Breaking up Categories of Free Speech

Robert Simpson, in Aeon, proposes a new way of understanding/adjudicating free speech:

…put free ‘speech’ as such to one side, and replace it with a series of more narrowly targeted expressive liberties. Rather than locating actions such as protest and whistleblowing under the umbrella of ‘free speech’, we could formulate specially tailored norms, such as a principle of free public protest, or a principle of protected whistleblowing. The idea would be to explicitly nominate the particular species of communication that we want to defend, instead of just pointing to the overarching genus of ‘free speech’. This way the battle wouldn’t be fought out over the boundaries of what qualifies as speech, but instead, more directly, over the kinds of communicative activities we think need special protection.

I think the problem with categorizing speech is you open the door to attaching different values to each of the categories. Maybe we come to believe that categories a and b are very sacred, while categories x, y and z are somewhat less sacred. However that gets parsed, you’ve lost the notion of free speech being sacred as such.

Who cares? Maybe no one. But I’d argue that in making that move you’ve eliminated two very important, and intertwined, concepts behind the First Amendment: 1) there’s no way to know how speech will be framed or deployed in the future, and 2) courts and regulatory bodies have an important role to play in determining which actions are justified by constitutional amendments (the First being just one of them). Once you subdivide speech I fear you undermine the ability of ‘free speech’ to adapt to changing norms and methods of communication.

Also, it’s not clear to me that this proposal is about First Amendment jurisprudence as opposed to a legislative — or conceptual — reevaluation of the First Amendment. When Simpson says things like “Instead of throwing out free speech entirely…” or “replace [free speech] with a series of more narrowly targeted expressive liberties” or “Any time a country is creating or revising a bill of rights,” my mind goes to constitutional theory rather than jurisprudential history, especially given the lack of court precedent cited in the article.

If we’re talking about how judges should interpret the First Amendment as it’s written, then I think we need to have some categories, doctrine, etc. The problem is that there are always going to be new cases that come before the courts that entice or compel judges to create a new category (like ‘corporate personhood’), thereby revising — or discarding — the doctrine.

This goes back to my point about the methods of speech constantly changing, which I think makes the effort to interpret the First via some finite set of categories seem a little stuck in the present, unless you believe that Citizens United (and cases that followed) was a judicial overreach by a momentarily corporatist court (just one example from recent times). If you don’t think that, then I think you need some rationale for when/why/how it’s okay to create new categories out of thin air once you’ve committed to a framework of judging by existing doctrinal categories.

Train

On a fall night I ran to make a train:
in darkness, out of sight, the station hands moved into position,
signaling the coming of the thousand-ton beast,
and knew I would miss it. First I heard it, then felt it,
and then – as if expecting an apparition – saw it,
carving its way through the air, lifeless and sightless,
spewing smoke and noise, killing the peace
 that sat still before.
On the bridge above those tracks, I think of that piece of steel again –
ripping through the mind, carrying innocent passengers
towards a conversation – and the way, thereafter, a woman held me;
the look she gave when I arrived, not unlike the one
when I left, unexpectedly. Should I have stayed and waited?
When the hands move together now, as they did then,
it feels less like the gathering of some force
and more like the sign of things to come;
all clearly in sight, and all come undone.

Running

Coming off the river off
the ocean, a heavy wind blows down
my running path,
pushing me with the kind
of insistence with which my father,
in fits of rage,
used to say, “Move your feet!”
Why I push myself there, despite the exhaustion that haunts me at the end of a sleepless week, has something to do with the memory of that; not the sound, or the meaning it conveyed, nor even the promise of a better result, but the instinct to do what you are told by those you trust. I don’t trust him still, nor believe that good always follows good, but I still look down and see my feet moving.

The Real Problem with Miley Cyrus

I need to call out Gloria Steinem for what I feel was a slight moral slip recently. Two days ago the Huffington Post reported that she, a long-time feminist and political activist, had said this days earlier in support of burgeoning pop star and upstart nudist, Miley Cyrus:

“I wish we didn’t have to be nude to be noticed … But given the game as it exists, women make decisions … That’s the way the culture is. I think that we need to change the culture, not blame the people that are playing the only game that exists.”

Reasonable people can disagree about what “the culture” is and whether it incentivizes women in good ways. But in the case of Miley, the key issue is not the nakedness but the astounding lack of artistry. Her music videos don’t speak visually or tell a story. There is nothing interesting about them. Asking someone to watch 4 minutes of Miley partying with her friends and breaking things or swinging around naked on a wrecking ball, screams much more of “Here is a child” than “Here is a hot girl.” And even if that weren’t an issue, the depiction of her childishness in these videos fails to achieve any level that is not literal and dull. 

Nudity isn’t useless in this medium. Madonna’s music videos (this, for instance) were risqué for their time, but they were also thoughtfully erotic. Even Britney Spears’ early videos, such as this, tempered the sluttiness with choreographed dance. But Miley, who is trying to carry on the tradition of boundary-pushing female performance art, doesn’t have anything interesting to say beyond the initial offering of her body. There’s no soul, no story, and no discernible talent.   

What’s secondarily, although no less obviously, an issue, is Miley’s music. Her voice is screechy and strained, the melodies don’t achieve any special moments, and the lyrics are, unsurprisingly, childish.

She’s also a bland camera subject. Some of us knew this from watching her years ago, as an all-American (and always clothed) teen, in the Disney series, Hannah Montana. Good actors have the gift of subtlety — the ability to suggest thoughts and feelings beneath the surface without shouting them. Miley seemed to conceal little then, and even less now.

Although she’s only 20, it might be time to face the prospect that Miley just isn’t a very good artist, with or without clothes. She can’t write music, she can’t sing, she can’t put together decent music videos, and she can’t act.

It would be nice to see Gloria Steinem stick up for the girls out there who can do those things. Have you heard Florence Welch’s music? Have you heard Adele sing? Have you seen Jennifer Lawrence act? Have you heard of Lorde?

None of these girls are known for taking their clothes off, and why should they be? It seems strange to talk about the need for women “to be nude to be noticed” when so many have gotten noticed without being nude. And it seems mildly offensive to be defending Miley Cyrus’ antics when one could be celebrating the genuine talent of so many others. Getting naked and throwing a tantrum isn’t “the only game that exists,” it’s just the only game that exists for girls who don’t have game.  

Limitations to Growing the Urban Service Sector

Matt Yglesias is back on one of his favorite topics today — namely the alleged correlation between population density and service sector output in urban zones. The hypothesis here is that in small to medium-sized (and some big) cities across the country, greater population density would boost employment, incomes, tax revenues, and other such desirable economic indicators. The trouble, from Yglesias’ perspective, is that zoning policy in many cities, such as Washington D.C., is hostile to freer real estate development that would allow greater density and, by extension, better economic outcomes. NIMBY-ism is a bipartisan affliction, the theory goes, and at the end of the day most people in most cities aren’t favorably disposed to new skyscrapers and affordable housing complexes going up in their neighborhoods. As a result, cities tend to be less dense, and therefore less productive, than they could be.

This seems fairly intuitive but it isn’t well supported by the data. The densest city in the U.S. is New York City, and many of the densest incorporated places in the country also fall, for Census purposes, within New York. Los Angeles is a close runner-up, as are many of its incorporated places. In fact, of the 20 densest incorporated places in the country, 18 are in either New York City or Los Angeles. However, over the past decade, both New York City and LA have consistently had unemployment rates equal to or higher than both Washington D.C. and the national average. In terms of Yglesias’s framework, this suggests either that New York City and LA are too dense (i.e. they’ve passed the optimal point on the density-productivity curve), or that the framework itself is flawed.

I can’t say for sure which it is, although the fact that D.C.’s unemployment rate also consistently tracks above the national average lends support to the latter. Whatever the case, for a theory that posits density as a key driver of productivity, such an abundance of outliers seems problematic at the least. It certainly doesn’t seem, that is, that New York, LA, or even DC would benefit much from pro-density policy.

One problem with the theory, I’d argue, is that it downplays certain structural limitations of operating a service business. Let’s say I wanted to open up a barber shop. For starters, I would be better off doing so in Brooklyn than in South Dakota because I would have more customers and therefore greater immediate revenue. As a result, I could probably hire some employees, extend my hours, and maybe even expand the size of my shop, all of which would increase my bottom line and give a little boost to the local economy. The problem is that I wouldn’t be able to continue doing any of these things ad infinitum; more people could move to the neighborhood, but eventually I would reach a point at which I was already booked solid with customers. Barber shops don’t stay open 24/7, they don’t open stores the size of Walmart, they don’t figure out ways to do a haircut in 15 seconds, and they don’t hire thousands of people. There are structural constraints to the barber business, that is, that are not alleviated by simply increasing the population density of the surrounding neighborhood. In some sense, you just can’t cut people’s hair constantly or at a continually faster rate, and even if you could, people don’t want their hair cut all the time.

Moreover, if there was some sudden influx of people to the neighborhood, that might give someone else a reason to open up a competing barber shop down the block (more people means more potential customers, after all). To stay competitive, I might have to lower my prices, reduce employee wages, or lay people off. The only way I wouldn’t have to take any such negative steps is if my competitor and I were able to convince our customers to start getting their hair cut much more often. But even if we could do that, I’d then have to cope with the prospect of longer hours and higher demands of efficiency upon myself and my employees.

All of which is to say that as difficult as it might be to grow a service business with too few customers, it can also be difficult to grow one with too many customers. Given the data, it seems conceivable to me that in parts of NYC, LA and perhaps other cities, this is already happening — service businesses are struggling under the weight of too many customers. In my neighborhood in Brooklyn, for instance, there are five laundromats within a two-block radius and they all seem to be busy all the time. If a bunch of new people moved into my neighborhood tomorrow morning, it seems unlikely that any of those businesses would be able to expand their payrolls easily or quickly.

All of these limitations within the service sector can roughly be summarized by saying that human workers are limited in how much and how efficiently they can work. Period. Otherwise, service businesses would never fail except for lack of customers, which clearly isn’t the case. At a certain point, therefore, I think it’s worth asking how much time and energy should be invested in pursuing policies that would promote greater urban density. Towards what end? Tossing up a bunch of skyscrapers in downtown D.C. in order to expand the customer base of restaurants, laundromats, and barber shops sounds like a good way for politicians to pander to small business owners, but a bad way for cities to address long-term labor supply and demand shortfalls.

The Party of Work and Fake History

David Brooks makes some great points about the failures of the Republican party to reinvent its platform since the end of the Cold War, but it’s a bit curious that he frames the article by naming Barry Goldwater, Ronald Reagan, and George W. Bush as “ranching Republicans” who subscribed to an “American creed” of “individualism” that “shaped America and evolved with the decades.” This is glib and also biographically incorrect. Barry Goldwater grew up in Phoenix as the son of a wealthy department store owner, not on a ranch. Ronald Reagan grew up in suburban Illinois before heading to Hollywood to become an actor. George W. Bush was born into a wealthy family in New Haven, grew up in Houston and suburban Texas, and then went to school in Massachusetts and at Yale.

I don’t mean to downplay Brooks’ main argument, with which I mostly agree, but this strikes me as the sort of imaginative history that remains a problem in certain circles of the Republican party. Some conservatives still harbor a sense of their 20th century forebears as people who climbed to great heights through a combination of deep religious faith and radical individualism but without any meaningful support from government or their families. If you dig down into the facts it’s pretty hard to find pure examples of this story arc, though. A better theme for these three men might be to say that success proceeds from a variety of factors. Growing up in a wealthy family, for example, tends to open up better opportunities for education and travel early in life, which can lead to more lucrative opportunities in business and politics down the road.

The crux of Brooks’ argument is that modern conservatives want their message to be that “more government = less vitality.” That might be an appealing sentiment to many people in the abstract, but its practical roots in recent history and present experience are hard to find. Brooks acknowledges the present experience side of this, saying that Asians and Latinos, as reflected by their significant vote against Mitt Romney in the recent presidential election, appreciate the virtues of hard work but don’t necessarily see industriousness or self-reliance as being at odds with functional government. But the historical side of this is important, too. As much as Mitt Romney may have wanted voters to believe that he achieved success without any real help from government or family, at the end of the day that message didn’t connect for enough people, just as the idea that Goldwater, Reagan, and Bush achieved success all on their own doesn’t add up for historians. If you want to sell a fictionalized account of your life and have voters buy it, you have to at least reference non-fiction history, which Mitt Romney and most Republican party leaders still seem disinclined or unable to do.

That’s the shortcoming that pro-individualism, small-government conservatives must now address over and above almost anything else. Either the argument has to fit the examples or vice versa, but Ronald Reagan, George W. Bush and Mitt Romney just aren’t great examples of self-reliant frontiersmen. To be sure, building a party platform on notions of individualism and hard work is great and should be applauded, but either Republicans have to open up the history books and find new figures who actually fit this mold, or else they have to embrace the reality that success in America often results from conditions that are more varied and less romantic than those of the “ranching Republican.”

It thus seems that one policy stance a retooled Republican party could embrace is greater openness to immigration. As Matt Yglesias explains, “If a bunch of people say ‘hey, this is a nice town let’s move there’ then local investment booms since you need more houses and auto repair shops and restaurants and schools and hospitals to accommodate everyone.” As an added advantage, if these people are also the hard-working, law-abiding sort, then you can address both labor supply and demand shortfalls while building moral character in communities. It seems a like a no-brainer for post-2012 Republicans to embrace, especially given their demonstrated adoration for people who achieve economic success after moving around a lot.

Has the “Big Tent” Gotten Too Big?

Jeff Zeleny and Jim Rutenberg wrote in their post-election recap this morning that Barack Obama overcame “powerful economic headwinds, a lock-step resistance to his agenda by Republicans in Congress and an unprecedented torrent of advertising” on his path to electoral victory. To political pros on both the left and right, it is certainly noteworthy that the country voted as convincingly as it did to reelect the president after the past four years of frustration and sluggishness. But for his part, Obama once again showed himself to be a gifted campaigner, overcoming not only the shortcomings of his first term in office but also a spirited fight from his opposition and his own woes at the debate podium. Optimism about the economy is now on the rise, though perhaps not as a direct consequence of the policies that the Obama administration has pursued or the ones it championed during the campaign.

For the Republican party, as for the New York Yankees, the focus now shifts to questions about what needs to change. Mitt Romney ran a long and often thoughtful campaign, though at times he seemed hampered by the pull of extremism from within his own party. Pundits may look back at the Republican primary season, for instance, and argue that Romney’s pull to the right was too hard for him to recover towards the center in time for the general election. The Obama campaign certainly fashioned effective rhetoric out of the ideological inconsistencies between Romney as Massachusetts Governor, Republican Primary Candidate, and Republican Presidential Nominee. And, though perhaps to a lesser extent, comments made by the likes of Todd Akin and Richard Mourdock later in the campaign did not help the cause, nor did the apparent iciness between Romney and conservative darling Chris Christie in the aftermath of Hurricane Sandy.

Much apart from the Tea Party fervor that roused the base during 2009 and 2010, however, Mitt Romney and his running mate, Paul Ryan, presented a subtly new direction for the Republican Party, particularly in the waning months of the campaign. Romney presented a tax plan that, although never fully articulated, proceeded from sound economic theory and was thought by many analysts to be a good recipe for short-term growth. During the third debate, Romney distanced himself from the neoconservatism that drove Bush-era policy and showed a willingness to strategically limit America’s role in world affairs. Both Romney and Ryan demonstrated an ability to balance concerns about the national debt against concerns about the looming fiscal cliff. They even, at times, gave hints of a more hands-off attitude towards social issues, marking out an important distinction — though one that hasn’t been popular with the base — between personal values and policymaking.

During the 2000 election and even more so during the 2004 election, the Republican party thrived on its “big tent” constituency. George W. Bush won those elections with votes that cut across racial, demographic, and socioeconomic lines, and just as Obama did in 2008, he owned nearly all the swing states. But one question that must now be on the minds of Republican strategists is whether that big tent, which gave Bush and Cheney the White House for eight years, has gotten too big. At one point or another during the primary season, Herman Cain, Rick Perry, Newt Gingrich and Rick Santorum each seemed like serious contenders for the Republican nomination for president, their limited credentials and alarming ideas notwithstanding. That the nomination eventually went to a candidate with a more moderate background and superior command of the issues may say something about the underlying geology of the party, despite what the foliage on the surface has at times suggested.

Mitt Romney’s quest for the White House is over, but Paul Ryan, at the spry age of 42, has emerged as a clear party leader along with the headstrong and plainspoken governor of New Jersey. If this writer had to make an absurdly early prediction about the 2016 Republican ticket, it would contain those two men. Which invites the question, is the Republican party returning to the north once more, both ideologically and geographically? Is it jettisoning the deep social conservatism of the south, the neoconservatism of the early aughts, and the ignorant histrionics of the Tea Party in favor of some combination of fiscal pragmatism, social liberalism, and domestic nation-building?

A 2016 Republican ticket premised on the belief that climate change is real, gay marriage is tolerable, and budget deficits are sometimes okay, might be considered a late entrance into the realm of reality but would nonetheless present a stiff challenge to the Democrats. The question then is whether party leaders can root out the voices — which, for the time being, are many — that would seek to prevent that shift.

Why I Voted for Barack Obama

It mainly comes down to social (and socioeconomic) issues for me. I believe that women should have reproductive rights and autonomy. I believe that gays should enjoy civil and legal equality. I believe that the healthcare system should perform much better than it currently does, and that it should serve a much broader section of the populace. I believe that climate change is real, that it has been caused at least in part by human activity, that it poses hardcore problems for economic development both here and abroad (many of which may not manifest for decades), and that it needs to be proactively dealt with by people who grasp its reality and gravity.

I believe that rape is a crime and that pregnancy results from biological processes, not from the alleged will of the mother or a divine being.

In terms of economic and tax policy, it is less clear for me. Mitt Romney, for better or worse, never completely articulated his tax plan during the campaign. It seems conceivable to me that as president he would lower rates and cap deductions, as he proposed, and that that would provide a solid short-term boost to the economy and bring down unemployment. How that would affect the deficit in the short term is unclear, and how it would affect economic performance in the long term is equally unclear. I’ve been pleased, however, to hear that both candidates understand and acknowledge the perils of the fiscal cliff.

Barack Obama’s plan to raise taxes on the wealthy seems motivated by political rhetoric and poorly supported by economic theory. I don’t in fact think that the Obama plan would provide as significant a boost to the economy in the short term as the Romney plan would, although in the long term I think it is more prudent and equitable. Whatever the case, analysts have predicted that job and economic growth will be much stronger over the next four years than during the past four. Much of that has to do with monetary policy and the business cycle, however, not necessarily with who is sitting in the White House, and if nothing else that’s a necessary reminder of the government’s limited power to control the economy.

I believe that the government should invest in education, scientific research, and defense. I believe government should redistribute resources to the working poor, the elderly, and the destitute (the “47 percent”) — as it has done through the tax code and a plethora of social programs for the better part of the 20th century. I do not believe that lowering tax rates makes up for slashing public investment and reducing assistance to the needy.

I believe in capitalism but I believe that the government should regulate markets. Free markets are critical to a modern, industrialized nation, but only if they work properly and fairly and under the rule of law. I believe that the government should promote competition, champion legal and useful market activity, and clamp down on activity that is illegal and/or needlessly imperils the economic well-being of the nation.

I believe that government (especially the executive branch) should do everything in its power to prevent economic collapse (inasmuch as this is a recurring possibility in a capitalist economy), and I believe that the Obama-led government has in fact prevented collapse on not one but several occasions over the past four years.

Lastly, I believe in the individual, but I also believe that no individual has ever done anything great entirely on his own. I believe this country is built on the concept of groups of people working together — families, towns, companies, states. I believe that we’d be wise  to remember that we did not build everything ourselves, and that we must stand on the shoulders of those who have gone before us and work arm in arm with those beside us. This has long been the creed of our military and there is no reason it should not also be the creed of our nation.

I believe that we face a challenging road ahead, and I believe that Barack Obama is the better candidate to face these challenges and promote the goals and principles that are most important to me, and that is why I voted for him.

The Dirty Truth about the Fiscal Cliff

There’s a lot of hypocrisy and loose talk out there about the “fiscal cliff.” The term is misleading because it suggests that “jumping off” is something that precisely no one would want to do. But the financial and economic realities are more nuanced, as Matt Yglesias explains:

…the fiscal cliff itself is a policy to produce a downward trend in the ratio of federal debt to GDP over the medium term. Indeed, the main reason to think avoiding the cliff might be a good idea is fear that debt reduction would harm the economy…

The cliff itself is really three separate things that are scheduled to occur roughly simultaneously. Part 1 is the expiration of the Bush tax cuts, which were originally scheduled to expire at the end of 2010 but were extended for two years during the last lame duck session. Part 2 is the expiration of the payroll tax cut that was enacted as part of the same deal. Part 3 is the implementation of spending cuts—half to defense, half to nondefense discretionary spending—that were agreed upon as a condition of raising the statutory debt ceiling. If Congress does nothing, these three factors will drive the budget deficit to less than 1 percent of GDP by 2018 and then stay below that level through 2022, at which point demographics and health care cost issues lead it to start rising again.

The benefits to the wealthy of avoiding the fiscal cliff are clear: the extension of some or all of the Bush tax cuts and the extension of the payroll tax cut. To be sure, these measures could also benefit the middle class, the working poor, small business owners and a whole range of other people, but it’s not as if avoiding the fiscal cliff will promote the shrinking of the debt-to-GDP ratio over the medium term, as the signatories of the letter claim. It might be good growth policy to avoid some or all of the fiscal cliff and it might help put more people back to work next year, but if your sole concern is shrinking the deficit over the next decade then you ought to be pumped about jumping off the cliff.

Greg Smith and the Moral Grounds for Better Banking Regulation

Matt Yglesias rightly points out that you can’t enact a regulatory framework to ensure that people are acting on moral motives. That’s completely correct; if the executive team and the board of directors and the vast majority of the employees at Goldman Sachs all want to make lots of money for its own sake, then some people might take offense at that but it’s not something that can be regulated. Greg Smith’s new book seems to be a window into the morally bankrupt culture at Goldman Sachs and perhaps similar institutions, but nothing I’ve heard suggests that he actually lists ways in which the company has skirted regulations or broken the law.

But I don’t see that that’s a problem for the regulator or politician who wants to protect society from the fallout of the next crisis at Goldman Sachs or elsewhere. Lots of people can get temporarily up in arms about wealthy bankers doing horrible things to make money, but then people forget about all that and go back to what they were doing. Until the government comes knocking at their door asking for money to bail out said bankers. The regulatory question has never been about the moral character of the people who work at Goldman Sachs, nor should it be; it’s about how to insulate society from the inherent risks, sometimes exacerbated by low moral character, of the banking business.

Where Greg Smith’s book may have some broader significance, therefore, is in reminding voters and politicians that if we have the ability to regulate the banks more effectively and smartly then we probably should do that, because left to their own devices these institutions tend not to promote a culture of engaging in deep philosophical reflection on the social consequences of one’s actions. There is no need to go ad hominem on “evil bankers” while developing better regulation, in other words, but there is a need to develop better regulation. Dodd-Frank put forth a lot of ideas in this respect — some good, some not so good. But generally speaking the problem has been that “regulation” is a scary word that plays poorly in most political circles unless it’s tied to some sort of case study of human depravity, which is where Greg Smith’s book comes in.