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Court Upholds FCC’s Draconian Speech Restrictions

[ 2 ] April 28, 2009 |

The Supreme Court today held — in a 5-4 decisions along predictable ideological lines — that an FCC regulatory change that made broadcasters legally liable for broadcasting even fleeting, isolated swear words was legal. It was an administrative law, not a First Amendment case, as the Court declined to address the free speech issue. (Both Thomas in concurrence and Ginsburg in dissent raised the strong suggestion that the FCC’s actions were constitutionally dubious.) Rather, the Court simply held that the FCC’s regulatory change was not “arbitrary and capricious” and was hence within the agency’s regulatory authority. Breyer, writing the chief dissent, was not persuaded, arguing that while the agency’s reasoning might have sufficed in the first instance it was insufficient to justify a change in policy, as it essentially represented a different weighing of policy preferences rather than a relevant change of facts.

Scalia’s opinion for the Court also contains one of those passages that have given Scalia a somewhat overinflated reputation for his prose stylings. Today’s, even more than most, is reads like a marginally more literate Glenn Beck transcript:

We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood.

Leaving aside that this faux know-nothing silliness is part of a not-very-compelling response to a serious point (about the effects of liability on small broadcasters) raised by Breyer, I’m curious about where Scalia acquired his deep knowledge of effete small-town folk and the fact that they don’t use the ordinary curse words that they use in Hollywood. His upbringing in Queens? Living in other small rural outposts like Boston, Chicago, and Washington? At any rate, when he criticizes the indecency of “foul-mouthed glitteratae”, I assume this is the kind of thing he has in mind:

Hopefully no naive small-towners will be exposed to such a shocking gesture!

Maybe it really will be the Al Franken decade

[ 0 ] April 28, 2009 |

Hard left now filibuster-proof.

…[update by Rob] in an article filed last night, Alexander Bolton argued that Specter was moving right and cutting into Toomey’s base. FAIL!

Quick Hits in Lieu of Real Blogging

[ 0 ] April 28, 2009 |

From around the internets:

That Term "Moral Relativism", I Do Not Think…

[ 0 ] April 28, 2009 |

Michael Gerson asserts that his belief torture is OK as long as Americans do it isn’t “moral relativism.” This man seems deeply confused, although I think it’s more along the line of having a gig which depends on him pretending not to understand things. (Perhaps he also believes that applying his alleged anti-torture principles to the Republicans who used to sign his paychecks would be “Kantian nihilism.”)

I remember with some amusement when Gerson was considered some kind of great moral sage because he drizzled some spurious language of charity and moderation over bog-standard reactionary policy preferences. The Villagers being The Villagers, he probably still is. Pathetic.

Another Year, Another Disaster

[ 0 ] April 28, 2009 |

I got home from Welfare Bankster Field and fired up the Flames in TiVo, only to discover that they decided to switch the game from the pay channel to the obscure cable channel. This was a good thing. All I can say is that 1)it’s good for the league for an exciting team from Chicago to advance, 2)they have a much better chance of knocking out the Canucks that the Flames with all their good defensemen hurt, and 3)at least I’m not a Sharks fan.

Since I’m running out of excuses to post on the subject, I’ll also say that this is interesting. I can of course understand why the Leafs don’t want a second team in the metro area — raking in monopoly profits is easier than building a relevant team. But why the league seems to support them — throwing away gobs of money in the process — is a mystery.


[ 0 ] April 28, 2009 |


There are perhaps only two groups of people who view knowledge as a flaw, and ignorance as an asset: Seventh-graders, and the Washington press corps.

In other news, stupidity continues to abound

[ 0 ] April 28, 2009 |

Because having a second child has produced an unanticipated multiplier effect on the amount of time required to complete a variety of non-blogging-related tasks, I missed this spot of weirdness when it was first discussed at David Kaiser’s History Unfolding. Apparently, an e-mail falsely attributed to Kaiser has been circulating since November:

The fraudulent email attributing an article that compares President Obama to Adolf Hitler to me is still circulating by the thousands in emails around the nation, and during the last 24 hours I have gotten three phone calls about it, including one from a conservative Buffalo radio talk show host who wanted to get me on the air to discuss it. To those new visitors (and there seem to be many every day) who have reached this spot because of it, let me say at once that I did not write it, do not agree with it, and would appreciate you hitting “reply all” to the email that you received and letting everyone know this.

As Kaiser points out, Snopes has an entry on the subject, from which we learn that one of the original sources for the e-mail seems to have been an Atlas Shrugs post (which was itself quoting an evidently much ballyhooed comment deposited at another wingnut blog a few days after the election. The author of the comment claims to be a professional historian who has written “15 books in six languages”; by way of comparison, I have recorded an array of musical albums that have been released by several major labels. I also own a mansion and a yacht.)

In any event, the essay is about as sophisticated as you’d expect from something that receives Pam Geller’s enthusiastic assent — a stream of observations about the slow, painful decline of America, duct-taped together with assertions in the key of Glenn Beck to the effect that Barack Obama is the apotheosis of liberal fascism. It’s also an outstanding example of the convergence of the Barnum Effect and Godwin’s Law, a mating that allows any public figure to be recast as a Hitlerian proptotype, provided that the criteria are drawn broadly enough. It’s hard to fathom how the essay wound up being attributed to Kaiser — or to Tim Wood, another historian who apparently also receives undeserved credit for these non-thoughts — but I suppose any minute now I’ll be receiving a thoughtful, forwarded e-mail commentary written by a law professor from, say, the University of Tennessee.

Two concepts of torture

[ 0 ] April 27, 2009 |

More than 50 years ago John Rawls wrote a famous essay in which he defended utilitarian theories of punishment from the charge they justified punishing innocent people under certain circumstances. The idea is that if the central function of punishment is to deter crime (as opposed to a retributive view in which its function is to give people what they deserve) then there are circumstances, at least in theory, in which this primary deterrence function would be served by framing an innocent person. Rawls’ reply was that while it was easy to construct hypothetical scenarios in which this would be true, it was much harder and probably impossible to construct an institution of punishment as a social practice that would allow for punishing the innocent, and yet would still be desirable from a utilitarian perspective.

The analogy to torture should be obvious. Unless you’re a strict deontologist, it’s fairly easy to construct Jack Bauer hypotheticals in which in theory it might be desirable to torture someone. (For instance, would you waterboard George Steinbrenner to save one million children? )

What’s much harder is to imagine a real-world set of institutions and social practices which could somehow limit torture to these very rare circumstances while still producing enough benefits to justify its use. In other words, there’s all the difference in the world between discussions of torture in the abstract, and actually creating a bureacratic machine that wouldn’t, for example, end up waterboarding a mentally ill low-level terrorist 83 times in return for no useful information.

Etiquette in the Age of Google

[ 0 ] April 27, 2009 |

Two recent social interactions:

(1) Friend at work sends me email asking for some advice regarding refinancing. I reply with some thoughts but add that she should talk to a real expert, a guy I use for this stuff. I give her his name and the name of his company. She emails back with thanks, and asks if I could send along the contact info for my guy.

(2) I send an email around to the faculty about how we’re planning to give Roy Romer an award at graduation and if anybody has questions (i.e., objections) let me know. Colleague who grew up in another country and emigrated to the U.S. a few years ago emails, asking who Roy Romer is.

This is a minor thing in a time of “enhanced interrogation techniques,” trillion-dollar bailouts, Madonna falling off a horse etc., and I like both these people, but come on folks! You are emailing me from a computer. Which is attached to the interwebs. Comprende? (BTW both my interlocutors are under 40 if that matters).

We Can Only Hope

[ 0 ] April 27, 2009 |

Yves Smith suggests, in light of this NYT front-pager, that the administration may be distancing itself from Geithner. Unfortunately they may be drawing the wrong implications:

Thus what is surprising about tonight’s New York Times story, “Member and Overseer of the Finance Club,” on Timothy Geithner is not its content, but that it was written at all, and moreover (as of now) is a front page item. It’s extraordinarily long for a weekday story. the number of column inches usually reserved for natural, not bureaucratic disasters.

Any reader of any remotely plugged in econoblog, or savvy enough to read between the lines of MSM reports will know that Geithner is a creature of the financial establishment. Probably the most important element in his pedigree is that he is a protege of Larry Summers and Bob Rubin. It also appears that he and Summers are working fist in glove (witness the marginalization of Paul Volcker).

At a minimum, Geithner crony capitalist policies are finally leading to a hard look at his loyalties. There is no reason to think Geithner is personally corrupt (well, there was his little tax problem) but rather that he is as die hard a believer of finance uber alles as Alan Greenspan, albeit without the libertarian zealotry.

Of course, if one were Machiavellian, this move may be Team Obama realizing rather late that they have made the success of Obama’s presidency contingent on the Summer/Geithner program, and now they are trying, even more so than before. to pin the policies on Geithner.

As Smith says, if that last speculation is true, it’s really bad politics. If Geithner and Summers fail, Obama takes the hit. (And, for that matter, he should — he hired them.) If the plan fails, it badly hurts the incumbent party, period — pin-the-blame-on-cabinet-secretary is a parlor game only of interest to insiders. If Obama thinks that their plan isn’t working, he needs to get rid of them.

Pro-Torture Buffoonery in the National Journal

[ 0 ] April 27, 2009 |

Shorter Stuart Taylor: It is well-established that criminal laws can only be applied if it can be proven that lawbreaking had no positive consequence whatsoever.* By far the most reliable guide to whether such consequences exist is the highly reliable unsubstantiated assertions of the lawbreakers themselves. A commission to investigate the Bush administration’s arbitrary torture is OK, but the only acceptable outcome is exoneration, which we should assume in advance. After all, an illegal arbitrary torture regime is far less consequential than a president lying about receiving a blowjob — now that’s worth a multi-year investigation.

* Note: this innovative ad hoc principle may not apply if you’re not a Republican public official.

Pro-Torture Buffoonery in the WaPo

[ 0 ] April 26, 2009 |

I must credit Michael Scheuer; all previous efforts at pro-torture buffoonery pale in comparison to this:

In surprisingly good English, the captive quietly answers: ‘Yes, all thanks to God, I do know when the mujaheddin will, with God’s permission, detonate a nuclear weapon in the United States, and I also know how many and in which cities.” Startled, the CIA interrogators quickly demand more detail. Smiling his trademark shy smile, the captive says nothing. Reporting the interrogation’s results to the White House, the CIA director can only shrug when the president asks: “What can we do to make Osama bin Laden talk?”

This might be too embarrassing even for Alan Dershowitz, although Fred Hiatt seems to think it worthy of publication. I’m not sure which element of this scenario is the most absurd; why don’t we just assume that Osama Bin Laden is a crab-person, and thus immune to waterboarding?

It gets worse from there. Scheuer ignores evidence of the ineffectiveness of torture, asserting simply that CIA interrogators “know” that the methods are extremely effective. They just “know” it; how they “know” it (comparative effectiveness studies, historical analysis, gut feeling) isn’t worth investigating, and certainly shouldn’t be challenged. Moreover, Scheuer believes that claims about the illegality of torture amount to “personal ideological beliefs” rather than sound legal analysis; there’s no recognition that arguments of law have any validity at all. The notion that the CIA should be able to do anything it wants to suspects in order to “save the lives and property of Americans” amounts, of course, to a “personal ideological belief.” As far as I can tell, there’s nothing in Scheuer’s argument that would prevent using the rack or hot pokers to get information from detainees. The only limit that he apparently recognizes is a the gut knowledge that the methods will “work,” actual evidence be damned.

Scheuer gained a bit of cred among Iraq War opponents with Imperial Hubris. This was rather a pity; it was apparent from that text that he was equal parts crank and buffoon. Interestingly, he views prosecution of Bush era appointees as a near certainty. This probably amounts to a guarantee that they won’t actually happen.

…relevant to this discussion is this article in the LA Times:

Reporting from Washington — The CIA used an arsenal of severe interrogation techniques on imprisoned Al Qaeda suspects for nearly seven years without seeking a rigorous assessment of whether the methods were effective or necessary, according to current and former U.S. officials familiar with the matter.

The failure to conduct a comprehensive examination occurred despite calls to do so as early as 2003. That year, the agency’s inspector general circulated drafts of a report that raised deep concerns about waterboarding and other methods, and recommended a study by outside experts on whether they worked.

In other words, it is literally true that the CIA relied on what amount to “gut feelings” to determine the effectiveness of torture. There does not appear to be even the faintest effort within the CIA to determine whether the methods they were using were more effective than the alternatives. Why, after all, should such an examination have been necessary? US officials do “not ‘argue’ or ‘contend’ or ‘assert’ but know” (emphasis added) that torture works; there is no reason, therefore, to bother collecting evidence. Call me a crazy social science type, but I don’t find these claims terribly compelling. In this context, it is unsurprising that Mark Thiessen’s rantings about the effectiveness of torture depend entirely on the self-reporting of the CIA; sans a comparative effectiveness study of some sort, the CIA hasn’t the faintest whether torture “works.” And this is also why, differences of opinion on the legal liability of CIA torture enablers aside, heads at the Agency should roll.