Friday Review: Hyperion/The Fall of Hyperion

One of the hazards of any series – of books, movies, or even a TV series – is that the various installments invariably get compared against one another. If you’re lucky, things get better as the series progresses. More likely, things tail off a little bit as the series moves on, but it remains interesting and compelling. Spare a thought for Dan Simmons, then, who knocked it out of the park so hard with the first novel in his Hyperion Cantos that even a very good follow up pales by comparison.

Hyperion and The Fall of Hyperion are, in essence, two halves the same book that tell a unified story. In fact, Hyperion ends rather abruptly in the way that really infuriates me when it comes to individual books in a series. Having read both books now, I can see why such an abrupt transition was necessary. Each novel is so different from the other in terms of structure that it would have been impossible to tell the story in the way Simmons did in one continuous narrative.

The Hyperion Cantos (there are two other novels, plus some short stories that make up all this) take place in a far future where the Earth is gone (victim of the Great Mistake) and humanity has spread amongst the stars. Along with the humans are a super advanced network of artificial intelligences that help bind the human race together via interstellar communication and travel. Most important are the farcasters, portals through which people and material transfer from one spot to another. Think of Star Trek’s transporter system fused with the Internet and you kind of get the picture. Planets linked to the farcaster network are part of the WorldWeb, in fact. There’s an existential threat to the WorldWeb, the Ousters, who live outside the reach of the network and its AI managers.

One of the interesting things Simmons does with the farcasters is that he takes a completely fantastic technology and makes it utterly commonplace. They aren’t only used for quick transit between distant planets, they’re used for quick transit from one room of a home to another. The truly wealthy, in fact, have homes with so many farcaster portals that each room is on a different planet. Makes any gold-plated mansion Trump comes up with look like an outhouse.

Against that background, Hyperion adopts the structure of The Canterbury Tales to set in motion a catastrophic change in the universe. It tells the story of seven pilgrims on their journey to Hyperion, a planet that lies outside the WorldWeb and sort of off on its own. Hyperion is home to the Shrike, a demon/god/monster that impales people on its metal tree of thorns near a clutch of artifacts called the Time Tombs. A church or cult has sprung up around the Shrike throughout the WorldWeb. An odd number of pilgrims, it is said, seek out the Skrike. All but one is killed. That one may have his or her request heard.

But Hyperion is less about all that than it is about the pilgrims making the journey. The Canterbury Tales frame format allows Simmons to essentially tell six separate short stories (one of the pilgrims disappears before we hear his tale), in varying styles, about these characters. As it turns out, all have been touched by the Shrike in some way, from the poet who thinks the beast was his bloody muse to the father whose daughter, upon encountering the Shrike during a research expedition to the Time Tombs, is now aging backwards. Each story works on its own merit and serves to make you care deeply about these people.

In the background of all that is an impending invasion of Hyperion by the Ousters and what that might mean for the WorldWeb. And that’s where the big shift happens between the two books. In Hyperion, the galaxy spanning war and intrigue plays a back seat to the character stories of the pilgrims. In The Fall of Hyperion, things get flipped. Via a couple of new main characters (including a AI simulacrum of John Keats – no kidding!), the focus shifts from the personal to the epic.

That transition isn’t completely successful. Simmons has enough interesting ideas to keep things afloat in the second book, although it becomes increasingly messianic as things go along. Unfortunately, all those people we grew so attach to in the first book aren’t left with much to do. They all deal with the Shrike, in their own ways, and so there is a sort of closure. However, they all essentially end up for the good at the end of things, which diminishes some of the horror and dread surrounding the Shrike built up in the first book.

In the end, The Fall of Hyperion fails mostly because it is inextricably entwined with Hyperion, which is a masterpiece. Had the tables been turned, had the merely good come before the great, it would have made perfect sense. As it is, The Fall of Hyperion comes off more as a wasted opportunity than a grand sequel.

The Details
-----------------
The Fall of Hyperion, by Dan Simmons
First published 1989
Hugo and Locus award winner – best novel

The Fall of Hyperion, by Dan Simmons
First published 1990
Locus and British Science Fiction award winner – best novel

Lies, Damned Lies, and Free Speech (Coda)

A couple of weeks ago I talked about US v. Alvarez, in which the Supreme Court is going to determine whether the Stolen Valor Act, which makes it a crime to falsely claim to have been awarded various military honors, violates the First Amendment. The Court heard oral argument in the case last week and I think it really highlights the principle/practical distinction I was discussing in those posts.

In particular, the Court hammers Alvarez’s counsel pretty hard looking for a principled reason why the First Amendment’s guarantee of free speech provides protection to knowing false statements of fact. To be honest, I don’t think he came up with a satisfactory answer. Instead, the biggest problem with the Act appears to be its scope and how it is applied. So, hey, maybe I was right about emphasizing the practical after all.

I don’t know whether that’s a good thing or a bad thing. It makes my skin crawl when a prosecutor says, with regards to some broadly worded law impacting speech, “don’t worry, we won’t interpret it to reach that kind of speech.” The Government’s tried that line in other First Amendment cases and it was rightly rejected. Hopefully, they’ll rejected this time, too.

Is There a Death Star Gap?!

In these ever perilous days of the War on Terra, we are constantly seeking ever more effective weapons to employ against the enemy. Is it enough to be able to blow up any large chunk of the planet on a whim? No, friends, I say unto you it is not. We’ve got to be able to blow up the entire fucking planet.

Thankfully, the technology to do that is more cost effective than you might imagine. That’s what Kevin Drum would have you believe, at any rate, as he breaks down the economics of building the Death Star (via).

He begins with a conclusion reached by students at Lehigh University that the steel needed to construct the Death Star by itself would cost 13,000 times the world’s current GDP. And Drum says that’s too low – it’s more like 1.3 million times current GDP. A problem? Not so much, due to the increase in GDP in the centuries leading up to the Old Republic, as well as the massive expansion of the tax base over thousands of worlds. In the end:

In other words, not only is the Death Star affordable, it's not even a big deal. Palpatine could embezzle that kind of money without so much as waving his midichlorian-infused little pinkie. If it weren’t for the unfortunate breakdown in anti-Bothan security and the shoddy workmanship on the thermal exhaust ports, it would have been a pretty good investment, too. In other words, yes: totally worth it.

So that takes care of the cost, but what about labor? After all, what do Stormtroopers know about installing plumbing?

Thankfully, we’ve got a while to sort all this out.

A Raging Wall of Black Water

Forty years ago yesterday, a roaring black hell was unleashed in the hills of West Virginia. A coal slurry dam in Buffalo Creek, swollen by days of heavy rains, gave way, unleashing 132 million gallons of black waste water roaring down through the hollow below. In the words of a book about the disaster, it swept away “everything in its path.” 125 people were killed. More than 1100 were injured. Of the 5000 people who lived in the hollow, 4000 were left homeless.

Buffalo Creek was more than just another disaster in the West Virginia coal fields. For one thing, the book I referenced, Everything In Its Path: Destruction of Community in the Buffalo Creek Flood, by Kai Erikson, was one of the first case studies dealing with the emergence of Post Traumatic Stress Disorder. For another, the resulting legal action (Pittston Coal, owner of the faulty dam, claimed the disaster was an “act of God”) produced a book by the lead attorney, The Buffalo Creek Disaster (by Jerry Stern) that is used in lots of civil procedure classes across the country as a case study. It’s a horrible way to have an impact, but at least something came out of the disaster.

I was going to write something about the disaster, about how in the 40 years since it happened things have improved somewhat in the coal fields, but lack of concern shown by the coal company for the people who lived around its operation is sadly still in evidence. I should have know that Ken Ward, the crack coal writer for the Charleston Gazette, would have beaten me to it. Go read his thoughts instead.

For more info on Buffalo Creek, see this lengthy series by the Gazette on the 25th anniversary of the disaster.

Friday Review: Mad Men (Season One)

Yes, yes, I know. I’m late to the Mad Men party. A booze drenched party conducted in a haze of cigarette smoke, from the look of it. Consider me properly scolded. So, have I missed out on the greatest TV thing since sliced bread?

It’s hard to tell. The show is brilliantly put together, in terms of writing, acting, and visuals. But is that enough? The last time I came this late to a critically praised TV series it was with The Wire. By the end of its first season, I was hooked. Partly, I figure, it was due to the subject matter. The futility of the war on drugs, police corruption, and the like is right up my alley, after all.

I haven’t had the same reaction to Mad Men. For one thing, other than anthropological curiosity, I don’t really care that much about the ad business in the 1960s. The tricks of the trade are interesting, yes, but they’re largely the same today. As a result, I think what I really need is a deep hook into the characters to be completely pulled in to the show. That didn’t happen. With a couple of exceptions, I find the characters interesting to observe (in their natural habitats, so to speak), but I don’t really care about them. Yes, Don Draper is a suave motherfucker with a dark side (he looks so good with a smoke I nearly went out to find a pack of Lucky Strikes), but I don’t really have any interest in where he’s going as a character.

The only character who I really cared about, in the sense that I wanted to see her succeed in some way during the first season, was Peggy, perhaps because she is the character most at odds with the world she inhabits. I’ll go ahead and I admit I “care” about Pete Campbell, to the extent that I enjoyed seeing him getting smacked around by Don. I particularly enjoyed when Pete, who I call “Conner” (because, to me, Vincent Kartheiser will always been Angel’s douchebag son once Hotlz brings him back from hell) tries to undermine Don to the boss about Don’s shady past, only to be told that nobody gives a fuck about that kind of thing.

What is more fascinating to me about Mad Men is the world these characters live in. When people talk about “world building” they usually are talking about sci-fi or fantasy writers, who build new universes and worlds from the ground up. But the truth is, every writer of fiction (whether on the page or screen) has to pay attention to world building. Thus, just because Mad Men is set in a real time and place from our recent past doesn’t mean the creators can shirk on the details that lend the world depth and credibility.

And boy, do they ever paint a vivid picture. It’s not pretty, mind you, but it really does draw you in. Keeping in mind that I was born a decade after the period depicted in Mad Men, most of it is as foreign to me as a world as anything out of Asimov or George R.R. Martin books. Seriously, in this recent past alcohol flowed freely in the workplace. Everybody smoked pretty much all the time (except for Conner, bless him). Sexual harassment didn’t just exist in the workplace, it was a way of life. Home life wasn’t much better (especially if you’re a divorced woman who dares to move into the neighborhood). Don’t forget the casual racism, anti-Semitism, and sexism. Speaking of Martin, the world of Mad Men isn’t a whole lot better from an equity standpoint than Westeros!

And yet, it’s a very compelling world to observe (just like Westeros, as it happens). Which is why, for all I said about the characters above, I’m pretty much on the Mad Men train. I’ll definitely queue up season two. I do have a nagging fear that after the whole thing is over I’ll feel a bit more like this, but time will tell.

The Details
-------------------
Mad Men (Season One)
Released 2007
Created by Mathew Weiner
Starring Jon Hamm, Elisabeth Moss, Vincent Kartheiser, January Jones, Christina Hendricks, et. al.

Lies, Damned Lies, and Free Speech (Part 2)

So the Stolen Valor Act makes it a crime to lie about being awarded various military honors, including (in the case of Xavier Alvarez) the Congressional Medal of Honor. This strikes me as generally a bad idea – criminal punishment of speech which doesn’t really do any harm. But why? Why should I give any kind of shit whether a serial fabricator like Alvarez is convicted of a crime?

One of my regular blog reads is Dispatches from the Culture Wars. Ed Brayton is every bit the free speech hawk that I am. He spends a good deal of time discussing cases from around the world involving suppression of speech, some more serious than others. Some of Ed’s regular commenters, however, aren’t always on board with his outrage. Many of those folks tend to come from places in Europe or Canada that have a different conception of free speech and the impact speech has on the community.

A while back, some discussion over at Dispatches (I wish I could remember which one and provide a link – bad blogger, I know) about free speech made me start thinking that the Euros were making some good points. What struck me as I read the discussion was that I kept coming back to the same reason for thinking they were wrong – I don’t trust the government to sift the good speech from the bad. I think this was in the context of Holocaust denial, which is a crime in several places in Europe. Yes, I thought, Holocaust deniers are idiots (at best) and raving bigots (at worst), but do we really want the state stepping in and locking people like that up? I couldn’t come up with a good principled reason why not.

I mean, often times when we think of First Amendment issues we have images of Orwellian thought police (or the Zappa equivalent) and the horror of the state prying inside your mind. But speech is an outward act, of course, almost by definition. For it to have any meaning someone has to hear it. More to the point, for somebody to get pissed off about it, it must have an impact. Let’s face it – the state is all about making sure people don’t do certain harmful things to each other. Why should speech be off limits?

There’s a more utilitarian side to the argument, although I’m not sure I’d call it “principled.” That’s the argument that runs through neatly a century of First Amendment cases from the Supreme Court about the “marketplace of ideas.” The idea being that when the state stays out of things and everybody is free to chip in with ideas and arguments about ideas, the market will sort everything out. To go back to the Holocaust denier example, you could argue that such folks are regarded as buffoons and not worth of serious attention here in the United States, because their ideas have been so thoroughly debunked in the popular culture. By contrast, the very fact that their ideas are illegal in Europe lends them the credence of the outcast and put upon (i.e., “we must be on to something, look how desperate they are to suppress it!”).

But, again, why leave free speech to the whims of the market? We don’t do it with anything else. If anything, we’ve got mounting evidence that the market doesn’t do a good job of filtering out false or misleading speech. Just look at political campaigns and any news coverage having to do with them. Or lay discussions of Supreme Court decisions that show no solid grasp of what the case actually says.

So what else is there to support the hawkish position on free speech? Seems to me it comes down to a very practical concern – that even if we can identify speech that is harmful, we can’t trust the state to actually implement any scheme that would accurately punish wrongdoers. Whether it’s because the line between good speech and bad speech is so squishy to begin with or that unscrupulous enforcers will use their power to protect their friends and go after their enemies. After all, wouldn’t it be wonderful of politicians – those in power as well as those seeking it – could be punished for flat out bullshit? Probably, but do you trust a Democrat to fact-check a Republican or vice-versa? Even theoretically isolated bureaucrats would potentially have some axe to grind and an ability to wield it.

I think, in the end when it comes to brass tacks, that’s what it comes down to. I think a society could get together and pretty confidently identify speech that is so vile and harmful in and of itself that it should be banned (or otherwise heavily regulated). Where the real dispute comes in is whether the enforcement mechanism would be accurate enough to avoid the risk of squelching other speech that really poses no threat to anyone.

So, to circle back to the question I asked in the first post – is my general hawkishness on free speech issues something born of some bedrock principle? Or is it simply a practical recognition that any speech regulation regime is so fraught with enforcement issues that we should avoid such regulation if at all possible? I think it’s the latter.*

But that’s all right, because the end result in the real world is the same. Whether it’s because of some well rooted principle or simple practical expediency, I champion the cause of free speech. Just because I can hypothesize a perfect world where I might change my mind doesn’t mean I waver in the here and now. Which means I throw in on the side of Xavier Alvarez and his lies, not because I think he should spout them, but because I don’t trust the government not to come after me next.


* I should make perfectly clear that I am only talking about speech that causes some real harm. Harmless speech should always be protected.

Lies, Damned Lies, and Free Speech (Part 1)

I have always prided myself on being a defender of free speech. At times I’ve referred to myself as a “First Amendment hawk,” because I rarely find a situation in which clamping down on speech is justifiable. All of the recent Supreme Court pronouncements on free speech that have been so controversial – striking down limitations on political speech (Citizen’s United), hateful funeral speech (Snyder), “crush” videos (Stevens), and violent video games (Brown) – are cases I think the Court got right. Hell, I don’t think the Supremes go far enough when it comes to something like obscenity. The answer to bad speech is more speech, not regulation.

But lately I’ve been wondering why I subscribe to that viewpoint. More to the point, is my position on free speech issues really a principled one? Or is it more based on the practical concerns of whomever was doing the censoring not getting it right? I’ll talk more about that in the next post. But first, I want to talk about an upcoming Supreme Court case that brings the principle/practical issue into sharp focus.

Next week the Court will hear oral arguments in US v. Alvarez, a criminal case out of the Ninth Circuit. Here’s how Alvarez’s counsel – defense counsel (and a federal defender colleague of mine), keep in mind – starts his brief:

Xavier Alvarez lied. He lied when he claimed to have played professional hockey for the Detroit Red Wings. He lied when he claimed to be married to a Mexican starlet whose appearance in public caused paparazzi to swoon. He lied when he claimed to be an engineer. He lied when he claimed to have rescued the American ambassador during the Iranian hostage crisis, and when he said that he was shot going back to grab the American flag. A colleague was being charitable when he said, ‘I think after anyone meets Mr. Alvarez for the first time, one questions the
veracity of his statements.’

It was another lie that got Alvarez in trouble, when he stood up at a meeting of a local water board (of which he was a member) and claimed to be a Marine who was awarded the Congressional Medal of Honor in 1987. As a result, he was charged with violating the Stolen Valor Act, which makes it a crime to:

falsely represent . . . verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.

Alvarez got nothing out of his lie. It didn’t provide him any kind of financial benefit. He didn’t get a better parking place because of it. He just puffed up his own self image (one which those around him knew was inflated anyway). Should that be a crime?

The Ninth Circuit said no. The Stolen Valor Act is a content-based restriction on speech and must therefore satisfy strict scrutiny, the highest level of review when fundamental constitutional rights are involved. False statements in general weren’t excluded from First Amendment protection historically (aside from fraud, libel, and slander, which all lead to tangible harms) and the Act itself wasn’t narrowly tailored to address the problem at which it was directed.

That was the initial opinion of the court, which did prompt a dissent. The Government sought a rehearing en banc.* It was denied, but the denial itself prompted several interesting opinions. In and amongst those opinions was a concurrence (in the denial of the rehearing petition) from Chief Judge Kozinski, who mounted a spirited defense of lying:

So what, exactly, does the dissenters’ ever truthful utopia look like? In a word: terrifying.
If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as ‘rational basis review.’

* * *

Saints may always tell the truth, but for mortals living means lying.

All right, “defense of lying” isn’t quite right. He makes good points, though. A world without any of the polite bullshit we toss at each other would be pretty horrible. Although I think there are deep flaws with the thought experiment that was The Invention of Lying,** its portrayal of a world where everyone is brutally honest with each other, and therefore pretty miserable, seems spot on.

What does that have to do with a principled versus practical view of free speech? Because the arguments on both sides of the Stolen Valor Act issue (though not exactly the ones made by the parties) breakdown along those lines. On the one side, the argument is that knowing false statements have no value and therefore should be regulated because of the harm done. On the other side, the argument is not only do those statements have some value, but regulating them would bring the power of the state into play in ways that will be abused. In other words, it’s a mixture of principle and practicality.

Which objection to things like the Stolen Valor Act gets us the farthest? Does it really make a difference in the end? And if so, what is it? I’ll pick up those questions in the next post.

* “En banc” means review by the entire court, as opposed to the usual three-judge panel. However, the Ninth Circuit is so large that en banc review is really just review by a larger panel (upon which the Chief Judge always sits).

** Funny movie, with lots of great bits, but I question the underlying conclusion that a world without lying means a world without fiction. Fiction, by definition, is not an attempt to accurately depict actual events. Everyone knows going in that the story is not (to cop a phrase from hearsay law) “presented for the truth of the matter asserted.” On the other hand, the idea that religion is spawned only after lying is discovered seems completely on target.

Friday Review: Biutiful

Is it possible to make a movie that is technically perfect in terms of film making and anchored by a superb lead performance that is, nonetheless, hollow and pointless? I wouldn't have thought so, but Biutiful makes a pretty good case.

Directed by Alejandro González Iñárritu, Biutiful is built around a brilliant performance by Javier Bardem as Uxbal, who receives news that he's suffering from advanced prostate cancer and has, at beast, a few months to live. To call Uxbal's life “complicated” is to undersell the bad hand Iñárritu deals him. For a living, Uxbal plays some kind of middleman role in a criminal enterprise that exploits (presumably illegal) immigrants in Barcelona for both the supply (Chinese) and distribution (African) of counterfeit goods. The closest thing to a legitimate job Uxbal has is when he takes money from those who have recently had a loved one die in order to see if they are at peace.

That's right. Uxbal talks to the dead. Given the rest of his criminal life, one would think that would be a scam. But Iñárritu makes it clear that Uxbal really does talk to dead people. So much for realism.

Uxbal has two children, the younger of whom apparently likes to start fires. Their mother, his estranged wife, is nuts, an addict of some persuasion, and a prostitute. Did I mention that she hooks up with Uxbal's brother (who is also part of the illegal immigrant business)?

Into such difficult circumstances, Uxbal's diagnosis makes barely a ripple, except to provide the film's ticking clock. Honestly, aside from one scene of chemo and the general deterioration of Uxbal's health (multiple scenes of Bardem pissing blood!), the cancer thing is hardly the life altering event it would be to most people.

So, the cancer diagnosis becomes just one of the many bad things that happen to Uxbal over the nearly two-and-a-half hour running time. There's a botched reconciliation with the crazy hooker wife. Two dozen of his Chinese immigrants are killed (due to his cheapness, essentially). And, of course, he dies.

Even Biutiful’s admirers admit to its bleakness and the misery that seems to infuse every scene. So what, then exactly, is Iñárritu trying to say? What does he bring to the conversation about the world that others haven’t? Damned if I can tell.

I’ve seen some commenters argue that those who dislike the film simply just can’t handle the reality of it, can’t deal with the fact that it shows the ugly side of life. I don’t think that’s true. For one thing, as I mentioned above, Uxbal talks to dead people. That ain’t real life, people, OK? Any film that aims for gritty realism probably should leave the magical touches for others. For another thing, if you need to watch a fictional movie to be reminded of how much the world sucks for vast swaths of people out there, you’re the one who’s being willfully ignorant. I don’t blame Iñárritu for showing me misery – it confirms what I see in my daily life (certainly in my daily work) – I blame him for not saying anything interesting about it.

In his positive review, Roger Ebert claims that Uxbal is a “good man” trying to come to terms with all this. I don’t see it. Yes, Uxbal loves his kids, but he doesn’t do very well by them.* He never actually tells them about his impending death and his way of securing their future is to give each some mystical doodad that’s supposed to “protect” them. By the end of the film, the kids are left to a world without a father, with a mother who is at best neglectful and at worst destructive, and in the care of an immigrant woman who, while she appears to be a good loving person, is not exactly in a secure situation herself. If that’s what love gets you, that’s not saying much. I fail to see anything else Uxbal does that demonstrates a “good” man trapped in a bad situation. And there are two dozen dead Chinese who probably can’t see it, either.

Given all that, I’m a bit puzzled at Ebert’s reference to Ikiru, the Kurosawa masterpiece. Aside from both being about dying men, those men couldn’t be more different. Uxbal is a criminal who preys on others to make a living. Ikiru’s Kanji is a midlevel bureaucrat who is unsure if his work has any meaning. Not only does Kanji take obvious steps to do good, we see (via a brilliant 45-minute coda) how the world appreciates the work he did once he is dead. No dead people talking in Ikiru either, which has to count for something.

In the end, the closest Iñárritu appears to wander near a point is to give in to some nondescript woo-based kind of “hope.” As A.O Scott in the New York Times so devastatingly put it:

Mr. González Iñárritu does not have the stomach for the stringent moral and spiritual vision of authentically (or even experimentally) religious filmmakers like Carl Dreyer, Robert Bresson or the Dardenne brothers. Instead he traffics in a vague theology of uplift, wherein the road to an entirely abstract heaven is paved with noble instincts.

The tension between this director’s methods and his intentions — between his exacting, sometimes amazing craft and his resolutely banal ideas — may ultimately be a problem of audience and genre. ‘Biutiful,’ like ‘Babel,’ looks more daring and more difficult than it is. But if Mr. González Iñárritu were, let’s say, to adapt a novel by Nicholas Sparks, whose views on love and morality are not ultimately all that different from his, the result might be a satisfying and surprising synthesis of styles: a feel-bad art film with an uplifting message for everyone. ‘Biutiful,’ come to think of it, is almost that, but not entirely in a good way.

Ouch. Now that is biutiful.

* Not to go all Godwin, but Goebbels loved his children in Downfall, too, but you can see where that led.

The Details
-------------------
Biutiful
Released 2010
Written by Alejandro González Iñárritu
Directed by Alejandro González Iñárritu, Armando Bo, Nicolás Giacobone
Starring Javier Bardem, Maricel Álvarez, Hanaa Bouchaib, et. al.

Theft, Homage, or Just Business?

Sometimes, a piece of genre fiction is just so damned good, it forces the snobs in the wider world to take notice. 2001 is recognized as not just a great piece of science fiction, but as a great film. Likewise, Watchmen, the graphic novel by Alan Moore and Dave Gibbons, is such a landmark in that genre that it gets props from those who would never otherwise dare to talk of superheroes and comic books.

Which doesn’t mean it exists outside the demands of commerce. Earlier this month, DC Comics announced it would release a series of “prequel” issues, several for each of some of Watchmen’s main characters – Nite Owl, Dr. Manhattan ,and Rorschach, for instance – none of them written by Moore or with art by Gibbons. The artist, at least, is on board:

The company has also enlisted the blessing of Gibbons, a move that should mollify many fans. ‘The original series of Watchmen is the complete story that Alan Moore and I wanted to tell. However, I appreciate DC's reasons for this initiative and the wish of the artists and writers involved to pay tribute to our work. May these new additions have the success they desire,’ he said in his statement.

As for the writer, Moore? Yeah, well, not so much:

Mr. Moore, who has disassociated himself from DC Comics and the industry at large, called the new venture ‘completely shameless.’

Speaking by telephone from his home in Northampton, England, Mr. Moore said, ‘I tend to take this latest development as a kind of eager confirmation that they are still apparently dependent on ideas that I had 25 years ago.’

He went on to explain that he didn’t want money, what he wanted was for the prequels not to happen.

I can understand Moore’s position. After all, when you create something and see it as a whole work, and later on somebody comes along and adds to it, it must chafe a little bit. Still, does Moore really have any basis upon which to get pissy about it?

One of the writers involved in the prequels is J. Michael Straczynski, of Babylon 5 fame. He makes a very good point about Moore:

it should be pointed out that Alan has spent most of the last decade writing very good stories about characters created by other writers, including Alice (from Alice in Wonderland), Dorothy (from Wizard of Oz), Wendy (from Peter Pan), as well as Captain Nemo, the Invisible Man, Jekyll and Hyde, and Professor Moriarty (used in the successful League of Extraordinary Gentlemen). I think one loses a little of the moral high ground to say, ‘I can write characters created by Jules Verne, H.G. Wells, Robert Louis Stevenson, Arthur Conan Doyle and Frank Baum, but it’s wrong for anyone else to write my characters.’

Indeed, the characters of Watchmen itself did not spring from Moore’s brain fully formed. They were based on characters DC had acquired when it purchased a defunct competitor, Charlton Comics. Moore took them and twisted them beyond recognition, but still, he wasn’t exactly writing on a completely blank slate.

Moore has an answer for Straczynski:

In literature, I would say that it’s different. I would say, and it might be splitting hairs, but I’m not adapting these characters. I’m not doing an adaptation of Dracula or King Solomon’s Mines. What I am doing is stealing them. There is a difference between doing an adaptation, which is evil, and actually stealing the characters, which, as long as everybody’s dead or you don’t mention the names, is perfectly alright by me. I’m not trying to be glib here, I genuinely do feel that in literature you’ve got a tradition that goes back to Jason And The Argonauts of combining literary characters [...] It’s just irresistible to do these fictional mash-ups. They’ve been going on for hundreds of years and I feel I’m a part of a proud literary tradition in doing that. With taking comic characters that have been created by cheated old men, I feel that that is different.

On the one hand, I see Moore’s point. Writers, and other artists, have pilfered past works for their own creations since the beginning of time (well, right after the beginning of time), after all. And, as a writer myself, I like the idea of other people keeping their hands off until I croak. On the other hand, that sounds more like a rule of etiquette than a hard ethical precept. Let’s face it, once the original creator is dead, he or she is much less likely to complain about appropriation.

In the end, it’s all moot. Neither Moore nor Gibbons control the legal rights to the work, sadly. Which means that DC is free to do whatever the hell they want to. Given the nature of the comic book industry, with its endless series and countless reboots, getting some other big names to play in that sandbox is hardly a unique move.

So let’s hold off until we see whether they fuck up the legacy of Watchmen. And how badly.

The Definition of Irony

Presented without comment:

Via Reason (which got it via various Twitter Feeds).

Everything Becomes Obsolete

Nobody wants to copy Windows 3.1.

In the United States, we tend to think of constitution making as something that happens once every few centuries, if not once every eon. After all, the US Constitution is the oldest written constitution in the world that’s still in effect. For all its flaws, it’s served us pretty well over the 225 years it’s been around. But times change. History moves on. Things evolve.

So it shouldn’t come as too much of a surprise that, according to a pair of law profs with an article in the works, the influence of our Constitution on the rest of the world is waning. As recently as 1987, a study of 170 countries showed that 160 had constitutions greatly influenced by our own. Today, however:

‘[a]mong the world’s democracies,’ Professors Law and Versteeg concluded, ‘constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.’

‘The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.’

Why? That’s where the quote at the top of this post (from Law) comes in. A constitution written in the 18th century is silent on lots of questions that are important to emerging democracies in the 21st Century. We are still clinging to Win 3.1, while everyone else has moved on. The state of the art (or at least Vista, to keep the Widows analogy going) is the Canadian Charter of Rights and Freedoms, adopted in 1982.

There is a lot of talk of rights in the New York Times article, but our Constitution itself (as opposed to the Bill of Rights) has very little to say about individual rights per se. It’s more focused on structural aspects. And while it’s easy to make an argument about the broad benefits of, say, the separation of powers, other things don’t make as much sense in a smaller modern nation. Federalism is basically a holdover from the Articles of Confederation and the unique conception of the states during the founding. That history just isn’t present in, say, modern day Egypt. Why should they use such an outdated model as a base?

As for rights, there’s a nifty chart that’s part of the article that shows, for the most part, the trend is for modern constitutions to broaden rights compared to ours, not limit them. For example, most of the big rights in the First Amendment – freedom of speech, assembly, and religion – as well as a prohibition against arbitrary arrest and detention appear in between 94% and 97% of world constitutions, as well as our own. Where the world moves on from us is in areas like women’s rights (91%), right to work (82%), and right to education (82%). To be fair, some of the areas labeled as not being part of our Constitution – like judicial review and the presumption of innocence – have been recognized by the Supreme Court.

What’s really fascinating to me are the areas where our Constitution explicitly provides rights that don’t hold a lot of sway in other newer constitutions. The prohibition against double jeopardy, for example, only gets into 50% of modern constitutions, while only 49% percent provide for the right to remain silent. Even more striking are a pair of contentious provisions that most people still feel are critical to our Constitutional system that are almost nonexistent elsewhere – the separation of church and state (only 34%) and the right to bear arms (only 2% - you read that right).

At the end of the day, of course, the words on paper aren’t nearly as important as whether the culture as a whole buys into the ideals they represent:

as Justice Antonin Scalia told the Senate Judiciary Committee in October. ‘Every banana republic in the world has a bill of rights,’ he said.

‘The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours,’ he said, adding: ‘We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!’

Of course, it was all meaningless. Unfortunately, I fear that the lesson the United States is most poised to give in the 21st Century is what can happen when the guarantees of the Constitution become just words on paper. When ideals upon which we’ve relied for so long are swept away out of concern for security or because of a misguided war on particular behaviors, that can be the result. I hope we recognize it before our influence on the rest of the world is something to avoid, not something to emulate.

Friday Review: Super 8

This probably shouldn’t be the case, but where you see a movie has a lot to do with how much you like it. If I had seen Super 8 in the theater, sitting in the dark, with a bunch of other people, tub of popcorn propped precariously between myself and K, I’m pretty sure I would have walked out with a big grin on my face. But since I saw it at home on DVD? Meh, not so much.

In Super 8, Lost boy J.J. Abrams transforms Weirton, West Virginia, into a bucolic Ohio town that seems ripped through a time warp from one of Steven Spielberg’s late 1970s/early 1980s movies. That’s no coincidence – Spielberg was a producer of Super 8 – and also not a knock. For about the first hour or so, things hum along in excellent fashion. It’s only when the actual plot needs to unfold do things take a turn for the worse.

The main focus of Super 8 is a bunch of middle school boys (and one older girl who somewhat inexplicably joins them) who are making a zombie movie for a local film festival. The kids are great, the movie making aspect is fun, and we get a good sense of who they are and what this town is like where they live. Then, while shooting late at night at the local train station, a train comes roaring by (“production value!” yells the director, who moves to get the train in the scene). All goes to shit, however, when a pickup truck inexplicably drives onto the tracks and drives head-on into the onrushing train, derailing it in spectacular CGI fashion (also, inexplicably, the driver of said truck is not reduced to a stain on the prairie by the impact – be gone, physics!).

It’s from there that the film starts to go wobbly. Strange things start happening. Unsuspecting townspeople get sucked up by an off-screen baddie. One of them, natch, is the older girl involved with the movie, which gives our main character a damsel to rescue. None of what transpires is really bad, it just doesn’t live up to the what came before. What was once enticing and original becomes formulaic and familiar. The monster turns out to be the fairly standard alien who just wants to go home (unlike ET, he’ll kill any motherfucker who gets in his way, tho’). Maybe I was unjustly thinking, while it was lurking off screen, that it might turn into something like the Shrike, but it didn’t happen.

In the end, all is well, the music swells, and lessons are learned. It’s all very life affirming. There’s nothing wrong with that, it just feels unearned and a little facile. Which is why I think if I had seen Super 8 in the theater I would have walked out a happy man. Two hours of generally good entertainment? Hard to argue with that. But in the cold hard light of my living room . . ..

The Details
-------------------
Super 8
Released 2011
Written & directed by J.J. Abrams
Starring Joel Courtney, Elle Fanning, Kyle Chandler, et. al.

Sometimes a Walking Naked Rotting Corpse Is Just a Walking Naked Rotting Corpse

Fair warning – I’ve never been the brightest bulb in the box when it comes to deciphering hiding meanings in art. Maybe it’s my lawyer’s argumentativeness or my bent towards skepticism, but I’m wary of concluding that something obvious really means something obscure and “deep.” That being said, I do worry somewhat about the kind of hidden meanings others might dig up out of my own work. There’s a reason the creatures in The Water Road are all shades of blue and green, after all.

Readers of the old blog might remember a series I did called “Mondays With Stanley,” in which I worked my way through a bunch of Kubrick films I had on DVD (due, mostly, to a kind gift from K). One of them was The Shining, which I discussed in an entry cleverly titled “Jack Goes Apeshit.”  I felt then, and still do, that The Shining isn’t up there in the pantheon of Kubrick’s great works, but it’s creepy as hell, filled with iconic images, and benefits from a note-perfect electronic score by Wendy Carlos. Nothing wrong with that.

But, perhaps, I wasn’t looking at it the right way. A documentary that premiered at Sundance, Room 237, surveys the wide variety of thought on what The Shining really is all about:

It’s really about the Holocaust, one interviewee says, and Mr. Kubrick’s inability to address the horrors of the Final Solution on film. No, it’s about a different genocide, that of American Indians, another says, pointing to all the tribal-theme items adorning the Overlook Hotel’s walls. A third claims it’s really Kubrick’s veiled confession that he helped NASA fake the Apollo Moon landings.

I’d heard the Native American hypothesis before, which at least has some grounding in the film itself. The Overlook Hotel, for one thing, it built over top of a Native American burial ground (and we’re told that the builders had to repel attacks during construction). But some of the tells – there’s a brand of canned food product that uses an Indian logo visible in some scenes! – seem like the kind of stretching that conspiracy theorists engage in. You know what else is visible in those scenes? Jars of Tang and tins of Sanka. Maybe the real message of The Shining is that drinking decaf can perk up your sex life?

The other theories discussed in the story seem on even shakier ground (It’s a Holocaust metaphor because Wendy swings the bat 42 times at Jack, a reference to 1942? The pattern in the carpet in the Overlook mimics the Apollo launch pad? Really?). Which isn’t to say they’re wrong – who knows, since Kubrick’s dead and never addressed them while he was alive. And it’s always fun to see how weird and twisted you can get with something like that.* There’s no harm in that. But, really, sometimes a cigar really is just a cigar, know what I mean?

That being said, in the end, when Room 237 makes its way to DVD, I’ll check it out. If nothing else, how people react to art fascinates me. I wonder what subliminal messages are lurking between the frames of Room 237!

*A lot of the alleged symbolism is broken down in a series of YouTube videos, if you’re curious.

A Good Idea Lost in the Weeds?

This may come as a surprise to you, dear reader(s), but I have not exactly spent my free time over the past several months pouring over the position papers and the like of the GOP presidential candidates. West Virginia’s primary is closed, and I’m not a registered GOPer, so aside from the entertainment value of watching them cannibalize each other, I’ve got no reason to spent a lot of analytical sweat on any of them.

So imagine my surprise when one of those GOP aspirants who has fallen by the wayside, Rick Perry, appears to have picked up on an interesting idea. Yes, I’m talking about this Rick Perry:

At Rancho Perry, every day was Oopsday. Along the trail, he forgot how many Justices the Supreme Court has (eight is not enough); forgot the name of one of them (Sonia Sotomayor); placed the American Revolution in the sixteenth century; identified the voting age (fixed at eighteen four decades ago by constitutional amendment) as twenty-one; and suggested that the chairman of the Federal Reserve is a traitor, that Turkey (a NATO ally of sixty years’ standing) is governed by Islamic terrorists, and that Social Security is not only a Ponzi scheme but also a criminal enterprise, a monstrous lie, and unconstitutional. And there’s this whopper, from his farewell speech: ‘As a former Air Force pilot, I don’t get confused.’

The idea is to amend the Constitution to remove the life term for Supreme Court justices and switch to one-time terms of 18 years, with a new justice being appointed every two years. It’s not Perry’s idea – law professors have been kicking it around for years – but he’s the first politician I’ve heard to pick up on it. The theory behind it is two-fold.

First, by making Supreme Court appointments more regular and more frequent, the rancor and partisan warfare that springs up around them would lessen. At first blush, that makes some sense. The chance to appoint a Supreme Court justice would no longer depend on an odd synergy of fate and political expediency. Every president would get his or her chance to appoint justices, at least two, during their time in office. Regularity would lead to a smoother process.

Given the current political climate, I’m not sure how far that idea would get in reality. Judicial vacancies in the lower courts happen much more often than Supreme Court vacancies and, given their subordinate role, ought to lead to less political rancor. The opposite is true, of course. Individual judicial candidates for the courts of appeals or district courts rarely get the kind of spotlight that potential justices do, but they still get held up by simple partisan bickering. Furthermore, the way in which regularly occurring political events (like, say, agreeing on a damned budget) get turned into partisan battles of will suggests that the regularity of some event is no guarantee that it will go more smoothly.

Second, the constant churning of membership on the Supreme Court would lead to less ideological dogmatism. Fresh blood and new ideas, combined with the inability of partisan politicos to lock in a justice for a term lasting decades, would benefit the Court and the litigants who appear before it. It would also allow for a broader range of prior experience in the justices appointed. I’m all for that. Why, if we had to roll through qualified candidates every two years, we might even get a defense lawyer on the Supreme Court! Alas, that’s just a pipe dream.

As is, ultimately, Perry’s proposal. Not just because his own candidacy flamed out so spectacularly. Amending the Constitution is seriously difficult, for good reason. The idea that enough people could get fired up for this kind of structural change (as opposed to something issue specific) is laughable. I suppose once the overwhelming majority of the citizenry is so apathetic about the whole process a mobilized cadre of legal geeks might get it done, but that’s the stuff of fiction, as far as I can tell.

Still, props to Perry for putting the idea out there. I’m not certain of whether it has any ultimate merit, but it’s a least a serious and thought-provoking proposal. In a campaign filled with “9 9 9” and grand plans for new states on the moon, that’s something to be proud of.

Friday Review: Tabloid

Errol Morris is one of the most decorated documentary filmmakers of our age. In Standard Operating Procedure he probed the horrors of Abu Ghraib and the urge of the perpetrators to document their crimes. In The Fog of War he laid bare the soul of Robert McNamara, the architect of the Vietnam War. And in The Thin Blue Line, he dug deep into a Texas murder case (creating the documentary technique of reenactment in the process) and got an innocent man off of death row. The man makes deep, thoughtful films about deadly serious topics.

Tabloid is not one of those. Don’t get me wrong, it is thoughtful and feints at some broader themes and deep issues. But, really, it’s not destined to go down alongside those films as milestone work in Morris’s career. It is, however, a ripping good story based around one of those real life characters that Morris is so adept at finding (and getting talking).

The real character at the center of Tabloid is Joyce McKinney, who first came to Morris’s attention because of a news story about an ungodly amount of money she spent having her beloved dog Booger (no shit!) cloned in South Korea. The story contained a brief reference to her infamous past, which set Morris on the case. What infamous past?

In 1977, an American named Kirk Anderson was doing his Mormon missionary work in the UK. One day, he was “abducted” from in front of the local Mormon temple. He showed up in London a few days later, explaining that McKinney (with whom Anderson had been involved back in the US) kidnapped him, hauled him off to a cottage in Devon, chained him to a bed, and raped him repeatedly over the course of several days.

McKinney tells a completely different story, as you might imagine. It begins in the US, where after she and Anderson fell madly in love (to the disdain of Anderson’s faithful Mormon mother), he abruptly disappeared. McKinney assembled an odd team, including a private detective, a pilot, and a bodyguard from Gold’s Gym and, having tracked Anderson to the UK, set off to get him back. The pilot and bodyguard didn’t last too long in the operation. McKinney tracked down Anderson, whom she described as having been brainwashed into a cult. He willingly went with her to Devon and was a willing, if not altogether enthusiastic (due to his Mormon indoctrination about sex), participant in all that happened there. He “escaped” when they went to London to get married.

The case, dubbed “The Case of the Manacled Mormon,” blew up in the British media, and particularly in a pair of dueling tabloid newspapers. The Daily Mail threw in on McKinney’s side, paying her for her side of the story. The Daily Mirror, on the other hand, frozen out without access to McKinney, dove into her past in America and dug up all kinds of juicy dirt involving pornography and prostitution. McKinney and her accomplice eventually made bail and fled back the US (according to one article she was apparently convicted and sentenced in absentia, but extradition was never sought).

Tabloid is basically a one-sided narrative. The only direct participant in the affair who talks is McKinney – Anderson refused to be interviewed. Everyone else’s involvement either ended before the disputed events or they are relaying hearsay information. Given that, it’s fascinating that at the end of the film you’re left with more questions than answers about what actually happened. For what it’s worth, I favor a third hypothesis (between McKinney’s romantic tale and the purely criminal escapade) put forward by a former Mormon brought in for some context: that Anderson went with McKinney willingly, but somewhere along the way his conditioning kicked in, he regretted whatever happened, and claimed kidnapping as a way to cover it up. It is entirely possible that McKinney is seductive enough to reel him in, and crazy enough to scare him off (she was later arrested in the US for stalking Anderson – and has sued Morris!).

In the end, Scott Tobias over at the Onion AV Club sums things up well:

McKinney may well be a madwoman, but Morris connects so deeply to her obsessions that the film’s tone never seems exploitative or mocking. Mostly, it’s just endlessly curious in the familiar Morris way: curious about another in his career-long gallery of eccentrics, curious about British tabloid culture, and curious about how radically stories are distorted, both by outlets looking for an angle and by individuals who reserve their greatest deceits for themselves. Tabloid is tonally removed from something like The Fog Of War, but in the end, McKinney and Fog subject Robert McNamara are each trying to control narratives that are out of their hands and have a complicated relationship to the truth.

And that’s always fun to watch, if nothing else.

And now, because I can’t hear about British tabloids without thinking of this song . . . “Paper Lies”:

The Details
-------------------
Tabloid
Released 2010
Directed by Errol Morris

Regulating the Pipeline to God

You’d think that, as an atheist, I wouldn’t be concerned about how the state dealt with the internal affairs of churches. Don’t have a church, so why should I give a rat’s ass? But that’s asking the wrong question. It’s like not worrying about the shredding of the Fourth Amendment because you’re not actually doing anything wrong and thus have nothing to hide. There are certain things we don’t want the state doing. Weighing the validity of religious doctrine is one of those things.

That’s the underlying concern evidence in a unanimous Supreme Court decision last week involving a private religious school, an ill teacher, and the EEOC. The church school was part of the Lutheran Church-Missouri Synod. The teacher, Cheryl Perich, was a “called” teacher (as opposed to a lay teacher), meaning she had been through religious training and was considered by the school to be part of its religious mission. She developed narcolepsy, which led to a dispute over whether she could continue to teach. When she threatened to take legal action, the school fired her.

Perich sued the church anyway (via the EEOC), for firing her based on her threat of legal action. The church sought to dismiss the suit by invoking the “ministerial exception,” a long recognized doctrine in the lower courts that said (in essence), courts won’t wade into a church’s internal business, particularly when it involves church doctrine. In this case, the church argued that by taking her dispute outside the church, Perich had violated its doctrine. And since she was a called teacher and, basically, a minister, the courts couldn’t step in and review the decision to fire her.

The Supreme Court, ultimately, recognized the ministerial exception as an outgrowth of the religion clauses of the First Amendment. Chief Justice Roberts, writing for the Court, surveyed the history of government interference in religious matters in England and the Colonies (my favorite, a missive from Henry II to electors of a bishopric in Winchester commanding them “to hold a free election, but forbid you to elect anyone by Richard my clerk” - It’s good to be the king!). Preventing that kind of interference was part of the reason for enacting the First Amendment’s religion clauses. Therefore, to the point that a court would be required to deal with issues of ministerial competence or what have you, courts have to stay out.

What the Court did not do (although the odd couple concurrence of Justices Alito and Kagan tried) was to provide some real guidance as to when this ministerial exception could be applied. A couple of inconvenient facts (one for each side) show how difficult it could possibly be to figure that out. On the side of the church, the inconvenient fact is that while Perich was a called teacher, her job description was identical to that of the lay teachers, who were not called, or even required to be Lutheran. Given that, why should Perich’s status of being “called” really make a difference? As for Perich, her unfortunate fact is that before this dispute arose she had claimed ministerial status in order to get tax benefits. While that doesn’t answer the question of her status, it at least makes it unclear enough to that caution dictates the courts shouldn’t wade into it.

It will be interesting to see how the lower courts grapple with the scope of the exception. Of course, they’ve been doing it for some time, so it might not be as vague as some are making it out to be. It’s also worth noting that, contrary to what I’ve read in some heated ‘Net comment sections, the decision does not allow churches to discriminate at will against any employee. Only those arguably involved in the church’s core function would be covered. Of course, how broad is any given church’s function? That’s the rub.

Ultimately, the religion clauses of the First Amendment reflect the same fear that the Free Speech clause does when it comes to state regulation. It’s not that bad things are done under the auspices of speech or religion that most people would want regulated. It’s that we don’t trust the state to sort correctly between the good stuff and the bad. Rather than risk the state getting it wrong, we let the market handle it, to the extent it can. Whether that’s born of some ideological position or simply a recognition of how the real world works, you get the same place in the end.

It’s often noted, amongst my unbelieving brethren, that religion isn’t an immutable trait like race, gender, or sexual orientation. Given that religious practice involves choice and free will, why should it enjoy protected status? Whatever arguments for or against that idea, in the United States the decision was made long ago. The First Amendment does put religion in a special place in our society when it comes to how the law deals with it. Maybe it shouldn’t, but it would take more than a Supreme Court case to change it.

Lyin’ Eyes (Redux)

Last year, I wrote about a case accepted by the Supreme Court that dealt with eyewitness identification. Specifically, it was going to address the issue of whether some kind of police misconduct is required before a court must exclude an out-of-court identification as unduly suggestive (the ID at issue in the case, all agreed, was not the byproduct of any police shenanigans). Defense attorneys across the country hoped that the Court might use the opportunity to seriously reevaluate the whole nature of eyewitness testimony, in light of all we’ve learned in recent years about how unreliable it is. Unfortunately, the Court, by a large majority, played things close to the vest.

The case, Perry v. New Hampshire, involved police responding to a report of car robberies in an apartment complex parking lot. When police arrived, Perry was found in the parking lot with a pair of car stereo amplifiers in his hand. He matched the vague description given of the person breaking into cars. As part of the investigation, an officer went to the fourth-floor apartment from which the initial call had been made and spoke to the caller’s wife, Blandon. She provided the same vague description. When prompted for further detail, she pointed out the window at Perry (who was standing with another officer in the parking lot) and identified him as the perpetrator. Perry was arrested. A month later, Blandon could not pick Perry out of a photo lineup. Perry was charged with theft and criminal mischief.

Perry tried to suppress that on the scene identification, not because the cops did anything wrong, but because the circumstances of the identification were inherently suggestive. The New Hampshire courts wouldn’t go along with that argument and, ultimately, neither did the Supreme Court, which affirmed Perry’s conviction 8-1.

Justice Ginsburg, writing for the Court, rejected Perry’s attempt to decouple the due process issue from the behavior of the police and focus solely on the reliability of the identification at issue. A major purpose of the suppression of an identification is to deter the police from engaging in improper conduct. Where there was no improper conduct, that purpose cannot be in play. Perry’s position would:

open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications.

The court recognized Perry’s argument (supported by numerous amici) that eyewitness testimony is inherently unreliable, but concludes that the “potential unreliability” of evidence does not preclude its introduction and that confrontation, cross examination, and the like are adequate to deal with the problem.

The only dissenter was Justice Sotomayor, who seems to take more to heart all we’ve learned about eyewitness testimony over the years. She wrote that:

eyewitness identifications’ unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial.

Among the statistics she used to back up that claim is the staggering figure that 76% of the first 250 exonerations due to DNA evidence involved incorrect identifications by eyewitnesses (and, in some cases, victims). That’s not much better than our terrorist detecting skills I talked about last week.

I understand the reticence of the Court to step beyond regulation of police conduct when it comes to suppression of evidence. Unfortunately, eyewitness testimony still holds a much greater weight with average jurors, and the public at large, than science indicates it deserves. The traditional crucible of cross examination may not be enough, in the large body of cases, to deal with that. Ultimately, the responsibility may lie with the defense bar itself to educate the public at large.

Friday Review: The Sole Inhabitant

The further along I get when it comes to electronic music, the more I find myself getting into things I once that held no interest for me. As a child of the 1980s, I thought I had just about had enough of Thomas Dolby long before old enough to drive. Strange, then, that I’ve wound back to him and his music and find myself digging it quite a bit more than I would have imagined.

A few years ago, I read an article in Keyboard about Dolby. He was out on tour as a one-man band. Such things are treacherous, but it seemed if anyone could pull it off, it might be someone well schooled in electronic music. So I put The Sole Inhabitant, the CD/DVD commemoration of the tour, on the list of things to check out eventually.

I’m glad I did. Armed with a few synths, an awful lot of MIDI gear (including a 1940’s “impedance bridge” with the guts replaced with MIDI switchery), and a Macbook, Dolby fills out his songs in impressive fashion for just one guy. While there is a certain amount of “canned” stuff going on, based on my observations of the DVD he really is triggering most of the loops and samples in real time. Given the conceit of the tour, that’s to be expected.

Regardless, the whole thing is most impressive when Dolby takes a song and builds it from the ground up, as in “The Flat Earth”:

When it comes to electronic music, I still tend to favor the slow and moody to the more upbeat pop/dance stuff, so I generally dig the first two-thirds of the set more than the rest. That being said, there’s good fun to be had while banging out “Hyperactive” and “She Blinded Me Wit Science.” Besides, I’ve become quite fond of “Europa and the Pirate Twins,” for some reason.

As I said, this is a CD/DVD package, and although the track list for each is the same, they were recorded in different locations. The DVD, in addition to the music, throws in about a half hour total of fun and interesting intros, another half-hour interview with Dolby (who says some particularly interesting thing about Europe v. the United States and notions of history), and a brief tour of his rig. All in all, it’s one of the best concert DVDs that I’ve seen in a long time.

Details
------------
The Sole Inhabitant, by Thomas Dolby
Released 2006

Tracks:
1. Leipzig Is Calling (5:14)
2. One Of Our Submarines (5:39)
3. I Live In A Suitcase (6:24)
4. Flying North (6:02)
5. The Flat Earth (6:46)
6. Budapest By Blimp (7:57)
7. Windpower (4:25)
8. Europa And The Pirate Twins (4:21)
9. Hyperactive (5:22)
10. She Blinded Me With Science (4:53)
11. Airhead (4:51)

Players:
Thomas Dolby (everything)

In Which I Agree With *gulp* Gary Bauer (Sorta)

There are few people on the planet that I would say I disagree with more fundamentally – about religion, politics, or ethics – than Gary Bauer. Long a crusader on the religious right (and even a presidential candidate, for a while), Bauer pushes an agenda and holds beliefs that I find odious and disturbing.

‘course, as they say, even a blind squirrel finds a nut sometimes. Credit where it’s due, Bauer’s found one.

Article 6 of the Constitution states that (emphasis mine):

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Thus, nobody can legally prevent a Muslim, Mormon, or atheist from running for or serving in any political office. The First Amendment bolsters that provision and, through the Fourteenth Amendment, effectively applies it to the states. But it only applies to legal restrictions. What about personal ones. When I go into the polling booth, can I apply a religious test when deciding who to vote for.

Bauer says yes, in a recent USA Today column. And I agree with him, for a couple of reasons.

First, as a practical matter, it’s impossible to police what people think is important to them about a political candidate. As unethical as it would be to not vote for Barrack Obama because he’s black or Hillary Clinton or Michelle Bachman because they’re women, it’s impossible to keep people from making their voting decisions on those grounds. Thus, it seems more than a little pointless to harangue people for something over which you not only have no means to control, but no hope of ever controlling.

Second, Bauer is right that someone’s religious beliefs can say something about them and their fitness for office, although they may not. The important thing is to keep the focus personal, rather than general. The label that one gives to themselves when it comes to religion doesn’t necessarily tell you a whole lot about their view of the proper role of government or how best to solve problems facing the world today. One need only to look at the various flavors of Catholics who pop up in politics to see that being true. Current GOP non-Romney flavor of the week Rick Santorum seems to draw a lot of policy provisions from his Catholic faith, while others like John Kerry come from the same faith and reach radically different positions. In the end, it’s the positions that matter, after all.

That is where, for all his nice talk, Bauer goes wrong, for he does precisely what he argues we shouldn’t and paints with a broad brush:

Though I wouldn't vote for a pagan, I'd vote for a Catholic or a Jew whose policies reflect the traditional understanding of marriage and defend the sanctity of human life much more readily than I would vote for the man next to me in the pew who doesn't support those things.

This after, without any hint of irony, deriding Wicca as “involve[ing] magic, spell-casting and sorcery” (as if a religion involving talking snakes, virgin births, and people who come back from the dead doesn’t). In other words, there are some faiths that are so beyond the pale for Bauer that he wouldn’t vote for a person who espoused those beliefs. That’s silly. I wouldn’t vote for an atheist just because he was an atheist, why should I vote against a Christian, pagan, or whatever simply because they fit into that category?

I wouldn’t, for example, vote against Mitt Romney because he’s a Mormon (although he wouldn’t extend me the same courtesy). I’d vote against him because he’s a feckless flip-flopping douchebag who couldn’t find a principle if it was strapped to the roof of his station wagon shitting down the windows. Two completely different things.

Spot the Terrorist!

The dystopian world of Terry Gilliam’s Brazil is beset by random blasts of violence, explosions laid at the feet of unnamed terrorists. It’s the terrorist threat that drives the world’s administration, one that includes a department of torture with the deliciously euphemistic label “Information Retrieval.” But the film never really shows you any actual terrorists. It’s even brought up in a discussion between the main character, Sam, and the woman of his dreams (literally):

JILL: Who is this war against, Sam?

SAM: Well, terrorists of course.

JILL: How many terrorists have you met? Actual terrorists?

SAM: Actual terrorists? Well...it's only my first day.

That line’s played for laughs, of course, but there’s an uncomfortable truth lurking there about how much of any “war on terror” is really a PR campaign by the state.

That idea flashed through my head when I read the sickening numbers compiled by the ACLU about the inmates confined at Guantanamo Bay (via). It looks like lots of people down there have never met an actual terrorist, either. Of the 779 people detained at Gitmo since 2002, a whopping 92% of them were never al Qaeda fighters. Maybe that’s because only 5% of them were actually captured by US troops in the field. The bulk of them (86%) were turned in for a bounty.

The other numbers are equally depressing (the number of men detained who the Government admits it can’t any allegations against but continue to detain anyway? 46). But that 92% says more about the “war on terror” than just about anything else could.

Another Round for Fleeing Fucks

There is little doubt that no off the cuff utterance has lived as long in the American legal system as Bono’s remark, in 2002, during the Billboard Music Awards on Fox, about winning a particular award:

[t]his is really, really fucking brilliant.

That statement, along with similar deployment of “fleeting expletives” by Cher and Paris Hilton around the same time, launched a legal battle that’s about to be taken up by the Supreme Court for the second time in three years. When the Court hears oral arguments today in FCC v. Fox Television Stations, the court may dive headlong into an issue they were able to avoid in 2009.

At one time, such isolated utterances of one of Carlin’s seven dirty words weren’t enough to drive the fellas at the freakin’ FCC up the wall. That all changed, as they went after Fox and a couple other networks for the fleeting fucks. In its 2009 decision, a sharply divided Court held that the change in policy was not “arbitrary and capricious” and thus didn’t violate any administrative law provisions. The Court punted on the issue of whether the FCC’s policy actually violated the First Amendment.

On remand, the Second Circuit found that the policy violated the First Amendment because it was too vague. It’s hard to argue otherwise if read the disparate treatment of the same language in similar televised presentations. Saving Private Ryan with all its bad words (and, of course, violence, which bothers nobody) was just fine, but Martin Scorcese’s epic PBS documentary The Blues, in which real people spouted a few real expletives, was not. It’s impossible to make rhyme or reason of the FCC’s rulings in this area.

But that’s not all that is at stake tomorrow. Fox , and some of their amici, argue that the Court should strike down the foundation of any FCC regulation of naughty words on TV, the Pacifica case from 1978. That was the case in which the court held that the FCC could ban Carlin’s routine (which had been broadcast on radio), because of the pervasive nature of the broadcast medium. As the Fox brief makes clear, broadcast TV, while it was once pervasive, today is only a sliver of the media available to 21st-century eyes and ears. Given that reality, Fox argues that the FCC should have the same authority to regulate broadcast TV as to, say, the Internet or cable/satellite TV – which is to say none at all.

It will be interesting to see whether the Court goes that far, or simply smacks down the FCC’s policy on vagueness grounds. I’d like to see them go whole hog, but we’ll see.

For a much more in depth preview of the case, see Lyle Denniston’s write up over at SCOTUSBlog.

A Few BCS Thoughts

Tonight, Alabama and LSU will lock heads in the BSC Championship Game. Not only do they both come from the same conference (the same division, in fact), but they’ve already played this year, LSU downing Alabama in overtime in what was either a brilliant defensive game or a crushing bore, depending on which side of the 9-6 final your team was on.

Like many college football fans, I’m not really a fan of the rematch in the title game. I’ve always been of the opinion that if you don’t win your conference, you don’t play for the national title. But, again like most college football fans, I’ll tune in tonight and watch. The game’s like a drug and I’m a junkie, I’ll admit. Besides, the buzz of WVU’s crushing Orange Bowl win last week is about to wear off. Stewart Mandel has more on the conflicted feelings of fans here.

I will say this for the BCS – it is blatant about trying to do what no other championship game in the world really can, match the two best teams against each other at the end of the year. Think about it. Any playoff system only works in getting close to that matchup if all the favorites win and all the underdogs lose. But what we love about playoffs is that they are unpredictable. One year, a NFL wild-card team can win the Super Bowl. The next, all the wild-card teams get eliminated in the first round of the playoffs. In a BCS setup, Greece never wins the 2004 European Championship because they never even play in the final. At the end of the day, it’s what makes playoffs worth playing.

So the BCS is bucking the trend, which is admirable. But the errand they set for themselves is a fool’s one. How on earth can you pin down the “top” (whatever that means) two teams out of the 120 that play through the season? If two, and only two, teams wind up unbeaten during the regular season, that might be helpful, but doesn’t deal with the strength of schedule problem. And what about seasons like this one, where only LSU made it through unscathed? You play the same game with the 1-loss teams (see here for a good argument about Alabama and Oklahoma State filling that role). And what if the unthinkable happens – Alabama upends LSU, but only barely, and nobody ends up undefeated? It might be fun just to see what happens.

For the record, my biggest beef with the BCS is there is no way for any team to say “if we do X, Y, and Z, we will play for the national championship.” The best bet is to be undefeated, but even that doesn’t guarantee anything. At least in the NCAA basketball tournament each team as a path to automatic qualification. Something more objective would be a good thing (my setup: a playoff involving only conference champions and the highest ranked independent).

In the end, the current system, while obtuse and completely fucked up, is the one that college football fans largely deserve. It gives us the one big game to decide it all, the focal point of all American sports (even the World Series or Stanley Cup Finals we want come down to a do or die game seven, right?). But it does it in such a way that everybody is free to argue about it until they’re blue in the face, often without any real mooring to the undisputed facts.

Damn it, it’s an American tradition! Sort of like presidential elections. I’ll be watching those until the end, well past my bedtime, too.

Friday Review: The Confession

Regular readers know that I am against the death penalty. Not because of the inherent injustice in its application or because any human system is flawed and bound to make mistakes, but because I think it’s simply a power that the state should not have. That being said, one would think that would make me a receptive audience to a legal thriller based on the idea of the state of Texas executing an innocent man. I’ll admit that the heart is in the right place, but that still doesn’t make for a compelling piece of fiction.

Two deaths are at the heart of The Confession, John Grisham’s fictional treatment of an area he hit earlier in a non-fiction book, An Innocent Man. The first is the murder of a high school cheerleader named Nicole. The second is the execution, nine years later, of Donte Drumm, who, although convicted by a jury, is absolutely innocent of the crime. As a race-against-the-clock thriller, it has a lot of possibilities. Problem is that the clock runs out about two-thirds of the way through the book, leaving precious little of interest happening thereafter.

By that time, there is absolutely no doubt that Drumm was innocent. Grisham takes several of the more notorious bits of lunacy in death penalty practice over the years (many from Texas) and piles them up in one case. There’s the titular false confession, which is the result of hours upon hours of lies and pressure by cops. Then there’s the fact that the prosecutor and the judge presiding over the trial were sleeping together. Then, with the clock ticking down in the background, the last court that can do something to stop the execution shuts its doors promptly at closing time, even though Drumm’s lawyers have alerted them that they are on the way over with a last-minute filing. All of those things are ripped from the headlines, sadly. Putting them all together in one case, however, is just too much. Grisham doesn’t have a finger on the scales of justice, it’s more like a palm.

Political figures don’t fare much better than the legal ones. All during the book, we drop in on the governor of Texas and his two closest friends and advisors, his “communications director” (aka spin doctor) and chief counsel. The governor himself is a poll-driven political whore, but you’d expect that. What you might assume is the only reason Grisham gives him two advisors always in tow is that one of them might say something profound about what happens or offer some dissenting opinion. Alas, it’s all about politics with all of them. Nobody at all seems concerned that the state has killed an innocent man.

Here’s the thing. If you want to write a convincing fictional takedown of the death penalty, the structure Grisham uses here would work. Most wrongful convictions are a little more complex than this one, however, and you could use the period after the execution to unravel how it all went wrong. Grisham so tilts the playing field, however, that there’s nothing to unravel once the execution goes down. As a race against the clock it fails because, well, they kill the wrong guy. But as a thoughtful exposition of how such a thing could happen, it also fails.

Which is a real shame. Grisham is a big name author who could presumably reach some people who are not entrenched partisans when it comes to the death penalty. Maybe he will someday. He certainly won’t with The Confession.

The Details
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The Confession, by John Grisham
First published in 2010

Now There's A Defense!

I can’t imagine anything, aside from powerful psychotropic drugs, that would make Alvin and the Chipmunks: Chipwrecked anything other than 87 minutes of pure hell. Then again, my imagination doesn’t think of things like going to the theater and getting buck naked, either:

A Chicago man was arrested last week after being spotted sitting fully nude in the front row of a suburban matinee screening of Alvin And The Chipmunks: Chipwrecked.

96 other patrons were escorted out, probably by a SWAT team in full regalia, and the dude was arrested. But wait, he’s got a defense:

[The accused] reportedly told police he was duped into nudity not by those wanton temptresses of the Chipettes but by a woman who let him into the theater, told him to strip, and promised that she’d be there shortly to ‘have sex and do drugs.’

You know the old saw about how if something sounds too good to be true? Same applies to offers from women to meet up at a kiddie movie and get freaky. Or so I’ve been told.

But it’s all OK now. He’s in jail ($100,000 bond? Are you kidding me?) and will not doubt wind up as a registered sex offender. Which we all know is the key to being successfully rehabilitated and reintegrated into society.

Maybe I’ll Just Sit This One Out

It’s only the third day of the year, but already I know one thing about the upcoming year. I will not vote for Barack Obama in November.

I voted for him in 2008, willingly if not enthusiastically. Since then, it’s not the domestic policies that have led me to this point (although many of those aren’t great). It’s been the complete embrace of Bush-era terrorism policies that shifted more and more power to the executive and made review of the exercise of those power almost impossible. It was a bad deal when Bush did it. It’s not any better when Obama does it, just because he’s got a “D” next to his name.

This, finally, was the last straw for me (via):

President Obama signed the National Defense Authorization Act (NDAA) today, allowing indefinite detention to be codified into law. As you know, the White House had threatened to veto an earlier version of the NDAA but reversed course shortly before Congress voted on the final bill. While President Obama issued a signing statement saying he had ‘serious reservations’ about the provisions, the statement only applies to how his administration would use it and would not affect how the law is interpreted by subsequent administrations.

More details on the NDAA here. Although the powers it sets out have mostly already been exercised by this administration and the previous one, codifying them in the U.S. Code will make it all the more difficult to reign them in at some future point. And while Obama promises not to make full use of them (although there’s no reason to believe that, given his record in the area to this point), that doesn’t bind future presidents.  Ed at Dispatches has more on that angle here.

I’m aware of the counterarguments. That anybody the GOP will field in November will be worse, overall. There’s the rallying cry of “what about the Supreme Court?” I don’t disagree, but I can’t go along with that anymore. There’s only so far I can go when it comes to choosing the lesser of two evils. If my vote means anything (logic and sheer numbers says it doesn’t), it has to be cast with some integrity.

So where does that leave me? Probably sitting on the sideline, unless something interesting happens with a third-party candidate (sorry GOP friends – I’m not that far gone). Sometimes the only winning move is not to play.