O, Adam Smith, Wherefore Art Thou?

29 Sep

Smith, The Theory of the Moral Sentiments:

This disposition to admire, and almost to worship, the rich and the powerful, and to despise, or, at least, to neglect persons of poor and mean condition, though necessary both to establish and to maintain the distinction of ranks and the order of society, is, at the same time, the great and most universal cause of the corruption of our moral sentiments….We see frequently the vices and follies of the powerful much less despised than the poverty and weakness of the innocent.

Smith/Brecht

29 Sep

Adam Smith, The Theory of the Moral Sentiments:

The poor man, on the contrary, is ashamed of his poverty. He feels that it either places him out of the sight of mankind, or, that if they take any notice of him, they have, however, scarce any fellow-feeling with the misery and distress which he suffers. He is mortified upon both accounts. For though to be overlooked, and to be disapproved of, are things entirely different, yet as obscurity covers us from the daylight of honour and approbation, to feel that we are taken no notice of, necessarily damps the most agreeable hope, and disappoints the most ardent desire, of human nature. The poor man goes out and comes in unheeded, and when in the midst of a crowd is in the same obscurity as if shut up in his own hovel….The man of rank and distinction, on the contrary, is observed by all the world. Every body is eager to look at him, and to conceive, at least by sympathy, that joy and exultation with which his circumstances naturally inspire him. His actions are the objects of the public care. Scarce a word, scarce a gesture, can fall from him that is altogether neglected. In a great assembly he is the person upon whom all direct their eyes; it is upon him that their passions seem all to wait with expectation, in order to receive that movement and direction which he shall impress upon them; and if his behaviour is not altogether absurd, he has, every moment, an opportunity of interesting mankind, and of rendering himself the object of the observation and fellow-feeling of every body about him.

Bertolt Brecht, “Mackie Messer” (“Mack the Knife“), Three Penny Opera:

And some are in the darkness
And the others in the light
But you only see those in the light
Those in the darkness you don’t see

But you only see those in the light
Those in the darkness you don’t see

[Und die einen sind im Dunkeln
Und die anderen sind im Licht
Doch man sieht nur die im Lichte
Die im Dunklen sieht man nicht

Doch man sieht nur die im Lichte
Die im Dunklen sieht man nicht]

 

Is the Boycott of the University of Illinois Illiberal?

29 Sep

I’m hearing whispers that some liberal-ish academics think the boycott of UIUC is illiberal and censorious. So let me get this straight. Is the underlying idea that, as an academic, you’re obligated to accept every single speaking invitation you receive? (Let’s recall the terms of the boycott: simply that we will refuse to accept an invitation to speak, or otherwise participate in an event, at the UIUC, until Steven Salaita is reinstated.) Or is it that you’re allowed to say no if your reasons are strictly careerist—i.e., the institution is not high-prestige or the honorarium too low—but not if your reasons are moral principles? Or is it that you think careerism is not only a moral principle but the only acceptable moral principle that would justify a refusal of an invitation? Or is all this liberalism talk besides the point, and it’s just Israel Israel Israel?

It’s Not the Crime, It’s the Cover-up

28 Sep

In the latest turn in the Salaita affair, Ali Abunimah has filed a public records request with the University of Illinois, which the University has not complied with. Raising suspicions of…

Here’s Ali:

The University of Illinois at Urbana-Champaign says it cannot find a key document that may shed light on donor pressure and organized efforts to convince top administrators to fire Steven Salaita for his criticisms of Israel.

The Electronic Intifada requested the document – a memo on Salaita’s views handed to Chancellor Phyllis Wise by a major donor – under the Freedom of Information Act.

However, an 18 September letter from the university informed The Electronic Intifada that “no records responsive to your request could be located.” Under Illinois law, Wise is required to preserve the document as a public record.

The existence of the document in question was revealed in a 24 July email (see below) Wise sent to the university’s senior fundraising staff reporting on a meeting she had with what appears to be a major donor…In the email, Wise writes (emphasis added):

He said that he knows [REDACTED] and [REDACTED] well and both have less loyalty for Illinois because of their perception of anti-Semitism. He gave me a two-pager filled with information on Steven Salaita and said how we handle this situation will be very telling.

This “two-pager” is the document that was requested by The Electronic Intifada and that the university now claims it cannot find.

Maria LaHood, senior staff attorney at the Center for Constitutional Rights (CCR), which is part of the legal team representing Salaita, expressed skepticism toward the university’s claim that it cannot locate the document.

“It is hard to believe that Chancellor Wise would have thrown out the two-pager on Professor Salaita given to her by a donor at a meeting that was important enough for her to email details about to top Illinois fundraising officials at midnight, unless there’s a reason she didn’t want it to be made public,” she told The Electronic Intifada.

“The two-pager might indicate a more organized effort to go after Salaita, and it will be one of the many documents we’ll seek in litigation,” LaHood added.

Under the Illinois State Records Act, documents received by Wise and the university are the property of the state. As a public official, Wise is legally required to preserve such records, which may not be disposed of except under conditions set out in the law.

The Electronic Intifada has filed a request with the Public Access Counselor at the office of the Illinois Attorney General to review the facts and law surrounding the University of Illinois’ failure to release the “two-pager” on Steven Salaita handed to Chancellor Phyllis Wise by a pro-Israel donor.

The request notes that under the Illinois State Records Act, Wise, a public officer of a state agency, is legally required to preserve the document in question and the university is legally required under the State Records Act and the Freedom of Information Act to produce the record for public inspection.

As the State Records Act states:

All records made or received by or under the authority of or coming into the custody, control or possession of public officials of this State in the course of their public duties are the property of the State and shall not be mutilated, destroyed, transferred, removed or otherwise damaged or disposed of, in whole or in part except as provided by law. Any person who knowingly and without lawful authority alters, destroys, defaces, removes, or conceals any public record commits a Class 4 felony.

Such felonies may be punishable by a term of imprisonment.

Given the facts set out in the post above and provided to the Public Access Counselor, the request asserts that “reasonable suspicion exists that a public record has been disposed of without lawful authority.”

The Public Access Counselor is an office established by law to help enforce the Illinois Freedom of Information Act and the Open Meetings Act.

“Working under the direction and supervision of the Attorney General and with a team of attorneys and professional staff, the Public Access Counselor’s mission is to help people obtain public documents and access public meetings,” according to the Attorney General’s website.

What Is Wrong With Zionism

27 Sep

I could convert to Christianity, declare myself no longer a Jew, start and sell a line of artisanal bacon, raise my daughter to be a Wiccan, and many Jews I know would be totally cool with that. But oppose the State of Israel—a state, let us recall, a state—and suddenly I’ve crossed a line. I’m no longer a Jew in good standing, I’ve betrayed some basic trust, I’ve become a problem. This is what Zionism has done to Judaism. This, among other things, is what is wrong with Zionism.

Copyrights and Property Wrongs

26 Sep

Jeffrey Toobin has an interesting piece in this week’s New Yorker on the effort of individuals to get information about themselves or their loved ones deleted from the internet.

Toobin’s set piece is a chilling story of the family of Nikki Catsouras, who was decapitated in a car accident in California. The images of the accident were so terrible that the coroner wouldn’t allow Catsouras’s parents to see the body.

Two employees of the California Highway Patrol, however, circulated photographs of the body to friends. Like oil from a spill, the photos spread across the internet. Aided by Google’s powerful search engine—ghoulish voyeurs could type in terms like “decapitated girl,” and up would pop the links—the ooze could not be contained.

Celebrities who take naked selfies, ex-cons hoping to make a clean start, victims of unfounded accusations, the parents of a woman killed in a gruesome accident: all of us have an interest in not having certain information or images about us or people we care about shared on the internet. Because it provides such a powerful sluice for the spread of that information and those images, Google has become the natural target of those who wish to protect their privacy from the prying or prurient eyes of the public.

In Europe, Toobin reports, the defenders of the right to privacy—really, the right to be forgotten, as he says—have had some success. In the spring, the European Court of Justice upheld the decision of a Spanish agency blocking Google from sharing two short articles about the debts of a lawyer in the newspaper La Vanguardia. While the newspaper could not be ordered to take down the articles, the Court held that Google could be “prohibited from linking to them in any searches relating to” the indebted lawyer’s name. As Toobin writes:

The Court went on to say, in a broadly worded directive, that all individuals in the countries within its jurisdiction had the right to prohibit Google from linking to items that were “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

While the decision has quite a bit of support in Europe, it has been widely criticized in the United States as a violation of the First Amendment, threatening both freedom of speech and freedom of the press. Where the right to privacy is held to be “a fundamental human right” in Europe, claims Stanford scholar Jennifer Granick, Americans are more sensitive to issues of freedom of expression; they prefer to deal with the privacy issues, if they do deal with them at all, in a piecemeal fashion. Europe’s position, as Toobin explains, comes out of the

And yet…

As Toobin goes onto explain, Americans can legally protect themselves from unwanted scrutiny or embarrassment on the internet through a different legal instrument: copyright law.

Because Google is extremely sensitive to the legal claims of those who own specific words or images, it steadfastly refuses to link to copyrighted materials and images (or allow people to post copyrighted videos on YouTube, which it owns.) So if a celebrity were to take a selfy, or if the Catsouras family owned the photographs of their daughter—they tried, unsuccessfully, to get the California Highway Patrol to give them the copyright—Google could be forced, or persuaded, to stop linking to any sites that posted them. That threat of copyright violation can be very effective.

In August, racy private photographs of Jennifer Lawrence, Kate Upton, and other celebrities were leaked to several Web sites….Several of the leaked photographs were selfies, so the women themselves owned the copyrights; friends had taken the other pictures. Lawyers for one of the women established copyrights for all the photographs they could, and then went to sites that had posted the pictures, and to Google, and insisted that the material be removed. Google complied, as did many of the sites, and now the photographs are difficult to find on the Internet, though they have not disappeared. “For the most part, the world goes through search engines,” one lawyer involved in the effort to limit the distribution of the photographs told me. “Now it’s like a tree falling in the forest. There may be links out there, but if you can’t find them through a search engine they might as well not exist.”

I don’t have much of an opinion about the fundamental issue in the article: the battle between the right to privacy and freedom of speech. Toobin presents the various arguments on all sides of the question, and it’s pretty clear that the European approach, favoring the right to privacy, raises many difficult legal and institutional issues.

What I’m more struck by is how little traction the right to privacy has in the United States, as compared to the claims of copyright.

I don’t know much about copyright law, either in the US or in Europe, but I can’t help wondering if one of the reasons its claims are so potent here, trumping those of privacy, is that copyright is  a property right.

The right to privacy, of course, is historically intertwined with property rights: in the Griswold decision, for example, which struck down Connecticut’s ban on contraception, Justice Douglas cited the Third Amendment, which forbids the quartering of soldiers in private homes, as the basis for a broad constitutional right to privacy. Even so, the right to privacy is not nearly as dependent on the claims of property as is copyright, which is a variant of intellectual property (patents and so forth).

Where copyright is designed to protect a person’s ownership over a text or image on the theory that that ownership benefits the public—if an author can reap the full monetary benefits from the production or sale of a text or image, she will be encouraged to produce those texts and images—the right to privacy is designed to protect a person’s claims against the public. Copyright protects a person’s property by conscripting it on behalf of the public (at least in theory); privacy shields a person from the public.

It’s interesting that an allegedly individualistic US is less sensitive to these issues of privacy than an allegedly collectivistic Europe, but the rights of privacy in the cases Toobin cites don’t involve any property rights. Save the damage to one’s reputation, which might gain some traction from the law if a person were powerful, but gets virtually none when a person is not.

The whole discussion reminds me of another Justice Douglas opinion: his concurrence in Heart of Atlanta Motel v. United States. In that case, the Supreme Court upheld Title II of the Civil Rights Act. That provision made it illegal for restaurants, inns, and public accommodations to discriminate on the basis of race. The Court claimed that Title II was a legitimate exercise of Congress’s power under the Commerce Clause. The majority held that Congress had the power to regulate interstate commerce, that the travel of African Americans to and from the South involved interstate commerce, and that ending segregation in these public accommodations would facilitate such travel.

In his concurring opinion, Douglas conceded that Congress had the right to use its interstate commerce powers in these ways, but he was discomfited by the Court’s resting Title II on that basis. He would have preferred to rest it on Congress’s power under the 14th Amendment.

Though I join the Court’s opinions, I am somewhat reluctant here, as I was in Edwards v. California, 314 U.S. 160, 177, to rest solely on the Commerce Clause. My reluctance is not due to any conviction that Congress lacks power to regulate commerce in the interests of human rights. It is, rather, my belief that the right of people to be free of state action that discriminates against them because of race, like the “right of persons to move freely from State to State” (Edwards v. California, supra, at 177), “occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.” Ibid. Moreover, when we come to the problem of abatement in Hamm v. City of Rock Hill, post, p. 306, decided this day, the result reached by the Court is, for me, much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual, not with the impact on commerce of local activities or vice versa.

But American being America, commerce ruled. And rules. Like property.

What was it those two dudes said? “In bourgeois society capital is independent and has individuality, while the living person is dependent and has no individuality.”

Thinking about Hannah Arendt and Adolph Eichmann on Erev Rosh Hashanah

24 Sep

George Steiner writes somewhere that the deepest source of anti-Semitism may lie in three Jews: Moses, Jesus, and Marx. Three Jews who formulated a great and demanding ethics/politics, an almost unforgiving and humanly unbearable ethics/politics, that the rest of the world has repeatedly bridled at and hated. And never forgiven the Jews for. Setting aside the bit of self-congratulation that lies at the heart of that formulation—ah, we Jews, we’re so ethical and righteous—I wonder if some part of that may not lie at the heart of the rage and reaction that Hannah Arendt’s Eichmann in Jerusalem has elicited over the years. There is something unforgiving at the heart of that book. It is a relentless indictment—not just, pace what Arendt herself said later of the book, of one man, but of many men, and women—an indictment, despite Arendt’s best and professed intentions, in which ordinary readers (ordinary men) can’t help but see themselves. And an indictment in the name of (or at least implicitly and distantly in the name of) a difficult and demanding ethics and politics. An indictment that seems to stir the same kind of reaction to Arendt that historically was stirred up against the Jews. Oh, that Hannah Arendt: she sets herself apart; she thinks she’s smarter than the rest of us; she belongs to no one, not even the Jews. Only this time it’s not the reaction of just non-Jews to Jews, but also of Jews to a Jew. Shana Tova.

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