According to the few records we have, way back in 1254 in the court of Mongke Khan at Karakorum, there was a debate (source, see also Genghis Khan and the Making of the Modern World). Christians, Muslims, and Buddhists gathered to argue their case before the Great Khan to plead their case and (hopefully) convert a few people to the one true faith. There was apparently quite a lot of lively debate, with the Christians doing pretty well (at least according to their own account), but one important thing was missing. No one was actually switching faiths:
They all listened without making any contradiction, but no one said: “I believe; I want to become a Christian.”
Faced with this impasse, the Christians and Muslims started singing and quoting scripture at each other, with the Buddhists just being silently Buddhist at everyone else, and when that didn’t win any converts either, they gave up on debating altogether and…
…And everyone got drunk instead, and then went their separate ways. (No really, check the original account.)
Notice what didn’t happen: they didn’t try to slit each other’s throats. Even though there was plenty of religious throat-slitting happening everywhere else in the world, they didn’t do that at Karakorum. They all put up with each other instead, and found a way to get along even though they couldn’t agree on matters that they all agreed were very important. They made a truce. Perhaps an unwritten one, but one that they all agreed to just the same.
I believe that this sort of unwritten truce is vital to pluralistic societies, such as the one I live in, and so I wish to discuss our own unwritten truce today. In particular, I wish to discuss the forces threatening its existence, and what might happen if we break the truce.
The specific terms of the truce are unclear and subject to constant change, but I think that the eart of the truce is constant and clear. Put bluntly: “I’ll put up with your bullshit if you’ll put up with mine.” A tit for tat, easily understood by almost everyone. You don’t want to lose the chance to say whatever you like, so you let the other guys say whatever they like. Fair’s fair, after all.
This is the spirit of freedom of religion. Your competing religions can’t both be right, but since you can’t come to an agreement on which one is right, you agree to disagree, and you let the other guy keep on living his foul heathen creed while you go about your pious duties. This is the spirit of freedom of speech. You know that the other guy’s opinions are wrong, but you can see that he is thoroughly convinced that your opinions are wrong and both of you know you’re not changing each other’s minds, so you let him spew his nonsense while you declare the truth. You’d like to shut the other guy up, but everyone can see that the only way to do that would be total war, and you’re not sure if you’d win that war at all, let alone score a victory that’s actually worth the cost. Besides, you’re not too keen on destroying your enemies, even when they’re really wrong. I mean, they’re still people, aren’t they?
Scott Alexander calls this truce “a timeless Platonic contract that doesn’t literally exist”, and he has a lot to say in favor of it, and against the people who would break it. That post of his was a large inspiration for the post of mine, especially since the people in favor of breaking the contract seem to be growing bolder and more numerous. Let’s have a look at some of the folks currently protesting the terms of the truce.
Not so long ago, a government official came to a university to speak, by the invitation of some of its students, but some other students weren’t so happy. They did their very best to shut him down:
After dozens of protesters filed into an event featuring House Representative Briscoe Cain, they wouldn’t allow Rep. Cain to speak, claiming he has ties to the Alt-Right and is anti-LGBT.
Rep. Cain was invited to the Thurgood Marshall School of Law by the Federalist Society to talk to the students about the recent legislative special session. Instead, the event was shut down before it even started.
“No hate anywhere, you don’t get a platform here!” protesters yelled inside the room.
The words echoed through the classroom.
“When a racist comes to town, shut him down,” they continued.
That was the mission of the student protesters: shutting down Rep. Cain, who was invited on campus by student Daniel Caldwell.
“It appears that many of you have comments, questions or concerns that you’d like to take up with him,” Caldwell said to the students while at the podium.
No comments, questions or concerns were ever voiced, however. Rep. Cain tried to speak, but his words were lost below the chants.
“No hate anywhere. You don’t get a platform here!” the chant continued.
The general sentiment was clear: we won’t put up with any more of your bullshit. Alright, fair enough. But tell me this: what happens when your opponent decides they won’t put up with your bullshit? Did you think that far ahead?
Some folks, of course, have thought that far ahead, but I don’t think they’ve thought well enough. Take, for instance, George Ciccariello-Maher, who is currently having some free-speech-related difficulties. In the face of a rather shocking injustice (a jury being unable to convict a police officer of murder for shooting a man in the back), Ciccariello-Maher advocates violent revolution (unless “the spirit of John Brown” means something else I haven’t thought of yet). But is this a fight that George and his friends can win? The source of the original injustice comes from people who are unwilling to convict a police officer. There are quite a lot of these people, and if George’s anti-police crowd tried starting a violent revolution, these folks just might fight back, and of course they’d have the police on their side. Do you like those odds, George? Because I don’t.
Of course, there’s at least one good reason to start a war even when you might not win: when the peace is no longer tolerable. If the terms of the truce are bad enough, then you have a good reason to gamble on breaking it. So is our current state of affairs bad enough to justify breaking the truce and making a bloody play for a better peace?
I really don’t think so. See, it wasn’t so long that we had some really nasty violence between factions here in the US of A. Consider:
– The Elaine massacre: A huge mob of white people kill over 100 black people, maybe over 200. Only 5 white people are killed in response, and none are arrested, unlike the 122 black people arrested afterward.
– The Tulsa riot: A white mob, with police assistance, destroys a wealthy black neighborhood, using planes to drop bombs on the houses and people. At least 300 innocent people were killed. No one was ever prosecuted for any of this.
– The Colfax massacre: White voters attack black voters to prevent them from gaining power. 100 black people killed, 3 white people killed in response, attackers arrested but never convicted.
There are more, of course. Many more. Notice which way the violence keeps leaning? But notice, also, that these sorts of things seem rather rare nowadays? To me, this suggests that our current peace is precious, because it used to be a lot worse, and if it was that bad once, it could be that way again. Or, if other parts of the world are any indication, much, much worse.
And just to make this all about me for a second, what about disputes that aren’t along racial lines? I started this post with a story about religion, and the various parties in that story are still fighting with each other in some parts of the world. They could easily come to blows here, too. And what about those of us who aren’t Christian or Muslim or Buddhist? My own religious preference, atheism, is pretty unpopular here in all sorts of places, including the USA. But right now, the truce still holds. Millions of Americans think I’m a monster, but I am still free to declare that there is no god and go about my business in peace. That freedom could go away. I really don’t want that to happen.
And there are plenty of other freedoms I enjoy that could go away, because there are people who openly want to take them away. Freedom to disrespect the government and its symbols, including the flag and the anthem. Freedom to disobey cops. Freedom to disbelieve and offend just about anyone. Sure, there are laws protecting those freedoms here in the USA, but those laws are only of force because the laws protect the great unspoken truce. If the truce goes away, people won’t care about the laws.
And so I am very frustrated when I see minorities threatening to break the truce. I know you guys have the short end of the stick now, but do you realize how much shorter it could get? You do not have the upper hand here. You may have legitimate grievances, but there’s a critical mass of people out there who think that they have legitimate grievances and you don’t, and you may enjoy making fun of them now, but if they pull out their guns and come for you, it will be of little comfort to you in your final moments to know that they are still completely unaware of how privileged they are.
Part of smart politics is realizing that you and the other side will never see eye-to-eye, but you can get along anyways if you compromise. I know it hurts, but it is better than the alternative. Put up with their bullshit, and if they don’t put up with yours, you can call them out for cheating. As long as a truce is in effect, this has force. But if you demonstrate that you don’t care about the truce, then no one else cares either, and it’s time to play hardball.
In fact, let’s dwell for a moment on the fact that cheating by one party gives other parties an excuse to cheat as well. Lots of people don’t like playing by the rules, so they’re constantly looking for an opportunity. Consider the Nazis and the Reichstag fire. Some credible people believe that the Nazis staged the fire to give themselves an excuse to seize power and suspend liberties. If that is true, then what we have is this: a powerful group wanted so badly to get away with cheating that they framed another group for being the first to cheat, and it worked. They got to set the new rules, and they retained the moral high ground because everyone thought the other guy started it. With that in mind, does it really make sense to be so eager to set aside politeness and get into fights, when doing so encourages your enemies to really fight back? When you were so eager to punch Nazis, did you realize that you were seen as throwing the first punch, and now everyone is okay with people punching right back at you?
The fragile peace still holds in the USA, but it can be destroyed, and a lot of us stand to lose big if it goes. With that in mind, I beg you to keep the peace. You may not feel like getting drunk with your ideological enemies, but you can still preserve the truce.
P.S. I have spent most of this post taking the perspective of the prospective loser in the event of a broken truce. But what about prospective winners? What if you’re in the majority, and your side might win in a bloody culture war? Should you go for it?
Well, I’ve got some bad news for you, champ. It turns out that when you win by killing your way to the top, it’s hard to stop killing, and you and your mates end up killing each other.
The French revolution, after having successfully overthrown the monarchy, soon turned on itself. Robespierre and his allies slaughtered their fellow revolutionaries for not being revolutionary enough, until they grew so unpopular that they, too, were sent to the guillotine. The Russian and Chinese revolutions were similarly cannibalistic; the Russians had a full-scale civil war, killing milllions, and in China, Mao launched his “Cultural Revolution”, which was less bloody than civil war but only because most people weren’t in a position to fight back. Even the Nazis got in on the act; not long after the Night of Broken Glass, they had the Night of Long Knives. Apparently, when you break the truce with the other side, you break it within your own ranks as well, and everyone starts cheating each other to death.
So just be careful before you go discarding the rules of civility and murdering your way to the top, for you may find that one day, when you least expect it, the ghost of civil society will have its revenge upon you, and you will have to pay for breaking the truce.
There’s a fellow running for State Senate not far from where I live, by the name of Steven Zachary. I don’t know much about his platform, but I do know his motto: “Family. Community. Jobs.”
There’s nothing particularly special about that motto. You’ve probably heard variations on it dozens of times already, in previous political campaigns. In fact, when I first read that motto, it reminded me of another motto that’s over 70 years old: Travail, famille, patrie, the motto of Vichy France. Travail (work), famille (family), patrie (homeland): all good things that a politician would want to promote, right?
But there’s a problem with borrowing Vichy France’s slogan: Vichy France was a puppet government, a fascistic regime installed by German occupiers. And not just any Germans, but Nazis, who they actively cooperated with in suppressing dissent and exterminating Jews. Thus, Reverend Zachary’s motto comes off less like the mantra of a trustworthy statesman and more like the snake-oil promise of a quisling. Is Reverend Zachary aware of this resemblance?
Alas, it probably doesn’t matter. Steven designed his slogan to have a shallow appeal, and the irony of a black man sounding like a Nazi collaborator won’t reduce his appeal to the people he’s trying to appeal to. For comparison, consider this magazine cover advocating “the case for Romney”. The resemblance to Soviet propaganda is obvious, even without the side-by-side comparison offered in the link, and yet that picture was on a conservative-leaning magazine in favor of a Republican presidential candidate; these are folks who pride themselves on being anti-Communist! And yet there they are, looking to all the world like the Glorious People’s Revolutionary Central Planners, and loving it.
All the irony has gone out of American politics, and we are poorer for it.
A strange thing has come to my attention. There is a website, called Tagged as Politics, that apparently automatically reposts any blog post that has the ‘politics’ tag (hence the title). They reposted my most recent post (you can see their copy here).
Now, I don’t actually mind. My policy is to allow anyone to share and build upon what I do, provided that they are honest and that they respect others’ liberties. The Tagged as Politics folks have done just that. They haven’t altered a word in my post (even the links are intact), they’ve left my name on it, and they’ve even included two very prominent links back to my blog. So I’m not here to complain. I’m just confused as to what they gain from reposting my post… and every other post tagged ‘politics’. Are they trying to assemble some kind of database of political thought? If so, enjoy my post, guys. Have fun with it.
I recently finished reading Intellectual Privilege: Copyright, Common Law, and the Common Good by Tom W. Bell, and I’m glad I did. In the introduction, Tom Bell promises to offer a “libertarian view” of copyright, and this libertarian thinks that Tom delivers the goods.
I was actually surprised by how libertarian the book is. You see, in the publicity for the book (like this video), Tom informs us that the book is covered under what calls a “Founder’s Copyright”, in which he and the Mercatus Center reserve only some rights (the rights specified in the original 1790 Copyright Act), and only for a limited time (28 years, the maximum time offered under the original Copyright Act). This is highly preferable to modern copyright law, but not nearly as good as no copyright at all. With that as introduction, I was expecting a wishy-washy “middle of the road” take on copyright. I was unprepared to read Tom saying things like this:
Copyright thus creates both a legal power to censor and an economic incentive to speak, an uneasy but unavoidable conflict that Neil Netanel, a professor at University of California, Los Angeles, School of Law, has aptly described as “copyright’s paradox.”
Copyright’s paradox reaches beyond mere speech, however. Although often described as a form of property, copyright relies for its very existence on violating property rights – the traditional common-law rights that each of us presumably enjoys in such tangible things as our printing presses, guitars, and throats. – from Chapter 1
Barely two pages into the first chapter, and Tom has already described copyright as a censorship instrument and as a violation of property rights. Tom W. Bell is not kidding around, folks. And it only gets better from there.
In case you don’t believe his assertions, Tom carefully spells out why copyright cannot be a natural right (here’s an excerpt where he explains why copyright fails to fit John Locke’s definition of natural rights, and here’s another excerpt where he explains why copyright fails to fit Randy E. Barnett’s definition of natural rights). He gives us a thorough history lesson that shows that, while America’s Founders often tried to “sell” copyright to the masses as a natural right, they never actually treated it as such. He closes Chapter 3 with this doozy of a sentence:
In sum, we should consider copyright an unnatural statutory privilege that violates our natural rights and can claim only as much justification as can the state itself.
Now that’s what I like to read in a book discussing copyright. And if I were writing the book, that’s about where I’d end it, staying only long enough to write a conclusion urging my readers to “smash the state”.
That’s not where Tom ends things, perhaps because Tom is not an anarchist. But whatever Tom isn’t, I can say what he is: he is very thorough, rather humble, and quite dedicated to finding a solution to our problems with copyright. And he spends much of the book talking about solutions: both ways to make copyright less odious, and ways to make it unnecessary or irrelevant. Since the governments of the world don’t seem likely to crumble any time soon, it’s likely that copyright will be with us for some time to come, so Tom Bell’s pragmatic solutions might be just what we need to deal with it.
To make copyright less bothersome, Tom describes a legal theory called “copyright misuse”. The idea here is that, since copyright is necessarily a violation of common-law rights, anyone who invokes copyright rights does so at the expense of their own common-law rights. In other words, you can either have common-law protection (which covers your person, property, and promises) or copyright protection (which grants you exclusive rights in distributing your expressions), but not both. He discusses several legal cases where this doctrine has developed, and describes how a more general application of this principle would make copyright less noisome. Take DRM and EULAs, for instance. Both of these are limitations on what a user can do with copyrighted information, justified on grounds of property right or contract. Under the theory of copyright misuse, both of these would be illegal; a copyright holder could limit users’ rights either by copyright or by contract, but not both at the same time, so an EULA that ordered anything besides “Don’t violate copyright law” would be null and void unless it didn’t apply copyright at all, and DRM could not be used to prevent a user from doing anything not forbidden under copyright law. As Tom notes, when copyright and common-law rights combine to oppress, “we should respond by limiting the former and respecting the latter” (from Chapter 7). Tom then goes on to propose an addition to the Copyright Act, which he calls section 107(b), and which reads as follows:
It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section.
This would formally recognize the doctrine of copyright misuse in the relevant legislation, and give abused users a firm defense against copyfraud. And I really must tip my hat to Tom Bell, for how thorough he was in drafting this proposed bit of legislation. You’ll have to read Chapter 8 to see just how much thought he put into this. And in Chapter 9: Deregulating Expressive Works, he proposes another expansion to the Copyright Act, section 301(g):
(g) Nothing in this title annuls or limits any common-law restriction on the use of a fixed work of authorship if that work has been dedicated to the public domain.
Tom believes in the strength of common-law protections (and so do I), so Tom wants to encourage artists and innovators to use common-law methods instead of copyright. Section 301(g) would explicitly allow them to do so even after abandoning copyright. Not such a bad way to encourage folks to contribute to the public domain, if you ask me.
But Tom doesn’t stop there. See, Tom takes seriously the idea that there might exist a “market failure” in the production of expressive, creative works. It’s this market failure that copyright supposedly exists to cure. But instead of legislation, Tom Bell proposes that we look for other ways to cure the market, including improved technology and novel common-law solutions. Chapter 11 is titled “Outgrowing Copyright”, and right there, I must give Tom credit for a hopeful vision. While so many copyright reformers talk about finding the right balance in copyright, Tom talks about finding ways to do without it. Rather than ask “How much do we need?”, Tom asks “How can we get to a point where we don’t need any?” I’d love to here more of this kind of talk from Larry Lessig and Cory Doctorow. Step up your game, guys.
In fact, if you’re the sort who thinks that we can and should find the right balance in copyright legislation, I recommend you read Tom Bell’s analysis of the difficulties involved in doing so, found in Chapter 6: Copyright Politics: Indelicately Imbalanced. I think I can sum up the whole chapter nicely in one sentence from it:
Copyright policy combines all the elements of a public choice tragedy: concentrated benefits, diffuse costs, and state power.
In other words, if you’re waiting for the lawmakers to properly adjust the settings on copyright, you’ve got a lot of waiting ahead of you. There’s a reason they’ve screwed it up thus far, and the reason is that they don’t see any reason to bother getting it right. Hoping for a fix of copyright is probably a pipe dream, even with Tom’s proposed additions, so we’d be better off looking for an escape from copyright, instead.
The book’s conclusion is titled “The Packet-Switched Society”, and it includes a brief discussion of what makes the Internet special and how this offers us a way to render copyright superfluous, changing it from a “necessary evil” to just plain evil. It’s a good conclusion to a good book, and I hope you all will read it. Buy a copy, borrow a copy, whatever you must do. There used to be a draft freely available online, but Tom has since taken that down… but thanks to the Internet Archive, you can still read it! So check it out and give it some thought. You’ll be glad you did.
And to any copyright maximalists who are reading this, let me just say: Check Your Privilege!
It has recently occured to me that as a group, we libertarians are a bunch of peaceniks. We may talk tough about self-defense and bearing arms and forming militias and so on, but really, we don’t want to engage in fights at all, let alone start them. We’ve got better things to do, like discuss philosophy or tinker with 3-D printers or smoke cannabis. As the pseudonymous dL puts it in this post, “Live and Let Live” is a big part of what it means to value liberty. We like life, and we hate war. Oh, how we hate war. As Randolph Bourne put it in The State, “War is the health of the state”, and oh, how we hate the state. One of our more popular sites is Antiwar.com, and they mean business. We libertarians just hate war.
Now, you may be thinking to yourself, “So what? Everyone hates war. You think you’re special for hating it or something? Do you think that non-libertarians like war?” And not so long ago, I’d have said something about how I think you actually hate war just as much as we do, but you just haven’t figured out how to get rid of it. But that was then, and this is now, and in between then and now, I changed my mind. Now, I don’t think you hate war as much as you think you do. I also don’t think I hate it as much as I think I do. And this poses a big problem for all of us.