Retweets are not endorsements! I found these articles thought-provoking. There’s a good chance I agreed with something important in each, but maybe not, and, in any case, I absolutely do not endorse each and every claim made in each and every article.
“Repudiating Roe,” Part 1 and Part 2, by Michael Stokes Paulsen:
Here is my proposition: The doctrine of stare decisis cannot properly be understood or applied in such fashion as to permit the justices deliberately to render a decision contrary to the correct reading of the Constitution. Whenever it can be said, with sufficient confidence, that a prior decision is seriously and meaningfully wrong—not just technically mistaken in some minor, immaterial, or inconsequential respect; not a matter of reasonable disagreement; but out-and-out wrong in a way that matters—the justices’ ultimate duty to the Constitution obliges them to overrule the error. Roe is not a close case. It is a flat-out indefensible misreading of the Constitution with enormous consequences.
Paulsen is always worth reading, and it’s nice to see him come out swinging after six months in apparent hibernation. My own analysis of the Dobbs grant is here, and I linked last time to Shirif Girgis’s incisive look at Dobbs.
As longtime readers know, I generally cleave to the theory that the two American parties are symmetrical: in general, for every bad thing Party A does, Party B is doing exactly the same thing to exactly the same extent. Most people who think The Other Party is implacably evil (while Their Own Party is implacably incompetent) have, to be frank, lost perspective. For every scoundrel on the Right, there is an equal but opposite scoundrel on the Left, and vice versa. Once you’ve proved this a few dozen times, you can tune out 80% of partisan news.
However, this theory of partisan symmetry makes it all the more interesting when you come across a genuine asymmetry. And you do come across them from time to time! Right-wing and left-wing news-media consumption habits, for example, are profoundly asymmetrical. Why is there an asymmetry there when so much else is symmetrical?
Tease out those answers and you can tease out the Real Truths of American politics. For example, there’s a Scott Alexander article I often link to because I think its explanation of the media asymmetry is both compelling and reveals a great deal about how our politics operates.
I confirmed another interesting asymmetry this week, and now I’m puzzling over it: Why is the Left so much crueller toward the opposition’s dead?
Here is how mainstream partisan left-wing sources (listed in the Media Bias Chart v3.1) covered Donald Rumsfeld’s death:
After finishing up my interview with Commissioner Simington, I immediately left for vacation, so this feature was delayed. However, I kept reading. As a result, my list is a bit longer than usual.
Retweets are not endorsements! I found these articles thought-provoking. There’s a good chance I agreed with something important in each, but maybe not, and, in any case, I absolutely do not endorse each and every claim made in each and every article.
Yeah, I’m listing my own piece as a “Worthy Read.”
I honestly expected this interview to make more of a splash, simply because my hit count tends to go up when I write about Net Neutrality… but I forgot the lesson of Freddie deBoer’s Incentives Experiment.
See? Senate-confirmed Officers of the United States use Microsoft Teams just like you and me! Regular folks! (Fortunately, you can’t tell what an unflattering shot this is of me because the thumbnail is so tiny.)
It was not.
Early in May, I received an email from Republican FCC Commissioner Nathan Simington. Simington said that he’d read my 2014 Net Neutrality article, “Why Free Marketeers Want To Regulate the Internet” a few years ago. Now that he is on the FCC, he is trying to figure out how to approach Net Neutrality, so he was looking for informed perspectives outside the bubble of DC policy discourse. Would I like to sit down with him on a video call and talk about it for a little while? I wrote my Fifteen Questions as preparation for our discussion.
We talked on my birthday, and, because I am the biggest nerd of all, it was the highlight of my day.
Instead of just sharing articles on Facebook when I feel like it, I thought I might try rolling all the “shareworthy” things I encounter into a single weekly blog post. Like most “new features” on De Civitate, I expect I will do this twice and then forget about it, but, for now, please enjoy.
As the saying goes: Retweets are not endorsements! I found these articles thought-provoking. There’s a good chance I agreed with something important in each, but maybe not, and, in any case, I absolutely do not endorse each and every claim made in each and every article.(I mean, gracious, Ian Milhiser’s on this week’s list!)
The Supreme Court has “granted cert” in Dobbs v. Jackson Women’s Health, regarding a Mississippi ban on most second- and third-trimester abortions. (“Granting cert” means it will hear the case.)
It is generally agreed that the Mississippi ban is incompatible with current Supreme Court abortion precedents (which are themselves, it must be said, incompatible with both the Constitution of the United States and the “higher law” to which Sen. William Seward, R-NY once referred). The Mississippi law was struck down unanimously by a lower court panel, and there is no split among the lower-court circuits.
However, in the lower-court decision, a concurrence by Judge James Ho essentially said, “I am required to strike this law down because of Planned Parenthood v. Casey, which is a garbage, barbaric, eugenic precedent… but it’s binding,” then got down on his knees and begged the Supreme Court to overturn Casey. This is not the first time in recent months that a federal appeals court judge has acted consistent with Casey and begged the Supreme Court to overturn Casey.
(UPDATE: This whole post was secretly just preparation for my interview with FCC Commissioner Nathan Simington a couple weeks later.)
(TW: net neutrality, pasta racism, NCTA v. Brand X,brief but alarmingly favorable quotation of Justice Breyer, Ted Stevens Dance Remix)
Over on Facebook, some of my friends have asked me to give an update to my 2014 post(s) which laid out a conservative argument for Title II “common carrier” regulation of Internet Service Providers.
But, honestly, not all that much has changed. Title II was imposed soon after I called for it, albeit in a limited and, in some respects, sloppy fashion. It remained in effect until 2018, when the Trump-era FCC repealed it… but the repeal itself got caught up in a legal battle (Mozilla v. FCC) which was only finally resolved in July 2020, when Mozilla decided not to appeal. That left about four months for telecoms to go wild with their newfound freedom to throttle.
Someone told me that an article this long needs pictures, so I typed “net neutrality” into Bing and this came up. I don’t think this future is actually likely to happen; I expect a non-net-neutral future would be much more subtle. But it sure is striking, isn’t it!
Then came the
presidential election. With President Biden’s victory came the inevitability of
new Title II regulation. Telecoms are now right back on their best behavior,
hoping to convince the FCC that they are good little boys and girls and will
not put any more firefighters’
lives up for ransom, so the mean old FCC won’t ban zero-rating.
(ASIDE: I’m not really
convinced the Verizon firefighter thing was a net neutrality issue, as some
have argued, but it was terrible
press and at least points to monopoly-like behavior at Verizon. By
“monopoly-like,” I mean that only a monopolist or a fool would so
abuse a sympathetic, expensive customer during a nationally-televised emergency.
I don’t think Verizon is a fool.)
So net neutrality
critics have
been saying that “we ended net neutrality and the Internet didn’t
end,” which is half-true: no, the Internet didn’t end… but, as I noted
shortly after the litigation began, net neutrality never really ended, either.
Meanwhile, there have
been no grand market disruptions that would tend to change my 2014 analysis.
Telecom consolidation
has continued
apace, as mainstream economic theory predicted, because, as I explained in
2014, telecoms are natural monopolies.
There are still exactly
two wired broadband competitors in my zip
code (Comcast and CenturyLink). I’ve lived in four homes since 2011, and
they were the only two options at all of them.
I only have bills back
to 2015, but it looks like I personally pay almost exactly the same amount of
money to Comcast ($60 now vs $65 then) for a lower tier of service (Performance
Pro+ vs Blast), but that lower
tier is apparently
just as fast as what I had in 2015 (150mbps vs 150mbps), and inflation exists,
so I’m overall in slightly better shape. I only have to call their customer
service once a year to lock in a discount (I didn’t used to have to do that,
sigh), so, on the whole, I hate Comcast much less than I did in 2014, right
after I moved twice and had to spend days on their support line.
So: no news! You can reread my 2014 net neutrality post; I pretty much stand by it. (There’s a couple details I wish I could retract, not because I think I was wrong, but because I didn’t present enough evidence. C’est la vie.)
However, while I was rereading everything that’s happened since 2014, I was reminded of something: Republican FCC commissioners really confuse me. They’re Republicans, they grew up in the same conservative movement I did, confirmed by Republican senators I generally trust, and I really like to think that they are doing their best to follow the law and help American voters. Yet Republican FCC commissioners routinely say things that—it seems to me—clearly aren’t true, and make arguments that—it seems to me—don’t make sense. There were times during the Trump Administration when I wanted to grab Chairmain Pai (who is a super-nice guy, by all accounts) by the shoulders and shake him while shouting questions in all capital letters.
If I ever had a chance
to sit down with a Republican FCC commissioner, and time were no object, and he
(or she! you never know) didn’t throw a coffee in my face after the first few
questions, these are the questions I would have—sans caps lock:
QUESTIONS OF TEXT AND
HISTORY
As a conservative, before I talk about public policy, it’s for me important to understand how the public policy evolved, why it did so, and what the governing law means. This matters both because I’m an originalist-textualist disciple of the Federalist Society and because I’m a Chesterton’s Fence conservative. Republican FCC commissioners consistently have what I perceive as bizarre views on the text and history of net neutrality, and their seemingly erroneous conclusions inform the rest of their analysis.
1. Why do Republican
commissioners consistently act as though net neutrality regulation of telecoms
were unusual?
Telecoms who own the
Internet’s physical network (originally including cable telecoms; see, e.g., AT&T
v. Portland) were regulated directly as Title II common carriers from
the unveiling of the first public ISP in 1989 until 2002, when the FCC launched
its experiment in deregulating cable broadband by classifying the
physical-network providers as “information services,” not
“telecommunications services” in the Cable
Modem Order. (Telecommunications services are subject to Title II
common carriage rules; information services are not.)
As we await a verdict in the Derek Chauvin trial for the murder of George Floyd, I took some time today to figure out exactly what the jury is weighing in their ongoing deliberations. The full jury instructions are here. I am not a lawyer, and I am largely thinking out loud here, but I read the instructions and here is my summary of them.
This is my first time writing about the Floyd/Chauvin case since May, when I wrote that the county’s decision to charge third-degree murder, (not second-degree murder) made legal sense. Joke was on me, though: the state soon took over the case and charged second-degree murder on the legal theory that Chauvin was committing intentional felony assault against George Floyd which (perhaps unintentionally) caused Floyd’s death. So I’m demonstrably not an expert here, and I only trust myself to understand the jury instructions because they are specifically addressed to schmos like me. Feel free to jump into the comments with comments or clarifications… assuming the comments show up today. (I’ve been having technical problems with them lately.)
This isn’t a spoiler because it’s in all the trailers and the first 60 seconds of the first episode.
Obviously, as someone who has 11 hours of TV theme songs in his iTunes library and who spent much of childhood watching TV Land and Block Party Summer on Nick @ Nite… I was going to have to watch WandaVision at some point.
I mean, goodness, my favorite episodes of half my shows are the ones where they change the opening credits. And WandaVision changes the opening credits every week? In homage??? Yes, this is a program for me.
And WandaVision was, in fact, worth it just for the opening credits.
Here they are, ranked. I tried to keep spoilers out, but it’s impossible to avoid discussing WandaVision’s basic format… and clicking through to actually watch any of these videos will absolutely spoil you. Now, rankings:
#7. Episode 1, “A Newlywed Couple.” The past is a foreign country, and WandaVision tried very very hard but could not quite grab the wholesome energy of the era. It’s a technically and artistically impressive credit sequence, and I love it for that… but it lacks soul, and one of these has to end up ranked in last place. (This, incidentally, doubles as my review of the entire first episode.)
Cover of And to Think That I Saw It on Mulberry Street. PHOTO CREDIT: Steven Senne for the AP. Photo is technically under copyright until, most likely, the mid-2130s.
By order of his estate, six Dr. Seuss stories got cancelled this week, including the famous And To Think That I Saw It On Mulberry Street, first published in 1937. They are no longer being published and were subsequently banned from eBay for being offensive… unlike Mein Kampf, which remains available on eBay.
This controversy shouldn’t even be possible, because Mulberry Street — along with nearly all of the books swept up in this publication purge — should have entered the public domain in 1992.
Under a sane copyright regime, like the one the United States inherited from England and maintained for most of its first 150 years of existence, copyright terms last 10 to 20 years, renewable to a maximum of 40, maybe 50 years. Even with Dr. Seuss’s vigilant copyright renewals, Mulberry Street should have been public domain by about 1977.
Under a not-quite-sane-but-okay-I-can-see-it copyright regime, copyright lasts about that long OR for the life of the author, plus however long it takes for the author’s minor children to reach adulthood (whichever is longer). This ensures that the author is able to enjoy the fruits of his labor and support his family with it for his entire life. Seuss died in 1991, so copyright on Mulberry Street would have expired in January 1992. Nearly all of his books, including all the books swept up in the cancellation purge last week, would have entered the public domain by 2010.
Under the copyright regime in force at the time Mulberry Street was published — still a pretty sane one — Mulberry Street would have had a maximum of 56 years of copyright protection. It would have entered the public domain in 1993.
We retroactively extended that copyright law several times in the 20th century, ultimately extending Mulberry Street‘s copyright protection to 95 years. It will actually enter the public domain in 2032 — 40 years after Dr. Seuss’s death.
It would be even worse under the most modern laws, which keep works under lock and key for the life of the author plus 70 years. If Mulberry Street were published under today’s copyright laws, it would have been published in 1937 and not released to the public domain until 2062 — 125 years after publications.
Most works do not even survive that long. They are irretrievably lost to neglect while waiting to enter the public domain. Most old videogames, for example, are today preserved by archivists who operate in absolutely blatant breach of copyright law, hoping the copyright owners won’t mind protecting and emulating games produced for the Sega Genesis. Under my regime, Genesis games would have started entering the public domain around 2003 and the last of them would be released to the public right about now. However, under current actual copyright law, they are all copyrighted until the early 22nd century. A genuinely unthinkable amount of 1930s and 1940s films have been lost because copyright holders didn’t preserve them and others lacked the right to copy and protect them.
The Constitution grants Congress this power:
“to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.”
Long copyright terms are bad because they imprison important cultural touchstones in the hands of private actors for (right now) literally centuries. But they are also unconstitutional: they last long after any further “progress” might be “promoted,” and far beyond any “limited time period,” according to the original public meaning of that phrase. The Supreme Court decided in 2003’s Eldred v. Ashcroft that the Supreme Court cannot unilaterally decide where that line can be drawn, and fair enough. But we, the voters, should hold Congress accountable for driving a stake through the heart of this constitutional provision.
…and, as a direct result of this robbery of the public trust, Congress has now also allowed private actors to drive a stake through the heart of several beloved children’s classics.
