Books - You Are Not a Gadget by Jaron Lanier

It feels to me as though this book is a little alarmist - based on the reviews I have read. In general, I disagree with Lanier's overall thesis, and that said, there is probably something here we need to look at more closely no matter how off-base Lanier's argument.

Here is a brief review from The New Yorker and an interview from NPR's Tech Nation.

You Are Not a Gadget: by Jaron Lanier

You Are Not a Gadget: A Manifesto (Knopf; $24.95)

In the nineteen-eighties, Lanier belonged to what he calls a “merry band” of Internet pioneers who believed that the digital revolution would mean a groundswell of creativity. But, he argues in this manifesto, around the turn of this century the dream was hijacked by “digital Maoists,” who value the crowd above the individual. Their influence, he writes, has led to an online culture of mashups, “pervasive anonymity” (which encourages bullying and moblike behavior), open access (so that individual ownership is devalued or lost), and social-networking sites that reduce “the deep meaning of personhood.” He fears that these characteristics are perilously close to “lock-in”: becoming permanent features of the Web. Lanier’s detractors have accused him of Ludditism, but his argument will make intuitive sense to anyone concerned with questions of propriety, responsibility, and authenticity.

The review does not sound very favorable to a "wired" person such as myself. Here is the interview from Tech Nation, available as a podcast.

Jaron Lanier, Computer Scientist, Composer and Author

You Are Not a Gadget: A Manifesto

Tech Nation

22 minutes, 10.4mb, recorded 2010-01-12

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Dr.Moira Gunn catches up with internet pioneer and author, Jaron Lanier to discuss his new book, You Are Not a Gadget...a Manifesto, where he discusses the technical and cultural problems that can grow out of poorly considered digital design and warns that our financial markets and sites like Wikipedia, Facebook, and Twitter are elevating the “wisdom” of mobs and computer algorithms over the intelligence and judgment of individuals.

Here are some recent online postings by Lanier that might be of interest (listed at his site). There are also some selected (positive) reviews at his page.

Jaron's OpEd in Wall Street Journal: A summary of the economic futurism argument

Jaron's answer to the annual Edge question: File sharing is a form of death denial

These four things are connected via computer science: God, memory, money, and lying - Essay by Jaron in Playboy Forum (Not sure if this is "Safe For Work")

Read an excerpt from the book via the NY Times

A review that is not listed on his site (along with the one above, from The New Yorker) comes from Slate - here is a taste:

Lanier is best known as a pioneer of virtual reality and an early star of Wired magazine. He was the guy with the dreadlocks and the giant V.R. goggles perched on his forehead, the epitome of the hippie-shaman-guru strain in tech culture. In what may have been a high point, Lanier's V.R. glove was used to power the graphics in a Grateful Dead video. Lanier lost his company in the early '90s in a then-legendary flameout, and he has been working in the seams of academia and Silicon Valley ever since. He's the barefoot guy in the conference room, ever creative, childlike.

You Are Not a Gadget is basically a collection of his Internet columns and postings, bound, set into type, and called a "manifesto." Over the years, Lanier has become a skeptic of that amorphous thing called Web 2.0. He directs most of his ire toward the "anonymous blog comments, vapid video pranks, and lightweight mashups" that flit through our browsers and Twitter feeds. But he's also critical of bigger Internet landmarks, such as Wikipedia, the open-source software Linux, and the "hive mind" in general.

It would be fitting to rue Lanier's fate as mere sausage for search algorithms if he had organized his opinions into a coherent thesis. The reality is that Lanier's stimulating, half-cocked ideas are precisely the kind of thinking that gets refined and enlarged on vibrant Web places like Marginal Revolution, Boing Boing, and MetaFilter. Lanier maintains, for example, that musical development has essentially stalled. He has a challenge: "[P]lay me some music that is characteristic of the late 2000s as opposed to the late 1990s." Lanier claims that listeners can't distinguish between recent musical eras because music is "retro, retro, retro." I would like to see that debate play out in the columns on Pitchfork.* Being scanned and rehashed in a blog post somewhere will be the best thing that ever happened to some of these words.

That is mostly because Lanier is an unreconstructed geek who throws around terms like realistic computationalism and numinous neoteny, which make your ears hurt. He will spend a few pages bemoaning the fact that a "locked-in" technology such as the computer "file" has cut off other, potentially more beautiful ways of organizing information on a computer.

As near as I can make it out, Lanier's view is that the Web began as a digital Eden. We built homepages by hand, played around in virtual worlds, wrote beautiful little programs for the fun of it, and generally made our humanity present online. The standards had not been set. The big money and the big companies had not yet arrived. Now Google has linked search to advertising. The Internet's long tail helps only the Amazons of the world, not the little guys and gals making songs, videos, and books. Wikipedia, a mediocre product of group writing, has become the intellectual backbone of the Web. And, most depressingly, all of us have been lumped into a "hive mind" that every entrepreneur with a dollar and a dream is trying to parse for profit.

You can read the whole review - there is some redeeming merit to the book, according to Slate's reviewer, Michael Agger.

Tags: books, culture, internet, technology, You Are Not a Gadget, Jaron Lanier, The New Yorker, Tech Nation, Slate, Digital Revolution, Open Access, Social Networking

Richard O. Brown: The Neuroscience of Nothing

From UCTV.

Richard O. Brown, Staff Neuroscientist at The Exploratorium, talks about the interaction between mind and matter and visual perception. He talks about and illustrates with fascinating visuals three concepts: 1. There is nothing out there and we perceive nothing which he feels comes closest to blackness. 2. There is something out there and we can't perceive it, which comes closest to invisibility. 3. There is nothing out there and we're still experiencing or perceiving something.

Tags: brain, Psychology, mind, vision, consciousness, Richard O. Brown, The Neuroscience of Nothing, neuroscience

Izzy Kalman - Mirror Neurons, Conscience Development and the Fallacy of Accountability for Bullying

He makes a good point in this article -fear of punishment is not true morality (which is where Christianity goes horribly wrong - the fear of eternal damnation does not create moral citizens). True morality comes from remorse at having hurt another.

Mirror Neurons, Conscience Development and the Fallacy of Accountability for Bullying

What can possibly be wrong with holding bullies accountable?

Published on January 23, 2010

by Izzy Kalman

The most dangerous ideas are not the ones that sound obviously bad, but the ones that sound obviously good [paraphrasing Charles Murray in What it Means to be a Libertarian]. When an idea sounds obviously good, no one challenges it and it catches on like wildfire. One such idea is accountability. It has such a ring of truth to it: accountability. What could possibly be wrong with holding people accountable?

Many people believe that the solution to bullying is to hold the bullies accountable for their behavior. The basic assumption is that it is our moral duty as adults to hold them accountable, and that if we do, they will stop being bullies. I have received countless comments similar to the following:

"I strongly agree with your approach to teach children the coping skills to deal with being bullied and I agree that this is a far more effective approach (as utilized in my clinical work). I still feel the bullies need to be held accountable for their behavior."

The idea of accountability has trickled down from the business world. If it's good enough for the big-bucks business world, it must be good for schools, too.

Holding people accountable in business is not only right but necessary for success. But if we are going to adopt a model from the business world, we should be true to the model.

In business, people are held accountable for doing their jobs. But would it be good for the business or its employees if it help people accountable for all of their behavior? Would you want to be accountable to your boss for what you eat for lunch or where you buy your clothing or how you get along with other people?

Let's say I am your colleague and you can't stand me. You roll your eyes when I talk at meanings and you don't let me be part of your lunch clique. How would you like it if you were called into the boss's office because I am upset over your dislike for me? Would it increase your appreciation for me or for the boss? Would it make you want to be nice to either of us? And how would the boss like having to deal with such problems?

If you do something that hurts my feelings, I am the person to whom you should be accountable, not the business. If a business were to hold us accountable for the way we make each other feel, we would all be miserable and the business would have a hard time surviving.

The government, too, holds citizens accountable for their behavior–but only for breaking the law. Would it be good for society or the individual if the government held people accountable for all of their behavior? How would you like it if the government were to keep constant surveillance over you and punish you whenever you speak sarcastically to a parent, lose patience with a child, criticize a boss, talk about someone behind their back or ignore a neighbor you don't like? It would be practically impossible to have normal relationships. You would be absolutely miserable, living in a totalitarian police state–an Orwellian nightmare.

Yet this is precisely what we want for children today. We want them to be accountable to the school authorities for the way they make each other feel.

We want kids to stop being bullies. Bullying, as defined by the academic bullying experts and incorporated into our anti-bully policies, is any intentional act that can cause others physical, psychological or emotional pain. (I wonder, by the way, how they differentiate between psychological and emotional pain.) In other words, we are expecting kids to be saints. Only absolute saints never commit the kinds of acts the experts define as bullying.

The bullying experts tell us that bullies lack empathy, a necessary component for having a conscience. We need them to develop empathy so they will behave more morally. And we believe that holding them accountable for their behavior will promote this process.

But does holding children accountable to adults for the way they make each other feel indeed promote moral development?

There are two basic levels of morality. One is based on fear of punishment. The other is based on feeling remorse over hurting others.

Fear of punishment is not true morality. In fact, when we avoid committing specific actions because we don't want to get punished, we are acting from self-interest. People whose conscience is based on avoidance of punishment are more likely to act badly when they are in a situation in which they know they are not going to get caught.

When we have a true conscience, on the other hand, we avoid those actions because we are concerned not with ourselves but with others. That's why most of us feel sad and remorseful when we realize we hurt someone. We feel this way not because of parental training but because Mother Nature (or whatever you want to call the power or process that made us what we are) wants us to. Our survival both as individuals and as a group depends upon us feeling bad when we hurt one another.

What is the mechanism by which we feel bad when we hurt people? It's through the functioning of what neuroscientists have appropriately labeled mirror neurons. Brain imaging has revealed that our brains actually experience what others experience. When someone smiles at us, we spontaneously smile. When someone screams in pain, we cringe. We know that laughter is contagious, which is why TV sitcoms usually have laugh tracks. When we watch a dancer, the same areas of the brain that are active in the dancer are simultaneously triggered in our brains even though we are not dancing. The entertainment industry would not exist if people were not capable of feeling what others feel.

And without mirror neurons, it would be impossible to have empathy and thus a conscience. The mirror neurons did not get there because of adult training but because Mother Nature put them there.

People who don't have a conscience are either neurologically impaired or were raised under atypical conditions that prevented them from developing one. If you are neurologically incapable of feeling empathy, you can be punished and lectured to and trained 16/7 (I'm granting you 8 hours sleep per day) and you will still never develop a conscience. This point was made brilliantly in the movie, A Clockwork Orange.

Read the whole post.

Tags: children, parenting, Psychology, bullying, Izzy Kalman, Mirror Neurons, Conscience Development, Fallacy of Accountability for Bullying, Psychology Today, A Psychological Solution to Bullying

Noam Chomsky - Language and the Mind Revisited - The Biolinguistic Turn

More from UCTV.

UC Berkeley presents the The Charles M. and Martha Hitchcock Lecture series, featuring linguist and political activist Noam Chomsky. Chomsky examines biolinguistics - the study of relations between physiology and speech.

Tags: Noam Chomsky, Language and the Mind Revisited, Biolinguistics, UCTV, Psychology, brain, speech, language, biology, consciousness, evolution

Complete Text of Justice Stevens' Dissent on Citizens United v. Federal Election Commission

I am certainly no expert on Constitutional Law, although one of my current training clients is (and we have discussed this, so I know I am not totally out in left field), but I am absolutely sure that the framers of the Constitution never envisioned "personhood" for corporations. Hell, I doubt they envisioned corporations at all.

I find it interesting that there were so many opinions in favor of the ruling, each claiming an originalist stance. It seems that all but Justice Kennedy's official opinion were in rebuttal to Justice Stevens' brilliant and fierce dissent.

In my view, corporations are NOT people, therefore are NOT citizens, and therefore do NOT have First Amendment protections.

Further, the ruling closed all loop-holes to challenging the money=speech theory, which the Court no doubt planned in making this case more broad (of their own accord) than the plaintiff had presented it.

What's more, this ruling opens up a whole series of regulatory issues. If corporations have personhood under the First Amendment, do they under the Second (can they build their own armed militias?), or under the Fifth (do they have the right to refuse to disclose evidence under FTC investigations that might incriminate them?). The list of potential issues can go on for pages.

Here is the beginning of his dissent, which was signed onto by the other three "liberal" Justices, who issued no separate opinions despite their own dissents from Stevens' position. [Added emphasis is mine.]

Complete Text of Justice Stevens' Dissent on Citizens United v. Federal Election Commission

Justice Stevens, with whom Justice Ginsburg , Justice Breyer, and Justice Sotomayor join, concurring in part and dissenting in part.

The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante , at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm. , 459 U. S. 197, 209 (1982) (NRWC) , and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id. , at 209–210. The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990) . Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life , Inc., 551 U. S. 449 (2007) (WRTL) , McConnell v. FEC , 540 U. S. 93 (2003) , FEC v. Beaumont , 539 U. S. 146 (2003) , FEC v. Massachusetts Citizens for Life , Inc., 479 U. S. 238 (1986) (MCFL) , NRWC , 459 U. S. 197 , and California Medical Assn. v. FEC , 453 U. S. 182 (1981) .

In his landmark concurrence in Ashwander v. TVA , 297 U. S. 288, 346 (1936) , Justice Brandeis stressed the importance of adhering to rules the Court has “developed … for its own governance” when deciding constitutional questions. Because departures from those rules always enhance the risk of error, I shall review the background of this case in some detail before explaining why the Court’s analysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudence more generally . 1 I regret the length of what follows, but the importance and novelty of the Court’s opinion require a full response. Although I concur in the Court’s decision to sustain BCRA’s disclosure provisions and join Part IV of its opinion, I emphatically dissent from its principal holding.

I

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell , it is important to explain why the Court should not be deciding that question.

Scope of the Case

The first reason is that the question was not properly brought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court. 2 Our colleagues’ suggestion that “we are asked to reconsider Austin and, in effect, McConnell ,” ante , at 1, would be more accurate if rephrased to state that “we have asked ourselves” to reconsider those cases.

In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203. App. 23a–24a. In its motion for summary judgment, however, Citizens United expressly abandoned its facial challenge, 1:07–cv–2240–RCL–RWR, Docket Entry No. 52, pp. 1–2 (May 16, 2008), and the parties stipulated to the dismissal of that claim, id. , Nos. 53 (May 22, 2008), 54 (May 23, 2008), App. 6a. The District Court therefore resolved the case on alternative grounds, 3 and in its jurisdictional statement to this Court, Citizens United properly advised us that it was raising only “an as-applied challenge to the constitutionality of … BCRA §203.” Juris. Statement 5. The jurisdictional statement never so much as cited Austin , the key case the majority today overrules. And not one of the questions presented suggested that Citizens United was surreptitiously raising the facial challenge to §203 that it previously agreed to dismiss. In fact, not one of those questions raised an issue based on Citizens United’s corporate status. Juris. Statement (i). Moreover, even in its merits briefing, when Citizens United injected its request to overrule Austin , it never sought a declaration that §203 was facially unconstitutional as to all corporations and unions; instead it argued only that the statute could not be applied to it because it was “funded overwhelmingly by individuals.” Brief for Appellant 29; see also id., at 10, 12, 16, 28 (affirming “as applied” character of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009) (counsel for Citizens United conceding that §203 could be applied to General Motors); id., at 55 (counsel for Citizens United stating that “we accept the Court’s decision in Wisconsin Right to Life ”).

“ ‘It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,’ ” Youakim v. Miller , 425 U. S. 231, 234 (1976) (per curiam) (quoting Duignan v. United States , 274 U. S. 195, 200 (1927) ), and it is “only in the most exceptional cases” that we will consider issues outside the questions presented, Stone v. Powell , 428 U. S. 465, 481, n. 15 (1976) . The appellant in this case did not so much as assert an exceptional circumstance, and one searches the majority opinion in vain for the mention of any. That is unsurprising, for none exists.

Setting the case for reargument was a constructive step, but it did not cure this fundamental problem. Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.

As-Applied and Facial Challenges

This Court has repeatedly emphasized in recent years that “(f)acial challenges are disfavored.” Washington State Grange v. Washington State Republican Party , 552 U. S. 442, 450 (2008) ; see also Ayotte v. Planned Parenthood of Northern New Eng. , 546 U. S. 320, 329 (2006) (“(T)he ‘normal rule’ is that ‘partial, rather than facial, invalidation is the required course,’ such that a ‘statute may … be declared invalid to the extent that it reaches too far, but otherwise left intact’ ” (quoting Brockett v. Spokane Arcades, Inc. , 472 U. S. 491, 504 (1985) ; alteration in original)). By declaring §203 facially unconstitutional, our colleagues have turned an as-applied challenge into a facial challenge, in defiance of this principle.

This is not merely a technical defect in the Court’s decision. The unnecessary resort to a facial inquiry “run(s) contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Washington State Grange , 552 U. S., at 450 (internal quotation marks omitted). Scanting that principle “threaten(s) to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Id., at 451. These concerns are heightened when judges overrule settled doctrine upon which the legislature has relied. The Court operates with a sledge hammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.

The problem goes still deeper, for the Court does all of this on the basis of pure speculation. Had Citizens United maintained a facial challenge, and thus argued that there are virtually no circumstances in which BCRA §203 can be applied constitutionally, the parties could have developed, through the normal process of litigation, a record about the actual effects of §203, its actual burdens and its actual benefits, on all manner of corporations and unions. 4 “Claims of facial invalidity often rest on speculation,” and consequently “raise the risk of premature interpretation of statutes on the basis of factually barebones records.” Id., at 450 (internal quotation marks omitted). In this case, the record is not simply incomplete or unsatisfactory; it is nonexistent. Congress crafted BCRA in response to a virtual mountain of research on the corruption that previous legislation had failed to avert. The Court now negates Congress’ efforts without a shred of evidence on how §203 or its state-law counterparts have been affecting any entity other than Citizens United. 5

Faced with this gaping empirical hole, the majority throws up its hands. Were we to confine our inquiry to Citizens United’s as-applied challenge, it protests, we would commence an “extended” process of “draw(ing), and then redraw(ing), constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” Ante , at 9. While tacitly acknowledging that some applications of §203 might be found constitutional, the majority thus posits a future in which novel First Amendment standards must be devised on an ad hoc basis, and then leaps from this unfounded prediction to the unfounded conclusion that such complexity counsels the abandonment of all normal restraint. Yet it is a pervasive feature of regulatory systems that unanticipated events, such as new technologies, may raise some unanticipated difficulties at the margins. The fluid nature of electioneering communications does not make this case special. The fact that a Court can hypothesize situations in which a statute might, at some point down the line, pose some unforeseen as-applied problems, does not come close to meeting the standard for a facial challenge. 6

The majority proposes several other justifications for the sweep of its ruling. It suggests that a facial ruling is necessary because, if the Court were to continue on its normal course of resolving as-applied challenges as they present themselves, that process would itself run afoul of the First Amendment . See, e.g., ante , at 9 (as-applied review process “would raise questions as to the courts’ own lawful authority”); ibid. (“Courts, too, are bound by the First Amendment ”). This suggestion is perplexing. Our colleagues elsewhere trumpet “our duty ‘to say what the law is,’ ” even when our predecessors on the bench and our counterparts in Congress have interpreted the law differently. Ante , at 49 (quoting Marbury v. Madison , 1 Cranch 137, 177 (1803)). We do not typically say what the law is not as a hedge against future judicial error. The possibility that later courts will misapply a constitutional provision does not give us a basis for pretermitting litigation relating to that provision. 7

The majority suggests that a facial ruling is necessary because anything less would chill too much protected speech. See ante , at 9–10, 12, 16–20. In addition to begging the question what types of corporate spending are constitutionally protected and to what extent, this claim rests on the assertion that some significant number of corporations have been cowed into quiescence by FEC “ ‘censor(ship).’ ” Ante , at 18–19. That assertion is unsubstantiated, and it is hard to square with practical experience. It is particularly hard to square with the legal landscape following WRTL , which held that a corporate communication could be regulated under §203 only if it was “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” 551 U. S., at 470 (opinion of Roberts, C. J .) (emphasis added). The whole point of this test was to make §203 as simple and speech-protective as possible. The Court does not explain how, in the span of a single election cycle, it has determined The Chief Justice ’s project to be a failure. In this respect, too, the majority’s critique of line-drawing collapses into a critique of the as-applied review method generally. 8

The majority suggests that, even though it expressly dismissed its facial challenge, Citizens United nevertheless preserved it—not as a freestanding “claim,” but as a potential argument in support of “a claim that the FEC has violated its First Amendment right to free speech.” Ante , at 13; see also ante , at 4 ( Roberts, C. J ., concurring) (describing Citizens United’s claim as: “(T)he Act violates the First Amendment ”). By this novel logic, virtually any submission could be reconceptualized as “a claim that the Government has violated my rights,” and it would then be available to the Court to entertain any conceivable issue that might be relevant to that claim’s disposition. Not only the as-applied/facial distinction, but the basic relationship between litigants and courts, would be upended if the latter had free rein to construe the former’s claims at such high levels of generality. There would be no need for plaintiffs to argue their case; they could just cite the constitutional provisions they think relevant, and leave the rest to us. 9

Finally, the majority suggests that though the scope of Citizens United’s claim may be narrow, a facial ruling is necessary as a matter of remedy. Relying on a law review article, it asserts that Citizens United’s dismissal of the facial challenge does not prevent us “ ‘from making broader pronouncements of invalidity in properly “as-applied” cases.’ ” Ante , at 14 (quoting Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000) (hereinafter Fallon)); accord, ante , at 5 (opinion of Roberts, C. J .) (“Regardless whether we label Citizens United’s claim a ‘facial’ or ‘as-applied’ challenge, the consequences of the Court’s decision are the same”). The majority is on firmer conceptual ground here. Yet even if one accepts this part of Professor Fallon’s thesis, one must proceed to ask which as-applied challenges, if successful, will “properly” invite or entail invalidation of the underlying statute. 10 The paradigmatic case is a judicial determination that the legislature acted with an impermissible purpose in enacting a provision, as this carries the necessary implication that all future as-applied challenges to the provision must prevail. See Fallon 1339–1340.

Citizens United’s as-applied challenge was not of this sort. Until this Court ordered reargument, its contention was that BCRA §203 could not lawfully be applied to a feature-length video-on-demand film (such as Hillary ) or to a nonprofit corporation exempt from taxation under 26 U. S. C. §501(c)(4) 11 and funded overwhelmingly by individuals (such as itself). See Brief for Appellant 16–41. Success on either of these claims would not necessarily carry any implications for the validity of §203 as applied to other types of broadcasts, other types of corporations, or unions. It certainly would not invalidate the statute as applied to a large for-profit corporation. See Tr. of Oral Arg. 8, 4 (Mar. 24, 2009) (counsel for Citizens United emphasizing that appellant is “a small, nonprofit organization, which is very much like (an MCFL corporation),” and affirming that its argument “definitely would not be the same” if Hillary were distributed by General Motors). 12 There is no legitimate basis for resurrecting a facial challenge that dropped out of this case 20 months ago.

Narrower Grounds

It is all the more distressing that our colleagues have manufactured a facial challenge, because the parties have advanced numerous ways to resolve the case that would facilitate electioneering by nonprofit advocacy corporations such as Citizens United, without toppling statutes and precedents. Which is to say, the majority has transgressed yet another “cardinal” principle of the judicial process: “(I)f it is not necessary to decide more, it is necessary not to decide more,” PDK Labs., Inc. v. Drug Enforcement Admin. , 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).

Consider just three of the narrower grounds of decision that the majority has bypassed. First, the Court could have ruled, on statutory grounds, that a feature-length film distributed through video-on-demand does not qualify as an “electioneering communication” under §203 of BCRA, 2 U. S. C. §441b. BCRA defines that term to encompass certain communications transmitted by “broadcast, cable, or satellite.” §434(f)(3)(A). When Congress was developing BCRA, the video-on-demand medium was still in its infancy, and legislators were focused on a very different sort of programming: short advertisements run on television or radio. See McConnell , 540 U. S., at 207. The sponsors of BCRA acknowledge that the FEC’s implementing regulations do not clearly apply to video-on-demand transmissions. See Brief for Senator John McCain et al. as Amici Curiae 17–19. In light of this ambiguity, the distinctive characteristics of video-on-demand, and “(t)he elementary rule … that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California , 155 U. S. 648, 657 (1895) , the Court could have reasonably ruled that §203 does not apply to Hillary . 13

Second, the Court could have expanded the MCFL exemption to cover §501(c)(4) nonprofits that accept only a de minimis amount of money from for-profit corporations. Citizens United professes to be such a group: Its brief says it “is funded predominantly by donations from individuals who support (its) ideological message.” Brief for Appellant 5. Numerous Courts of Appeal have held that de minimis business support does not, in itself, remove an otherwise qualifying organization from the ambit of MCFL . 14 This Court could have simply followed their lead. 15

Finally, let us not forget Citizens United’s as-applied constitutional challenge. Precisely because Citizens United looks so much like the MCFL organizations we have exempted from regulation, while a feature-length video-on-demand film looks so unlike the types of electoral advocacy Congress has found deserving of regulation, this challenge is a substantial one. As the appellant’s own arguments show, the Court could have easily limited the breadth of its constitutional holding had it declined to adopt the novel notion that speakers and speech acts must always be treated identically—and always spared expenditures restrictions—in the political realm. Yet the Court nonetheless turns its back on the as-applied review process that has been a staple of campaign finance litigation since Buckley v. Valeo , 424 U. S. 1 (1976) (per curiam) , and that was affirmed and expanded just two Terms ago in WRTL , 551 U. S. 449 .

This brief tour of alternative grounds on which the case could have been decided is not meant to show that any of these grounds is ideal, though each is perfectly “valid,” ante , at 12 (majority opinion). 16 It is meant to show that there were principled, narrower paths that a Court that was serious about judicial restraint could have taken. There was also the straightforward path: applying Austin and McConnell , just as the District Court did in holding that the funding of Citizens United’s film can be regulated under them. The only thing preventing the majority from affirming the District Court, or adopting a narrower ground that would retain Austin , is its disdain for Austin.

Go read the whole dissent.

Tags: law, campaign finance, Supreme Court, Complete Text, Justice Stevens, Dissent, Citizens United v. Federal Election Commission, Constitutional Law, Justice Kennedy, free speech, corporate personhood, First Amendment, money=speech

Corporations as Uber-Citizens - Doug Rushkoff

Douglas Rushkoff has some strong opinions about the Supreme Court's recent decision to award official personhood to corporations. He calls for bottom-up change to retake our nation from our political-corporate overlords.

Corporations as Uber-Citizens

Doug Rushkoff

Doug Rushkoff

Rushkoff.com

Posted: Jan 22, 2010

Yesterday’s Supreme Court ruling was positive in one respect: it made law out of what was already happening. While corporations earned “personhood” back in the 1860’s when a court clerk (likely bribed) added this language into the margins of another court decision, they never quite had the rights of citizenship before. They already write our laws (through lobbies) elect our leaders (with money) and create public opinion (with money and PR). If you’re interested in how and why that happened, please read my book Life Inc. But they have always tended to do so by working around government’s efforts to limit their influence.

It was a losing game for a government by the people, of course, because almost no one gets into office without the kind of corporate assistance they need to pay back if they want to get into office again. Meanwhile, while corporations have enjoyed the benefits of personhood for over a century, they don’t suffer the main pitfalls: chiefly, death – but also despair, fatigue, and the need to feed their kids. They could outrun or at least outlast any effort to curb their influence. That’s how the railroads got to trample States’ rights to their own land, how GE got out of cleaning the Hudson River, and so on. They just wait, make a little progress, and then wait some more.

The era of Obama seemed to promise something different. Here was candidate who, at least initially, raised more cash through decentralized means than by appealing to large centralized corporations. As a candidate funded through small donations by real people, he seemed to offer an antidote to business as usual. If a couple of hundred million people donating small amounts could, in aggregate, raise more money than a couple of hundred mega-corporations, then democracy stood a chance even as the PR and money driven spectacle it has become. Of course, Obama’s later donations turned out to be just as corporate as anyone else’s (if for no other reason than that they smelled a winner), and his hands almost as tied. He raised so much, he rejected the campaign finance tenets he had promised to adhere to back when he thought he’d be the underfunded candidate.

But the lasting sense was still that real people might be able to exercise at least some influence over who gets elected to office. Maybe, just maybe, the net and a new spirit of participation could play some small role in the democratic process and even make incremental progress in developing campaign finance reforms. Meanwhile, over the last thirty years, legislators on both sides of the aisle have sought to free themselves of corporate influence, and passed what legislation they could limiting corporate campaign contributions (especially by non-humans).

Luckily for corporations, the activist justices appointed by an earlier version of our corporatist government (the Bush 2 regime) have decided to reverse this process. Instead of acting as as stopgap to preserve constitutional rights, they are serving as a new legislative branch – rewriting the law by declaring it unconstitutional. It is a violation of corporations’ civil liberties to limit their influence over the political process. Even though they are artificial entities, with greater access to capital, infinite longevity, and no interest in or connection to humanity, we now guarantee them the right of free speech.

Of course, the right of free speech was created in order for human beings to have the ability to talk back to the corporation – the British East India Trading Company – that was running the colonies before the Revolutionary War. And it was upheld a century later so that laborers could organize unions or speak out against industrial abuses without fear of getting killed. (Even though most unions, perhaps predictably, ended up becoming as abstracted as the corporations they were created to counteract.) Freedom of speech was intended a way for human beings to guarantee their ability speak out against largely systemic and structural repression. Now, that structural repression itself has that same guarantee.

All this does is make centralized government even less relevant to our plight as human beings. I admire folks like Larry Lessig for their faith in our ability to reclaim a government by the people, to use the net to expose and even reverse corporate influence in the political process, and for us to legislate a commons back into human affairs (even though it has been on the decline for the past 600 years).

But I’ve got more faith in our ability, as people, to rebuild our society and economy from the bottom up, without the participation or approval of a corporate-funded and corporate-driven central government. We can rebuild local economies based on the abundance of our labor and resources rather than the scarcity of centrally issued currency. We can rebuild local agriculture based on the quality of the topsoil, the features of the climate, and the nutritional needs of people rather than corn lobby laws. And we can rebuild our mechanisms for making meaning based on our shared hopes and values rather than those developed by PR firms to make us compete for false, individualistic goals.

In short, I say screw ‘em. Let’s do this ourselves.

---

Douglas Rushkoff is a fellow of the IEET, author of a dozen books and comic books, producer of two award-winning Frontline documentaries, and his essays have been published widely.

Tags: law, business, Politics, corruption, IEET, Corporations as Uber-Citizens, Doug Rushkoff, Supreme Court, corporatocracy, Life Inc.

The Seed Salon: Albert-László Barabási and James Fowler

Nice discussion.

Albert-László Barabási + James Fowler

Barabási mathematically describes networks in the World Wide Web, the internet, the human body, and society at large. Fowler seeks to identify the social and biological links that define us as humans. In this video Salon, Barabási and Fowler discuss contagion and the Obama campaign, debate the natural selection of robustness, and ask: Is society turning inward?

Read the transcript first published in Seed 20, February 2009.

Watch:
Albert-László Barabási + James Fowler
8:26 / 35.5 MB

Tags: The Seed Salon, Albert-László Barabási, James Fowler, internet, humanity, Psychology, culture

On Compassion - Greater Good Editors on Tech Nation

I got to hear a bit of this on Saturday while in the car. I am a HUGE fan on the book these two have edited, The Compassionate Instinct: The Science of Human Goodness. Nice discussion. I'm glad this book is getting some exposure.

Listen to Greater Good Editors on Tech Nation

January 23rd, 2010 | Tags: Dacher Keltner, books, events

Listen in as Greater Good editors Jason Marsh and Dacher Keltner are featured this week on the hour-long public radio show Tech Nation. They’ll be discussing the new Greater Good book, The Compassionate Instinct, which features some of the best essays to have been published in the magazine over the past five years.

You can check with your local NPR member station to learn when the program’s going to air near you, catch it Sunday at 9pm on NPR Now, or listen through the Tech Nation website starting next week.

For those of you in the San Francisco Bay Area, the show will air tomorrow (Sunday) evening on NPR member station KQED (88.5), from 10-11pm.

Post here to let us know what you think of the show!

Show Originating on
January 19, 2010

DACHER KELTNER
UC Berkeley Psychology Professor
JASON MARSH
Editor, Greater Good magazine
Co-Editors, The Compassionate Instinct: The Science of Human Goodness



Moira speaks with DACHER KELTER and JASON MARSH about how humans are programmed to be good ...

Click thru for AUDIO STREAMING and PODCASTING ...

Tags: compassion, Psychology, culture, books, Jason Marsh, Dacher Keltner, Greater Good, Tech Nation, The Compassionate Instinct, The Science of Human Goodness, Moira Gunn

Peter Russell - The Primacy of Consciousness

Another cool documentary on consciousness. In this one, Peter Russell argues for consciousness as an essential and fundamental element of the universe, a perspective also found in Buddhism. However, as I have argued in the past, this view to me is horribly anthropocentric.

The Primacy of Consciousness

Posted On: August 6, 2009

The fundamental nature of reality is actually consciousness. In his documentary Peter Russell explores the reasons why consciousness may be the fundamental essence of the Universe. Many have made such claims from metaphysical perspectives, but the possibility has always been ignored by the scientific community. In this talk, he discusses the problems the materialist scientific world view has with consciousness and proposes an alternative world view which, rather than contradicting science, makes new sense of much of modern physics. He presents a reasoned argument that shows how they are pointing towards the one thing science has always avoided considering – the primary nature of consciousness.

This documentary basically seeks answers for these questions: What is consciousness? How could consciousness arise from matter? Paradigm shifts in science. The materialist meta paradigm. A new meta paradigm. Consciousness is in everything. Everything is in consciousness. Matter is a mental construct. Relativity and light’s point of view. Light lies beyond space, time and matter. Photons and the quantum of action. Parallels between light and consciousness. Consciousness as the fundamental reality. The mystical experience of consciousness. Who am I? What is the self? The meeting of science and spirit.

Tags: Psychology, consciousness, Spirituality, Philosophy, Peter Russell, The Primacy of Consciousness, Everything is in consciousness, metaphysics

Toward an Integral Buddhism (Redux)

A few years ago, I posted an article in response to Sam Harris's then current article in Shambhala Sun, Killing the Buddha. In the article he argues for stripping away everything from Buddhist practice except meditation practice, what Ken Wilber would call the "technology of transcendence."

I recently posted a revised & shortened version of the original article over at Elephant Journal, where we are having a wonderful conversation about the article and about contemporary Buddhist teacher Stephen Batchelor and his Buddhism Without Beliefs.

Come join us!

Here is a taste:

Toward an Integral Buddhism

by William Harryman on Jan 21, 2010

In the Winter 2005 issue of Buddhadharma, Reginald Ray had an article (”The Three Lineages“) on the primary lineages of Buddhism. Mr. Ray discussed the primordial lineage, which conveys the direct experience of the awakened state; the transmission lineage, which comprises the variety of methods for conveying or teaching the primordial lineage to students; and the organizational lineage, which in this sense is the person who is officially responsible for upholding and maintaining the organizational structure of a given tradition.

If one wants to speak to a person, it is helpful to be able to speak in a language that fits his/her worldviews. The Buddha understood this. He developed a variety of teaching techniques (the transmission lineages) in order to convey his wisdom (the primordial lineage) to his students, who have since created the Buddhist sangha (the organizational lineage). Buddha recognized that each person, or stage of personal development, would need to have the teaching presented in a way that was accessible from her/his life conditions or worldview. The Buddha taught an Integral Buddhism. We do not need to kill the Buddha (as Sam Harris once famously suggested), we need to honor the full spectrum of ways we can follow his teachings.

In integral theory, which is based on a variety of developmental models, people, cultures, and societies develop through successive stages that occur in a predictable order, and none of which may be skipped. In psychology, we are most familiar with Piaget’s cognitive developmental stages, Kohlberg and Gilligan’s moral development, Jane Loevinger’s stages of ego development, Erickson’s stages of psychosocial development, and Clare Graves biopsychosocial values stages, to name just a few of many. For a Western view of religion, we might also consider James Fowler’s stages of faith. Most of these have been verified (and updated or revised) through many research studies.

Tags: Buddhism, Integral, technology, postmodernism, stages, worldviews, Toward an Integral Buddhism, Elephant Journal, Buddha, Sam Harris, Reginald Ray, Stephen Batchelor, Buddhism Without Beliefs

Professor Susan Greenfield - Why Am I Me?

A nice documentary presenting the basic neuroscience of identity. At least she acknowledges the validity and reality of the subjective nature of consciousness.

Why Am I Me?

Posted On: July 22, 2009

Professor Susan Greenfield tackles the big idea of human consciousness and asks the important question – why am I me? In this documentary, Greenfield takes a look at how the human brain generates consciousness and just what consciousness is.

Putting a scientific finger on what human consciousness is not at all an easy task as Greenfield points out in her own words…

“I think the problem has been why mainstream science is very wary of the study of consciousness is that it is utterly subjective. It is the first person world, as it seems to you. Now science is all about impartial access, third person, clear measurements and here we have something that’s insubstantial and ineffable, some kind of magic and no wonder that is not very practical to scientific method and therefore most scientist would rather be preoccupied with some smaller problem. But as the philosopher John Saul said that’s a bit like saying you’re studying stomach but you’re not interested in digestion.”

Tags: Psychology, brain, consciousness, identity, Professor Susan Greenfield, Why Am I Me?, The big Questions, neuroscience, subjective reality, interiority

Stephen Batchelor: 'Buddhism and the Art of Imagining'

Stephen Batchelor on the Art of imagining (from his talk in Amsterdam in 2008). How can we use artistic means to explore and express our understanding of Dharma?

Stephen Batchelor: 'Buddhism and the Art of Imagining' [Part One]

Stephen Batchelor: 'Buddhism and the Art of Imagining' [part Two]

Stephen Batchelor: 'Buddhism and the Art of Imagining' [Part Three]

Tags: Stephen Batchelor, Buddhism and the Art of Imagining, Buddhism, art, creativity, dharma

National Geographic - Light At The Edge Of The World: Himalayas, Science Of The Mind

A cool video for a Sunday morning.

Buddhism asks the fundamental question: What is life and what is the point of existence? Wade Davis goes on an anthropological and spiritual journey into the Himalayas of Nepal to learn the deepest lesson of Buddhist practice. Parts of this documentary feature H.H.Trulshik Rinpoche and Matthieu Ricard.

Tags: National Geographic, Light At The Edge Of The World Himalayas, Science Of The Mind, Buddhism, mind, meditation, meaning