Tuesday, April 28, 2009
I have not disappeared as has become my custom in recent years.
Allow me to explain.
The post below, the first of my weekly features, turned into a beast. I had to tame it down a little and change focus.
Also, I have lost the wireless signal at home, leaving me dead in the water, Internet-wise. Expect another "crappy customer service" post if this does not work out well.
In partial penance for my disappearance, I have included a bonus post below on how to read a Supreme Court case. It will help the uninitiated wade through the sometimes inscrutable legalese.
Well, anyway, enjoy.
Reading Supreme Court cases can be a bit bewildering if it is something that you have never done before. It can seem like, well, legal gibberish. You must forgive it for that; it WAS written by lawyers, after all. (Mark and Andy, don't be mad. You still are, right?)
Every case is different and the written opinions of the Supreme Court have changed dramatically. The court and its role was different in the 1790's and so are its opinions. The people are different, too.
Supreme Court majority opinions are assigned according to a rotating schedule and are therefore written by different people at different times. The personality and legal style of the authors come through in their opinions and dissents. This can be, as ever, very different for different justices.
There are four factors, however, that all Supreme Court cases have in common. Keep these in mind when reading the cases and my posts about them. They are:
- A description of the facts of the case.
- A carefully framed statement of the issue posed by the case.
- The application of the relevant law and precedent to the issues and facts.
- The conclusion or holding, which is just another way of saying the court's decision.
Written cases are usually in this order, usually with some mention of the arguments presented in court and the concurrences and dissents following after.
Concurrences and dissents, you ask? The majority opinion of the court is expressed by the aforementioned justice who's turn it is (really). This majority opinion can by joined or concurred with by the other justices. If they join it, they simply agree with the reasoning and conclusion presented by the justice who wrote the opinion. If they concur, they issue a separate statement whereby they usually agree with the conclusion but not the reasoning used to arrive at it.
Dissents are issued by justices who do not agree with the conclusion and see the application of the law and precedent to the facts of the case in a different way. Dissents can be joined by other justices just as majorities and concurrences can.
So, in reading a Supreme Court case for our purposes, don't read it like someone in law school. You are not trying to learn the law in order to apply it in any way. You are reading these cases (well, I am, anyway) for the interest in how the law has developed over time, the social and cultural impact of the decision, the changing nature of the court and the personalities involved in this branch of government.
So, with that in mind, dig into Miller v. California. As I said, it is not boring. The word "genitalia" is used a lot.
Wednesday, April 15, 2009
Click here for a synopsis of the case and audio of the oral arguments. Click here for the full text of the decision.
Marvin Miller, the appellant, was one of the largest dealers in "adult material" on the West Coast. He dealt mainly in explicit books and magazines. In an attempt to sell more of his products, he sent out a mass mailing advertising some of these illustrated, ahem, picture books. This advertising not only included detailed descriptions of the books, but also featured pictures of nude males and females, most including full frontal shots depicting genitalia. One of these advertisements found its way to a restaurant in Newport Beach, CA where it was opened by the restaurant owner and his mother. They were offended by the material, had not requested it and took Miller to court.
The California state court found Miller guilty of a misdemeanor charge of "distributing obscene material," and ordered him to be fined. Miller took the case to the California Court of Appeals and the decision of the lower court was upheld. Miller then decided that the California Penal Code section under which he was convicted conflicted with his rights to free speech, claiming that the materials that he distributed were covered under the First Amendment.
Is the sale and distribution of obscene materials by mail protected by the free speech guarantee in the First Amendment?
Before 1973, the prevailing test for obscenity was the court's decision in Roth v. United States (1957). In Roth, the Court repudiated the old Common Law standard for obscenity defined in the 1868 case of Hicklin v. Regina from Great Britain. The test for obscenity in Hicklin allowed material to be banned that tended to "deprave and corrupt those minds who are open to such influences."
In a 6-3 decision in Roth, the Court decided to further define the test for obscenity. In the majority opinion written by William J. Brennan, the Court defined as obscene any material whose "dominant theme taken as a whole appeals to the prurient interest to the average person applying contemporary community standards." Only material that meets this test could be banned as obscene.
Although this further defined material considered as obscene, Brennan reaffirmed that obscenity was not protected by the First Amendment and upheld the conviction of Roth that brought the case to the court. First Amendment "literalists" Hugo Black and William O. Douglas dissented in Roth, stating clearly that obscenity was protected speech.
What followed Roth were several decisions on which the Court could not conclusively decide on a further test for obscenity. 1964's Jacobellis v. Ohio found that a movie theater owner could not be held responsible for showing a movie that didn't quite meet the Roth test for obscenity. This case, by the way, also saw the coining of the most famous phrase in the history of American obscenity law. Potter Stewart, in his concurrence with the majority opinion, wrote:
- "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that (emphasis added)."
As if that was not ambiguous enough, in Memoirs v. Massachusetts (1966), the court ruled that a piece of literature (John Cleland's Fanny Hill, written in 1750) might be "patently offensive," but it was not completely without social value. This decision also showed how split the court was on obscenity, with four justices writing special concurrences because they could not unanimously agree with the majority opinion written by Brennan.
The Decision and Dissents
The court held that:
- "Obscene materials are defined as those that the average person, applying contemporary community standards, find, taken as a whole, appeal to the prurient interest; that depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; and that, taken as a whole, lack serious literary, artistic, political, or scientific value."
The court split 5-4 in this decision with Chief Justice Warren Burger, Byron White, Harry Blackmun, Lewis Powell and William Rehnquist making up the majority and William O. Douglas, Brennan, Thurgood Marshall and Potter Stewart making up the dissenting side.
Chief Justice Warren Burger wrote the opinion for the majority. He had pushed during the deliberations for a "looser" definition of obscenity to open the door for more state-level prosecutions. His opinion is summarized by the above definition.
The dissents in this case were by William O. Douglas and Brennan. Douglas dissented on the basis of his belief in the absolute letter of the First Amendment (as he had done in Roth). Brennan, as you can see, had a change of heart since his opinion in Roth in 1957. He was now of the mind, similar to Douglas and Black, that all obscenity is protected speech unless it is distributed to minors or exposed offensively to adults without their consent.
Miller is a landmark case in that it redefined the standard by which obscenity is judged. Most importantly, and worryingly, it further defined the community standards idea.
Why does this worry me? Well, think about it. This is saying that what is obscene in Massachusetts is different than what is obscene in, say, Utah. In a general sense, this might be true.
At a deeper level, however, I agree with Brennan and Douglas on this case. The First Amendment protection for free speech is as extensive as the many forms that speech itself takes. To say that "contemporary community standards" are to rule is to say that these standards are somehow agreed upon by all members of the community.
Now, how is this really possible? This applies a utilitarian notion of "greatest good for the greatest number" to an issue that, for me, is all about an individual right. I do agree that distribution of obscene materials to minors and showing them to unconsenting adults are not really defensible (although one can argue over whether our definition of "minor" is really a good one).
Apart from these groups, though, I am not sure how the state can have the power to regulate what sort of speech I create and to whom I deliver this speech in a media of one form or another. As Brennan argues, the First Amendment is there to protect the rights of individuals to have access to whatever forms of speech they'd like, regardless of their perceived "value."
In other words, I am not sure that the idea of "contemporary community standards" can ever be brought into line with the letter (or the spirit, come to it) of the First Amendment. Obscenity is a form of speech and I should not be limited in my consumption of it if I so choose.
So, the next time you hear swear words on television, buy porn or go to a strip club, think of yourself as a warrior in the battle for the First Amendment. To hell with your "community's standards." Seek out the speech you want and don't let anyone stand in your way.
It is our right and we need to use it everyday.
Because with rights, it's use 'em or lose 'em.
Tuesday, April 14, 2009
My poll last week asking for you good people to vote on a new feature for COTL attracted four votes. Thanks to the four who voted or the person who voted four times but for two different things or any combination of these.
It appears that the votes were evenly split between "Thrilling Tales of Europe's Past," and "Fun With Supreme Court Cases."
Seeing as there was equal interest between these two categories, I will compromise. I will switch off weeks between these two categories.
I also intend to broaden out the SCOTUS entries, focusing not just on cases, but on justices, ideas and the historical development of the Court from the 1790's to the present.
By the flip of a coin, the Supreme Court comes first.
So, sometime tomorrow, look for the first of my Wednesday history features.
We will get off to an exciting start, I assure you.
It involves porn.
Wednesday, April 08, 2009
Will couldn't POSSIBLY have ANOTHER bad trip so soon. Man, oh, man...no one is THAT unlucky, are they?
Well, folks, it happened again.
I was supposed to present at a conference at the University of Akron last weekend. I was flying out of Madison on a Northwest Airlines flight that was to leave at 7:00AM and arrive in Detroit at 9:34AM. I then had a lay-over in Detroit, boarding my connecting flight to the Akron-Canton Regional Airport at 11:04AM. I was supposed to arrive in Akron at 11:59AM, in plenty of time to check in at the hotel, slap on a tie and make it to the University of Akron for my panel at 5:00PM.
Everything went to plan that morning. I was packed, showered, in a new sportcoat and on my way to the Dane County Regional Airport by 5:15AM. I checked in and went through security without incident (the TSA staff in Madison was courteous, professional and quick...drive down to O'Hare and teach those assholes a lesson, why don't you?).
I got to my gate, sat down, drank a pop and read the paper. I even ran into someone I knew, so I would have someone to pass the time with on the plane. 6:45AM rolls around and they announce the pre-boarding call, so I get up and begin to make my way toward the gate (I was in Seat 6B, so I would get on first).
It was at this point when the suckitude began to ooze to the surface.
They announced that the plane was having "mechanical problems" and that we would be "slightly delayed." No problem, I thought, I had a sizeable lay over in Detroit, so this was just eating into the time I would have to kill in Detroit.
A half an hour passed (it was now 7:30AM) and the next announcement of dissapointment came. The plane required a part that they didn't have in Madison. It had to be flown in from Minneapolis on a flight that would arrive at 11:00AM. They were also having a mechanic drive in from Milwaukee to work on the plane in Madison with the part from Minneapolis.
Now, come on. Not only do you not have parts to fix the planes in service from Madison, you don't have a mechanic that can fix the plane? Isn't this an airport? Aren't you an airline? Isn't this, I don't know, what you fucking do?
It gets better (if by better you mean more suck-filled).
They announced because of their, ahem, maintenance arrangements, the flight would be further delayed. The flight to Detroit, originally scheduled to leave at 7:00AM was now going to leave at...wait for it...1:30PM - at the earliest.
Before, the delay was not a problem. Now it was a big, hairy, shambling, red-cheeked fucking problem.
I would now miss my connection for sure. I had to rebook, if necessary on a different airline. I called the airline and was immediately mired in what my dad appropriately calls, "automated attendant hell." I guess it is a different sort of hell than the people waiting in line at the gate. An entire plane of people being rebooked and rerouted by a grand total of two slow NWA employees.
When I finally reached a human being (or a reasonable facsimile thereof), I calmly described my problem and asked what could be done. I was brusquely asked if the flight was cancelled. I said that it was (people were to collect their baggage and make other plans). I was then all but accused of lying about the cancellation and asked again about the status of the flight.
Look, madam, you work for the airline. You have the schedules for flights of yours and other airlines a keystroke away. I'm stranded in a fucking airport. Who is in a better position to answer that question, asshole?
I then asked if there was any way, connecting through anywhere, that could get me to the Akron-Canton Airport by 3:00PM. After a short pause, the disembodied, snotty voice on the other end said, "not a chance."
Hey, I don't expect you to kiss my ass. I also don't expect a triumphant air of near joy in telling me that my travel plans are now ruined. You know who does things like that? Petty little shitheads with nothing to do in their lives except make other peoples' lives miserable.
I should have just accepted my refund there. But, no. I had to have the foresight of a back-up plan. I asked Her Assholiness if there was a way to get me to Cleveland sometime early this afternoon. I could fly to Cleveland, rent a car and drive to Akron (they are not at all far from each other).
After no pause at all (which tells me, dipshit, that I know you didn't check this out), I was informed, "Uhhhh, no."
Northwest Airlines and Their Unhelpful Employess and Bad Maintenance, 1: Will Shannon, 0.
I gave this woman my address to get my refund. She then had the audacity to ask me if I wanted it as a check or credit toward future travel. She opened the door and I walked through.
"Well, seeing as I never plan on flying your airline again," I declared, "I think I'll go for the check."
"Well, I'm sorry to hear that," she said, reading right from the goddamned script that these dipfucks are given.
"Are you?" I asked.
"Thank you for flying Northwest Airlines. Good bye," she said as she hung up.
I suppose she was interpreting the term "flying" rather loosely seeing as I NEVER LEFT THE FUCKING AIRPORT.
Well, I went home and have never felt as "dressed up with nowhere to go" in my life. I was in a sportcoat and tie, with a packed bag, standing in my apartment and it was 9:30 in the morning. I ended up having a topping day nonetheless. I played golf, took a nap and hit the town with the Shealy brothers. Thanks, Greg and Drew; you helped wash the Northwest Airlines shit taste out of my mouth. All the beer, whiskey and gyros helped.
I could go on about why I think airline service is so bad today (after deregulation in 1978, which was overall a good thing, airlines no longer had to compete on service at lower price points). I could lament the plight of the legacy carriers and their failure to adapt to a changing market.
But I won't. Don't want to spoil a good rant with any clear thinking. Not in this case, anyway.
So, to Northwest Airlines, I say your people are as bad as your service and you ruined a trip that I actually wanted to take. Your ill-mannered employees and shoddy ground procedures put me out and wasted my time and money. The next time I am presented with the choice of travel on your airline or walk there, I'm opting for the old Heel-Toe Express.
Oh, and the next time I want to get dressed up, spend a lot of money for nothing and get blue-balled, I'll try to go on a date.
At least then the woman rejecting me will be in person.
- Ed Glaeser on how entrepreneurship saved New York and damned Pittsburgh. Cities have to compete for scarce resources (residents and their money), too.
- Fascinating work on the geography of personality. Find the full paper here. This is interdisciplinary social science at its best. It also shows the Midwest (at least the part I'm from) in a really good light.
- Patri Friedman's exhortation to libertarians to quit whining and try to make a freer society actually happen. He makes a lot of sense, really.
- Will Wilkinson on cooperation and civil society. His discussion of "higher-level" public goods relates closely to the issues I raised about the SSIP.
- Gary Becker argues that the drop in housing prices has not influenced overall consumption very much. His argument about "wealth effects" and housing prices is especially compelling.
- A fascinating interactive graph of shifting religious identification in the USA. Apparently, we are becoming less likely to identify as religious and the center of this population is shifting eastward. Read a decent article in Newsweek that relates to this notion here.
- Richard Posner's review of this book on psychology and economics. I think this issue is critical to understanding not only the economic crisis but human behavior more generally.
Thursday, April 02, 2009
The new posts discuss:
- The problems involved at the heart of the SSIP, as I see them. Don't worry...I talk about fun stuff like beer, missiles and Snoop Dogg.
- The soothing effect of a British weather forecast. Take a look; you might be surprised.
PLEASE, OH PLEASE vote in the poll below as well. I have wanted to have a weekly feature for a while. Jenks has a great Friday feature that teaches you Latin. Rachel has a great Monday feature that teaches you about British monarchs.
So, I figured I would have such a feature to educate and entertain that would happen each and every week. The poll below details what I thought would be good topics, and topics that interest me and that I know a lot about. There is also a chance to leave your own ideas. There is lastly a chance to tell me to shut the fuck up. Well, I know which one will get the most votes...
And now, the poll:
I intend to discuss these concepts and how they might relate to an event like the SSIP. In my final post, I will suggest some possible solutions derived from these concepts and the other (possible) issues related to the event.
Typically, when one asks how to define public goods, the answer usually involves the terms "non-rivaled" and "non-excludable." Blank stares usually follow.
Examples are the best way to get at this concept. Non-rivaled means that the consumption of the good by one person does not reduce the availability of the good for others. If I drink a case of beer, the result (apart from me talking really loud and then passing out) is that I make that case of beer unavailable for anyone else.
Non-excludable means, well, that the consumption of the good does not exclude others from consuming that good. Continuing the beer example, if I drink that case of beer, I exclude others from consuming it. This, in a way, slightly reduces the ability of others to consume that same good. I know that they could go and buy their own beer, but they are prevented from consuming the beer that I did.
That case of beer is, therefore, not a public good because it is rivaled and excludable.
Something like a parade is different. The consumption of the good (the events of the parade) by one person does not reduce the availability of the parade for other spectators. In the same way, the consumption of the parade by one person does not exclude others from consuming it.
Parades are, then, public goods. Other example of public goods are things like parks, sidewalks, fireworks displays (to an extent) and other goods that people can consume without competition or exclusion. "Public" events like sporting events, concerts and other performances are not actually public because people can be excluded by means of an entrance fee.
The provision of these goods leads to a problem...
The Free-Rider Problem
This problem could just as easily be called "the freeloader problem."
The free-rider problem arises when people enjoy the benefits of a good completely independent of whether they pay for it or not. Classic examples that are given for this are things like national defense. Whether I pay for it or not, I will be protected by the armed forces of my government. The cost of keeping me (and other free-riders) from being defended (or, in other words, consuming this particular public good) is prohibitive.
An example closer to home, for some of us, might also help define this concept. We all have that friend who is usually described as a "mooch," a "leech" or "that cheap fucker who never ponies up for anything."
Snoop Dogg once famously expressed this notion in song: "I got me some Seagram's Gin/everybody's got their cup but they ain't chipped in/this kind of shit happens all the time/you gotta get yours, fool, but I gotta get mine." Snoop intuitively understood the problem of free-riders.
So, suppose you and your friends are planning a party. You plan on splitting the price of the food, drink and other expenses. You, being the magnanimous people you surely are, extend a more-or-less open invitation to friends to come and bring whomever they like. If they are really your friends, and they value your expenditure on the event, will reciprocate in kind or in cash.
There's always That Guy (or Gal), though. They come along, eat your food, drink your booze, take up your space and time and contribute nothing (aren't these also always the people who pass out on your couch and you then have to deal with them the next day as well). The price of excluding these people is probably prohibitive (socially or otherwise) and getting them to pay is even harder.
Free-riders, then, are a real problem when it comes to public goods. In the case of a parade, they consume the resource without any intention of bearing the cost of the event.
Well, this is not completely true because they bear some cost if public resources are expended in putting on the event. They DO pay for anything that is supported with public funds (police, fire, sanitation and the like). This cost, though, is often small compared to the amount of the resources consumed.
The result of this is especially acute for a private body that produces a public good, a body like the committee that until recently organized the SSIP. The free-riders are so many and the expense is so great that the ability to produce this public good voluntarily becomes cost-prohibitive.
Conclusion and Preview
As you can see, the problems of the parade are characterized by the ideas of public goods and the related problem of free-riders. These are, naturally, not the only problems involved.
We will discuss these other issues next time and begin to offer some possible solutions to the issue based on these concepts and some good old-fashioned intuitive thinking.
We will also engage in some wild speculation (perhaps in a fourth parade-related post) about other reasons behind this event being cancelled. I must warn you, though. All of the above is based on solid foundations. These claims will have no such thing. They will involve clannish neighborhood empire buliders, Mayor Daley, thinly-veiled racism, the Chicago Police Department and the extremely cynical application of demographic data.
But that's for another time.
(NOTE: If you are interested in the above-discussed concepts, I would gladly provide a short reading list of articles and books that discuss these fascinating concepts. They are fascinating, right? Right?)
As for me, I suppose I am not much different than most people in this.
I have noticed, however, that one piece of media that I enjoy has a different effect on me than the one intended. I would guess that you have some similar things in your life.
The media that I am talking about is the Shipping Forecast on BBC Radio 4.
You can listen to the Shipping Forecast here and get more information about it here. For the full experience, listen to the lead-in music used by Radio 4.
As you might imagine, the Shipping Forecast is given for informational purposes. It is to report the weather conditions off of the coast of the British Isles and to report the weather from coastal reporting stations.
For me, though, I find it extremely soothing. Even before I knew all the zones and locations or what the numbers meant, I found my self relaxing and just enjoying the experience.
I'm not sure what it is, exactly. It might be the cadence of the announcer. It might be the fact that it comes out (at least in its full form) right near when I usually go to bed.
What I think is the most relaxing, though, is the mental picture that I draw as I listen to the weather conditions for Fastnet, Irish Sea, German Bight, North and South Utsire and the rest.
I picture ships and boats being tossed on the dark sea, fighting the wind and waves off of the coast of the British Isles. I picture a sun-drenched afternoon's sailing in the Norfolk Broads or off the Isle of Wight. I see lonely coastal weather stations, faithfully reporting the local weather.
I know that seems like a lot to imagine out of a weather forecast, but I guess I have a rather active imagination.
Do give it a listen and let yourself get taken away, forming your own mental pictures. It is the cheapest vacation that I know of.