Don’t overinterpret the Sorrell Doctrine!

I have submitted an essay to the Stanford Law Review for publication. I didn’t tick the box for “exclusive”, so I think I can blog it as well. It’s a reply to Andrew Tutt’s essay on Software Speech.


Andrew Tutt’s essay “Software Speech” rightly points out that the Sorrell and Brown cases set up inconsistent standards for whether software is to be considered “speech” and entitled to First Amendment protection. The logic of his essay goes astray, however, when he projects the consequences of Sorrell; they need not be so sweeping as he might suppose, and in fact a software engineer (someone working in the field) would not expect them to be.

I am a software engineer, not a constitutional attorney. But, as the founding president of the Open Source Initiative (the generally recognized certification authority on what licensing terms can be considered “open source”) I have been frequently required to grapple with questions about law, policy, feedom of speech, and intellectual property. I was also an individual amicus in Reno v. American Civil Liberties Union, the successful 1996 case against the Communications Decency Act. The territory of Mr. Tutt’s essay is not strange to me.

There is a colorable distinction, one obvious to any software engineer, between software considered as an act of speech versus software considered as an instrument of speech. Those of us (including myself) who hold that “software is speech” are insisting that the creation of software is a form of creative and expressive speech act with a result entitled to all the protection against coercive interference that we would extend, say, to a copy of Lady Chatterley’s Lover or Mein Kampf.

The consequences we would draw from that claim are significant. At present it is technically illegal to publish or convey software that constitutes a “circumvention device” under the Digital Millennium Copyright Act of 1997. As a matter of principled civil disobedience in support of First Amendment liberty, I carry a link to such software on the front page of my website even though I have never used it. If Sorrell were applied consistently, that provision of the DMCA would be annulled.

But Mr. Tutt is wildly off the mark in supposing that Sorrell would preclude any regulation of speech in which software functions as instrument rather than itself being the speech act. He worries that “Apple’s wish to exclude disfavored books from the iPad eBook reader, or banish Adobe Flash from its iPhone browser, would simply be Apple’s speech.” There is a case for that position, but it has nothing to do with Sorrell; Sorrell would only protect Apple’s right to publish the eBook and browser software.

I can perhaps make this distinction clearer with a roughly parallel case. The right to publish instructions for building a pipe bomb is constitutionally protected as an expressive act; this does not mean we relinquish any regulation of actually detonating such devices!

Declaring my interest, I’m concerned to rebut Mr. Tutt’s overinterpretation of Sorrell not merely because I think it is fallacious but because such overinterpretation might cause a damaging reaction against it. All expressive speech, in whatever medium, deserves Constitutional protection; Sorrell merely affirms that software is not an exception.

Mr. Tutt’s confusion is understandable, and that the Supreme Court shares this confusion is suggested by the implicit conflict he points out between the Sorrell and Brown decisions. It can be difficult to reason crisply when act and instrument are both intangible and are closely entangled. But software engineers have to do this all the time. The legal academy might benefit, on this and related issues, if it listened a bit more to the engineers and a bit less exclusively to itself.

UPDATE: Don Marti points at an excellent analysis along similar lines, Publishing Software as a Speech Act.

118 thoughts on “Don’t overinterpret the Sorrell Doctrine!

  1. I wrote one of the three interoperable versions of OpenPGP (rfc2440), and found a bug in PGP 5.0!. It ended up in a book that could be faxed (based on SSLeay – later openssl for convenience). Free speech? Ha! RSA had their software patent and their FUD – never actually went to court. And it was “munitions”. (Like my SSL proxy used by the blind).

    I wish Software was considered speech. It wasn’t back in the 1990′s. It isn’t today.

    Crypto, and maybe instructions for the pipe bomb might be considered “material support of terrorism”.

  2. The legal academy might benefit…

    If you said, “the nation might benefit” or the “humanity might benefit” then your proposition would be correct, albeit unpersuasive to the legal academy. However, your premises don’t support the conclusion above, not least because for decades the legal academy and the profession as a whole have benefited greatly by listening to nothing but their own avarice.

    I don’t have a problem with anyone making whatever money she can in whatever fashion she can, but when she takes on the mantle of a “professional” and is thereby granted privileges over other citizens, she also takes on an obligation not to destroy our society. This profession seems not to be meeting that obligation.

  3. What I find most amazing in the debate is that there is one.

    Software is characters combined into words from a vocabulary according to a grammar. You can read it in a broadcast over the air. Other people understand what you say. When you can actually have a meaningful conversation in software, how is it not “speech”.

    Then you can go to Mathematicians, and they can explain in great length that a program is nothing but a mathematical formula expressing a mathematical algorithm. A computer is simply an apparatus that was developed after software programs had been used for decades in mathematics.
    http://www.groklaw.net/article.php?story=20110908075658894

    And all the courts recognize mathematics as speech protected under Free Speech laws.

    What more could be needed to qualify as Speech.

    This seems to be a case of:
    “Never argue with a man whose job depends on not being convinced.” — H.L. Mencken

  4. “Free Speech” has become a near-religious tenet, divorced from its actual function.

    The reason some form of free speech is a requirement for a legitimate democracy, is that without it an incumbent power bloc could “cheat” without having to stuff ballots or cancel elections. They could censor any dissent to their own justifying propaganda, and trick a majority into supporting them for another term. (They could also disrupt competing parties’ internal communications, but that is covered by rights to “free association”.)

    Of course, in practice such power blocs have discovered many other ways to cheat…

    But all the big “free speech” court cases seem to have nothing to do with this underlying purpose. Sure, it would probably be for the best in most cases for the libertarian side to win (and I’m saying that despite not being libertarian). But if the authoritarian side won them all, it wouldn’t distort people’s ability to vote wisely, and hence they are not emergencies worthy of constitutional attention.

    That said, there is one extension beyond minimal free speech that I’d like to have in my ideal society. That is that no one can be punished for his speech (explicitly including binary content), without the approval of the person he was trying to talk to. So spammers would rightly live in fear, but consenting adults can share anything.

  5. What’s alarming to me is that the Sorrell decision got the right answer for the wrong reasons — specifically, the SCOTUS considered the sale of doctor prescription data for marketing purposes to be “protected speech”.

    An unpleasant side effect of the Bush administration is a Supreme Court that interprets the Constitution broadly when it benefits big business, but narrowly in matters where individual liberty interferes with the government’s surveillance capability. See also the Citizens United SCOTUS ruling that held that money is also protected speech; and the whittling down of the Fourth Amendment to provide almost no privacy protection at all.

  6. ” That is that no one can be punished for his speech (explicitly including binary content), without the approval of the person he was trying to talk to. So spammers would rightly live in fear, but consenting adults can share anything.”

    Wow. Freedom *from* Speech?

    That’s pretty much the opposite of Freedom *of* Speech.

    No, thanks, I’ll keep my right to say what I want to say whether you like it or not.

  7. Regarding “Freedom from speech”, I meant that exception as an extension of protected speech above democracy’s minimum requirements, not a further restriction. To prosecute in Michael-land, you’d absolutely require each of:
    1. A violation of an ordinary legislature-passed law in effect at the time of the “speech”. So a letter to the editor would be safe, but blaring your message from a van would unlock this point.
    2. The approval (of prosecution) from at least one of the people the speaker reasonably expected to be listening. A wiretap listener explicitly doesn’t count (otherwise direct communications wouldn’t be safe).
    3. A reasonable argument that forcing the speaker to observe the law cited in the first point would not distort democracy. News that a war is not going as well as the incumbent government insists would likely be safe — a mere offer to sell a banal product at a specific price would not be.

    The big way in which my system would differ from the prevailing system is in SLAPPs. Suppose X asserts a fact F about Y to Z, and this causes Z to change his own behavior causing Y to lose a million dollar business opportunity. In this world, Y can force X to spend a lot of money defending himself against an assertion that F is actually false and thus X committed libel. In my utopia, Y is effectively barred from harassing X unless and until he can convince Z, without any coercive power, that X maliciously lied to him.

    (Note that this is also a rough idea. In practice it would need to be more complicated to prevent people entrapping each other by lying about what sorts of things they would be pleased to receive later.)

  8. Please forgive me if I am misconstruing this topic, but I have a question.

    If software, at its root and in its fundamental execution, is binary code; then can it be speech if the only interpreters are machines?

  9. @TomA:

    If software, at its root and in its fundamental execution, is binary code; then can it be speech if the only interpreters are machines?

    This is silly. Any good programmer can interpret code.

  10. @tz:

    > Can software be an incitement? Can it “shout fire in a public theatre”?

    Only in bad court cases like the DVD encryption one.

    But running software, e.g. a component in a larger machine, could easily make fake 911 calls, for example.

    Another example might a laser light show. This would arguably be protected speech, but if the lasers wind up shining into cockpits, not so much. Especially if it is found that the software was somehow aiming for the cockpits.

    As esr points out in the article, there is a huge difference between creating/disseminating software and actually using software. But the Supreme Court seemed to reach the right decision in Brown, and if the behavior of software communicated via a gaming experience is protected speech, it is practically inconceivable that the behavior of software communicated via search engine results would not be likewise protected.

  11. @PatrickMaupin – “Any good programmer can interpret code.”

    To be clear, are you saying that you can read a string of binary digits in an execution file and understand what it is saying?

  12. I absolutely agree with Craig “Fuzzy” Conner.

    So spammers would rightly live in fear, but consenting adults can share anything.”

    Wow. Freedom *from* Speech?

    That’s pretty much the opposite of Freedom *of* Speech.

    No, thanks, I’ll keep my right to say what I want to say whether you like it or not.

    “Spam”, as in an unsolicited legitimate email offer to sell something, should be legal. I suppose any given ISP could make it a violation of their terms of service.

    If one person deliberately sends me the same offer 100 times per day (an extreme example), it could be illegal or maybe a civil (lawsuit) matter, as in the case of a truck playing extremely loud commercials on the street.

    Michael Deutschmann’s “Freedom From Speech” with its rules about how to be free is reminding me of something…. Guess what it is….

    GPL 3.0 is more than 30 KB of rules about what it takes for software to be “free as in speech”. The quick guide is almost 15KB.

  13. Do you US folks get the ice-cream vendor vehicles playing “music” at about 110 decibels? Those things should be illegal if you can hear them inside your house when they are two blocks away. They are disturbing the peace.

    Interestingly, there are extremely loud sound trucks in Japan blaring out stuff from “right-wing extremist” groups. They have been doing this for decades. Japan is a very odd and subtle country – subtle because in so much of what goes on, what appears to be happening is not what is actually happening. The deal with the sound trucks is quite simple, actually; it is the government (such as it oddly is) having the “right-wing extremist” groups annoy as many people as possible so they gain very few supporters.

  14. @ Michael Deutschmann re: “Freedom from speech”

    You suggested three rules that would have to be met before someone should be prosecuted. But the first is:

    1. A violation of an ordinary legislature-passed law in effect at the time of the “speech”. So a letter to the editor would be safe, but blaring your message from a van would unlock this point.

    Um…. if the speaker is already breaking a law, why have more rules? Prosecute him on the law that was broken. Or are you proposing a change in the Constitution or the way that it is interpreted?

  15. I think that Michael is suggesting that if you break a law, but the law was “you can’t say XXX”, but nobody you were talking to complains, then you didn’t break the law.

    So basically, you would have anti-speech laws, but the government is not allowed to be the one to lay charges.

  16. @Brain Marshall
    “Um…. if the speaker is already breaking a law, why have more rules?”

    Because the other two rules serve to ensure the legislature can’t ignore the constitution. I’d do this instead of having judges remove “unconstitutional” laws from the books ahead of time — this way anti-nuisance laws can work in all cases except when democracy is at stake.

    One other thing to be clear — I’m discussing the way a utopia would work based on my own political philosophy. I’m not talking about any path to reform of the US, Canada (where I live), or any other real world country. (Did you really think I thought that would ever happen?)

    “If one person deliberately sends me the same offer 100 times per day (an extreme example), it could be illegal or maybe a civil (lawsuit) matter”

    But in my utopia, the three criteria would apply to civil court cases too. This is the main case where my free speech would be stronger than current real world free speech. The judgment of a listener that someone else’s speech was not libelous is final, no matter how much money the “victim” is prepared to spend on civil lawyers.

    IMHO, SLAPPs are a lot closer to democracy-distorting impairment of free speech, than would any suppression of a politician who spams.

  17. @ Michael Deutschmann

    I’d do this instead of having judges remove “unconstitutional” laws from the books ahead of time — this way anti-nuisance laws can work in all cases except when democracy is at stake

    Man, you scare me. I understand that you are describing your idea of a utopia. But still…

    Do you also want to “make the trains run on time”?

  18. Can software be an incitement?

    I’d suggest that reckless vulnerability disclosure would at least be arguably close.

  19. @TomA

    >To be clear, are you saying that you can read a string of binary digits in an execution file and understand what it is saying?

    Most programmers don’t learn assembly or raw binary (and for which processor?!) so no. But I cannot read French so is it not worthy of speech protection too?

    – Foo Quuxman

  20. @TomA

    To be clear, are you saying that you can read a string of binary digits in an execution file and understand what it is saying?

    An unqualified yes. For a given processor type and execution context (a combo of file format, available libraries, and ultimately OS) there are unambigous rules that tell anyone who cares to do the tedious work exactly what changes in internal and external state that CPU will make as it “reads” and performs those instructions.

    For a natural language, not quite so much – unless I’ve got some idea about idioms and social context, for example, I will not make a very accurate or convincing translation.

    Note that I have nowhere specified how quickly I could do either interpretation. “Foo”‘s argument holds – my (or any given individual’s) particular skill in reading French, or ARM machine code, is not relevant to the argument as to whether or not either or both are “speech”.

  21. @ John D. Bell – “An unqualified yes.”

    Sorry, but I’m still lost on this topic.

    It is my experience that programming languages are comprehensible to many other persons who are also literate in those languages. But a programming language is just a tool for generating a root instruction file to be executed by a particular computer and processor. In practice, only machines communicate in this root language, not people.

  22. @TomA

    >But a programming language is just a tool for generating a root instruction file to be executed by a particular computer and processor.

    Only because we have advanced to more powerful languages, assembly and yes, direct binary programming was very common in the early days*, search the history of computers and you will know it to be true.

    * and has a resurgence (smaller each time) every time a new Even Smaller platform comes out.

    >In practice, only machines communicate in this root language, not people.

    Actually computers almost never communicate using processor opcodes, rather they use things like HTTP/XML/IMAP/POP//etc.

    – Foo Quuxman

  23. @ Andrew Poelstra

    I think that Michael is suggesting that if you break a law, but the law was “you can’t say XXX”, but nobody you were talking to complains, then you didn’t break the law.

    So basically, you would have anti-speech laws, but the government is not allowed to be the one to lay charges.

    I should have mentioned this earlier, but I have only the vaguest idea about what Michael is trying to say. But if he was a real politician… it would be terrifying.

    I think that laws against spam (unsolicited legitimate offers to sell something) and laws against “hate” speech are evil. I should be able to hate who I choose, including based on race and say what I want about my ideas (but not necessarily say it at 110 dB). I think racism is stupid and offensive but it should not be illegal for me (it should be illegal for the government).

    Evil laws should be removed, not circumvented by a set of rules that undoubtedly would be more complex over time. What Michael is suggesting (which, as I said, I don’t really know) would encourage laws against speech except speech that is needed to… uh…. vote?

    I can’t tell what he means, but he wants spammers to “live in fear”. So, maybe my neighbour to the left wants a law against saying “fuck” and my neighbour to the right wants a law against saying that I hate Honda and the guy across the street wants a law against me speaking to his wife and….

    Evil laws would proliferate where the majority wants to fuck over a minority.

  24. @TomA:

    To be clear, are you saying that you can read a string of binary digits in an execution file and understand what it is saying?

    I have done that many times in the past, yes.

    @Foo:

    Most programmers don’t learn assembly or raw binary (and for which processor?!)

    This is not true of the programmers I know. But I have always been employed in low-level pursuits.

    so no.

    Just to be clear — you are not speaking for me here.

    But I cannot read French so is it not worthy of speech protection too?

    Precisely.

  25. @Brian Marshall:

    I think that laws against spam (unsolicited legitimate offers to sell something)… are evil.

    But if every one who would legitimately sell me something were to freely abuse my inbox, I shouldn’t be able to find any real mail inside it. The right answer I do not know, but things are not as they used to be, when such a cost accrued to making the legitimate offer that the average citizen would not be too burdened by the number of such offers coming his way.

  26. >This is not true of the programmers I know.

    That’s doubtless a result of the corner of the industry you live in; you inhabit one of the few places I’d expect it. Elsewhere, I expect the ability to read binaries by eye is effectively nonexistent. I could do it myself at one time – but that was 30 years ago on Z80 machines, and only because the development tools were so primitive and resource-constrained that I had to. Very few programmers today find themselves in that situation, and most of those are bare-metal developers for new hardware.

  27. @Patrick Maupin

    But if every one who would legitimately sell me something were to freely abuse my inbox, I shouldn’t be able to find any real mail inside it.

    Yeah… I know.

    It is sort of frustrating, though. Years ago, I came up with a consulting idea, carefully selected about a dozen companies and sent each an email. I did not get a nice response.

    The answer seems to be sending business proposals as nice high-quality paper mail in an envelope.

    It is weird though…. email is too cheap so we can’t use it? Doesn’t there see to be something odd about that?

  28. TomA, I can still decode and understand System/370 machine code in my head, and probably still Z/80 as well…

    And, Eric, IBM mainframe sysprogs still need to understand assembler and machine code, though IBM’s been trying to stamp out the need for that for 30 years. One of the most popular SHARE sessions is the Assembler Bootcamp.

  29. >And, Eric, IBM mainframe sysprogs still need to understand assembler and machine code,

    Yeah, that’d be one of the other unsurprising survivals. :-)

  30. @ Brian Marshall

    Your definition of spam seems to me to omit the vast bulk of the email messages that ordinary people would describe with that word.

  31. @ Foo Quuxman – “Actually computers almost never communicate using processor opcodes, rather they use things like HTTP/XML/IMAP/POP//etc.”

    I used the more generic term “machines” in my comment, which could also apply to device communication on main bus. Nevertheless, this brings to mind another interesting question.

    In an imaginary world consisting solely of machines, would they evolve so as to communicate in one optimally efficient machine language or would there be a diversity of machine languages such as we have in human communication? Is diversity of language an advantage or an inefficiency?

  32. @TomM

    Your definition of spam seems to me to omit the vast bulk of the email messages that ordinary people would describe with that word.

    Yeah, I know. Spam basically means scams and scuzzballs.

    I had a Popular Electronics magazine with an ad for a 1KB memory board for $1000 (a little before the Z80 chip came out); a few months ago, I added 2GB of memory to my computer for $35. The world benefits from this change. Of course, the world has benefited from email, too.

    About 5 pounds of advertising is put into our mailbox every week, but an unsolicited business proposal by email is spam because…. the cost of email is too close zero. It is an odd thing.

    What if a new email key? encrypted certificate? was established so that the sender could prove that five or ten cents was paid per email and, therefore, it would not be detected as spam but accepted as basically the same thing as a first class snail mail letter? Would anyone want such a thing?

  33. @TomA

    Is diversity of language an advantage or an inefficiency?

    I would say an inefficiency. I don’t know much about this, but I think that the EEC meetings are all in English, even though the only EEC country in which English is the native tongue is Ireland. English, the language of technology, the language of rock and roll, the language that is (maybe) the most common second language in the world is an advantage (for a little while longer, hopefully).

  34. “””But in my utopia, the three criteria would apply to civil court cases too. This is the main case where my free speech would be stronger than current real world free speech. The judgment of a listener that someone else’s speech was not libelous is final, no matter how much money the “victim” is prepared to spend on civil lawyers.”””

    Er, in cases of _actual_ libel, where the statements are objectively untrue, successfully convincing the people you tell those lies that they are true means the harm to the person you are lying about is _worse_. SLAPP cases are when the statements are NOT objectively untrue and the so-called victim is using the legal system as a weapon, but that doesn’t mean that libel isn’t a real thing.

  35. @Brian Marshall:

    It is sort of frustrating, though. Years ago, I came up with a consulting idea, carefully selected about a dozen companies and sent each an email. I did not get a nice response.

    And I’m sure you wouldn’t have gotten one from me, either. I detest being contacted by strangers wanting to sell me stuff. When I want something I can easily figure out where to find it.

    The answer seems to be sending business proposals as nice high-quality paper mail in an envelope.

    True. When I bin one of those, I at least have the satisfaction that the sender spent _something_.

    It is weird though…. email is too cheap so we can’t use it? Doesn’t there see to be something odd about that?

    WTF??!? I use email all the time. Are you suggesting that you don’t?

    Don’t conflate legitimate use of email as a bidirectional communication mechanism with your use of email to spam (and, yes, sending unsolicited proposals to a dozen companies in the forlorn hope that one of them might possibly reciprocate is, IMO, spam).

    About 5 pounds of advertising is put into our mailbox every week, but an unsolicited business proposal by email is spam because…. the cost of email is too close zero. It is an odd thing.

    Don’t kid yourself. It’s ALL spam, and I detest the crap in my physical inbox almost as much as the crap in my email inbox, and mostly for the same reason — wheat might be lost in the chaff. But don’t for a minute deceive yourself into thinking that I would view the most innocuous commercial message even from you as part of the wheat.

    What if a new email key? encrypted certificate? was established so that the sender could prove that five or ten cents was paid per email and, therefore, it would not be detected as spam but accepted as basically the same thing as a first class snail mail letter? Would anyone want such a thing?

    This has been proposed many times, IIRC even by the USPS, which, for some strange and unknown reason, fears that it is losing relevancy. As far as I’m concerned, this would only be workable if I could set the price and receive the proceeds — yes, I’ll open your letter and give it 5 seconds consideration, but only for $10.00.

  36. “What Michael is suggesting (which, as I said, I don’t really know) would encourage laws against speech except speech that is needed to… uh…. vote?”

    And speech needed to figure out what your vote means. The exploit that worries me is that the incumbent might assert that the Opposition eats babies, and then send anyone who says otherwise on a date with Bubba.

    Basically, to me free speech is not about the other guy’s right to make noise — it’s about my right to gather information. If other people do not tell me the truth [i]as they see it[/i] because they are afraid [i]either[/i] of Big Brother or a libel suit, then I am wronged.

    @Random832
    The problem is that even dragging people to court for a judicial determination on whether a suit is a SLAPP or not can do harm. Likely more harm than letting malicious lies “get away”.

    There’s a reasonable chance that Alan Brown of ORBS actually was doing wrong — nevertheless the civil legal interference he suffered was a travesty. One of my values as a hacker is that DNSBLs should not be sued anywhere other than in the “court of public opinion”.

  37. @ Patrick Maupin

    I detest being contacted by strangers wanting to sell me stuff.

    Yeah – same here. However, I think that there is a difference between individuals on their personal computers and businesses. There is also the aspect that if I have come up with something new, there must be some legitimate, polite way of contacting businesses to see if they are interested. That is what sales people do.

    When I sent out the dozen emails, I should have done them one at a time and made it very clear that I thought that the recipient, in their very narrow field, might be interested in my new idea. I don’t think anyone would have been annoyed if I had done the same thing by first class letter mail.

    It is weird though…. email is too cheap so we can’t use it? Doesn’t there see to be something odd about that?

    WTF??!? I use email all the time. Are you suggesting that you don’t?

    My bad. Of course I use email. I should have made my comment clearer. I was referring to using email to contact another business with an unsolicited legitimate business proposal.

  38. @ Michael Deutschmann

    Basically, to me free speech is not about the other guy’s right to make noise — it’s about my right to gather information.

    Um…free speech is about being free to speak.

  39. @ Brian Marshall

    > I was referring to using email to contact another business with an unsolicited legitimate business proposal.

    I might be alone in this but I find this slightly odd.

    It shouldn’t take much beyond a phone call (or, you know, meeting someone in person and shaking their hand) to arrange for your proposal to be promoted beyond “unsolicited”.

  40. @ TomM

    It shouldn’t take much beyond a phone call (or, you know, meeting someone in person and shaking their hand) to arrange for your proposal to be promoted beyond “unsolicited”.

    In retrospect, I totally agree – that is how I should have handled it.

  41. Free speech is that any group of humans that want to communicate can do so without restrictions on what they communicate and how they do it.

    Communicating with people who do not want to participate or matters of life and death are not really part of free speech.

  42. Re: “Um…free speech is about being free to speak.”

    It’s the brand name, but the purpose it serves isn’t exactly the same.

    Note that back in the olden days before computers, it was relatively harmless to confuse fully consensual communication (which shouldn’t be regulated) with the more disruptive methods (rallies, pickets, etc. — which /today/ should be). At that time, loose regulation of the latter was needed because there weren’t practical means to “multicast” communication, speaking to all interested folks at once while leaving hostile ones alone.

    Because technical limitations sealed the door, it was incumbent on judges to leave the window open. But today the front door works fine.

    Oh, and one off-topic bit of news I’d like to see ESR react to:
    http://www.engadget.com/2012/11/20/change-copyright-now/

  43. @ Michael Deutschmann

    Note that back in the olden days before computers, it was relatively harmless to confuse fully consensual communication (which shouldn’t be regulated) with the more disruptive methods (rallies, pickets, etc. — which /today/ should be).

    The whole point of many rallies and pickets is to protest regulations or the status quo.

    Your utopia seems to be either:
    1. exactly what you want regardless of everyone else, or,
    2. a sorta liberal fascist totalitarian state

  44. @ Michael Deutschmann

    When I wrote:

    sorta liberal fascist totalitarian state

    it may not be the best description. Maybe this is a better description of your version of utopia:
    a sorta liberal democratic totalitarian state

  45. @ Michael Deutschmann

    Actually, maybe your word is best: “MichaelLand” – a land where the entire legal system supports what Michael’s likes and dislikes.

    This would, of course, be terrifying for everyone else in MichaelLand.

  46. One thing to consider for those of you who find non-political broadcast speech rights so important:

    Today, rich private citizens can violate it by firing or refusing to hire people who have in the past spoken in ways the rich citizen doesn’t approve. Surely you’ve all heard of the businesses that demand people’s Facebook passwords — not that the passwords are even required to do this harm.

    To avoid that, we’d have to make Basic Income Guarantee (welfare without the job-search harassment) one of the special laws that overrides majority rule. Then muzzling oneself to fit the best employer available would be just a free choice, not an inescapable sacrifice.

    Now, I’m okay with majority-proof BIG. Are you?

  47. @Michael Deutschmann:

    To be clear, all I have to do to get a guaranteed income in your world is declare myself, for example, to be a Branch Davidian polygamist with the divine right to marry multiple 13 year old girls?

    Wait a minute — I don’t even have to do that! If I don’t have to interview any prospective employers, I don’t even have to bother to try to offend them. Cool! Sign me up! But who are you going to get to pay for all that?

  48. @Michael Deutschmann:

    To be clear, I am certainly in favor of insuring that nobody starves. But that doesn’t necessarily translate into giving what is ordinarily understood to be a “basic income” to them. I think there is a happy medium between the workhouses of old and the current situation of today where, for example, multiple generations of families in England have never known work.

    There will always be those who cannot or will not work, and we should take care of them, without doing so in such fashion that is appealing enough to increase their numbers.

  49. @ Patrick
    > without doing so in such fashion …

    While I don’t think you are a conservative, this is a bit of a dangerous argument.

    I think the mistake conservatives make here is to assume that there are vast hordes of unwashed just sitting waiting for an opportunity to become unproductive.

    This leads them into all sorts of morally dubious schemes to reduce “welfare fraud”, often without a countervailing focus on, say, tax cheats, which in turn leaves them open to claims that they are not at all interested in “looking after” those who can’t work after all.

  50. ESR,

    interesting that you do not mind accents/dialects that “sound thick” therefore “sound stupid”… have you ever heard Brummie? I always felt like the average IQ drops in the room by 20 when someone answers the phone as “O’royt’moyt!”, while a good RP can make everybody come accross as knowledgeable and having educated opinions. Wonder why you aren’t a “snob” in this regard?

  51. Wrong thread or WordPress acting up again (happened before) anyway sorry, I meant the language one…

  52. >Wonder why you aren’t a “snob” in this regard?

    Possibly because I’ve lived in London and therefore know better than to think RP connotes intelligence. :-)

    I’ve noticed that the accents I find pleasant are those that don’t mash together a lot of phonemic distinctions, and so preserve phonetic distance between word pairs that might otherwise become homophonous. My native accent, which is educated east-coast middle American, is known among linguists for being near-maximal in this respect; about the only distinction we tend to lose that other dialects of English have is that between the medial vowels in “father” and “block”. I suppose, unconsciously, it sounds to me like a lot of other English speakers are mumbling or careless.

    RP is a particularly grave offender. The mashed vowels, the r-dropping – yuck. Extreme examples of it sound to me like speech impediment. Scots accents, on the other hand: while they have different realizations of various phonemes than I would speak (a tendency for /r/ to be trilled and fronted, for example, rather than the American alveolar approximant) don’t seem to lose nearly as much information. A perhaps surprising standout in this respect is West African accents – there’s some vowel shift but the consonants are crisp and well-distinguished in a way I find very pleasant to listen to.

  53. > comments / confirmations / rebuttals ESR?

    Coordinating action on difficult issues is not helped by hysterical arm-waving. This screed does nothing to improve my opinion of Assange, who is on the right side of some issues but seems way too hooked on his celebrity status. Yeah, crypto is important; now shut up and show me the code.

  54. @ESR

    Yep, pretty much what I figured, hysteria with just enough truth that I wanted to double check it with someone who is good at seeing through the bullshit, thank you.

    p.s. Subconscious hysteria filters are awesome.

    –Foo Quuxman

  55. @Michael Deutschmann
    > Note that back in the olden days before computers, it was relatively harmless to confuse fully consensual communication (which shouldn’t be regulated) with the more disruptive methods

    I think an important point about free speech is being missed here (in fact it is missed about many civil rights.) Free speech is about our right to speak in public places, not in private spaces. You have the right to bang on about anything you like, make offensive comments about soldiers on the sidewalk outside the graveyard. You do not have the right to do the same inside the private cemetery, or on my front lawn, or on my computer or my phone line.

    If you participate in the global community of email, or the telephone network you expose yourself to certain risks of over communication. But nobody has a right to email you, or phone you and claim it is a first amendment issue. It isn’t. The phone, computer, email address and so forth belong to you. At which point it becomes a matter of policy for the management of the networks you choose to join.

    Email spam is not free speech, it is often a breach of network rules, and consequently an illegal taking of property. The right way to deal with it is internally and part of the network rules and management or alternatively client side management. Criminal and civil law do not seem an appropriate approach at all, except insofar as there is a need to enforce contracts.

    BTW, the RKBA is pretty much the same in my opinion.

  56. Oh, and BTW something else which is kind of peripheral to this, but related sufficiently tenuously that I want to put it out there.

    One of the problems with a lot of those network things is that they have these privacy policies that are way too complicated for most people to read. This is a pretty common problem, and what is really needed is a reliable expert partner to advise us and boil it down into a simplified form. We do this all the time: Doctor what drug should I take — we don’t read the research, we rely on our expert adviser. Eric what software license should I accept? Safety standards board, is this car sufficiently safe for my children? Realtor, is this a fair price for this house?

    It seems to me that the same solution could be applied to these complex privacy policies. They are general enough that a few general policies could be written, and then corporations could adopt them.

    What is required is some trustworthy body with sufficient heft and with sufficient realism to write them and offer their imprimatur. Perhaps someone like the open source initiative.
    They could define, say, three privacy policies of different levels of privacy, and publish them as OSI Privacy Level 1, 2 and 3. Then corporations could use those privacy policies, or have their own privacy policies certified in the same way open source licenses are.
    I think something like that could actually work. You wouldn’t get google and facebook on board, not right away anyway, but I think a lot of smaller web sites would adopt this approach, and over time and the network effect, something could really grow out of it.

    All it takes is the will and evangelical skill of someone like Eric to make it happen.

  57. >All it takes is the will and evangelical skill of someone like Eric to make it happen.

    Not quite. OSI was able to do what it did because there were already a small number of widely-recognized classic licenses from which inferring a real community consensus was straightforward. There aren’t any established analogues of MIT/BSD/GPL for privacy policies, and there are a lot more knobs to twiddle. I think this is a much more difficult problem, even well before the evangelism stage.

  58. @TomM:

    While I don’t think you are a conservative, this is a bit of a dangerous argument.

    By either current Republican party standards or Ayn Rand standards, no, I am not a conservative. If the government is going to take care of the worst off, even in a very minimal fashion, that implies a certain amount of income redistribution. That implication should neither be carte blanch for steeply graduated redistribution, nor somehow pretended to not be redistribution. Either stance gets in the way of rational discussion about the criteria for who income is redistributed to, and how much they should receive, never mind the related question about who the money should come from and in what proportion. The outcome of the process is a series of fractured, contentious compromises which let a lot of people fall through the cracks, and which yet manage to work far better than we should have a right to expect (partly because many of the cracks are filled by private charity).

    I think the mistake conservatives make here is to assume that there are vast hordes of unwashed just sitting waiting for an opportunity to become unproductive.

    That’s not a mistake — it’s a Fox News headline!

    This leads them into all sorts of morally dubious schemes to reduce “welfare fraud”, often without a countervailing focus on, say, tax cheats, which in turn leaves them open to claims that they are not at all interested in “looking after” those who can’t work after all.

    There is no such thing as a “countervailing focus”. The moral imperative to keep the government from handing out any money whatsoever implies the imperative not to give the government any money whatsoever. Anybody who can get away with helping to starve the beast without getting caught is to be lauded, not convicted.

  59. I recently had a chance to visit Bletchley Park and commune with the Colussus, among other things.

    They had just booted up the WITCH, the worlds oldest digital computer running. It was remarkable to see many core ideas in software realized in hardware… except this machine filled half a room, stored 99 numbers, and had no program memory (except paper tape).

    You can HEAR an add, and a shift, and a multiply…

    http://www.youtube.com/watch?v=Ibc5cQAK5mo

    And in seeing the Colossus, there, too, I saw a software “loop”, made from paper tape.
    Software engineering was all so suddenly very physical, and very real, no longer abstract.

  60. re: Assange and cryptography

    Strong cryptography can resist an unlimited application of violence. No amount of coercive force will ever solve a math problem.

    I guess this guy has never heard of “rubber hose decryption”.

  61. “A perhaps surprising standout in this respect is West African accents – there’s some vowel shift but the consonants are crisp and well-distinguished in a way I find very pleasant to listen to.”

    Many English speakers seem to agree that the language as spoken in Dublin is the most pleasant sounding. (I think so, myself.)

  62. >Many English speakers seem to agree that the language as spoken in Dublin is the most pleasant sounding.

    Yes, I find that accent very pleasant as well. But this isn’t surprising in the way the West African case is, because the substrate language is phonetically not all that unlike English.

  63. Coordinating action on difficult issues is not helped by hysterical arm-waving. This screed does nothing to improve my opinion of Assange, who is on the right side of some issues but seems way too hooked on his celebrity status. Yeah, crypto is important; now shut up and show me the code.

    The code is out there. But no one is using it. The promise of ubiquitous military grade crypto hits a wall when it encounters Zooko’s triangle.

    Anyway, I think Assange’s assumption that ubiquitous crypto will deliver us from evil is fundamentally wrong for other reasons, even if such a thing were possible to achieve — namely, the precarious vulnerability of even the most secure practical cryptosystems to rubber-hose cryptanalysis. The United States government should be considered the ultimate determined attacker for crypto/netsec purposes.

  64. @TomA, yes, when I was programming the PDP8, I could read and understand octal digits as code. I wrote and debugged a PDP8 opcode disassembler one summer while working in a government job. When I entered it upon my return to school, there were only three bugs, each of them easily found and fixed.

    When I was programming 8088 assembly language, I could read most opcodes, but never bothered to because the computer could turn them into ASCII strings faster than I could understand the hex bytes.

  65. @Jeff Read
    “Anyway, I think Assange’s assumption that ubiquitous crypto will deliver us from evil is fundamentally wrong for other reasons, even if such a thing were possible to achieve — namely, the precarious vulnerability of even the most secure practical cryptosystems to rubber-hose cryptanalysis.”

    The fundamental error is in the aim of cryptography. Cryptography is a lock+key. The purpose of a lock is not to prevent all access, but to prevent access without cooperation of the person who possesses the key. Nothing more, nothing less. A key can be stolen or you can be forced to open the lock. The same holds for encrypted messages.

    Cryptography is helpful as it allows to hide certain things, eg, communications with SSL and Tor. On a fundamental level, it will never protect you against force. And for certain messages, you might consider to not encrypt. Just as you would not chose a car lock that can only be opened with your thumb, dead or alive.

  66. @Winter

    I suggest that the main value of cryptography is to make access more expensive.

    A while ago a commenter on this blog mentioned “perfect enforcement”. I got the impression that the commenter thought perfect enforcement would be a good thing.

    I suggest perfect enforcement would be a nightmare. Imagine if your car reported every time you drove 1Km/hr over the speed limit, or misjudged a yellow light. Imagine if every rule and regulation, some of which you know nothing about, were automatically enforced.

    Encryption can help keep automatic “perfect” enforcement too expensive to implement. They can’t send a couple of thugs with rubber hoses to work everyone over.

  67. @BobW
    “Encryption can help keep automatic “perfect” enforcement too expensive to implement. They can’t send a couple of thugs with rubber hoses to work everyone over.”

    We know what they want if cryptography becomes illegal. Oh, but it was illegal, and that did not work out.

    The first emperor of China tried perfect enforcement. It did not work out neither. Not for want of tools, but for the fact that power really is with the people. Hist heir was simply thrown out.

  68. The story I read was that the ruler decreed death as the punishment for everything: murder, robbery, tardiness…

    The ruller called up all his troops, many from far away. They were to assemble by a certain date.

    One group was on the road, when one soldier asked his comrads what the penalty for rebellion was. They replied ‘death’. He then asked what the penalty for tardiness was. Also ‘death’. ‘Well, brothers, we’re late.’

    The rebellion began because the ruler could not *have* perfect enforcement. It was too expensive for him.

    We need to keep “perfect enforcement” too expensive for governments to even think about. That way we don’t have to have the rebellion.

  69. @BobW
    “The rebellion began because the ruler could not *have* perfect enforcement.”

    I have heard the story, and Sima Qian is quite reliable, but it needs some context.

    Things were a little more complicated. The first emperor had died from a failed experiment with an elixir of life (really). The most powerful men in court kept his death a secret and forged a letter to the estranged heir with a command to kill himself (which he did). They then put a malleable puppet on the throne.

    As a result, the government was already unstable because of the change of command, the incompetence and illegitimate nature of the new rulers, the death of the rightful heir, the foul play, and the resentment of the emperor’s legalism (fascism in modern words).

    Then comes your story. The point is not that an army can rebel, the point is that the rest of the country supported them all out.

    http://en.wikipedia.org/wiki/Qin_Shi_Huang#Second_emperor_conspiracy

  70. @Winter

    I wrote that badly. I should have written.

    “The rebellion began because the ruler could not *have* perfect enforcement, and even attempting perfect enforcement is intolerable.”

  71. @Jeff Read

    My problem is not so much with gay marriage as with going through the courts to get it.

    Marriage is a predefined legal contract laying out certain rights and responsibilities, particularly with respect to children. This is clearly within the legislature’s baliwick.

    If people want to extend that contract to non-heterosexual couples let them persuade their fellow citizens and lobby the legislature. Going to the courts is an end run around the proper process. They jurisdiction shop until they get a sympathetic judge or judges.

    The Massachusetts legislature should have responded to the order from their supreme court with bills of impeachment.

  72. @BobW:

    “Marriage is a predefined contract”

    the definition of which, in many states, clearly violates the equal protection clause.

    “If people want to extend that contract to non-heterosexual couples let them persuade their fellow citizens and lobby the legislature”

    No reason to bother when it’s blatantly unconstitutional. Although it will be amusing to see what twists the conservative branch of the supreme court tries (maybe even successfully) to put on this.

  73. @Patrick Maupin
    > the definition of which, in many states, clearly violates the equal protection clause.

    I am an advocate of gay marriage (or any other kind of marriage you want.) However, I must say I agree with BobW here. The 14th clearly states that states should not “deny .. the equal protection of the laws.” Marriage is not a protection of the law, by a kind of civil contract, with default configuration. The privileges and immunities clause doesn’t work since it is specifically in reference to citizens of the United States, and marriage is always a state, not federal matter.

    You can be sure of one thing — the authors of the 14th were certainly not thinking that their amendment would grant the right of gays to marry. If you believe in the doctrine of original intent, which is to say, you think that it means what is says, not whatever you want it to say, this is surely very important.

    It is the same as with abortion. No reasonable, unbiased person would believe the arguments in Roe vs Wade, or accept a claim to a right to an abortion within the constitution.

    This legislation by judiciary is much easier than changing the law in all fifty states, but it is lazy, and extremely damaging to liberty.

    Advocates of gay marriage — pass the laws through your state legislatures. You will have my support. Pass pro choice legislation while you are at it. Don’t descend to ridiculous Machiavellian nonsense in the USSC.

  74. @Jessica Boxer:

    > Marriage is not a protection of the law

    Sure it is! Ask any 40 year old who is married to a 16 year old. That’s not the only possible example I can think of, but you have to admit that the lack of criminal liability for underage intercourse is a huge protection.

    > marriage is always a state, not federal matter

    Except for the whole matter where the IRS and the SSA care about marital status, sure.

    > the authors of the 14th were certainly not thinking that their amendment would grant the right of gays to marry.

    On that we agree.

    > It is the same as with abortion.

    Not IMO (see above).

  75. Patrick Maupin on Friday, December 7 2012 at 7:06 pm said:
    > Sure it is! Ask any 40 year old who is married to a 16 year old.

    > That’s not the only possible example I can think of, but you have to admit that the lack of criminal liability for underage intercourse is a huge protection.

    And that relates to gay marriage exactly how? You think we should extend that strange dichotomy of the law where consent to marriage is allowed, when consent to non marital sex is not? I am lost in the tangles of that web of logic.

    > Except for the whole matter where the IRS and the SSA care about marital status, sure.

    Yes, talking about tangled webs, indeed, the tax code reaching into every corner of our lives does arrogate the the feds an interest in everything we do. The problem is not marriage, it is the tax code. Insofar as we have to keep ridiculous silliness like different tax rates on marriage couples and non married couples, the feds can certainly offer some definitions of what they consider marriage without the taking up the twisted strangeness of different state laws. I think they did something like that a while ago, but I don’t remember the details.

    Of course, what would be better is if the got their big fat noses out of our lives.

  76. @Jessica and others
    The US constitution was written 200 years ago. All those involved are long dead. However, those who live now have to make their own laws.

    In short, I cannot see why the original intend of the writers 200 years ago should bind the people who live now. That does not square with “freedom” to me.

    But then, I am not from the USA. When we want to make things different over here, we simply change our laws and constitution. So we legalized abortion, gay marriage, drug use (but not the sale, don’t ask me why), and euthanasia. We have less abortion, euthanasia, and junkies than the USA, and maybe more marriages. The world is bizarre.

  77. @Jessica Boxer:

    And that relates to gay marriage exactly how?

    C’mon, you know how. Coy feigned ignorance does not become you.

    You think we should extend that strange dichotomy of the law where consent to marriage is allowed, when consent to non marital sex is not?

    I think that is a feature of marriage that cannot be “cloned” by a civil contract. As I mentioned, that is but one example. There are other features, as well, such as laws about testimony in court about a spouse, that cannot easily be cloned. Finally, there are societal features that cannot be easily fixed. There’s a huge difference between someone going into the hospital and saying “I’m his wife!” and someone going into the hospital and saying “I his partner and I have a medical POA — it’s in my lockbox at the house 200 miles away.”

    I am lost in the tangles of that web of logic.

    No, you’re not. You’re just invested in the agument that marriage ought to be a civil contract, end of story. That may or may not be desirable, but that’s not how it currently is.

    The problem is not marriage, it is the tax code.

    That may be one problem, but it’s not the only one. The inequality of marriage problem is real, because marriage confers benefits that no non-government-sanctioned government contract can.

    the feds can certainly offer some definitions of what they consider marriage without the taking up the twisted strangeness of different state laws.

    If that were how things were done, polygamy would be legal in Utah. Don’t kid yourself that marriage is really “just” a state issue. But I have no idea what the supreme court will do with these cases. Even if the arguments are made properly and are persuasive, it may be that we wind up with some sort of “separate but equal” regime — that states are required to allow a civil contract that confers all the benefits of marriage.

  78. In short, I cannot see why the original intend of the writers 200 years ago should bind the people who live now. That does not square with “freedom” to me.

    Well, the Constitution does have an amendment process, but it’s cumbersome and rarely used. Part of the reason is because Americans are afraid that if amending the Constitution were easy, the government would go in and add provisos and notwithstanding clauses to the Bill of Rights — such as exist in Canada, where it’s easy to prosecute someone for perceived “hate speech”, real or imagined; or in the UK where libel laws heavily favor the plaintiff and are routinely used as a tool of harassment by hucksters looking to shut down their critics.

    Personally, I don’t think it’s that big a deal. Canada and the UK do better on free-press indices than the USA.

  79. @Winter
    > In short, I cannot see why the original intend of the writers 200 years ago should bind the people who live now.

    It shouldn’t. The idea that the constitution (and for that matter all law) should be taken to mean what the plain meaning is, which is to say, what the authors meant, is not about apply 18th century values to 21st century people. It is about something much simpler and more universal, namely that those on whom laws are imposed have a fundamental right to know what the rules are. Which is to say, some judge can’t arbitrarily, and post facto, change the meaning of the law according to his whim and caprice. The law, and the constitution is what it is.

    If we 21st century people don’t like that law then we should change it. If we don’t like our constitution we should change it. But it should be changed in the way and using the mechanisms that allow for it to change. Arbitrarily reinterpreting it using criteria not allowed in the documents themselves leads to arbitrary law and tyranny. It is as simple as that.

    One need only look at the commerce clause, or the necessary and proper clause, or the general welfare clause to see where that insanity leads, namely the loss of the core founding principle — limited government.

    Is it hard to change the fundamental law of the land? Yes, very hard. But it should be hard.

  80. @Patrick Maupin
    >C’mon, you know how. Coy feigned ignorance does not become you.

    Sorry, not coy, and my ignorance is not feigned.

    > I think that is a feature of marriage that cannot be “cloned” by a civil contract.

    My point was that it is a stupid feature of marriage. What difference does it make if there is a marriage contract in place as to whether that sort of sexual relationship is abusive?

    > There are other features, as well, such as laws about testimony in court about a spouse,

    I don’t have a strong opinion on that.

    > Finally, there are societal features that cannot be easily fixed.

    I think the example you gave is hardly all that hard to fix.

    > No, you’re not. You’re just invested in the argument that marriage ought to be a civil contract,

    Not really, I’m invested in the idea should leave people the hell alone, unless they are harming others, and shouldn’t offer advantages to some couples who chose arrangements they approve of. But what I’d rather have is the design in the constitution where states got to choose themselves, and got to choose what a marriage in another state meant in their state (with respect to their constitutional obligation to give full faith to the other states’ decision.)

    > because marriage confers benefits that no non-government-sanctioned government contract can.

    Either because that benefit should not be conferred, or because the contract system is inadequate.

    Of course you missed far and away the most important one, which is to say children. That is a huge topic, related to the exchange of rights an obligations taking place when a person becomes a parent. We can explore it if you like, but it would be a long conversation.

    > If that were how things were done, polygamy would be legal in Utah.

    And that is bad why?

    > that states are required to allow a civil contract that confers all the benefits of marriage.

    I don’t recall anything like that in the constitution, or is it in the 9th? No, my mistake, the 9th says they can’t do that.

  81. @Jessica Boxer:

    My point was that [ability of 40 year old to marry 16 year old] it is a stupid feature of marriage. What difference does it make if there is a marriage contract in place as to whether that sort of sexual relationship is abusive?

    So you can’t imagine a non-abusive such relationship? (I can certainly imagine one; how many actually exist is an open question. OTOH, if the parents are willing to sign the paperwork, arguably the kids are better off away from the parents, anyway…)

    I think the example you gave is hardly all that hard to fix.

    How would you fix it? The easiest way is obviously to have some shorthand way of saying “we have contracted to take care of each other in all aspects of our lives.” Currently, the word for that is “marriage” although I will admit that something like “domestic partnership” could work. But there will always be laggards who don’t understand it’s legally the same thing.

    Not really, I’m invested in the idea should leave people the hell alone, unless they are harming others, and shouldn’t offer advantages to some couples who chose arrangements they approve of.

    Yes, but the perfect is the enemy of the good. Good luck getting government completely out of the marriage business. And if the government is in the marriage business, then the question of who gets to marry is highly pertinent.

    because marriage confers benefits that no non-government-sanctioned government contract can.

    Either because that benefit should not be conferred, or because the contract system is inadequate.

    Well, it will be interesting to see if the Supreme Court decides to somehow make the contract system better. I have no idea how they will rule, but I can’t imagine them invalidating the contracted status of legally married heterosexual couples.

    Of course you missed far and away the most important one, which is to say children. That is a huge topic, related to the exchange of rights an obligations taking place when a person becomes a parent. We can explore it if you like, but it would be a long conversation.

    People get married to have children, it’s true, but for guys that’s almost always a losing proposition. Is that what you meant? ;-) But marriage is not a prerequisite to having children, and the desire to have children has never been a prerequisite of marriage. Given that even many heterosexual couples use sperm donors, it’s arguable that lesbian couples have a much better chance of procreating…

    If that were how things were done, polygamy would be legal in Utah.

    And that is bad why?

    Please do not confuse what I report with my opinions. However, I will note that I don’t think arguments for government-sanctioned polygamous marriage are as strong as arguments for extending two-person marriage to any two persons desiring to wed. (OTOH, there is a strong argument that if people want to live in polyamorous arrangements without said special contracts, the government should leave them the hell alone.)

    that states are required to allow a civil contract that confers all the benefits of marriage.

    I don’t recall anything like that in the constitution, or is it in the 9th? No, my mistake, the 9th says they can’t do that.

    That’s your opinion, and it very well may be that of the Supreme court. My opinion is that if I am allowed to have a specially privileged contract with the woman of my choice, then under the 14th amendment, any other person (including a woman) ought to have that same right.

  82. Wow, this thread has gone far afield.

    On the gay rights and constitution field, while I think the religious homophobes are essentially crazy, I don’t believe they deserve to have their votes ignored. To me, the argument that in their fantasy-utopia equality is not violated since a gay man is free to marry anyone the straight man is allowed to, and the straight man is not allowed to marry anyone the gay man can’t, is cogent.

    Pointing out that the gay man is by definition uninterested in the options available to both, would go down a deep rabbit hole. Could a man argue that equality demands that he be allowed to play with hallucinogenic drugs, on the grounds that his neighbor has a pet tiger? The argument would be that since the neighbor has no interest in drugs and he has no interest in exotic pets, an equality to “do whatever you most badly want to do” is violated.

    That way lies constitutional judges meddling in college budgets, trying to enforce “equality” between jocks and nerds. Madness, in other words.

    Also, there’s one other reason I hate the precedent of constitutional gay rights. If there are constitutional gay rights, then fair’s fair and there are constitutional straight rights. Which puts another obstacle in front of any hope of solving the overpopulation problem.

    It’s easy to modify straight sex to make it population-safe, but legally requiring that would put a Catholic in a much deeper fix than a gay man subject to a sodomy ban.

  83. @Michael Deutschmann:

    To me, the argument that in their fantasy-utopia equality is not violated since a gay man is free to marry anyone the straight man is allowed to, and the straight man is not allowed to marry anyone the gay man can’t, is cogent.

    The question, as I mentioned in my last comment, is not whether a gay man can marry the same person a straight man can — it’s whether a gay woman can marry the same person a straight man can. If not, you are not treating her the same as you treat him. Yes, you’re treating her the same way you treat all the other women, and him, the same way you treat all the other men. No, that is not the same as treating everybody the same. Yes, it is homophobe fantasy-utopia to believe those are the same.

    Could a man argue that equality demands that he be allowed to play with hallucinogenic drugs, on the grounds that his neighbor has a pet tiger?

    None of your other arguments are persuasive, because they don’t map to the proper question.

    Also, there’s one other reason I hate the precedent of constitutional gay rights. If there are constitutional gay rights, then fair’s fair and there are constitutional straight rights. Which puts another obstacle in front of any hope of solving the overpopulation problem.

    Now, that’s just downright scary. Can the rest of us agree that the right answer is usually not the one proposed by Michael Deutschmann?

  84. @Patrick Maupin
    > So you can’t imagine a non-abusive such relationship?

    I never said that, I only pointed out that the marital transaction is almost entirely irrelevant to whether it is abusive or not.

    > How would you fix it?

    The American Red Cross sets up a web site where people can, via their doctor, register the people who can hear about and make decisions regarding their medical treatment. (Or alternatively, Australian radio stations set up a service to allow access to the private medical information about your loved ones… OK, gallows humor, what a weird situation that is, don’t you think?)

    > Yes, but the perfect is the enemy of the good.

    For sure, but getting the feds involved is a bad plan, they already control way to much. Just because states have to give good faith to each other’s documents doesn’t mean they have to grant like privileges.

    > Good luck getting government completely out of the marriage business.

    Oh, I think government is largely unfixable in all areas. The insanity of the last election simply goes to prove that an overwhelming number of the american people are utterly incapable of directing their own government, and we are in a slow death spiral.

    >People get married to have children, it’s true, but for guys that’s almost always a losing proposition. Is that what you meant? ;-)

    No, and I find your statement about men entirely wrong, in fact I think it is verging on misandry. You missed my point though. There is a trade when children are born, where their parents or custodians are granted extraordinary rights over the child in exchange for accepting considerable responsibility for the child. This is a trade the government makes because of the child’s incompetence to govern their own affairs. Marriage is a context in which that trade took place so gay or poly marriage impacts it considerably.

    > government-sanctioned polygamous marriage

    As I have said before I don’t think governments should sanction or not marriage. However poly does add the complication of having multiple carers. For example, if I have three husbands, who decides when it is time to pull the plug on the life support?

    > That’s your opinion,

    Indeed, and that is often the response on these matters. However, the 9th amendment is not complicated. It takes the Byzantium of the courts to turn a few simple words into endless arguments over how many angels can fit on the head of a pin. Which is to say, it is pretty simple until you get lawyers involved.

  85. @Jessica
    Legal marriage handles legal an economic responsibilities over children and spouse (sickness and health). The latter because of child care and house hold duties.

    With it comes a large package of other rights and obligations.

    Over all, we have here the option to get these by contract. However, this is such an administrative burden that most people, whether straight or gay, see marriage as a relief. Simple and complete.

  86. @Winter
    > Over all, we have here the option to get these by contract.

    That is fantastic. The dutch really have their shit together about some stuff.

    > However, this is such an administrative burden

    But this is the classic government problem. The government offers a substandard product for free, one that gives them control and power over your life. This squeezes out alternative private options. If there were no government marriage one can readily see churches, for example, providing a packaged solution for little cost. But the existence of government marriage precludes that from happening, and insofar as it does happen (as is frequently the case with gay marriage) it is inadequate due to the arrogation of certain rights to governments only, and due to social opprobrium since it is not a “real” marriage.

    Which is to say, the very existence of government marriage precludes the development of a private alternative.

  87. @Jessica
    Marriage is a strickt government monopoly in the Netherlands. Only a civil servant can marry two people. But this is all a Dutch (and French?) peculiarity.

    However, for the rest you are right.

  88. @Jessica Boxer:

    I never said that, I only pointed out that the marital transaction is almost entirely irrelevant to whether it is abusive or not.

    I disaree somewhat. The older person willing to enter into a legally binding contract with a minor (which contract, btw, in most states essentially elevates the minor to status of adult and puts them on a more equal footing with the older person) is probably not the same older person who makes (used to make?) sex trips to Thailand to get what he couldn’t get locally.

    The American Red Cross sets up a web site…

    Whoa. Stop right there. If there is any organization more incompetent than government, it’s the American Red Cross. They used to be one of the charities I gave to, but I volunteered with them during Katrina, and they managed to make FEMA look really, really good. But in any case, your proposed fix requires working internet, etc., and has a whole lot of centralized-database-personal-information issues. In short, it’s much more complicated than telling the doctor “I’m his wife.” I honestly don’t view it as a fix. Besides, as soon as you make a single organization the clearinghouse for this sort of information, congratulations — you’ve just elevated them to the status of “branch of government.”

    For sure, but getting the feds involved is a bad plan, they already control way to much. Just because states have to give good faith to each other’s documents doesn’t mean they have to grant like privileges.

    I’m not sure how to parse this. By your logic, what should have happened several decades ago when a mixed race couple moved to a state where this was illegal? Surely, there are only two choices — remove all sanctioning of marriage by the state, or allow mixed race couples the same rights and privileges as non-mixed couples. I think I know your preference of those two, but that’s just not going to happen. Given that, what should happen? Should one state be allowed to say “we don’t do that here?”

    There is a trade when children are born, where their parents or custodians are granted extraordinary rights over the child in exchange for accepting considerable responsibility for the child. This is a trade the government makes because of the child’s incompetence to govern their own affairs. Marriage is a context in which that trade took place so gay or poly marriage impacts it considerably.

    This is a retro viewpoint. According to the CDC, in 2010, 41% of births were to unmarried women. And most laws regarding kids don’t have anything to do with marriage. You can have a custody battle without marriage. These are only rarer because people who don’t require formalities to get together often don’t require formalities to split up, and most custody battles are usually really about money, with the kids being mere pawns.

    But the relationship between kids and adults and society and the law is instructive. If I go to pick up a child at school, and the child shouts “Daddy!!!” and runs into my arms, it’s an easy thing, even if the adults there have never seen me before. That’s because terms like “wife”, “husband”, “daddy” and “mommy” are visceral. The very reason why conservatives want to keep them sacred is exactly the reason why they need to be shared with others who need to use them in exactly the same fashion.

    As I have said before I don’t think governments should sanction or not marriage.

    Good government is symbiotic (not parasitic) with society. Even now, marriages are still part of the glue that holds society together. It would be truly exceptional (in the sense of being completely unexpected and outside the norm) to see a society which didn’t think marriage was useful enough to gain at least a few special perquisites from the government.

    However, the 9th amendment is not complicated.

    But neither is the 14th, really.

    It takes the Byzantium of the courts to turn a few simple words into endless arguments over how many angels can fit on the head of a pin. Which is to say, it is pretty simple until you get lawyers involved.

    But the lawyers won’t be arguing that government shouldn’t make special laws regarding marriage. Those are a known starting point. The lawyers will be arguing whether or not it is fair (compelling interest and all that rot) for government to give special status to some exclusive, voluntary pairings of consensual, competent adults without giving special status to all exclusive, voluntary pairings of consensual, competent adults.

  89. Patrick Maupin said:

    Now, that’s just downright scary. Can the rest of us agree that the right answer is usually not the one proposed by Michael Deutschmann?

    I agree. Michael Deutschmann seems to want a totalitarian (or, at least very large, very powerful) government to impose his values on everyone.

    The thing is… I don’t like to jump back into this thread just to make insulting remarks about someone but….

    I stopped replying to Michael’s comments because, in so many cases: I can read and understand Michael’s sentences. But he will say something and then draw a conclusion from it and… I just have no idea what he is talking about.

    The classic example is when he suggested that a Basic Income Guarantee would fix the “problem” with potential employers wanting Facebook passwords and generally seeing what potential employees have said on the web.

    It seems to me that either I am insane or Michael is.

  90. The American Red Cross sets up a web site…

    Whoa. Stop right there. If there is any organization more incompetent than government, it’s the American Red Cross. They used to be one of the charities I gave to, but I volunteered with them during Katrina, and they managed to make FEMA look really, really good. But in any case, your proposed fix requires working internet, etc., and has a whole lot of centralized-database-personal-information issues. In short, it’s much more complicated than telling the doctor “I’m his wife.” I honestly don’t view it as a fix. Besides, as soon as you make a single organization the clearinghouse for this sort of information, congratulations — you’ve just elevated them to the status of “branch of government.”

    This specific bit is actually pretty easy to take care of with what’s called a contingent medical power of attorney, and it’s a worthwhile model to consider for unbundling the rest of the standard marriage contract.

  91. @Christopher Smith:

    Yeah, but is that something you will always have with you? The problem isn’t really all that easy to wrap up and put a bow on.

  92. @Patrick Maupin
    > I disaree somewhat.

    I agree with your claim that prostitution is not the same as marriage, but I am not sure how it advances your point.

    > Besides, as soon as you make a single organization the clearinghouse for this sort of information, congratulations — you’ve just elevated them to the status of “branch of government.”

    Is Visa a branch of the government? Who said anything about a single clearing house?

    > I’m not sure how to parse this. By your logic, what should have happened several decades ago when a mixed race couple moved to a state where this was illegal?

    What should have happened? That is a hard question to answer, but if the states are sovereign then they are perfectly at liberty to refuse special benefits to the mixed couple, much as Illinois currently denies special benefits to polyamorous marriages, even while recognizing that their state of origin indicated them married. The advantage of living in a multi sovereign society is that if you don’t like Mississippi’s laws, you can always move to Oregon. The solution we took — the arrogation of power to the center — means that that choice was stolen from us. No longer were we granted the private choice as to what legal regime to live under, we all had to live under the same one and cross our fingers that it was just. It is easy to wring our hands about those evil Alabama farm boys, but the solution, federal civil rights legislation, has second order consequences of quite dreadful proportions.

    > 41% of births were to unmarried women.

    Patrick you sexist pig. How come women have to take on all the child bearing responsibility. It is time for you guys to step up to the plate… (This is called argument by deflection, because you make a good point…)

  93. Quite a number of women around me are umarried women. However, they live with the fathers of their children, with a contract. Often for decades now.

    So unmarried does not mean single.

  94. The point about BIG is that it means a citizen can stay “on strike” all his life if employers are unreasonable. Thus employers who throw their weight around, such as by demanding Facebook passwords, get starved of workers. I consider this far less totalitarian than having judges micromanage everyone’s HR to ensure no one is “taking advantage”.

    One other thing I should point out. My disgust of most constitutional maneuvers isn’t because I have totalitarian plots on the boil — it’s more akin to the disgust one would feel at an operating system where webpage rendering is done from kernelspace. Kernels and constitutions aren’t done when there is nothing left to add, they are done when there is nothing left to take away.

  95. @Jessica:

    I agree with your claim that prostitution is not the same as marriage, but I am not sure how it advances your point.

    I think most state laws regarding marriage and minors are compromises. In general, minors should not be engaging with sex with older men. But some minors are ready for marriage, and requiring the parents and the minor and the older man to all agree to a contract is a reasonable way to reduce the incidence of abuse.

    The advantage of living in a multi sovereign society is that if you don’t like Mississippi’s laws, you can always move to Oregon.

    And the advantage of living in a federation is that there are certain things that you can take for granted that work in both Mississippi and in Oregon.

    Patrick you sexist pig.

    How well you know me!

    How come women have to take on all the child bearing responsibility. It is time for you guys to step up to the plate…

    That’s all well and good, but I’m not sure we know the percentage of children fathered by unmarried men. Or the percentage fathered by married men with unmarried women or other married women besides their wives. Or the percentage of children born in marriages to cuckolded husbands…

    So, in this particular instance only, it was the easy availability of the statistics, rather than my sexual pigheadedness, that led me to discuss women.

  96. “The question, as I mentioned in my last comment, is not whether a gay man can marry the same person a straight man can — it’s whether a gay woman can marry the same person a straight man can. If not, you are not treating her the same as you treat him. Yes, you’re treating her the same way you treat all the other women, and him, the same way you treat all the other men. No, that is not the same as treating everybody the same.”

    News flash: The Equal Rights Amendment *failed to pass*. Under your argument, it was never needed and would have been superfluous. That’s certainly not what its supporters thought.

  97. Yeah, but is that something you will always have with you? The problem isn’t really all that easy to wrap up and put a bow on.

    No, but the technique itself is decentralized and can be underpinned using whatever sort of high-availability approaches are useful. For example, these days it is perfectly feasible to upload a copy to a service such as Evernote and for a designee to keep a PDF on her cell phone.

  98. @Cathy:

    News flash: The Equal Rights Amendment *failed to pass*.

    Probably because in most cases when it matters, the 14th is stretched to cover sex discrimination.

    Under your argument, it was never needed and would have been superfluous.

    Not necessarily. Without opinion about whether the ERA is or was necessary, I will note that under the equal protection clause, matters of gender are normally afforded intermediate scrutiny, but the right to marry has been declared fundamental, and matters related to that are afforded strict scrutiny. But how this plays out in the hands of the current court remains to be seen.

    That’s certainly not what its supporters thought.

    Most of the current writing I see on the ERA revolves around things like discrimination at Wall Mart. I’m no constitutional lawyer, but it sure seems to me that if the 14th amendment doesn’t cover that, neither will the ERA (which governs what government can do). In fact, when I look at this:

    http://www.equalrightsamendment.org/why.htm

    Most of what I see is a bunch of blather. And frankly, comparing viagra with contraceptives is the stupidest thing I’ve read today. (And that’s speaking as someone who doesn’t want to deny anybody contraceptives, but who doesn’t give a rat’s ass who gets or doesn’t get viagra.) Even if the equal rights act were passed, a strict reading of that would be that women can have viagra, too.

    So there may be good rational arguments why the ERA is necessary, but if the people at equalrightsamendment.org can’t figure them out and make them cogently, the thing is probably still doomed.

    The most telling thing is this:

    Most laws that discriminated explicitly against women have been removed from the books ? in many cases, as a result of the political power and expertise developed by women in the course of the ERA ratification campaign. The current legal and judicial systems, however, still often have an impact on women that works to their disadvantage, because those systems have traditionally used the male experience as the norm.

    Basically, the ERA is some sort of magical faerie pixie dust that means that a certain class of people no longer have to be vigilant about maintaining their rights. And if you believe that, I have a wide selection of bridges at fire-sale prices. I’m sure one of them has your name on it.

    In my opinion, the ERA is kind of like the GPL — what’s not to like about equality or free? But show me precisely what wrongs it will right if you want me to get outraged at its lack of passage. FWIW, I am a Texas native, and Texas both ratified the national ERA and passed a state one. I’m in favor of all this, but that may be my naivete about any potential downsides of the legislation. The opponents are either mouth-breathing mysoginistic luddites, or very smart people who can forsee negative consequences better than I can. I know a lot of them are in the former camp, but don’t know about the second camp. But the proponents certainly haven’t done a good job of outlining concrete improvements that would definitely happen.

  99. If it is unjust to treat things that are the same differently, is it also unjust to treat things that are different the same?

  100. The problem where doctors won’t divulge medical information to the patient’s partner is not that the partner has to show a marriage license. The problem is that doctors are by law forbidden to discuss patients with unauthorized people. The law will punish doctors for talking to the wrong person, instead of punishing unauthorized people who get information under false pretenses.

    The Australian DJs should be punished.

  101. @BobW:

    If it is unjust to treat things that are the same differently, is it also unjust to treat things that are different the same?

    I hope that’s not a serious question.

  102. If it is unjust to treat things that are the same differently, is it not also unjust to treat things that are different the same?

    I hope that’s not a serious question.

    I did leave out the not when I typed it the first time.

    Is your response serious? Does your response change now that I’ve repaired my mistake?

  103. @BobW:

    How’s this for a serious response:

    Anybody who poses a question that is so open-ended as to be meaningless, and who earnestly claims that it is a serious question, is an idiot, or is parroting talking points from the religious opponents of same-sex marriage. Unfortunately, those two possibilities are indistinguishable to me.

    Now, my question is: are you that idiot, or are you merely trolling?

  104. @Christopher Smith:

    No, but the technique itself is decentralized and can be underpinned using whatever sort of high-availability approaches are useful. For example, these days it is perfectly feasible to upload a copy to a service such as Evernote and for a designee to keep a PDF on her cell phone.

    That’s still missing the point entirely. If my wife is in the hospital, all I have to do is utter the magic words “I’m her husband” and then I can magically be involved in her medical care. I don’t need a cellphone or even a piece of paper. Some suspicious doctor might ask for a driver’s license just to keep records, but that’s about it. These days, thanks to a lot of women choosing to keep their maiden names, my name doesn’t even need to be the same as my wife’s.

    @BobW:

    The law will punish doctors for talking to the wrong person

    No, the implementation of the law fails to act in even some very egregious cases.

    instead of punishing unauthorized people who get information under false pretenses.

    Pretexting laws are gaining more teeth every year. This is coming.

  105. @Patrick Maupin
    > all I have to do is utter the magic words “I’m her husband” and then I can magically be involved in her medical care.

    Apparently, all one needs to do is call with a posh accent and say “She is my grandson’s wife”, add a couple of friends barking like corgis and you are good.

    Which is to say, uttering “I’m have medical authority for this person” is really no different, except in a level of social expectation, something that changes pretty quickly.

  106. Apparently, all one needs to do is call with a posh accent and say “She is my grandson’s wife”, add a couple of friends barking like corgis and you are good.

    Which is, to some extent, how it should be. One would hope that pulling the plug on life support would require a bit more proof of identity, but we have to be careful of adding too much friction to normal interactions based on a few bad actors.

    Which is to say, uttering “I’m have medical authority for this person” is really no different, except in a level of social expectation, something that changes pretty quickly.

    Except that, if 95% of the people keep saying “I’m his wife” then the 5% who have to say “I have medical authority” are still outliers.

  107. @Patrick Maupin
    > Except that, if 95% of the people keep saying “I’m his wife”

    I think if lots of people are saying “I’m *his* wife”, we are in pretty good shape.

  108. @BobW. The problem is that no case brought to the courts is ever exactly the same as another. We have to agree on what differences are significant and what are not.

    @Patrick. Making it a gender equality issue rather than an “orientation equality” issue would be an alternative path that doesn’t raise the problems. But that doesn’t appear to be what actual GBLT activists are doing in court.

    I would note that the issue of medical contacts is a serious one, but it really needs to be decoupled from marriage entirely. Lots of people these days have emergency medical contacts whom they have no interest in ever seeing naked — and there is too much paperwork over it.

  109. @Jessica:

    Yeah, when I wrote that, I looked at it, and thought about changing it, and said “nah, it becomes unwieldly, just like the whole he/she said to him/her thing.”

    @Michael:

    Lots of people these days have emergency medical contacts whom they have no interest in ever seeing naked — and there is too much paperwork over it.

    On this we agree.

  110. I’m not about to read through all these comments today, but a quick text search has demonstrated that a very applicable quote has not yet been presented:

    From Structure and Interpretation of Computer Programs, by Abelson and Sussman (Preface to the First Edition):

    “Our design of this introductory computer-science subject reflects two major concerns. First, we want to establish the idea that a computer language is not just a way of getting a computer to perform operations but rather that it is a novel formal medium for expressing ideas about methodology. Thus, programs must be written for people to read, and only incidentally for machines to execute. Second, we believe that the essential material to be addressed by a subject at this level is not the syntax of particular programming-language constructs, nor clever algorithms for computing particular functions efficiently, nor even the mathematical analysis of algorithms and the foundations of computing, but rather the techniques used to control the intellectual complexity of large software systems.”

    I would expect that both concerns–using a computer language to communicate, *to humans*, how to perform a certain algorithm; and to control the *intellectual complexity* of large software systems–ought to be sufficent to prove that computer software is completely within the realm of free speech.

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