PSA: The First Amendment does not insulate companies from anticompetition law.
Imagine a world in which every time a business released a deceptive ad (e.g. claiming their herbal cure cures diabetes in 24-hours!!!) the company could shield itself from FTC litigation by claiming their lies are fully protected by the First Amendment. It’s absurd.
The fact that one is speaking does not a magical shield against all legal liability make.
My contribution to The Knight First Amendment Institute at Columbia University’s Emerging Threats series is now up, as is a great introduction by David Pozen and responses from Eric Goldman, Frank Pasquale, and Genevieve Lakier.
“The Knight First Amendment Institute’s Emerging Threats series invites leading thinkers to identify and grapple with newly arising or intensifying structural threats to the system of free expression. Fake news, hostile audiences, powerful private platforms, government secret-keeping, and other phenomena have the potential to destabilize political systems and undermine economic and social reform. The papers in the series explore ways to address these threats and preserve the foundations of democracy essential to healthy open societies, including the United States.
The Emerging Threats series is edited by David Pozen, professor at Columbia Law School and inaugural visiting scholar at the Knight Institute.”
While I’ve completed the 52 book challenge already, I’ve decided I’ll keep posting my monthly reads. At least for now.
Liberty’s Refuge: The Forgotten Freedom of Assembly by John Inazu (YUP 2012)
Notes on the Death of Culture: Essays on Spectacle and Society by Mario Vargas Llosa, translated by John King (Farrar, Straus and Giroux 2015)
In one of Colin Powell’s leaked messages he mentioned reading this book (he specifically said, “Just finished a book by a guy named Llosa about loss of culture. It was reviewed in the WSJ last week. Culture is going and with it the ties that bind.”). If Powell thought it worth mentioning the book, I figured it was worth my reading it. I found it a mixed bag. I’d recommend the first eighty or so pages and then a skim of the rest.
Autobiography of Mother Jones by Marry Harris Jones (aka: Mother Jones), edited by Mary Field Parton (Charles H. Kerr Publishing 1996. Originally published by Kerr in 1925)
An absolutely incredible person. However, I recommend a bibliography before her autobiography (she assumes lots of prior knowledge). A few tidbits:
You remember the Divine Right of Kings? Here is what the President of the mine owners association said in 1902: “The rights and interests of the laboring man will be protected not by the labor agitator but by the Christian men and women to whom God in His infinite wisdom has given the control of the property interests of this country.” (61).
Work or Fight Laws (Mother Jones called the “infamous slave bill”): A law was passed (again, the wealthy control of the government was no joke) that said: if you strike, you are automatically sent to the front line trenches. (177) The Governor veoted it but just take a moment to think about how that passed.
With company-owned towns, they were able to tell workers (who were paid in company script instead of real money and thereby forced to buy from company-owned stores [with marked up prices] and live in company-owned shacks [also marked up]) that allowing Mother Jones into their homes constituted trespass (on company property, remember). Indeed, the police would stand on the boundaries of the company-owned land. If she stepped one foot inside, she was arrested. If any workers pushed for change, they were immediately kicked out of their shacks, blacklisted, and without money.
Harry Potter and the Sorcerer’s Stone by J.K. Rowling (first published in the UK, by Bloomsbury 1997. First US edition published by Scholastic in 1998)
I’ve started listening to a fabulous podcast that I fully recommend: Harry Potter and the Sacred Text. I also attended my first in-person meeting of their book club last week. So what does it mean to treat Harry Potter as a sacred text? Three things (per their site):
1) trusting the text (“we practice the belief that the text is not ‘just entertainment’, but if taken seriously, can give us generous rewards.
2) rigor and ritual (“The text in and of itself is not sacred, but is made so through our rigorous engagement”)
3) reading it in community (“Scholars of religion explain that what makes a text sacred is not the text itself, but the community of readers that proclaim it as such. The same applies to us.”
Often times (and somewhat related to Book 54) it seems people are unwilling to fully embrace the things they love. There’s this desire to keep an ironic distance. While irony has its place in our lives and how we view our beliefs (see: Richard Rorty), there is also something incredibly valuable about loving something and pursuing its gifts in earnest. This podcast fully embraces this philosophy. I’ve learned so much from them and their subscribes (who call in). If you want to cultivate the virtues, this would not be a bad place to start the work. (and as they point out, becoming a better person is work)
Speaking Freely: Whitney v. California and American Speech Law by Philippa Strum (University Press of Kansas 2015)
Excited to report that I completed my 52-books-in-2016 challenge this month!
But now onto the August reads…
At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy by Jeannie Suk (YUP 2011)
Hillbilly Elegy: A Memoir of a Family and Culture in Crisis by J.D. Vance (Harper 2016)
After reading the author’s interview with the New Conservative, this got bumped to the top of the list. I laughed a lot more than I thought I would (some of the dialogue reminded me of what I heard as a kid, and reading about it somehow elicits, among other things, laughter). Instead of some memoirs where you either feel like the author barely sees him/herself as an agent (which then leaves you feeling depressed and helpless as well) or where the author tells a story of triumphing over all with god/John Galt-like control (unrealistic and fails to appreciate how we all depend on those around us, and how important it is to have support – as a kid and as an adult) this was much more in the middle. He acknowledges how some members of his family not simply “saved him” but, better than that, provided him with the conditions from which he could go on to succeed. Also, a refreshing comment on how the military can turn lives around (I don’t think people in elite institutions often understand how someone screaming at you, making you do what they say, can really *increase* agency, but Vance explains how much of a difference his time there made). (note: both my parents were in the Air Force and I’m pretty sure my dad would agree. Mom is a different story) In short: really enjoyed, very quick read, and I suspect will give a lot of people an insight into a culture of which they are ignorant but, if this election cycle has shown anything, they should not be.
The Noonday Demon: An Atlas of Depression by Andrew Solomon (Scribner 2000)
Atlas is not an inaccurate description. This book is massive, 570+ pages. And the font is small! Parts I enjoyed. Other parts, less so. If you want a now-slightly-outdated encyclopedic understanding of depression, here’s your book. Chapters go into detail about the author’s own experiences, the history of different drugs and treatments, the history of how we’ve understood depression over the centuries (I liked that part), and an unfortunately short look at what it’s like to deal with mental illness for those who don’t come (in contrast to the author) from such privileged backgrounds.
The Moon is a Harsh Mistress by Robert A. Heinlein (originally Putnam’s Sons 1966)
A gift with high praise from Will B., though he hadn’t read the thing since he was a kid. Libertarians will enjoy. Enjoyed the alternate family structures, the conscious computer (Mike!), and the political and revolutionary strategy. A quick-witted sort of tone. No Ursula K. Le Guin (Dispossessed is better) and no Octavia Butler, but good. And let’s be real: that is an awesome title.
Continuing my reading in the epistemic injustice area. From HUP, “For centuries, philosophers have been divided on the nature of language. Those in the rational empiricist tradition—Hobbes, Locke, Condillac, and their heirs—assert that language is a tool that human beings developed to encode and communicate information. In The Language Animal, Taylor explains that this view neglects the crucial role language plays in shaping the very thought it purports to express. Language does not merely describe; it constitutes meaning and fundamentally shapes human experience. The human linguistic capacity is not something we innately possess. We first learn language from others, and, inducted into the shared practice of speech, our individual selves emerge out of the conversation.”
The Bell Jar by Sylvia Plath
To the Lighthouse by Virginia Woolf
This is the first fiction work of hers I’ve read (shamefully enough). Absolutely remarkable. I’m tempted to read it again in a few months. The first book I can recall where I felt compelled to take photos of passages and send them to my sister! A certain Proustian sensibility in it (she was a huge fan of his) but with its own unique voice. Loved it.
The Secrete Life of Pronouns: What Our Words Say About Us by James W. Pennebaker
More in the epistemic injustice space, I thought this would be a good for thinking more about how the way we communicate shapes how others perceive/siganls our place in social hierarchies. This book could have been a bit shorter, I’d say. But, nonetheless, enjoyed.
The Vegetarian by Han Kang, translated by Deborah Smith
Just received the Man Booker International Prize a few weeks ago. Great story about how it got translated – Smith was a PhD student, read it in Korean, loved it, and decided it just had to be translated. She spent the next year learning Korean better, translated ten pages, sent it to a publisher, publisher loved it, and the rest is history!
As I’ve said before, it is tragic how little opportunity English speakers have to read translations of Asian authors. Kang, a woman author from South Korea, is one of the very very very few South Korean authors we have access to. The loss is ours. The way she writes about relationships (indeed, the family dynamics especially), the way her characters see the world, the symbolism, themes, etc., all open up new ways of being and thinking.
The Workplace Constitution from the New Deal to the New Right by Sophia Z. Lee (CUP)
So great – I only wish I had read this before I taught private discrimination this quarter. Broadly, the book looks at the history of constitutional rights in the workplace. Today, in the private sector, most of us are under an at-will employment regime. We can be fired for almost any reason or no reason at all. While most Americans *think* their constitutional right to free speech and, more at stake in this book, a Fifth and Fourteenth Amendment right to not be wrongfully discriminated against, are protected in the workplace, that’s just not true. This book traces the battles that got us to this point. It’s a fascinating combination of labor, race, and the rise of the New Right. And what I really enjoyed — a fantastic explanation of the pros and cons of an expansive state action doctrine. Originally, pro-labor wanted an expansive doctrine so the constitution could reach the workplace. Then, as the New Right gained power (esp. with Rehnquist and the Burger Court), the move to a colorblind Constitution meant that an expansive state action doctrine would preclude some of the affirmative action policies workplaces adopted. Expansive state action also meant government intervention in the inner-workings of unions, which itself gave industry a new and powerful anti-unionization tool (companies argued that if unions were discriminatory, the NLRB couldn’t certify them as workers’ exclusive representative as it would violate the Fifth A) [state action = certification as exclusive rep]). I have pages and pages of notes and questions. If you’re interested in state action, labor, civil rights, the history of right to work (the Right’s adoption of an expansive state action doctrine), and rights in the workplace, this is a must read.
Finished this on my flight out to a labor conference in Italy. Beautifully written (truly — it’s gorgeous). I’ll add more later but the only disappointment was that it didn’t cover more. In particular, he argues that real equality means that minority groups (e.g., homosexuals) are treated as equal even if they don’t “cover”. That is, even if they keep their own gay culture and are thus allowed to be their authentic selves. As the author recognizes, there’s a real danger here of suggesting both that (1) there is some essential gay culture and (2) if someone is gay but doesn’t perform that culture they aren’t being their authentic self. That’s all problematic. The author’s response is that he just wants people to be able to be their “authentic self.” Fair enough but the hard question is what on earth an authentic self even is. And, more to the point, to say that the law and culture should let us be our authentic selves seems to imagine that selves come before our experiences in the world and society. In other words, law and culture and the rest all create the conditions under which we develop into selves in the first instance. How that law and culture are constructed will thus determine to some large degree what I experience as my authentic self. So isn’t the hard question what sort of authentic selves law and culture should help cultivate?