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
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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.