention to the blogosphere tells you a lot about how the public sphere is actually playing out on the Internet.

Sunstein assumed that speakers on the Internet would in some respects be like radio and television broadcasters who could simply deny access to viewpoints they did not agree with. That is why he wanted to transpose the Fairness Doctrine into cyberspace. That is why he put links to Epstein and MacKinnon on his own website. He was working with the paradigm of broadcast television, a unidirectional non-interactive and non-participatory mass medium in which it is relatively easy to exclude speakers.

But most bloggers who write about political subjects cannot avoid addressing (and, more importantly, linking to) arguments made by people with different views. The reason is that much of the blogosphere is devoted to criticizing what other people have to say. It's hard to argue with what the folks at National Review Online or Salon are saying unless you go read their articles, and, in writing a post about them, you will almost always either quote or link to the article, or both. Ditto for people who criticize Glenn Reynolds, Andrew Sullivan, or Kos, or Atrios. If you don't like what Glenn said about Iraq, you quote a bit of his posting, link to it, and then make fun of him. These links are the most important way that people travel on the Web from one view to its opposite. (And linking also produces a good check on criticism because you can actually go and read what the person being criticized has said.).

In addition, most bloggers have blogrolls which include a wide variety of different sources with very different ideological views. If you check my blogroll, you will see that it contains both lefties and righties, and among the righties, a fair dose of libertarians like my favorite freedom loving gang at the Volokh Conspiracy. Because I am a lefty, I probably have more lefties than righties on that blogroll, but what's important is not whether there's a perfectly proportional distribution but whether there's a substantial variety of different views. There is, and I would wager that my blogroll is not at all unusual in that respect. The customs of the blogosphere produce this pluralism.

Nevertheless, one might object, this argument is premised on the idea that the blogosphere has customs of linking that encourage give and take. What is to guarantee that these customs will continue? Obviously bloggers could give up their customs, and stop linking to each other. But I doubt this will happen; the customs make sense given the way the technology works. And worrying about whether people will or won't continue to link absent a government regulatory apparatus that encourages linking completely misses the point about how Internet speech works: The fact that these customs developed says a lot about the health and vibrancy and pluralism of the public sphere in cyberspace. What is perhaps equally important is that the production of these customs of cross linking was spurred on not by an initial government requirement or a program of tax incentives, but by the design of weblogs themselves. Here is a key example in which architecture matters greatly to the production of a more democratic culture on the Internet. What we should be worrying about is not government programs but the government of programmers. We should be applauding and promoting Internet technologies like blogs that promote interactivity, participation and give and take.

The other fear often expressed is that Internet speech will become more extreme. There is a lot of extreme speech on the Internet. And there is a lot of personal invective, too. The Internet is not a debating society held in the Senior Common Room. It is often quite raucous and unpleasant. But the reason for this is *not* the group polarization mechanism Sunstein is concerned with-- the notion that people of different views aren't talking to each other so they gravitate to increasingly extreme positions. The reason why Internet speech is often sharp and unpleasant comes from the fact that people are talking to each other but are *distanced* from each other. It's very different saying something nasty to someone in a blog posting and saying the same thing to their face. (It's even easier to be nasty when one is anonymous, but even non-anonymous postings on the Internet give people greater license to vent than in-person interactions.).

Even if Internet speech has its share of heated and unpleasant exchanges, the blogosphere has also shown, I think, that fears of group polarization produced by the Internet are overstated. It's important to distinguish distribution of viewpoints from polarization of viewpoints. The Internet allows for a much wider distribution of ideas to be expressed than in the traditional unidirectional mass media, but that is not the same as increasing group polarization. Indeed, wider distribution along multiple dimensions is the opposite of polarization, which is an increasingly tight bimodal distribution along a single dimension.

We should also distinguish extremism among relatively small groups (like neo-Nazis) from society-wide group polarization. The Internet does allow like-minded people with extreme views to find each other. But that is not the same thing as group polarization in the Internet as a whole. If the concern is that *a small group of people* with extreme views will be able to meet others of similar views on the Internet and that their views will become even more extreme in the process, that may well occur. In that case, however, what you are really worried about is that people with extreme views might find each other in the first place and recruit other impressionable people, and preventing *that*, I would submit, is a blatantly unconstitutional goal. If the concern, on the other hand, is that *society as a whole* will become more polarized as a result of Internet speech, I think the fears are greatly overstated. The blogosphere continually provides a check on people's more extreme claims. It continually throws people together who have clashing views. Its architecture allows a wide dispersion of views to contend, a phenomenon which should not be confused either with an echo chamber or with group polarization.

I'm not trying to be a Polyanna here. I'm not claiming that no group polarization effects could ever occur on the Internet, or that Internet speech is necessarily going to make the world a better, safer place for democracy and/or reasoned discussion. What I am claiming is that fears that the Internet was going to produce a significantly greater tendency toward group polarization seems wrong. I think, in fact, that people's fears and anxieties about loss of control over the traditional public sphere governed by mass media have been projected onto the Internet.

A final concern that Sunstein raised is the loss of a common public culture-- and in particular a common culture for discussion of public issues. This was supposed to be caused by two factors: (1) the proliferation of Internet sites so that there are no common sources of news and opinion; and (2) the possibility that large numbers of people will tailor their news through the use of various filters. These fears, too seem to me to be greatly overstated, and for two reasons. First, the tailoring of news based on subject matters (sports, gardening, fashion) occurred long ago in the traditional mass media, and the tailoring of news for particular ideological constituencies does not seem to have developed on the Internet in the way that Sunstein imagined. We now have a conservative news network, Fox News, but Fox is not a website; it is a cable channel. We cannot blame the Internet for Fox News. More to the point, the sources from which Internet news feeds are drawn still seem to be dominated by a relatively small number of traditional mass media corporations, including AP, UPI, Fox, CNN, and the major networks and newspapers.

It is important to distinguish news commentary from news sources. *Commentary* on news comes from all over the place, but the actual *production* of news and the work of reporting and journalism by news organizations seems still to be relatively constricted. Economies of scale are the most likely reason. There are lots of bloggers who write commentary, but very few bloggers that go out and report their own stories. That may change in time, but there is reason to believe that economies of scale in journalism are not temporary. Thus, Internet speech does not seem to have displaced mass media organizations as a *source* of the vast majority of news reporting; rather it has used the mass media as a substrate; it gloms onto the mass media and uses it as a source for commentary, while mass media organizations like CBS, the New York Times, and Reuters run websites and provide news feeds that provide the Internet and its commentators with grist for their mills.

In sum, people who want to read only conservative commentaries on the news can easily do so, but for reasons having to do with how journalism is produced the Internet has not yet produced the widespread adoption of a "Daily Me" that blocks out everything extraneous to our ideological interests. The closest thing (in the view of many liberals) is Fox News, but that development is not, as I have noted before, something for which the Internet can be blamed.

The second reason why the fears of the fracturing of the public sphere seem overstated is the nature of network topologies. The Internet, and in particular, the blogosphere, has a scale free topology. As the Internet expands, and more links are added, a larger proportion of links are made to a relatively small number of sites. The result is that, over time, a relatively small number of sites receive the lion's share of links. They are hubs in the network that forms the Internet's public sphere. Go to The Truth Laid Bear and look at the blogosphere ecosystem and traffic rankings and you will see what I mean. A handful of blogs have an enormous number of links to them and a considerable amount of traffic, and as you go down the list, the number of links and amount of traffic rapidly diminishes after the first dozen or so sites, until you get to a fairly flat curve.

As long as the Internet, and in particular, that portion of the Internet where people get their news, has a scale free topology, Sunstein's fear of an unacceptably fractured public sphere is overstated. Indeed, the problem may be precisely the opposite of the one he imagines: A relative handful of news sites, or a relative handful of bloggers may have a very large amount of power over public opinion because they are the key hubs or nodes in the network of Internet public opinion. That, in some ways, is similar to (although not identical with) the condition we had with the traditional mass media. While the dominance of the traditional mass media in the public sphere was created by government's control over the air waves (in the case of radio and television) and economies of scale and the effects of local advertising (in the case of newspapers), the dominance of a small number of hubs or nodes in the public sphere on the Internet is caused by power laws that apply to certain types of communications networks, of which the Internet is a particularly salient example. To be sure, the concentration of influence over public opinion on the Internet is much less than we had in the traditional mass media. But is not at all clear to me that this is necessarily a bad thing.



Thursday, January 22, 2004

JB

Hackergate

The Boston Globe reports that spying on Democratic Senators' internal memos concerning judicial appointments was extensive:

Republican staff members of the US Senate Judiciary Commitee infiltrated opposition computer files for a year, monitoring secret strategy memos and periodically passing on copies to the media, Senate officials told The Globe.

From the spring of 2002 until at least April 2003, members of the GOP committee staff exploited a computer glitch that allowed them to access restricted Democratic communications without a password. Trolling through hundreds of memos, they were able to read talking points and accounts of private meetings discussing which judicial nominees Democrats would fight -- and with what tactics.


Didn't one political party try to break into the other's national headquarters about thirty years ago, back in 1972? Which political party was that again?


JB

Dean is being Muskied

The media are piling on Howard Dean for his passionate speech (and yelp) following his third place finish in Iowa. The San Diego Union Tribune sums up the conventional wisdom. I haven't picked a favorite candidate among the Democrats yet, but I think Dean's being treated shabbily. I remember how the press turned on Edmund Muskie in 1972 after he was said to be crying after someone attacked his wife. Muskie would have been a fine president, at least as good as Richard Nixon turned out to be in his second term. I thought that was unfair then, and I think this is unfair now. Dean, to be sure, is a very different kind of person than Muskie-- one can't imagine Dean as secretary of state, for example. But there are many kinds of successful presidents. I suspect the reason why we are getting the piling on is a combination of different factors and different interests, including the other candidates' desire to sink the person with the most money, the press's desire to make the Democratic nomination a genuine horse race, and the talk shows' discovery of a funny and effective way to portray Dean in a few broad strokes.

In 2000, the talk shows (and Saturday Night Live) portrayed Bush as well meaning but stupid and Gore as a robot. Both of these portrayals turned out to be inaccurate, particularly the portrayal of Bush, who has shown himself to be neither well-meaning nor stupid. On the contrary, for anyone with eyes to see, Bush proven himself to be ruthless, vindictive, and cunning. That is one reason why he has done so well.


UPDATE: The Miami Herald's Jim Morin puts things in perspective.



Wednesday, January 21, 2004

JB

The House of Bush and the House of Saud

Richard Perle and former Bush speechwriter David Frum have a very strange op-ed in today's New York Times. The argument is that none of the Democratic candidates gets what President Bush gets: "that we would not distinguish between the terrorists and the states that harbor them." According to Perle and Frum, "[]t]his is a point Mr. Bush has held steadfastly to from [the September 11th attacks] through last night's State of the Union address. And he is right: no longer can we afford to hunt down individual terrorists while leaving the states that sheltered them unmolested."

But then Perle and Frum go on to note that in their opinon the most salient example of a nation harboring or encouraging terrorism within its borders is Saudi Arabia:

Rather, we must prevail on the Saudis to stop financing the extremism that breeds holy warriors, young men willing to die in order to realize their vision of an Islamist universe. The United States is the main obstacle to this extremist vision, which is why we are engaged in a war on terrorism.

If the Democrats are serious about their stated analyses of the terrorist threat, then they need to tell America their plan to destroy the terrorists and change the policies — or, if necessary, the regimes — of the states that support them. In addition, they need to propose a policy toward Saudi Arabia equal to the magnitude of the Saudi problem. Such a policy would be based on this direct challenge: either the Saudis put an end to the direct flow of money from the kingdom to extremist organizations or else the United States will no longer have an interest in the continued tenure of the present regime.

Can the Democrats credibly convey this message to the Saudis? Will they fight terrorism rather than chase terrorists? These are tests that they have thus far refused to take


Why, one wonders, are Perle and Frum going on about the Democrats? Given their argument, the main culprit here President George W. Bush and his father. There's no reason to think that the Bush family wants to take on Saudi Arabia; nor for that matter, is there much reason to think that the President wants regime change in that country. And, unless Perle and Frum have forgotten, Bush is the person who is in the White House right now. It was Bush, after all, that suppressed 28 pages of a Congressional report on the 9/11 attacks because it might have embarassed the Saudis. Indeed, Bush's continuous policy of looking the other way when it comes to the Saudis completely undermines Perle and Frum's argument that the President has been steadfast on going after countries that foster terrorism since 9/11. So why isn't this editorial a broadside against the Bush Administration rather than a taunt against the Democrats?

Could it be that Perle and Frum have different standards of consistency for Republicans and Democrats? Nah, couldn't be.



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