Tuesday, February 17, 2004


Save Freedom of Speech, Get Rid of Public Universities?

A provocative post by David Bernstein, who by the way, is speaking here today at Yale, suggests that civil libertarians should be opposed to public universities on free speech grounds: "The inevitability of content-based regulation of academic expression on public university campuses suggests a strong civil libertarian case that government should not be in the business of running universities at all."

This remark demonstrates an interesting and important split between David's approach to freedom of speech and mine. David is interested in preserving individual rights of freedom of expression from government interference; I'm interested in promoting a democratic culture in which people are free to participate in culture and express themselves. For David, freedom of speech is the sum of individual rights of free expression against government interference. For me, freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression, produce an educated citizenry and give them the tools and the practical opportunity to participate in the growth and development of culture. These infrastructural elements include, among others free public education, public libraries, common carrier rules in telephony and government sponsored scientific research. Put in economic terms, the infrastructure of free expression is a public good that markets will underinvest in. Put in sociological terms, the infrastructure of free expression is a precondition to a vital public sphere and the vigorous exchange of ideas. You will not be surprised, therefore that I believe that public universities (and indeed public education generally) are central (although not sufficient) ingredients of producing a culture of free expression. Put in economic terms, once again, a healthy and well functioning system of freedom of expression requires a vast array of public goods to supplement, undergird, and enrich civil society, private institutions and the work of markets.

David points out, and rightly so, that when governments run universities, they will engage in content based (and viewpoint based) regulations of speech. But this begs the question whether such regulations violate the free speech principle. Some of them surely do, but many more of them do not. When the government is engaged in the promotion of professional and academic standards, the free speech principle is not necessarily violated. Thus it is perfectly fine for a university to have a department of biology and not astrology, and to refuse to tenure people who believe that the best way to study biology is through astrology. Nor is the free speech principle necessarily violated when the government regulates speech in order to manage its internal bureaucracies. (These points are central to my colleague Robert Post's theory of freedom of expression).

David might insist, nevertheless, that lots of line drawing will be required to sort out appropriate regulations of speech from inappropriate ones; there will be many complicated cases that risk violating individual's rights and that we would be much better off if governments never ran universities, because then the maintenance of professional standards and management of bureaucracies would be entirely in private hands and so there would be little or no chance that the free speech principle would be offended. On this point I respectfully disagree. Without public universities, our cultural life would be much poorer. I now teach at a private institution, but one heavily subsidized by public money, and I spent my formative years as an academic at two public institutions, the University of Missouri at Kansas City and the University of Texas. Precisely because public education produces so many positive public externalities that, almost by definition, cannot be adequately captured by markets, it is highly unlikely that markets would take up the slack if public universities were abolished. The history of universities, even nominally private ones, is the history of a very significant amount of state support, whether it be sponsorship of Kings (as in many of the Oxbridge colleges) or the use of land grants to support public education. Indeed, democratizing education, and particularly higher education-- one of the most important achievements of the twentieth century-- was due in large part to government decisions to invest in the public. Those investments have paid off handsomely if imperfectly-- they have contributed greatly to the practical freedom that Americans enjoy today and the health and vibrancy of American artistic, intellectual, scientific and political life.

In short, freedom of speech is more than the sum of all individual free speech rights against the government. Freedom of expression is a cultural system that produces a public sphere of inquiry, learning, artistic expression and political contestation. To understand freedom of expression it is not enough to prevent government restraints. We must pay greater attention to the institutions and practices that make this public sphere healthy and vibrant. Some of those institutions and practices are private entities and result from market forces; but a great many of them are not.

Saturday, February 14, 2004


The U.S. Army Is Taking Names At Academic Conferences on Islam

The U.S. Army sent intelligence agents to investigate a conference about women and Islam held at the University of Texas School of Law, were I taught for six years.

UT law student and organizer Sahar Aziz was shocked at the Army's interest and methods.

"It was not a terrorism related conference. It was very benign … The reason why we put it together is there had been a lot of debate on campus about these issues due to the burka [face-covering mask worn by Muslim women] in Afghanistan and Iraq," she said.

A few days later, two U.S. Army intelligence agents showed up and wanted a list of all the people who attended the conference.

They approached Jessica Biddle, who helped Aziz get funding for the event.

"[I said] that he was intimidating me and is there a problem? His response was 'no, no problem, we're investigating a couple of people who attended the conference and we need to see the list,'" Biddle said.

What the Army did may or may not violate anybody's constitutional rights. But there's a larger threat to free expression and association that we shouldn't overlook here. By attending conferences and asking for names, the Army is sending a message: if you are the sort of person who goes to these conferences, we may choose to create a file on you. For many people, that will be a strong disincentive to attend conferences, exchange ideas, and speak freely, especially if they have controversial or unpopular views. Moreover, it will also make it more difficult for groups like Biddle's and Aziz's to hold conferences on Islam and get funding for them, because some people will be afraid to attend, and potential sponsors will be afraid to become associated with conferences that the Army may be spying on.

I don't have any problem with the government investigating terrorism. I do have a problem with its doing so in a way that chills protected expression and reinforces unjust stereotypes about Islam. That's particularly true when people are trying to think about how the Islamic tradition is connected to equality, democracy, and human rights. Our government should be welcoming this kind of intellectual exchange. Instead, it's discouraging open and honest dialogue.


The Cost (Plus) of No-bid Contracting in Iraq

The New York Times reports that Vice President Cheney's former firm, Halliburton, which received lucrative contracts in Iraq without having to go through the usual competitive bidding process, is coming under increasing scrutiny:

On Thursday, two Democratic members of Congress informed the Pentagon that two former Halliburton employees had come forward with a variety of accusations about wasteful spending of government money, saying Halliburton "routinely overcharged" for its work in Iraq.

"High-level Halliburton officials frequently told employees that the high prices charged by vendors were not a problem because the U.S. government would reimburse Halliburton's costs and then pay Halliburton an additional fee," the two Congressman — Henry Waxman of California and John D. Dingell of Michigan — wrote in a letter to Pentagon auditors.

One of the former employees, according to the letter, said "a Halliburton motto was: `Don't worry about price. It's cost-plus.' "

In the letter, the congressmen said the two men approached Mr. Waxman after leaving jobs with Halliburton for personal reasons last month. The letter said the employees told them Halliburton worked hard to avoid putting purchases out for competitive bidding and therefore overspent for many purchases as well as common items.

War profiteering is a despicable practice; it is even more despicable when the profiteering is by the President's and Vice-President's friends, who are hand picked without having to go through normal channels of competitive bidding, and who happily pass on their overcharges to the public. There is nothing patriotic about using the war to line the pockets of your friends and campaign contributors. It is bad enough when the Administration moves its friends to the head of the line. It is even worse when if the companies use the opportunity to gouge the public.

This is crony capitalism, the sort of thing one would expect in a third world country.

The press should spend less time going over Bush's national guard service in 1973 and more time on this. The Administration's contracting practices in the Iraq war are the real military scandal; they speak volumes about the President's character, and his apparent belief that he is entitled to use the public treasury as his personal plaything to reward his friends regardless of the cost to the country.


Federal Marriage Amendment Suffers From Drafting Errors

The Washington Post reports that the proposed Federal Marriage Amendment, which I have discussed here, is so poorly drafted that even the people who wrote it disagree about its meaning.

What is particularly remarkable is that some fairly prestigious legal talent-- including Judge Robert Bork, Professor Robert George of Princeton and Professor Gerald Bradley of Notre Dame-- was involved in drafting the FMA. Yet the language is so shoddy and confusing that I would probably flunk a student who submitted it in a final exam question. (And if you know anything about Yale Law School's grading system, that's saying a lot!).

The Post story explains that the drafting was done by a committee rather casually, without much concern for precision, and in order to satisfy various conservative constituencies. Some of the drafters believed that the language banned both same sex marriages and civil unions, others believed that it banned only same sex marriages, and still others believed that it prevented courts from holding that civil unions were required by federal or state constitutional law but did not prevent legislatures from creating such unions by statute.

In 1987 the Senate didn't think that Bork could be trusted to interpret the Constitution as a Supreme Court Justice. I must say that this episode does not speak well for his skills at drafting a constitution either.

Friday, February 13, 2004


I Left My Heart and (Got My Marriage License) in San Francisco

On February 12th, the birthday of the Great Emancipator, Abraham Lincoln, the Mayor of San Francisco ordered the city clerk's office to begin awarding marriage licenses to same sex couples, the Los Angeles Times reports.

Because existing California law (which preempts municipal law to the contrary) defines marriage as the union of a man and a woman, the city's tactic will fail unless it can get the California courts to hold that the California law is unconstitutional. My guess is that the courts will not agree, and we may even see a proposed amendment to the California Constitution to reemphasize that fact.

Given that the mayor's stunt will almost certainly fail legally in the short run, is it a wise strategy in the long run? Yes, because the push is coming from an elected official and not from a court. Even if courts guarantee same sex couples the right to marry, that right won't be fully secure until lots of public officials support the practice. Right now a significant number of national politicians support civil unions, but not very many are on record as supporting same sex marriage. To be sure, one might expect that the Mayor of San Francisco would be among the first politicians to push hard for same sex marriage. But even if his action doesn't sway lots of people in California, or the nation as a whole, it's an important start.


The Black Hole of Gitmo

The New York Times reports: "Senior Defense Department officials said Thursday that they were planning to keep a large portion of the detainees at Guantánamo Bay, Cuba, there for many years, perhaps indefinitely."

When the U.S. government denies people access to the courts and further declares that it is not bound by the Geneva Convention, this is pretty much what you would expect. Without the rule of law to restrain the government, it will be arbitrary. That is why courts and the procedural protections of the Bill of Rights and international legal agreements exist: because those who hold absolute power do not cede it willingly.

We hold ourselves out as a nation that believes in human rights and the rule of law, and we repeatedly state that we want our values to spread to other nations, particularly those with histories of arbitary arrest, detention and confinement. The best way to show why our values are important is to practice them ourselves. For if we cannot be bothered to protect human rights and the rule of law when they are inconvenient for us, how can we persuade other countries to adopt them?


Kerry and Bush: Media Double Standards?

Is John Kerry unfairly being given a pass by the mass media with respect to Matt Drudge's allegations of infidelity with a young intern, while George W. Bush is being unfairly pilloried for the possibility that he was AWOL in 1972 and 1973? Glenn Reynolds wants to know.

I think it's entirely possible that a double standard will occur, but the key point I would emphasize is that it hasn't happened yet. Remember that the mass media didn't do much with the Bush AWOL story for a long time. It came and went in 1994, it came and went again in 2000. It took persistent repetitions of the story in the blogosphere, an intemperate question by Peter Jennings, a noncommittal response by Wesley Clark, and a strong endorsement of the theory by the chairman of the DNC to finally get the ball rolling. None of those things has happened yet with Drudge's accusations about Kerry's infidelity (which may not be infidelity at all if he was unmarried at the time that the alleged liaison occurred). The press takes time before it is willing to broach such a story. If one of the Democratic candidates vouched for the story in public, or if the chairman of the RNC started to assert it, then the mainstream press would almost certainly begin to cover it. They would cover it because Dean or Edwards or Clark or the chairman of the Republican National Committee or the White House Press Secretary said it on the record. But no mainstream politician has been willing to step up to the plate.

In any case, if the press does begin to take up the story at some point, we also have to consider what the Kerry story, if true, tells us about Kerry, and what the Bush story, if true, tells us about Bush. These are different things, and the press might think that the stories concern different issues. In Bush's case, for example, the issues concern whether he is a shirker, whether he is a hypocrite for sending people off to die when he avoided service, whether he broke applicable military regulations, whether he got special consideration in his initial assignments and special treatment thereafter because he was well connected, whether he avoided punishment for shirking for similar reasons, whether his ability to "work things out" with the military so he could attend Harvard Business School instead of completing his service like the average person is evidence of special treatment, whether his failure to take a medical examination was an attempt to hide features of his past that are even more embarrassing, and whether his selective release of dental records in recent days is indicative of the Administration general inability to be straight with the American people. Kerry's story, if proven true, would suggest other things about Kerry, some of them quite unflattering, but they would be different things. For example, Kerry has not yet promised to be forthcoming on the question at hand and the next day withheld evidence that he promised on national television he would provide. The Bush story is in a different posture and has a different history than the Kerry story. That is another reason to wait a bit before we declare them morally equivalent in all respects.

Finally, we have to ask whether the degree of evidence in both stories is the same or different. In Kerry's case, we have a single anonymous source reported by Drudge. In Bush's case, we have various records of and statements about his military service and multiple statements by identified persons that have led many people to conclude that Bush has not been entirely forthcoming about the circumstances of his National Guard service. In neither case do we have clear and convincing evidence that the allegations are true, but in Bush's case there much is more evidence for the press to consider precisely because the story has been brewing for so many years.

Thursday, February 12, 2004


Justice Department Seeks to Invade Privacy of Women Who Have Had Abortions

The New York Times has the story here.

The Justice Department seeks to subpoena medical records of women who have had abortions in order to prove that partial birth abortions are medically unnecessary and were "just the doctor's preference to perform the procedure." This is truly grotesque. Doctors do not perform D&X abortions because they have a particular fondness for gruesome procedures; they do so because they believe it is the safest procedure available for women who are in difficult circumstances. This is a pretty blatant attempt to scare doctors away from performing the procedure and invade the privacy of their patients in the process. The key quote from the Justice Department's brief:

Citing federal case law, the department said in a brief that "there is no federal common law" protecting physician-patient privilege. In light of "modern medical practice" and the growth of third-party insurers, it said, "individuals no longer possess a reasonable expectation that their histories will remain completely confidential.

All of which begs the question whether people *should* have their medical privacy protected. Is there nothing that John Ashcroft won't stoop to?

Wednesday, February 11, 2004


President Bush To Urge Bans On Civil Unions, All Benefits for Same Sex Partners

At least, that is what will happen if he comes out in favor of the proposed Federal Marriage Amendment.

The reasons why here.


Rumsfeld and Friends Now Washing Their Hands of the Iraq Mess

Joseph Galloway has the details. By the way, why isn't anyone making more of the war profiteering stories coming out of Iraq? This is an absolute disgrace. (Especially given that many of these contracts were awarded without the usual competitive process). We need a Congressional investigation.

Tuesday, February 10, 2004


Bill O'Reilly Apologizes

The San Diego Union Tribune has the story.

Good for him.

Monday, February 09, 2004


Peggy Makes Excuses

Here is Peggy Noonan's justification for Bush's lackluster performance in Sunday's Meet The Press interview:

Democrats have minds that do it through talking points, and Republicans have minds that do speeches. (Mr. Bush has given a dozen memorable speeches already; only one of his Democratic challengers has, and that was "I Have a Scream.") And the reason--perhaps--is that Democratic candidates tend to love the game of politics, and Republican candidates often don't. Democrats, because they admire government and seek to be part of it, are inclined to think the truth of life is in policy. How could they not then be engaged by policy talk, and its talking points?

Republicans think politics is something you have to do and that policy is something you have to have to move things forward in line with a philosophy. They like philosophy. But they are bored by policy and hate having to memorize talking points.

Speeches are the vehicle for philosophy. Interviews are the vehicle of policy. Mr. Kerry does talking points and can't give an interesting speech. Mr. Bush can't do talking points and gives speeches full of thought and assertion.

Philosophy takes time. If you connect your answers in an interview to philosophy, or go to philosophy first, you can look as if you're dodging the question. You can forget the question. You can look a little gaga. But policy doesn't take time. Policy is a machine gun--bip bip bip. Education policy, bip bip bip. Next.

There are so many things wrong with this that it is hard to know where to start. Republicans hate political gamesmanship and Democrats love it? Has she ever met Tom Delay and Newt Gingrich? Or Karl Rove or George W. Bush himself for that matter? I'll concede that (some) Democrats (like Clinton, for example) like good public policy, but can she really be serious in claiming that Republicans are by nature philosophers? Has any one ever accused George W. Bush of a great love of philosophy? Perhaps she means that Republicans are a social movement party driven largely by ideology and therefore don't care about the details of making good public policy as long as their ideological preferences are satisfied. She may be right about that, but it doesn't speak well for putting them in charge of the government.

Finally, the idea that speeches read from a teleprompter are inherently vehicles of philosophy while talking points memorized and spat out in press interviews are vehicles of policy is absurd. Speeches are used for policy announcements all the time; conversely, talking points are often designed to describe a candidate's larger philosophy without getting into specifics. (Here Peggy Noonan is trying to do a clever McLuhanesque spin but I suggest she go back and read her McLuhan again.). The reason why Bush does better in speeches than in interviews is because he has great speechwriters and he's not very quick on his feet.

I will agree with Peggy on one thing-- the President has absolutely no interest in public policy. But that's not because he's a philosopher. It's because he's primarily interested in holding onto power. See the following posts here and here for more details.


Kevin Drum Blows the Lid Off the Bush AWOL Story

Details here.

Drum obtained documents from a FOIA search conducted in 2000 by Bob Fertik. According to Drum, it appears that because Bush stopped going to drills begining in May 1972 and refused to take a physical (why would he do that?) he was grounded and transferred to a unit called ARF. This is essentially a disciplinary action that requires no drills but makes one available for active duty (However, the odds that a Congressman's son would be sent to Vietnam were small at best). Bush didn't, as he suggests, make up his original Texas Guard Unit time in 1973. In fact, other documents Drum has uncovered suggest that there was no actual duty after May 1972.

This story gets increasingly interesting. The question is whether the mainstream media will pick up on it.

Sunday, February 08, 2004


Transcript of Bush's Interview on Meet the Press

can be found here.


Niccolo's Advice for the Mayberry Machiavellis

Since the term "Mayberry Machiavelli" has been bandied about so much in recent times to describe President Bush and his administration, I thought it might be useful to go back to the source to see how well the President has been following Niccolo's advice. The answer is, quite well in some respects. However, as I shall also suggest at the end of this post, Machiavelli also shows how George W. Bush is vulnerable:

Here is what Machiavelli has to say about leadership in the eighteenth chapter of The Prince:

Everyone admits how praiseworthy it is in a prince to keep faith, and to live with integrity and not with craft. Nevertheless our experience has been that those princes who have done great things have held good faith of little account, and have known how to circumvent the intellect of men by craft, and in the end have overcome those who have relied on their word. . . .

But it is necessary to know well how to disguise this characteristic, and to be a great pretender and dissembler; and men are so simple, and so subject to present necessities, that he who seeks to deceive will always find someone who will allow himself to be deceived. One recent example I cannot pass over in silence. Alexander VI did nothing else but deceive men, nor ever thought of doing otherwise, and he always found victims; for there never was a man who had greater power in asserting, or who with greater oaths would affirm a thing, yet would observe it less; nevertheless his deceits always succeeded according to his wishes, because he well understood this side of mankind.

Therefore it is unnecessary for a prince to have all the good qualities I have enumerated, but it is very necessary to appear to have them. And I shall dare to say this also, that to have them and always to observe them is injurious, and that to appear to have them is useful; to appear merciful, faithful, humane, religious, upright, and to be so, but with a mind so framed that should you require not to be so, you may be able and know how to change to the opposite. . . .

For this reason a prince ought to take care that he never lets anything slip from his lips that is not replete with the above-named five qualities, that he may appear to him who sees and hears him altogether merciful, faithful, humane, upright, and religious. There is nothing more necessary to appear to have than this last quality, inasmuch as men judge generally more by the eye than by the hand, because it belongs to everybody to see you, to few to come in touch with you. Every one sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the state to defend them; and in the actions of all men, and especially of princes, which it is not prudent to challenge, one judges by the result.

All of this sounds quite familiar: The judicious manipulation of religious language in Bush's speeches, the secrecy, the refusal publicly to admit mistakes, the blatant dissembling, the flagrant hypocrisy exercised before a fawning coterie of admirers.

But Machiavelli is far more important for other reasons. He has a great deal to tell us about how leaders succeed and how they ultimately fail. This from the twenty-fifth chapter of The Prince:

[T]he prince who relies entirely upon fortune is lost when it changes. . . .[H]e will be successful who directs his actions according to the spirit of the times, and . . . he whose actions do not accord with the times will not be successful. . . .

But a man is not often found sufficiently circumspect to know how to accommodate himself to the change, both because he cannot deviate from what nature inclines him to, and also because, having always prospered by acting in one way, he cannot be persuaded that it is well to leave it; and, therefore, the cautious man, when it is time to turn adventurous, does not know how to do it, hence he is ruined; but had he changed his conduct with the times fortune would not have changed.

Pope Julius II went to work impetuously in all his affairs, and found the times and circumstances conform so well to that line of action that he always met with success. . . . [T]he shortness of his life did not let him experience the contrary; but if circumstances had arisen which required him to go cautiously, his ruin would have followed, because he would never have deviated from those ways to which nature inclined him.

I conclude therefore that, fortune being changeful and mankind steadfast in their ways, so long as the two are in agreement men are successful, but unsuccessful when they fall out. For my part I consider that it is better to be adventurous than cautious, because fortune is a woman, and if you wish to keep her under it is necessary to beat and ill-use her; and it is seen that she allows herself to be mastered by the adventurous rather than by those who go to work more coldly. She is, therefore, always, woman-like, a lover of young men, because they are less cautious, more violent, and with more audacity command her.

These final passages sum up Machiavelli's most important views on the world of politics: Politicians follow the stratagems and approaches that stem naturally from their character; they succeed if their tendencies are in tune with the tendencies of the time. But no one succeeds forever, because people are insufficiently flexible to go against their natural tendencies. Given this fact, fortune favors the bold and impetuous, because by taking the offensive they have a greater chance of reshaping the situation to their advantage; acting agressively and forcefully requires others to respond to them and play their game. But even the bold and impetuous fail when the times call for caution and circumspection.

Looking over the three years of the Bush Administration so far, it seems clear (to me at any rate) that Bush has followed Machiavelli's advice admirably. He has shown himself by nature bold and reckless; by acting decisively, and refusing to compromise, he has forced first Congress, and later the world to dance to his tune. His domestic policies show little concern for what tomorrow may bring; and his bold maneuver into Iraq was made heedless of the consequences of a long occupation. In conformity with Machiavelli's remarks on fortune, Bush has acted "less cautious, more violent, and with more audacity;" he has treated fortune like a woman. And he has brazenly dissembled whenever dissembling was required to promote his aims. This is the source of his considerable success.

But Machiavelli warns that this course of action pursued consistently will eventually run into trouble. At some point conditions change; audacity fails to work as it did before; the piper must be paid. The President seems willing to bluff through his current difficulties, attempting to defer every looming problem and inconvenient fact until after the 2004 elections. The great question of the present moment is whether the strategy of the first three years will continue to be the right strategy for the next nine months, or whether the President, given his natural tendencies toward recklessness and gambling, will have played his hand too boldly too often. Only time will tell. But it is worth noting, with a certain degree of Machiavellian admiration, an Administration that, for a time, kept the country in sycophantic submission through bold moves and brazen deceit. Bush arrived at a point in American history when bullying and thuggishness were rewarded, when both his opponents and the press proved cowardly, corrupt, feckless and effete. He took advantage of those facts, and thus took advantage of us. We must marvel not only at his facility in gaining and holding power, but at the features of American politics that allowed such a man to seize the moment and misuse the country so badly in three short years while a servile press and the public fell fawning at his feet, his political opponents, corrupt and cowardly, ran for cover, and no one raised a finger to stop him.

Saturday, February 07, 2004


Internet Porn's Solution to Digital Piracy

The New York Times reports that the porn industry is taking a very different approach to digital piracy than the Motion Picture Association of America and the RIAA. They are focusing primarily on people who attempt to resell pirated pornography for profit. Instead of suing individual not-for-profit infringers, a few porn providers are giving people the option to join their pay sites.

These strategies suggest the two major ways that mainstream industries should deal with digital piracy. The first is to give up on tracking down individual not for profit users and instead focus on commercial pirates. The distinction between commercial and non-commercial piracy makes a great deal of sense in terms of public relations, and, perhaps more controversially, it also is consistent with what I take to be the larger purposes of intellectual property law. (Moreover, although the story does not mention it, it's also possible to raise money in other ways, for example, through a grand bargain in which copyright holders get a share of taxes on CD's or CD burners, which spreads some of the cost, albeit very imperfectly, onto non-commercial infringers.) The second strategy is to try to coax end users into pay sites by offering easier searches, wider selection, and guarantees of reliable products. Because the effective cost of any particular digital item is zero given the existence of P2P, what users are really paying for is not the information itself but convenience, selection, and reliability. (They might also pay for information about digital information, if it helps them make good decisions about what to download). If pay sites can provide these things better than P2P sites, they can make a living.


Rumsfeld Blusters

The New York Times reports his fervent defense of the Iraq War despite the obvious failures of intelligence:

Asked in a question-and-answer session afterward about apparent American intelligence failures in Iraq, he acknowledged that it was a question of crucial importance that would be examined by the commission appointed Friday by President Bush, but emphasized that the panel would look at intelligence successes as well as shortcomings.

Mr. Rumsfeld's remarks drew several pointed questions from the audience challenging how the administration could defend its doctrine of pre-emptive strikes against perceived threats when the precise intelligence needed for such a strategy apparently failed in the case of Iraq.

"If you're going to live in this world, and it is a dangerous world, you do have to have elegant intelligence," Mr. Rumsfeld acknowledged.

But he repeatedly defended the get-them-before-they-get-us doctrine in an age when terrorists are threatening to acquire and use biological, chemical and nuclear weapons as "something that has to be weighed and considered by all of us" given the possible catastrophic consequences.

If there were a knock down argument against the preemption doctrine, it would be Donald Rumsfeld. The preemption doctrine is a careful balance of two considerations: the need to prevent serious threats before they occur, and the danger of wasting resources, destroying human lives and damaging international relations if one guesses wrong. That is to say, although the point of the preemption doctrine is to prevent false negatives (times you should have attacked when you didn't) it only becomes a rational strategy if you also worry about false positives (times you were wrong to think there was a looming threat). Bad intelligence can hurt you in *both* directions, and greatly undermines the success of a preemption strategy.

Rumsfeld's arrogant (and alarming) performance suggests that the Administration is not too worried about false positives, other than as a potential source of (undeserved) bad publicity. But false positives can (1) bankrupt a national treasury, (2) stretch your military resources too thin and make you vulnerable elsewhere, (3) poison your relations with other nations, and (4) inflict needless suffering that you-- and not your enemy-- will get blamed for. If Rumsfeld is aware of these dangers, he does not seem to be willing to admit them in public. And his refusal to do so does the American cause no good:

Asked whether America's stature in the world had been diminished since the war, he acknowledged the Iraq war had taken its toll, but contended that it was more because of biased reporting by Arab media like Al Jazeera than anything the United States had done. "I know in my heart and my brain that America ain't what's wrong in the world," he said.

It simply will not do to blame Al Jazeera for mistakes of American intelligence. If we don't learn from the lessons of this intelligence failure, we will be sowing chaos around the world.

Thursday, February 05, 2004


Bush to Endorse Federal Marriage Amendment

The New York Times reports that he's almost there. It's just a matter of choosing the most politically propitious time.

In a sense, this was inevitable. Bush has angered the small government crowd by his enormous budget deficits and his attempt to blame (a Republican controlled) Congress for them. He can't afford to anger social and religious conservatives (who overlap with the former group). He also remembers what happened to his father when the party's conservative base deserted him. So he will come out in favor of the FMA. The only questions are when he will do it and whether he will emphasize it strongly in the upcoming campaign.

Bush may also be counting on the fact that most Americans oppose same sex marriage, and almost no Americans do who would otherwise vote for him (except perhaps for Andrew Sullivan). So it looks like an easy decision. On the other hand, as I noted in my previous post on this subject, there are real costs to this strategy. Many Americans don't want to think of themselves as intolerant, and if support for the FMA becomes tangled up in support for the religious right and opposition to gay rights generally, or is seen to be tangled up with those causes, Bush will lose the support of many moderate voters.

Wednesday, February 04, 2004


Good Ol' Boy Fools Matt Yet Again

The incomparable Matthew Yglesias is, unfortunately, still in the thrall of the "Bush is stupid meme." Would liberals and progressives please stop doing this? This is how you wind up flat on the pavement with your hands pinned behind your back and your pockets picked.

I've said this before and I will say it again: just because someone doesn't care a hoot about public policy debates doesn't mean they lack intelligence. Thinking that way may be comforting to liberals' sense of superiority, but it will cause them to miss out on what Bush is about, which is not good policy but the exercise and maintenance of power. Yeah, maybe George don't know much about history, but he does know how to kick the left's behind and pull the wool over the country's eyes.

So stop telling yourself that this guy is stupid. What liberals should be reminding each other is that Bush is shrewd, crafty, cunning and ruthless.

Like lots of good old boys in the South, George W. Bush wants us, as he himself says, to "misunderestimate" him. And whenever we do that, he takes advantage of us, time and time again. Ann Richards misunderestimated George W. Bush and she got booted out of the Texas governor's mansion. Al Gore misunderestimated Bush and he ended up losing the presidency not once but twice, once in November 2000 and once again in December.

I'm a liberal, and an academic, and I know that both groups tend to look up to expertise. They admire people who know the facts and have a firm grasp of the important issues of the day. But that's not the only kind of smarts in the world. In his own way, Bush is as clever a politician as Bill Clinton was, although his style is different in important respects. What he understands is not policy but power: how to get it, how to keep it, and how to wield it. That's why his White House is secretive and disciplined almost to the point of parody, and that's why he keeps getting his way even though he can't talk about the most basic policy debates without stumbling. He leaves policy to the wonks and intellectuals he despises. He's after bigger game: political control. While you have a good laugh making fun of how he mispronounces words and mangles policy questions, he's going to use every trick in the book to bury you. And believe me, he knows a lot of tricks that you don't. It's time to take this guy seriously. Telling yourself how stupid Bush is may be a good way to make yourself feel better about the fact that you are out of power. But it's not going to help you defeat him in November.


Mass SJC Forces the Issue and Bungles the Job

The Massachusetts Supreme Judicial Court today stated in an advisory opinion that a civil unions bill that gave same sex couples substantially all of the same rights as opposite sex couples did not comply with its previous ruling in Goodridge v. Department of Public Health.

I support the idea of same sex marriage as a matter of legislative policy, but I have a bone to pick with what the SJC did here. Through its two opinions it has sent conflicting signals that may have ultimately damaged the cause of gay rights. Here's why.

After holding that Masschusetts' existing law was unconstitutional for excluding same sex couples, the SJC could simply have awarded marriage licenses to the plaintiffs. Instead it refused to do so, staying its mandate until the middle of May (May 17th, the 50th anniversary of Brown v. Board of Education, by the way) for the Massachusetts Legislature to respond.

This feature of the opinion confused many people. It seemed to signal that the legislature would be free to experiment with different solutions, including possibly a civil unions law like the one passed in neighboring Vermont. The purpose of giving the issue back to the legislature, many people assumed, was to allow the legislature to debate the issue, and reach a political compromise instead of the SJC forcing the issue. The idea would be to make the same-sex marriage bill a product of a democratic process rather than a court mandate. When courts make important and controversial decisions, they are on firmest ground when they act with the blessing of the legislature. What legislatures do often ratifies what courts have done before. For example, the Civil Rights Act of 1964 effectively ratified the Court's 1954 decision in Brown v. Board of Education, making opposition to segregation not only the demand of the Supreme Court but also official U.S. legislative policy. It was the Civil Rights Act of 1964, and not Brown, that did the most to desegregate the South.

The Supreme Judicial Court of Massachusetts might have tried, as the Vermont Court did, to coax the state legislature into ratifying its decision by passing a bill based on the Legislature's own judgment about the best way to enforce the Court's order. But in its latest opinion, the SJC has essentially said that there is only one way to enforce its order. It has given the legislature no discretion at all. It has insisted on what is effectively a rubber stamp, which will achieve no additional democratic legitimacy.

Indeed, having issued its advisory opinion today, it is now clear that there was no particularly good reason for delaying its mandate in the original Goodridge opinion. It might as well have just issued marriage licenses to the plaintiffs in the first place. (To be sure, the Court might have feared that issuing the mandate immediately would be interpreted as striking down the marriage laws in Massachusetts, but that is not the only possible remedy and the Court could have dispelled any confusion on that score). In effect, the SJC has made any attempt at dialogue with the Massachusetts legislature into a sham.

Not surprisingly, many Massachusetts legislators who would have supported a civil unions bill now will vote for a amendment to the Massachsetts state constitution defining marriage as the union of one man and one woman. Such an amendment could not take effect until at least 2006. Nevertheless, the Court has wasted an opportunity to get half a loaf (and possibly a full one) when it may well end up with none in the long run.

The SJC may have been gambling that by forcing the issue, tempers will eventually cool and the residents of Massachusetts will come to accept same sex-marriage. That may turn out to be the case. Or it may not. But the Court shouldn't send out confusing signals in the way it has done. It either should have issued marriage licenses last fall or it should have allowed the Massachusetts legislature to come up with a solution with some democratic legitimacy. It has done neither, and in this respect it has made a grievous political error that may ultimately undermine its authority and lead to the overturning of its Goodridge decision.

It is possible that the Court will not have to pay for its political mistake. The Massachusetts Legislature may pass a same sex marriage act and the proposed amendment may fail. But if the amendment passes, it will be the Supreme Judicial Court's fault for bungling the situation.

A final word about the national implications of this decision. It may look at first as if this decision harms the Democrats, as President Bush will be able to run against what the SJC has done. But in fact it may have the opposite effect. Bush has tried to avoid directly stating that he supports the Federal Marriage Amendment (which I have analyzed in previous posts, here and here). He has inched toward endorsing it without doing so directly because he fears that endorsing it will make him look intolerant to swing voters. But the SJC's decision will result in increased pressure from social conservatives in the party to come out firmly in favor of the FMA. Thus, the SJC may have simultaneously made things difficult for both the Democrat nominee and for President Bush.

Tuesday, February 03, 2004


AWOL Controversy Heats Up

Although the Bush was AWOL story was circulating in the blogosphere for sometime, it took Terry McAuliffe's statement on Sunday to put it in the mainstream press. Dan Froomkin has the details. There's also this story in today's Washington Post. The folks at conclude that "Bush was honorably discharged without ever being officially accused of desertion or being away without official leave." (emphasis supplied). Of course, not being officially accused of something is not quite the same thing as not having done it. And the real story here is whether the same preferential treatment that got Bush what was then a conveted position in the Texas National Guard (and a position in flight training school after he had received the lowest possible score for admission) also resulted in Alabama National Guard officials conveniently looking the other way when he disappeared for long stretches of time. There is also the fact that he was grounded in August 1972 because he failed to complete an annual medical exam.

If Bush consented to release his military records, as all candidates have done in the past, they would shed some light on these questions, and possibly resolve the controversy once and for all. However, Bush has refused to make his military recorts public, calculating that the controversy ultimately will die down without his having to make any disclosures that might be personally embarassing to him.

Ultimately, I think, this controversy will not by itself prove decisive. It will matter to the extent that it resonates the with public's other doubts about Bush's character, honesty, and his Administration's penchant for secrecy and dissembling. It is much more important that the President is keeping many other things secret and is stonewalling other investigations-- including the work of the 9/11 Commission, whose findings about preparedness might be much more embarassing to his Administration.


Symbolic Savings, Gargantuan Giveaways

This Washington Post story on Bush's proposed budget confirms my suspicions about Bush's political strategy. To please his right wing he is proposing cuts in a whole host of social programs which will actually add up to a comparatively small amount (less than one percent of the predicted budget deficit of 521 billion dollars) while at the same time accelerating military spending (read here defense contracting) and lowering taxes yet again for the wealthy. It's pure symbolic politics that has nothing to do with fiscal discipline. By selectively picking out and gutting programs that his conservative base identifies with a liberal social agenda, President Bush he appears to stand for budgetary restraint and for making tough decisions about government expenditures when in reality he is running enormous deficits and lining the pockets of his wealthiest supporters.

Monday, February 02, 2004


Halliburton's Happy Meals

A real bargain.

Harry Truman once equated various forms of war profiteering with treason. As a senator from Missouri he vigorously investigated defense contractors during World War II even while the Democrats were in the White House.

Isn't it time for a Truman Commission to investigate how much money the President's and Vice-President's friends have made off of Iraq? And shouldn't the President be the first person to call for such an investigation? Do you think there's any chance that he will?



Reuters reports:

Boxed in by a record $521 billion deficit, President Bush (news - web sites) will propose a $2.4 trillion election- year budget on Monday that will cut dozens of government programs and set deficit-reduction goals that even fellow Republicans are skeptical he can meet.

Bush has seen a dramatic deterioration in the nation's budget picture since a record surplus was reported in 2000. He hopes to improve his fiscal image before the November presidential election by promising to reduce the deficit by one-third by 2005 and by more than half within five years.

But fiscal conservatives in both parties have doubts Bush can deliver. He will leave out of his fiscal 2005 budget the tens of billions of dollars that will almost certainly be needed next year to keep U.S. troops in Iraq (news - web sites), as well as a costly tax system overhaul that Republicans and Democrats say will soon become politically imperative to keep taxes from rising on the nation's middle class.

In line with Bush's election-year priorities, homeland security and the military will be the budget's biggest winners. Defense contractors including Lockheed Martin Corp., Boeing Co., Northrop Grumman Corp., Raytheon Co. and General Dynamics Corp. stand to benefit as Bush's $401.7 billion military budget sharply increases spending on missile defense and on modernizing the Army.

The biggest losers will be environmental, agricultural and energy programs. Facing the prospects of a revolt by fiscal conservatives, Bush will call for limiting growth in discretionary spending -- outside of homeland security and defense -- to just 0.5 percent. Because that is well below the rate of inflation, it will amount to a cut in domestic programs.

In a tacit acknowledgment that deficits are here to stay, Bush will set the goal of bringing this year's record $521 billion shortfall down to $364 billion in fiscal 2005 and eventually to $237 billion in fiscal 2009. There is no talk of returning to surpluses in the foreseeable future.

Oh, and by the way, while he's running up those huge deficits, he also wants to wants to make the tax cuts that caused the problem permanent.

Sunday, February 01, 2004


Oh My Freaking Goodness!

The Chairman of the Democratic Party is actually attacking President Bush on his military record, the New York Times reports. Instead of cowering in the corner when the media said that the charge of desertion was false, Terry McAuliffe is raising the more plausible question whether the President was AWOL while in Alabama. Nevertheless, it is particularly strange to me that McAuliffe chose to break this story on Super Bowl Sunday, which is not a good time to cover a political event.

The Times reports that Terry McAuliffe's statement "came two days after a scathing attack on President Bush's war record, delivered by Senator Max Cleland of Georgia on behalf of Mr. Kerry." Cleland said "Mr. Kerry was "a real deal" and President Bush was "a raw deal." He added, "We need somebody who felt the sting of battle — not someone who didn't even complete his tour stateside in the Guard.""

What is remarkable is that the Dems are making such a gamble now when the issue was first raised in June of 2000. By having the Chairman of the Democratic Party take up this line, they are making it impossible for the media not to pay attention to it. Of course, it may seriously backfire, if it turns out that Bush's unexplained absences were accounted for. But even if Bush made up the lost time later, (as the New York Times suggested in November 2000, see my previous post here) the real issue will be (1) whether he used his family connections to get special treatment that allowed him to make up the lost time that would not have been extended to the average Joe, and (2) whether there is a reason why he would not submit to a physical examination for a substantial period of time during his National Guard service. (In fact, Joe Conason reports that Bush was eventually grounded because he wouldn't submit to a physical examination.). The key issues, therefore, are not whether Bush met the technical definition of AWOL (for he might have made up the lost days later on) but the use of family connections to get special treatment and the refusal to take a physical exam. It will be interesting to see whether the media picks up on these features of the controversy or buries them.

I had long expected that this was going to be the dirtiest presidential campaign since 1988, when Lee Atwater pounded Michael Dukakis into the ground. I had no idea that the Dems would be giving back as good as they get.

Saturday, January 31, 2004


Will Dubya Dump Dick?

The Asia Times wants to know, (link via MaxSpeak) and gives reasons why Cheney is in more trouble than most people think.

Dumping Cheney, however, would probably cause more problems for Bush than keeping him, unless Cheney falls victim to a significant scandal, involving, for example, his former company Halliburton, from which he still receives deferred income.

But Bush is a gambler, and he might try a bold move to split the Democratic coalition in half. The boldest of the bold choices? None other than Condi Rice, the National Security Advisor, who would be the first African-American (and only the second woman) on a national ticket. Take that, Democrats!


Free Lunch Conservatism

I agree with Nick Confessore's observation (also made here) that President Bush's spending policies make perfect sense if you stop thinking of him as a fiscal conservative. Rather, he is a social and religious conservative who also happens to be a very canny politician and who believes in doing whatever is necessary to stay in power. Bush has hit on the perfect formula for doing this: free lunch conservatism:

The key concept is not that Bush is a traditional small-government conservative -- which would involve difficult and politically costly policy trade-offs -- but that he and his party have consistently and unabashedly used the mechanisms of government to reward and enrich key allies, mainly business interests, wealthy individuals, and -- to a lesser extent -- religious conservatives.

Sometimes this has involved traditionally conservative mechanisms, such as cutting taxes or reducing regulation. Sometimes it's involved traditionally liberal methods, such as new government spending. There has been no consistent principle involved, except the determination to stay in power. Nor has there been much attention to the long-term effects of the inherent contradictions in such a policy. So the administration passed a Medicare "reform" that buys off seniors with a drug benefit and hands billions of dollars in subsidies and government spending to HMOs, drug companies, and doctors -- all while specifically prohibiting cost-saving measures like using federal bargaining power to reduce the price of pharmaceuticals. The result is -- all at once -- generous corporate pork; a massive entitlement program; and deregulation. It's a combination that boosts the GOP's ability to stay in power in Washington. But the resulting cost -- ballooning health care costs that in turn will further balloon the deficit -- gets kicked down the road. If a Democrat president is elected to clean up the mess, that's about all he'll be able to accomplish before the next Republican is elected.

Put in these terms, most of Bush's fiscal decisions during his Presidency make perfect sense. They may not be good policy, but they are good politics, especially if the goal is to win a second term, and your governing motto is apres moi, le deluge.

But wait, you might object, how can this be good politics? The election of 2004 may turn out to be very close if the economy doesn't recover soon. The key point, as articulated by political scientist William Riker (no, not the Star Trek first officer) many years ago, is that the most efficient way to stay in power is to form a coalition of approximately 51 percent, not 90 percent. The reason is that if you plan to stay in power by distributing money from your enemies to your allies, you want to give your allies as much as you can to keep them on your side. The spoils of power must be spread more thinly the larger your coalition gets, but you can lay it on thicker if your coalition is smaller. The sweet spot is a coalition of exactly 51 percent. Conversely, the smaller your opposition, the less resources they have to bleed that you can distribute to your allies; so you don't want them too small. The magic number for your opponents, it turns out is 49 percent.

Does this sound familiar? A recent New York Times op-ed by former Al Gore speech writer Daniel Pink showed that the majority of Bush Red states were net recipients of federal largesse, while the majority of Gore Blue states were net givers. Bush has formed a coalition of states that mostly suckle at the national teat, paid for disproportionately by his political adversaries, states that vote Democratic.

I know that many liberals and progressives like to comfort themselves with the notion that President Bush is not very intelligent. This continues to be the most dangerous myth about the man. He is, in fact, quite shrewd and cunning. He's just not interested in public policy debates. (Remember, there's more than one way to possess intelligence.) The term "Mayberry Machiavelli" is entirely apt, although I suspect that for many lefties the use of the term "Mayberry" suggests that he is a dumbed down version who isn't quite as smart as he thinks he is. This is, I repeat, a dangerous delusion. George W. Bush is a political animal par excellence. Liberals and progressives argue that he can't be very smart because his policies are so stupid. But what they don't understand is that Bush is not particularly interested in good policy in their sense of the word; good policy is always secondary to staying in power. The policies he has adopted make sense if you start with the assumption that he wants to cement a durable 51 percent majority coalition using federal pork and redistributive programs as a central ingredient.

Recently David Bernstein of the Volokh Conspiracy wondered aloud why liberals don't like George W. Bush more since it seems clear that he likes to spend lots of government money, particularly on programs like education and drug benefits that liberals should like. The answer by now should be clear: George W. Bush doesn't like to spend government money in ways that liberals think are wise and good for the country's long term interests. (For example, liberal Dems tend to think that No Child Left Behind is underfunded and uses the wrong incentives, while the recent Medicare bill has too much privitization and will shift too much money to drug and insurance companies) Rather, Bush likes to spend lots of money (and redistribute lots of money from liberal states) in ways that satisfy core Republican constituencies and help keep him and the Republican party in power.

From the standpoint of pure power politics, the objection to Bush's strategy is whether he can keep it going long enough to get reelected and, if reelected, whether the Republicans will be punished in the 2008 and 2012 elections when the bill starts to come due. Most liberals who fulminate about these unwise policies believe that eventually the Republicans will be punished. But I am not so sure. Bush may be counting on the fact that no one will remember that the fiscal crisis of 2008 or 2012 is largely his fault, just as Reagan does not get enough blame for his huge deficits and deregulatory policies that helped foster the huge S&L scandal later on. Moreover, Bush may be counting on the fact that even if the Democrats are returned to office for a short time, they will find themselves largely devoted to acting like adults and cleaning up the mess Bush has created. The fiscal discipline required will not be popular, and thus it will not help them form a majority coalition through spending in the way that Bush has done. Thus, Bush may believe that he and his party will escape most of the blame for any fiscal problems his policies create down the road because (1) the public's memory is short, (2) the Democrats will be prohibited from making any new spending initiatives that would gain them a new majority coalition because of the huge deficits Bush has created, and (3) the image of the Republicans as the party of fiscal discipline will remain firmly ingrained in the public's imagination.

Many liberals have believed that Bush's deficits are designed to "starve the beast," i.e., to prevent the Democrats from spending money on egalitarian social and economic programs. What they have not sufficiently considered is that the "starve the beast" approach has another goal besides the promotion of an anti-New Deal/Great Society ideology. It seeks to keep the opposition from using the public purse in the future to create their own 51 percent coalition in the same way that Bush is now soaking (mostly) Blue states to pay (mostly) Red states. If you stop thinking about what Bush is doing in terms of ideology and start thinking about his actions in terms of pure power and how to maintain it, he doesn't seem so stupid after all. The Democrats fail to understand this at their peril.

Friday, January 30, 2004


You say Missouree, and I say Missourah

Jacob Levy has a fun post on the question of how to pronounce "Missouri." Is it Missouree or Missourah?

I grew up in Kansas City, Missouri, and everyone I knew always pronounced it Missouree. Only people from Cape Girardeau in the southeast pronounced it Missourah. (Other people, by the way, swear that only people in the southwest say Missourah).

There was, however, one major exception to this rule:

During campaign season, when politicians wanted to engage in a little faux populism, they would sometimes affect a bit more of a drawl and say Missourah.

This was their way of showing that they were in touch with the people. But I have to confess that whenever I heard a politician do that, I always wished that they would just support policies that were good for the average citizen and pronounce the name of the State any way they wanted.

Tuesday, January 27, 2004


Bill O'Reilly Avoids Apology But Blasts "Right-Wing Spin"

On March 18, 2003, on Good Morning America, Fox News political commentator Bill O'Reilly made the following promise:

"Here's, here's the bottom line on this for every American and everybody in the world, nobody knows for sure, all right? We don't know what he has. We think he has 8,500 liters of anthrax. But let's see. But there's a doubt on both sides. And I said on my program, if, if the Americans go in and overthrow Saddam Hussein and it's clean, he has nothing, I will apologize to the nation, and I will not trust the Bush Administration again, all right? But I'm giving my government the benefit of the doubt."

He made a similar claim in this interview with Condoleeza Rice:

Last March, I stuck up for you guys. After Colin Powell (search) went to the United Nations -- and I said on "Good Morning America" that I believed that we were right to go to war, the United States, based upon weapons of mass destruction and the danger that Saddam posed. And I also said to "Good Morning America" if the weapons found to be bogus, I'd have to apologize for my stance.

Now that David Kay has confirmed that Saddam destroyed his WMD's long before the invasion, O'Reilly has not apologized or confessed that he no longer trusts the Bush Administration. Rather, he has argued that the Bush Administration was hoodwinked by the CIA's lax intelligence gathering into believing that the WMD's were real and therefore the President should investigate the reason why this occured. Because of the intelligence failure, Bush cannot be said to have lied to the American public.

Unfortunately, O'Reilly's argument overlooks the fact that the Administration cherrypicked CIA reports to hear what they wanted to hear, and conveyed this information to the American public, and in some cases relied on questionable or completely bogus information that they knew was unreliable in order to justify repeated statements to the American people that Saddam was creating WMD's-- including nuclear weapons. So O'Reilly's portrait of the Bush Administration as having been completely hoodwinked by the CIA and having made all of these representations to the country through no fault of their own is simply not plausible.

O'Reilly should apologize as he promised. He should criticize the President for hyping the intelligence sources and relying on information he should have known was unreliable. Even if Bush did not lie, he seriously misled the public. O'Reilly needs to confront that fact.

Nevertheless, O'Reilly does come out strongly in favor of having the President publicly admit that there was a mistake and publicly investigate the causes of the intelligence failure, something which the Bush Administration has so far been unwilling to do. Indeed, Administration officials have tried to bluff their way through the problem. Dick Cheney has brazenly insisted that the WMD's are there after all, while the President has been reduced to talking about the existence of "weapons of mass destruction related program activities." (Does the President really think he's fooling anyone when he talks like that?)

And in the following interview with Clifford May, president of the Foundation for the Defense of Democracies, O'Reilly bluntly tells conservative defenders of the President to stop making excuses and that there must be some public accountability in light of the Kay report:

O'REILLY: [H]ere is the problem. We live in a republic where the people are supposed to decide crucial issues, all right? And the people can't decide the issue if they're given erroneous information. And the Bush administration gave us erroneous information, not because they lied, but because they got erroneous information from the Central Intelligence Agency. And I believe President Bush hasn't been nearly aggressive enough in holding those people in the agency accountable.

MAY: I think we need to totally refurbish the CIA. The question is whether George Tenet, who served Clinton, served Bush, is the best man to do it. And if somebody thinks not in the Democratic party, they should say what they're going to do the about it.

O'REILLY: Well, what about Bush, though? Why isn't he doing it now? He knows the 9- 11 situation better than anyone on the planet. . . .

. . . And he knows this is a screw-up.

MAY: His marching orders to George Tenet ought to be, we need to do - - overhaul the CIA so they can do the kind of intelligence gathering we need. . . . the most important thing to understand, it seems to me is this. Saddam Hussein was himself a weapon of mass destruction.

O'REILLY: No, that's baloney. That is right-wing spin. And a guy as smart as you, I don't want to hear you say that.

MAY: No, no, no, no.

O'REILLY: I don't want to hear you say that right-wing talking point business. Look, let's get back to the issue here.

. . . The Americans can decide for themselves whether that policy was good for America or not. But we got hurt overseas. We still hurt overseas. This Colin Powell went to the U.N., put this big WMD scenario in play. And it turned out not to be true. Our image overseas is hurt. OK?
. . . .

O'REILLY: But here's the fundamental constitutional question. All right? You have an administration, which is closed. The Bush administration is not open with the folks. Everybody knows that. All right? Now you have, and I believe this report, and I've got to say, I will say this in President Bush's defense, President Bush could have booted this. He could have said to Kay, hey, find something and this and that. He wanted the truth. He told Kay, even if it's black and bad and going to hurt me, you get it. I think we all -- that reflects very, very well on the president, but he's got to now step up. And he's got to admit the mistake. And he's got to take strong action to protect us, Mr. May.
. . .

O'REILLY: That's right. But we also need openness on the part of the president. And he can't be sitting up in the White House not saying anything about it.

I still think O'Reilly should apologize. But I think that he is starting to get it. The problem is that this President does not like to be open or honest with the American people on any number of issues, including Iraq. And his Administration never likes to admit that it has ever made a mistake: The Washington Post reports that at a recent "private meeting between Bush and congressional leaders," Bush and Tom Daschle had what sources described as a "testy exchange" when Daschle dared to suggest that "it is important to determine what went wrong to produce the flawed prewar weapons charges." Acting like a petulant child when someone shows real flaws in your decisionmaking process is not leadership.


The Price of Loyalty, or, Why Iraq is Such a Mess

An article in today's Washington Post and a longer story in the Atlantic Monthly explain why (links via Atrios): The Bush Administration refused to listen to contingency planners, shut out or stepped on people who told them unpleasant truths, and promoted people who told them what they wanted to hear.


Has the Media gone AWOL?

Earlier I noted that Bush's 1970's service record is less important than what he is doing today, for example, in stonewalling and hampering the 9/11 Commission's work. Nevertheless, I have to agree that Jonathan Chait is probably right when he says that the media have applied a double standard and given Bush too much slack on the fact that he didn't show up for National Guard service during 1972 and 1973.

Consider this bizarre passage in a recent New York Times article focusing on slip ups by General Wesley Clark:

But General Clark has spent much of his time here explaining controversial statements. Perhaps most damaging has been his failure to repudiate comments by Mr. Moore, who called Mr. Bush a deserter for his unexplained absence from the Air National Guard between April 1972 and September 1973.

Mr. Bush's actions did not meet the technical definition of desertion.

"President Bush was not a deserter," said Eugene Fidell, a Washington expert on military law. "To desert in wartime is a serious offense, potentially punishable by death. It requires an intent to remain away permanently."

The article is trying to show that Moore's statement was technically inaccurate as a matter of military law and an exaggeration. But in doing so, it certainly makes one think "well, why was his absence unexplained?" So he's not technically a deserter. Well, so what? Being able to say that you were "not technically a deserter" is not exactly a badge of honor. And yet there's no hint in this story that any of this might be a problem for the Commander-in-Chief.

Although to my knowledge George W. Bush was not ever formally charged with being AWOL (absent without leave, which is different from being a deserter), you don't have to be formally charged to be in violation of military regulations that prohibit skipping out on military service. Why didn't the press make more of it in 2000? Perhaps it was because foreign policy wasn't a big issue in that election (although you may recall that one of Bush's campaign themes that year was strengthening the military). In any case, given that the President has shown little compunction about sending American troops into dangerous combat situations, it certainly seems worth a look today. Let me put it this way: If any of the Democratic candidates (or Bill Clinton for that matter) was thought to have skipped out on months of military service, the press would be all over it.

UPDATE: Paul Waldman compares media treatment of Clinton in 1992 and Bush in 2000.

And in the interests of fairness to George W. Bush, here is the New York Times story from November 3rd, 2000 which criticized the Boston Globe story that originally raised the allegations. Although it does not completely rebut the Globe story, it does argue that some of the Globe's concerns may be unfounded. Clearly one has to take this story into account in assessing the seriousness of the allegations made against Bush:

Two Democratic senators today called on Gov. George W. Bush to release his full military record to resolve doubts raised by a newspaper about whether he reported for required drills when he was in the Air National Guard in 1972 and 1973.

But a review of records by The New York Times indicated that some of those concerns may be unfounded. Documents reviewed by The Times showed that Mr. Bush served in at least 9 of the 17 months in question.

Dan Bartlett, a Bush spokesman, said that Mr. Bush had fulfilled his military obligations "or he would not have been honorably discharged."

The senators, Daniel K. Inouye of Hawaii and Bob Kerrey of Nebraska, both Medal of Honor winners, were responding, in a telephone conference with reporters, to an article in The Boston Globe on Tuesday.

The article, citing military records for Mr. Bush, raised questions about whether Mr. Bush performed any duty from April 1972 until September 1973, when he entered Harvard Business School.

A review by The Times showed that after a seven-month gap, he appeared for duty in late November 1972 at least through July 1973.

Mr. Bush was assigned to the 111th Fighter-Interceptor Squadron at Ellington Air Force Base near Houston, from November 1969, last flying there on April 16, 1972.

In a report dated May 26, 1972, his commander, Maj. William D. Harris Jr., said Mr. Bush had "recently accepted the position as campaign manager for a candidate for the United States Senate."

Mr. Bush went to work for Winton M. Blount a few days after Mr. Blount won the Republican primary in Alabama on May 2, 1972.

From that time until after the election that November, Mr. Bush did not appear for duty, even after being told to report for training with an Alabama unit in October and November.

Mr. Bartlett said Mr. Bush had been too busy with the campaign to report in those months but made up the time later.

On Sept. 5, 1972, Mr. Bush asked his Texas Air National Guard superiors for assignment to the 187th Tactical Recon Group in Montgomery "for the months of September, October and November."

Capt. Kenneth K. Lott, chief of the personnel branch of the 187th Tactical Recon Group, told the Texas commanders that training in September had already occurred but that more training was scheduled for Oct. 7 and 8 and Nov. 4 and 5. But Mr. Bartlett said Mr. Bush did not serve on those dates because he was involved in the Senate campaign, but he made up those dates later.

Colonel Turnipseed, who retired as a general, said in an interview that regulations allowed Guard members to miss duty as long as it was made up within the same quarter.

Mr. Bartlett pointed to a document in Mr. Bush's military records that showed credit for four days of duty ending Nov. 29 and for eight days ending Dec. 14, 1972, and, after he moved back to Houston, on dates in January, April and May.

The May dates correlated with orders sent to Mr. Bush at his Houston apartment on April 23, 1973, in which Sgt. Billy B. Lamar told Mr. Bush to report for active duty on May 1-3 and May 8-10.

Another document showed that Mr. Bush served at various times from May 29, 1973, through July 30, 1973, a period of time questioned by The Globe.

Sunday, January 25, 2004


Political Organization and Political Discussion on the Internet

This is a follow up to my previous post on Internet speech.

The New York Times ran a provocative article today noting the familiar claims that the Internet divides people, and prevents democratic deliberation:

The Internet became the ultimate tool for finding like minds and blocking out others long before supporters of candidates began seeking one another out on With online dating sites where searches can be tailored by age and income, e-mail forums for the most narrow band of subjects, bookmarked sites and even spam filters, the Web allows users to tailor the information they consume more than any other medium. Social scientists even have a term for it: cyberbalkanization.

The article runs together two different kinds of democratic activities: One is organizing followers for a political campaign, where you want people of like minds to get together, the other is engaging in democratic discussion about public issues with people who may disagree (and disagree strongly) with you. These two activities are part of democracy, *but they are not the same activity.* Both are necessary, but it is often difficult to do both at the same time.

As the key examples of the trend toward cyberbalkanization on the Internet (I love that word, for obvious reasons) the article points to sites like Wesley Clark's website,,, and The problem with these sites, the article suggests is that people only want talk to people who think the way they do, and people who have different views are shunned.

That may well be the case, but these websites are being used for *political organizing* of like minded people, so this is to be expected. It does not prove the claim that online deliberation is rapidly becoming fractured and that "the Internet is in danger of narrowing the spectrum of debate." What it shows is that the Internet can be used for and is quite good at bringing like minded people together. And if you look at the way sites like and are designed, you can see that they are designed for this purpose.

It certainly does not follow, however, that Internet sites do not promote discussion among people with different views, or that sites can't be designed to facilitate this purpose. I've already spoken about how weblogs facilitate exposure to a variety of sources in my previous posting. The argument the article is making is somewhat like saying that automobiles are bad for families because you can't seat more than two people in them comfortably, and then offering as your key examples sports cars. Sports cars are not designed for families; that's why we have station wagons.

The key point is that the Internet is protean. It does not have to be any particular way, and different combinations of code can facilitate different forms of democratic activity better than others. Weblogs-- in conjunction with other technologies that allow you to see who is linking to you-- are a good example of a code that is structured to promote discussion of public issues, even if the discussion is often quite heated.

At one point the article does refer to blogs, but in a misleading and potentially self-contradictory way:

Blogs - or Web journals - are also more about monologue than discussion. President Bush's re-election campaign blog, for instance, does not include a largely standard feature that most online journals have: the ability for readers to reply to the posts.

Note that in this passage the one example given of a blog is distinguished from "most online journals" on the grounds that it does not have a comments section. This sentence is quite misleading to people who don't know anything about the blogosphere. Blogs are online journals. Some blogs have comments sections, others don't. Kos and Atrios have comments sections, this blog and Instapundit do not. President Bush's campaign reelection blog is not a very good example of the form, and it is a terrible example if you want to understand how democratic discussion online occurs.

Perhaps more important, it is deeply mistaken to infer from the fact that some blogs don't have comments sections that the blogosphere is monologic. As I noted in my previous post, individual blogs link to each other and comment on each other all the time, just as they link to and comment on stories from the mass media. That is precisely what I am doing right now. The practice of linking and commenting is the most characteristic feature of democratic deliberation in the blogosphere. Comments sections help that, but they are not necessary. Tools like Site meter and Technorati allow bloggers to discover who is talking about them and responding to them and what they are saying. The claim that blogs are "more about monologue than discussion" is exploded by even a casual acquaintance with what it means to operate a weblog devoted to the discussion of political issues.

I must also note that the article quotes only people who believe that the Internet technology is bad for democratic discussion. In particular, the article highlights Cass Sunstein's arguments in, which, as I noted in my previous post, were technologically naive. In this way, ironically, this newspaper article enacts the very thing it accuses the Internet of: listening to and presenting the views only of people who share one point of view.

Unfortunately, this article continues a meme that I have often found among progressive people-- that the Internet is bad for democracy. I think that this view is deeply mistaken. The Internet has its strengths and weaknesses, just like the traditional mass media have. The question is not whether the Internet is good or is bad for democracy. The key question is how the Internet changes the ways that democratic activities of organization, discussion, protest, and decisionmaking occur, and how the code of the Internet can be altered in different ways and different contexts to promote these different forms of democratic activity.

Saturday, January 24, 2004


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.


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.


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


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 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.

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