Contra Kevin Carson on Political Speech

Kevin Carson, in this recent commentary piece at the Center for a Stateless Society, employs dialectical reasoning to argue against Citizens United v. Federal Election Commission. The intent of the commentary was to make a left-libertarian case that “Citizen’s United” is an unfettered positive feedback loop in a Democracy Death Spiral as described in this post by Charles Smith.

I have some disagreement with Carson’s dialectical deconstruction in this particular case. First, I would attack his premise that all corporate lobbying is rent-seeking. No, it’s not. Some of it may be directed towards reversing or breaking down existing monopoly privileges. A simple empirical example would be the small toy manufacturers who are attempting to amend, reverse or abolish the Children’s Safe Products Act. Another easy empirical example are lobbies who must practice eternal vigilance, e..g, video games, porn, magazines, to keep their products legal under the First Amendment.

Secondly, if we are going to appeal to dialectics, let’s actually apply the proper context. The immediate context of Citizen’s United was McCain-Feingold. McCain-Feingold was just part of a long line of regulation that has placed undue burdens on informal organized speech which has served to effectively “corporatize” political speech. The Citizen’s United case, which was brought before the Supreme Court because the FCC had shut down political speech critical of Hillary Clinton because it was being aired in an “illegal time period” before an election, served to remove many legal restrictions on speech that had already been “corporatized.”

We can talk about “Democratic Death Spirals,” but Democracy is rigor mortis without any meaningful method of “redress of grievances.” The contextual analysis informs us that political speech has already been “corporatized,” and a proper conclusion would be that allowing the Political Class to determine permitted corporate speech would be an unfettered positive feedback loop for the utter evisceration of the First Amendment.

What happened to Liberaltarianism? Part II

Former right wing blowhard Ed Schultz–who actually is still an authoritarian blowhard– used his show on Friday to call for a decency law to regulate political speech over the airwaves. The impetus for all this was some Rush Limbaugh speech he found offensive. He invited Al Sharpton and Rep. Sheila Jackson Lee into his echo chamber to concur with him. From Sharpton, we get this dandy of a quote:

People can say whatever they want but not on the air, not on federally regulated airwaves and not when those licenses are very difficult to get and they should be upholding a standard that they mock; they mock the licenses of this government gives rather than acknowledge it is a privilege to express yourself to the american public.

Sheila Jackson Lee gave the impression that it should be a crime to insult politicians over the airwaves, particularly politicians like Nancy Pelosi, who apparently should be immune from public criticism because she was the first female house majority leader.

As pointed out in the first installment of this series, there are plenty of Democrats who apparently have issues with the 1st Amendment. Now we can chalk up more Democrats to the scoreboard.

Similar to this previous post that addressed a former TSA’s justification of body scanners on the grounds that travel is a privilege granted by the State, I would likewise here take exception to Sharpton’s remarks that imply political speech is another privilege granted by the government. Free speech is not “free” when it is only confined to your basement. To those who appeal to licensing privileges to justify “regulation,” I would suggest an alternative resolution to this apparent dilemma: abolish the licensing privileges. And another suggestion: if Limbaugh is on the dial, change the station.

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Michael Moynihan’s Continued Flawed Logic Concerning Wikileaks

This is an addendum to my earlier post regarding Michael Moynihan’s critique of Wikileaks as a journalistic organization.

Moynihan has since updated his critique to support his case vis a vis the criticism now emanating from the likes of Amnesty International. In particular, the issue at hand is the claim of so-called Wikileaks exposure of US Intelligence assets in Afghanistan. Moynihan continues to erroneously make the case that lack traditional of institutional support of Wikileaks, particularly by those institutions that Moynihan keeps babbling about that should be ideologically aligned with Wikileaks, invalidates Wikileaks journalistic institutional standing.

Let me put in clear terms that even someone as apparently obtuse as Moynihan can understand. Wikileaks is not a journalistic institution by virtue of any traditional institutional consensus. Wikileaks is a journalistic institution by virtue of it’s government sources, by virtue of the fact that government sources are leaking documents to it. When Moynihan writes that Assange “isn’t the guy I want as the representative of government transparency,” it should be quite clear that the type of “institution” that Moynihan prefers is exactly the type of institution that government sources wouldn’t leak documents to. In case anyone is not reading carefully, Moynihan’s argument boils down to a lack of favorable official institutional consensus thusly strips Wikileaks of any legal protections. Hence, Moynihan will crow about Amnesty International suddenly parroting the pentagon talking points while pointing out that Swedish officials have started chirping about Wikileak sources not being protected by Swedish privacy laws. This, of course, is just mere coincidence, having nothing at all do with US Pressure. No doubt…

Frankly, the US Government has no moral high ground when it comes to intelligence assets. It is beyond dispute that George Bush and Dick Cheney publicly leaked the identity of an intelligence asset for explicit political, ideological purposes. Power in the State operates above the State’s own laws. I’m pretty sure Julian Assange knows this. I’m also pretty sure that whatever “Ministry of Justice” or “Dept. of Justice” that the likes of Moynihan appeal to knows this, too.

Contra Reason.com, Wikileaks is very much a Journalistic Organization

I found this piece by Michael C. Moynihan criticizing the journalistic bona fides of Wikileaks to be tripe. And it should be condemned by libertarians.

Writes Moynihan:

If Assange wants to be a journalist—and he consistently identifies himself as one—he would be advised to cease referring to Wikileaks as an “activist organization” attempting to make a “political impact” and “achieve justice.”

Let me ask Moynihan a simple question: Do and you and your cohorts at Reason consider yourselves journalists? Is not the purpose of Reason to have an explicit political impact? I’m sure Nick Gillespie’s resume doesn’t list his current occupation as “Chief Activist.” In fact, I imagine it says “Editor-in-Chief,” Reason.com. And yet there was ole Nick standing with Drew Cary in front of the Cleveland City Council lobbying for an expansion of Charter Schools. Does this overt political activism thusly expel Gillespie from the profession and likewise Reason from the ranks of journalistic publications?

Journalism is divided into categories that make room for things advocacy/investigative journalism and opinion journalism. Of course, many will say that that these categories are often largely artificial to begin with. For example, it was readily apparent that the reporting at Fox News(and by reporting, we mean stories that are “sourced,” whether explicitly or anonymously) during the Bush Administration was skewed toward the “Red Team.” Likewise, it’s just as apparent that the reporting at MSNBC these days is skewed toward the “Blue Team.”

At one point, Wikileaks refrained from advocating any ideological point of view for the most part. It more or less served as a “sourced document” repository that relied on the blogosphere or even traditional reporters to use it’s sources for reporting. This obviously has changed in some respects. Wikileaks has become much more ideological(an ideology that slants very much libertarian/anti-authoritarian). This was consciously done, no doubt, in part to increase attention and funding.But this is no different than the likes of Fox or MSNBC who deliberately skew their editorial bias for the sake of branding, ratings, and advertising revenue.

Wikileaks is a news organization but, no doubt, in a bit of a different way than is traditionally thought. This is out of necessity because we are no longer talking about mere political reporting, but reporting on institutional behavior where the institutions themselves operate outside of any legal or political constraints. In this scenario, traditional media fails. So Wikileaks, like traditional news organizations, relies on sources in government. But, unlike traditional news organizations, it has no “reporters.” That’s because merely reporting spoken,verbal or communicated information from the source has no credibility. It therefore must rely on the leaking that is officially documented, and not on unofficial communication leaks.

A universal property of any large unaccountable institution is excessive hierarchical segmentation and compartmentalization of information. With the State, this unaccountability will be enforced by “law,” vis a via “security classifications.” In States run amuck with no accountability, the security classifications of institutional information will be greatly and artificially expanded. A “news organization” like Wikileaks–that is concerned with reporting on institutional behavior instead of the politics of the cult of personality–will then very likely end up breaking “laws.”

To spell it out to the clueless Moynihan, Wikileaks is indeed an example of a New “New Journalism.” The Blogosphere can be classified as a form of “New Journalism.” But it is still driven primarily by traditionally sourced reporting from traditional media(in this sense, it’s more of a form of opinion journalism). However, a blogopshere that can be driven, at least at times, by a distributed “document sourced” reporting news agency is very much an example of a New “New Journalism.” Bloggers, who for the most part are not traditional journalists in the sense of “sourced reporting,” become an actual reporting arm of a document-sourced news agency provider. From a Hayekian information economics perspective, this is what you would expect in the age of Big Brother.

I had to laugh at the recent Pentagon demand for Wikileaks to close shop and hand over their documents:

“The only acceptable course is for WikiLeaks to take steps to immediately return all versions of all of those documents to the US government and permanently delete them from its website, computers, and records.”

I’m not sure that the Pentagon tax-feeder spokesman Geoff Morrell quite gets it. Wikileaks is not a central repository. It’s a geographically distributed network, the full operational extent of it being unknown by anyone one person within the network/organization. The underlying organizational theory is one radical libertarians/anarchists have been grappling with for awhile now: how to patch together various jurisdictional legal frameworks to create a de facto protection of sorts for a stateless order, and where any one given jurisdiction would meet substantial political resistance if it unilaterally attempted to shut down this network by violating the legal authority of the other jurisdictions. For example, Patri Friedman’s Seasteading proposal thinks it can achieve this vis a vis the maritime laws. In the case of Wikileaks, it’s using various European State privacy laws and the fact the internet itself, as a global public packet-switched communications network, functions vis a vis an open, cooperative coordination across national boundaries.

Of course, even a putrid tax-feeder like Morrell isn’t so obtsuse as to think Wikileaks can delete the sourced documents that have been already released for public consumption. These now, of course, exist on the hard drives of PCs and hand-held devices all over the word(not even mentioning the mirrored copies of the website). No, what he is referring to are the documents that have not been released. But these documents, once introduced into the Wikileaks network, really can’t be deleted. This is by design. And they certainly can’t be deleted by Julian Assange. From all the accounts I’ve read, Assange, even though his past hacker days are often brought to the fore, really has no control or even much detailed operational knowledge of the network, for that matter(this follows the now well-known asymmetric operational design paradigm). Assange’s title is “Editor.” And that’s what he does. He heads a group that retains editorial control over vetting the documents and deciding which documents are to be released and at what time they are to be released. However, as a result of the public threats from the US government, Assange may have changed the editorial policy to release all or many of the unvetted documents as a symmetric-key encrypted document, which can then be decrypted back to plain text with the release of the secret passkey(Note: it is outside the scope of this post to speculate whether this is a bluff or not. But there are good reasons why it could be a bluff ).

Let us return to Moynihan’s critique. Another bullet-point charge that Moynihan makes against Wikileaks is that the released Afghanistan “sourced-documentation” didn’t offer anything new. In other words, there is no failure of traditional journalistic reporting.

It’s up to specialists in military affairs and those with a deep understanding of Afghanistan to determine if these documents will ultimately add to our understanding of the war or, as has been frequently argued, if such raw intelligence data simply add detail—some extraneous, some misleading, some valuable—to what we already knew. While it seems implausible that in 91,000 pages of secret documents there is nothing unknown, it is more likely that there is simply nothing explosive here. As New York Times editor Bill Keller told CNN, his reporters dug out plenty of interesting material but the cache wasn’t “full of scandals or revelations.”

In a sense, I think Moynihan perhaps misses the real revelation: the voluminous extent of the sourced documentation is the “revelation.” It marks the arrival of “document-sourced” journalism. I have to especially laugh at Moynihan’s statist propaganda tripe that you have to be a military expert to determine if these documents add to the understanding to the Af-Pak war. Shit. Anyone with an IQ above freezing and who is paying attention knows this war is fucked. The ones who are least likely to be aware of this are the actual goddamned experts. While it is true that the documents for the most part don’t disclose anything new that one could ascertain from a daily reading of traditional reporting aggregated by the likes of Antiwar.com(noting, however, that quite a bit of the reporting is foreign), it nonetheless is true that the documents serve a valuable source to accurately model the failure. And this is invaluable. For god sakes, you have open congressional testimony where military leaders acknowledge there is little to no al-Qaeda in Afghanistan. And is is widely reported. But the political classes, including the Obama Administration, keep justifying the Afghanistan occupation as a war against al-Qaeda. There is a real disconnect here that apparently can’t be overcome by traditional reporting. You need document-sourced reporting to accurately and visually model the failure. For example, the abu ghraib photos, or the collateral murder video. Wikileaks does have a video account of 2009 Granai airstrike, in conjunction with the operational field reports, and this will be released at some point. And it will cause a media shit storm even though the civilian travesty of the Granai airstrikes is common knowledge.

One thing to point out regarding the documents, at least from my vantage point, is that one thing I learned that was “new” is how these “drones,” heralded as a new miracle weapon, create a coordination nightmare in even Afghanistan Air Space and how accidental-prone the operation of these drones is. When we recently read how the FAA was holding up the implementation of Drones(many various state and federal law enforcement agencies are requesting to have their own Drones) in US airspace , now we know why. These things would be an absolute public safety hazard buzzing around in US airspace.

Finally, Moynihan criticizes Wikileaks for lacking “journalistic ethics.”

When attacked for exposing the names of Afghan informants, and potentially exposing them to Taliban retribution, Assange lapsed into incoherence, citing the hitherto unknown “journalists shouldn’t prognosticate” rule: “In journalism we should actually ignore people that say something might happen or could happen.” It’s a rule that would frequently require that we ignore Julian Assange.

It should be noted that Wikileaks claims it tried to work with the White House to protect whatever “intelligence assets” the US government now claims are threatened. Ironically, Moynihan quotes Bill Keller in his piece to make the case against Wikileaks being a “journalistic organization.” But it should also be noted that the New York Times, during the Bush Administration, was involved in a case where it was in negotiations with the Bush Admin over publishing classified material, specifically in the case of how the NSA tracked al-Qaeda satellite phone communications. The New York Times published the information and the Bush Admin condemned the publication as a major breach of US Intelligence and National Security. Therefore, by Moynihan’s own standard, we should ignore Bill Keller and dismiss the New York Times(frankly, I think using the New York Times as journalist source to criticize wikileaks presents problems to begin with, given that the Times has had it’s own issues with journalistic integrity in the past. And given the Judith Miller’s erroneous reporting in the run-up to the Iraq War sort of makes the case for the need of document-sourced reporting).

In summary, Moynihan’s case against Wikileaks being a journalistic organization has no merit. The United States, in threatening Wkileaks, is constrained by a previous Supreme Court decision regarding the Pentagon Papers that held that a Journalistic Organization publishing classified material is not subject to any criminal sanction(It’s protected by the 1st Amendment). If the US Government were to arrest Julian Assange, it’s entire case would primarily rest on making the case that Assange was not a journalist but rather an anti-american ideologue engaged in espionage against the United States. That Reason, a purported libertarian publication, would publish drivel supporting the US government’s underlying argument in this matter of fundamental importance is despicable. And you don’t get off the hook by claiming to support Wikileaks while attempting to eviscerate it’s legal protection. If Moynihan is too stupid to realize that stripping Wikileaks of it’s journalistic protections makes Julian Assange a prosecutable enemy of the State, then my suggestion to Moynihan is to find another fucking profession.

Judge dismisses case against Stagliano

In a bit of a surprise, Judge Richard Leon has dismissed the government’s case against John Stagliano. Apparently, under cross-examination, the prosecution’s star witness, FBI Agent Daniel Bradley, claimed he had been instructed by the Judge to review the “offending” material, Milk Nymphos and Storm Squirters 2: Target Practice, before trial. This caused the Judge to clear the courtroom whereupon he then denied giving any instruction to the FBI agent. The prosecutor also denied relaying any such instruction from the judge to her witness. This,in effect, meant that the FBI agent was guilty of false testimony. With no evidence(it was thrown out the previous day because the prosecution botched the video transcoding) and a tainted star witness, there was no case. When the prosecution rested, the defense moved to dismiss and the judge concurred, in the process scolding the government for “woefully inadequate” preparation. Because the ruling to dismiss preceded the defense’s case and jury deliberations, double jeopardy applies, so it can’t be retried. The case is over.

This was supposed to be the case that would challenge the Miller Test, i.e., “community standards,” in the 21st century internet age. The ultimate outcome would have had serious implications for the 1st Amendment. However, because of prosecutorial incompetence, the “obscenity trial of the century” awaits another day. The simple fact is that the Bush War on Pornography, carried out by the Obscenity Prosecution Task Force, is government intimidation. The cases, like most federal cases, get plea bargained. When someone actually challenged the government, called their bluff, the government folded like a cheap tent. These things aren’t meant to be brought to a jury trial, as the laughable preparation of the prosecution indicates quite clearly.

It is unknown whether the Obama is going to prosecute “the War on Pornography” with the same vigor as Bush(the Stagliano case originates from the Bush Admin). But the Justice Department Task force remains nonetheless. In the event that Obama puts a low priority on prosecuting pornography, the Task Force will quietly bide it’s time waiting for the next Republican president.

As a side note, Wendy McElroy writes a scathing rebuke of the libertarian community regarding it’s lack of coverage of the Stagliano case. McElroy apparently knows Stagliano–who is well known as being a libertarian– personally, and given that this case had the potential to have a major impact on the 1st Amendment(in many ways, Free speech is about the only libertarian freedom in America), she rants about the media blackout, with a couple of exceptions, in the libertarian sphere. She blames it on a movement that has become gripped by “social conservatism.” So gripped that major libertarian publications that she typically writes for turned down her requests to cover the case, even when she offered her services for free, because the publications were afraid of offending readers.

I’m in agreement with McElroy. To me, libertarianism is infested with elements of social conservatism. I should point out that many of the leading figures of the radical libertarian movement probably do not view “Buttman” as a hero, either. On one side, there is an undue paleo, culturally conservative influence that views “libertinism” as an obstacle to building a cadre political movement of “anti-Federal Reserve” crusaders. On the left side, the left libertarians, some of the more prominent writers, in their quest for fusionism with certain elements of feminism, take positions that are not particularly sympathetic to pornography.

Stossel was one of the few “libertarian” outlets, along with Reason, that promoted his case. I think it’s a sad that fucking Fox had his back, while the radical libertarians were AWOL.

Buttman’s 1st Amendment Trial

People often ask me what was prison like? I tell them, you’ll find out, you’ll find out…
Tommy Chong

In 2005, the Bush Administration created the Obscenity Prosecution Task Force in the Justice Department. According to their website, the mission of this task force is “is dedicated exclusively to the protection of America’s children and families through the enforcement of our Nation’s obscenity laws.” And so they went to work, criminally prosecuting, at first, small fish in the more esoteric areas of mainstream porn. The small fish all plea bargained. Then the task force went after “Buttman,” aka John Stagliano. But Buttman is a libertarian who contributes big bucks to libertarian organizations, and he wasn’t too pleased to find out, out of the blue, that he was being indicted via a Justice Department Press Release. So Buttman declined to plea bargain, instead opting to have his case decided by a jury in federal court. He faces 32 years if convicted on all the various counts.

In early 2009, Bush was gone, Obama was in. The Obama Admin, of course, retained the Task force and took the reigns of the prosecution of Buttman. So Buttman now finds himself in federal court in DC with the start of his criminal trial this past Tuesday. In the opening statements, prosecutor Bonnie Hannan declared this trial was about crossing the lines and accused Buttman of peddling his wares to underage teens. Unfortunately, for the prosecution, part of the evidence gathered, in the 3 year preparation leading up to the case, appears to have been corrupted because a FBI agent apparently had one too many drinks while attempting to transcribe a key piece of offending video in a DC Bar.

The Judge in this case has instructed the jury to apply the “Miller Test,” from 1973’s Miller vs California(aka, the community standards test). Buttman has emphatically indicated that he loses, he will appeal his case to the Supreme Court on the basis of challenging the Miller Test. In this sense, the trial of Buttman is potentially shaping up to have far reaching 1st Amendment implications in the internet age. But you wouldn’t know this by perusing the mainstream media. They are too busy begging for subsidies and becoming wholly owned subsidiaries of WashCorp. The slack in the provision of the “public good” of the news of this trial is being taken up by an Adult Video News site who has sent out ” adult performers” to moonlight as journalists.

If this case does end up in the Supreme Court, I would feel better about the composition of the court before Obama. Sotomayor/Kagan for Stevens/Souter is bad trade. Kagan, as Solicitor General, argued the State had the right to act, by virtue of operating a prison system, as a legal detention regime in the case of “sex offenders.” She has indicated that ‘book burning” is a legitimate function of government, although adding tongue-in-cheek that it would never be really enforced. Well, if Buttman’s case ends up on the Supreme Court docket, consider it to be under a state of enforcement.