Originally published at: https://pluralistic.net/2020/09/20/judicial-equilibria/
- Amnesty International barred from Assange trial: Hard cases make bad law.
- Packing the court: Lessons from history.
- No Time for Enemies: A new Gangstagrass album.
- Colophon: Recent publications, upcoming appearances, current writing projects, current reading
Amnesty International barred from Assange trial (permalink)
Julian Assange's extradition hearings are frankly terrifying, and if you care about the free press, you should be worried, irrespective of whether you like Assange or Wikileaks. As the old saying goes, "Hard cases make bad law."
The Trump DoJ indictment goes somewhere that no other president has dared to go: criminally charging a publisher for their role in the publication of classified docs, something that press outlets do regularly.
Assange has been charged under the Espionage Act – again, a first for a publisher – because he did something routine: gave advice to a source on how to protect themselves from retaliation. This is something I have done.
If you are an investigative journalist who works with whistleblowers, you have done this too. For example, I had a source contact me about malfeasance within a tech company they'd worked at.
I explained to them how to switch to Signal, turn on disappearing messages, get a burner device, and how to find an employment lawyer to help them understand their rights (I imagine the lawyer's advice scared them off, because shortly after making contact they disappeared).
This is really the minimum duty of care we journalists owe to our sources and it is at the heart of the DoJ's case against Assange – who is not facing charges for anything to do with the 2016 election or "Russiagate."
This is, once again, a unique Trump innovation: arguing that the publisher, and not the source, should be charged criminally for their role in revealing state secrets.
Sources have long faced retaliation (which is why journalists seek to protect them), but publishers were off-limits.
Even the Obama administration, which used the Espionage Act against more leakers than all presidents in history combined, didn't go after publishers.
That's a Trump thing, and he's using Wikileaks and Assange to set the precedent. Trump – and his wilier, more tactical political allies – knows that his adversaries don't like Assange and won't stick up for him, and so Assange is a means to his end.
That end: allowing future administrations to criminally charge publishers that publish leaks they don't like. To shut down press outlets and put their key personnel in prison for very long sentences.
The public indifference to Assange's absolutely ghastly treatment has emboldened those in the UK and the US who want to use this opportunity to seize as much power to punish the press as possible.
Don't take my word for it. Read what Stefan Simanowitz, Amnesty International's media manager for Europe, Turkey and the Balkans, has to say about the trial.
Read how Assange's lawyers weren't allowed to contact him at all for six months before his hearing.
And read how Amnesty International – which was permitted to observe trials in Gitmo, Bahrain, Ecuador and Turkey – had its request to observe Assange's trial denied.
"Through its refusal, the court has failed to recognize a key component of open justice: namely how international trial observers monitor a hearing for its compliance with domestic and international law They are there to evaluate the fairness of a trial by providing an impartial record of what went on in the courtroom and to advance fair trial standards by putting all parties on notice that they are under scrutiny."
Democracy dies in darkness, right? If you think that the press-freedom precedents Trump is setting now will only be used against people you're angry at, you're engaged in wishful thinking.
The Trump administration is fashioning an immortal, pluripotent superweapon that ANY future administration (including a second-term Trump administration, shudder) can use against the press.
Packing the court (permalink)
The death of Ruth Bader Ginsburg and Mitch McConnell's cynical reversal of his Obama-era prohibition on confirming a new Supreme Court justice in the waning days of an administration has kicked off a lot of interest in the possibility of "packing the court."
The number of Supreme Court justices is not spelled out in the Constitution: rather, it is the subject of federal law, and a new Congress, Senate and President could in theory pass a new law, expanding or contracting the number of judges – we could have a 21-seat bench!
How this could play out is complicated. Henry Farrell's history of FDR's threat to pack the court rebuts the idea that court-packing undermines democratic norms, arguing that the threat itself tamed the court and made it pliable to the New Deal.
The court's power comes from its legitimacy; even the alleged "textualists" (who say their only job is to strictly hew to the text of the Constitution) are secretly consequentialist (ruling on the basis of how their judgments will be perceived by the public).
To rule without regard to consequence is to undermine the court's legitimacy and thus its power.
Farrell: "Norm maintenance requires not just that political actors worry about the chaos that will ensue if the norms stop working. It also relies on the fear of punishment – that if one side deviates from the political bargain implicit in the norm, the other side will retaliate, likely by breaking the norm in future situations in ways that are to their own particular advantage."
More explicitly: "Norms don’t just rely on the willingness of the relevant actors to adhere to them. They also rely on the willingness of actors to violate them under the right circumstances. If one side violates, then the other side has to be prepared to punish. If one side threatens a violation, then the other side has to threaten in turn, to make it clear that deviating from the norm will be costly."
This view is not unique to Farrell. Writing in the LA Times, Erwin Chemerinsky, Dean of UC Berkeley Law, concurs: "The threat of increasing the size of the court to 13 might be enough to discourage Republicans from their dirty tricks. But if they do it anyway, and the November election produces a Democratic win in the White House and a Democratic majority in the Senate, Congress would be totally justified in increasing the size of the court."
But FDR isn't the only president who bypassed the Supreme Court. Lincoln faced down a court packed with pro-slavery justices – the bench that denied Dred Scott standing on the basis that Black Americans "had no rights which the white man was bound to respect."
Writing in Jacobin, Matt Karp describes how Lincoln tamed the court by delegitimizing it, with New York papers declaring that the Supreme Court was a "a self-disgraced tribunal."
Lincoln-supporting legislators like William Seward introduced legislation to weaken the court's power: "Let the court recede. Whether it recede or not, we shall reorganize the court, and thus reform its political sentiments and practices."
Though the law was doomed, it was part of a normative exercise in delegitimizing the court. Lincoln allies mocked their opponents for "superstitious worship" of the court, made fun of the justices' appearance, and rejected the idea of "judicial review" of constitutionality.
This crept into mainstream discourse. Maine senator (and Lincoln's future VP) Hannibal Hamlin wrote, "We make the laws, they interpret them; but it is not for them to tell us what is a political constitutional right of this body. Of all the despotisms on earth, a judicial despotism is the worst. It is a life estate."
During the Lincoln-Douglas debates, Douglas attacked Lincoln for undermining the court's legitimacy. Far from rebutting this claim, Lincoln made it a campaign promise.
"We do not propose to be bound by [Dred Scott] as a political rule. We propose resisting it as to have it reversed if we can, and a new judicial rule established upon this subject."
Lincoln won the election, and in his inaugural address, he said, "[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court. The instant they are made the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal."
Lincoln did pack the court, adding one more justice, but he also just bypassed them, ignoring their precedents and passing new antislavery laws that contravened them. SCOTUS was sidelined for a decade, including during Reconstruction.
Karp: "Drawing direct lessons from the past is a fool’s errand, but this history should remind us that judicial power — however grandly it may be imagined by friends and foes alike — is critically dependent on political currents. The Right’s resort to judicial supremacy is not a sign of strength, but an admission of weakness: a beleaguered regime calls upon the authority of the court only to achieve what it cannot accomplish through electoral politics."
No Time for Enemies (permalink)
There's a new Gangstagrass album: No Time for Enemies is vintage Gangstagrass, blending country and hiphop to make something that is both recognizably connected to both but fundamentally different from either.
If a country/hiphop band sounds like a contradiction in terms, consider the history of both Black and country music, which are intimately related to the history of broadcasting and recording.
Before recordings, the only music "industry" (that is, a business involving large firms with industrial equipment) was sheet-music publishing, and the musicians who performed the compositions they sold were considered mere tradespeople, following the composers' instructions.
The advent of sound recording changed all that. Performers began to record compositions, to the outrage of the composers.
John Philip Sousa told Congress: "These talking machines are going to ruin the artistic development of music in this country. When I was a boy … in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape."
The performers, meanwhile, insisted that they were performing the music they'd paid for, and if the composers didn't want their music performed, they shouldn't be selling it to performers.
The issue was resolved by a compulsory mechanical license law, which compelled composers to allow any performer to record their songs (once they'd been released on record), provided they paid a set fee for every copy.
That's how Sid Vicious got to record "My Way."
Then came radio. And, as with sound recordings, broadcasters simply started playing records without seeking permission from the industry that made them ("We're just playing records: if you don't want people to play your records, don't sell them").
By this time, musicians had been organized into rights societies that handled their licensing, notably ASCAP. ASCAP represented "respectable" music, which meant that they wouldn't admit anyone involved with "race music" (Black music) or "hillbilly music" (country music).
So the Black musicians and western musicians organized under a different society, BMI, and while ASCAP was boycotting radio, BMI offered its catalog to broadcasters.
That meant that early radio was dominated by music that had been heretofore considered illegitimate – the music of poor and racialized people – this eventually brought ASCAP to the table, as the elite artists it repped grew furious that they were losing the culture wars.
But this mixing of Black and western music meant that blues, R&B; and country mixed together in the upbringing of a new generation of musicians, reared on the radio during the BMI era, giving us boogie woogie and rock n roll.
So Ganstagrass is not the first time Black and country music were blended! It has the hybrid vigor of that early rock/boogie-woogie music, with flavors that remind me of Steve Gibson and the Five Red Caps and other crossover acts.
Meanwhile, the media wars of sound recordings and broadcasts followed the template of once-were pirates declaring themselves admirals and decrying those who had the audacity to do unto them as they had done unto their forerunners.
The broadcasters who stole the record albums decried the cable operators who stole their radio signals. The cable operators damned the VCR manufacturers who stole the signals they'd stolen from the broadcasters.
And then Sony – the company that legalized the VCR after an 8-year, brusingly expensive Supreme Court fight – declared war on Napster, for having the audacity to steal the recordings it stole from the cable operators, who stole them from the broadcasters, who stole them from the record companies, who stole them from the sheet-music publishers (publishers, it must be noted, that were accustomed to stealing from composers).
Every pirate wants to be an admiral!
Anyway, the new Gangstagrass album's major single is "Ride With You" and it's got a great video:
Today's top sources: Rench, Naked Capitalism (https://nakedcapitalism.com/).
Currently writing: My next novel, "The Lost Cause," a post-GND novel about truth and reconciliation. Friday's progress: 670 words (63295 total).
Currently reading: Gideon the Ninth, Tamsyn Muir
Latest podcast: IP https://craphound.com/podcast/2020/09/14/ip/
- Keynote for Law Via the Internet conference, Sept 22, https://www.crowdcast.io/e/LVI2020/register
DWeb Meetup — If Big Tech Is Toxic, How Do We Build Something Better? Sept 22, https://www.eventbrite.com/e/dweb-meetup-if-big-tech-is-toxic-how-do-we-build-something-better-tickets-120479309859
Writing into an Uncertain Future, Afterwords Festival, Oct 1, https://www.eventbrite.ca/e/writing-into-an-uncertain-future-tickets-115378329690
- "How to Destroy Surveillance Capitalism": an anti-monopoly pamphlet analyzing the true harms of surveillance capitalism and proposing a solution. https://onezero.medium.com/how-to-destroy-surveillance-capitalism-8135e6744d59
"Little Brother/Homeland": A reissue omnibus edition with a new introduction by Edward Snowden: https://us.macmillan.com/books/9781250774583; personalized/signed copies here: https://www.darkdel.com/store/p1750/July%3A__Little_Brother_%26_Homeland.html
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- "Attack Surface": The third Little Brother book, Oct 20, 2020. https://us.macmillan.com/books/9781250757531
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