Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

01 July 2017

Our Political AIDS Infection


[Note to readers: Several reader comments have been neglected by oversight, not design, since early May. They are now up, with replies where appropriate. For a brief note on a recent outbreak of political courage among Dems, click here. For comment on our weak Yankee defense against information warfare, click here. For some popular recent posts, click on the links below:

Introduction: the most important thing that law schools teach
Free speech that kills
Free speech that disables
Conclusion (for now)

Introduction: the most important thing that law schools teach

Let’s face it: I’m a “quant”—a person who likes to see numbers to make sense of news and events. My first and most memorable training was as a scientist. When I got my Ph.D. in physics, in 1971, I distrusted anyone who couldn’t do numbers.

That distrust lasts to this day. It’s well justified. Twenty-two million people who can’t afford to see a doctor is a whole lot of misery. Why can’t enough voters understand that simple truth to put Mitch McConnell out to the green Kentucky pasture he so richly deserves? Maybe the 231,400 voters in Kentucky who reportedly will lose their health coverage if Mitch’s mean bill passes will.

The 22 million who (according to the CBO) will lose coverage nationwide is about 7 percent of our total population. It’s enough to break our “herd immunity” and expose us Yanks, collectively, to a lot of pathogens, including both new ones and old ones we thought we had conquered with vaccines. Under the wrong circumstances—such as an unforeseeable pandemic—it could be enough to literally wipe most of us Yanks out.

Why can’t GOP pols see that? Why don’t they seem to care? Why can’t they see that the misery they seek to impose on millions, just to attract easy campaign contributions from the clueless rich, could boomerang on them and destroy themselves and their loved ones, too?

But numbers aren’t everything. Not everything can be quantified, including some very important things. I learned that in my second big stint at higher education, at Harvard Law School.

Harvard Law taught me something absolutely crucial to us Yanks. It’s something that distinguishes our Anglo-American approach to law and politics from almost everyone else’s.

Sometimes odd circumstances bring really basic, important values into conflict with each other. Sometimes the conflict is real and unavoidable. Sometimes the two principles in conflict are both basic and vital.

When this happens, the traditional approach is to prefer one value over another. One tries to pick the dominant or “better” norm.

As I learned in law school, Anglo-American law and politics are not like that. When two values are both very important, our Yankee approach is not to seek the dominant one like two young boys claiming, “My Dad can beat up your Dad,” or “My God can beat your God.”

Instead, they view the two principles as in “tension” and try to “balance” them. They see how the principles might play out in particular circumstances and “reconcile” them only on a case-by-case basis. They allow one to dominate, then another, depending on facts and consequences, i.e., on detailed analysis. They bring specific facts and situations, aka “reality,” into their abstract and general discussions.

After having nearly forty years to think about it, I believe this way of resolving “tension” with “balance” among fundamental values is one of the most important contributions of Anglo-American thinking to human history. It’s certainly the most important single thing I learned in law school. By itself, the concept of “balancing” principles in “tension” was worth the price of admission which, at Harvard, was not cheap even in the seventies.

The trouble is, “tension” is sometimes hard to see, and “balance” is sometimes hard to achieve. So despite our salubrious Yankee intellectual history, conflicts of values often go unresolved.

Part of the problem is that “balance” contravenes our species’ biological history. Throughout our long evolution, both individuals and societies have had to make many snap decisions on which their survival depended. Often “shooting from the hip” became a necessity. But aiming is always better, even (maybe especially!) when the pressure is great.

This essay discusses two instances in which deeply-held American principles are in tension. Our temptation just to name the stronger one is great.

But our society and our greatness as a culture depend on us doing what made us great: balancing principles in tension against the background of changing facts. Oddly enough, despite our evolution in hair-trigger decision making, this balancing could increase the chances of us Yanks surviving as a nation and of our species surviving intact, despite our obvious shortcomings.

Today the question before us is whether, under today’s extraordinary circumstances, we Yanks (and the Brits who taught us) are giving appropriate credence to that contribution to human culture and survival. This essay analyzes two instances; a future essay will cover two more.

Free speech that kills

For us Yanks, no principle is holier than Free Speech. The very First Amendment of our Bill of Rights enshrines it.

Throughout our brief history, no one has seriously questioned either its supremacy or its value. Perhaps the closest thing to questioning was Oliver Wendell Holmes’ memorable dictum. He wrote that crying “‘Fire!’ in a crowded theater” is probably the limit on free speech.

With that great dictum, Holmes set a high bar for any restriction. First, the speech must be tantamount to action: it must compel or motivate action virtually without thought, or as an immediate consequences of the speech itself. Second, the speech’s immediate consequences must be clear and drastic: a stampede of the audience in which people might get hurt or even killed. Third the speech must be false: surely no one could condemn warning an audience—or a simple expostulation of honest fear—when flames are nipping at an unraised curtain.

Not everyone sets such a high bar. Germany has laws, which it enforces vigorously, against “hate speech” and denying the Holocaust.

Those laws have not noticeably impaired the survival or eminence of postwar Germany. On the contrary: present-day Germany’s genuine contrition about its Nazi past has catapulted it, again, into the first rank of human civilizations, where it had been when its loss in World War I and the Allies’ collective punishment for that loss brought it down from its high status at the turn of the twentieth century.

So history and circumstances can require the recognition of values comparable to that of free speech and their “balancing” against freedom of speech when they come into conflict. Are there any such values that we Yanks should think about now?

Life is always a paramount value, a sine qua non for all the others. You can’t be free, and you can’t speak, if you’re not alive.

Germany outlawed hate speech in part because it had come into open conflict with the lives of so many of its citizens—Jews and Gypsies, in particular, not to mention “subhuman” Poles, Russians and Ukrainians in Nazi-conquered territories. In the end, the near-universal outrage at the consequences of hate speech in Nazi Germany resulted in Germany’s loss of independence as a self-governing society for over half a century. That independence, too, is a pretty important value.

We Yanks have never been serious about suppressing hate speech because few of us have ever been serious enough about hate to contemplate mass murder. We are a nation of immigrants, a “melting pot,” accustomed to welcoming and assimilating people of all races, creeds and national origins.

Even our original sin of slavery never went so far as to contemplate annihilating “black” people, if only because they were then a large part of the “property” and economy of our South. The nearest we came was the terror and lynching during the post-Reconstruction era and Jim Crow, but that terrorism was more an instrument of political marginalization and domination than Hitler’s “Final Solution” for the Jews.

Yet this self-protective feature of our national character may be changing. Hate crimes against homosexuals seemed to have reached a minor crescendo before and during the recent acceptance of gay marriage. More menacing still, hate crimes against Muslims and people of color (even East Indians!) have reached new heights since Donald Trump became president.

There is still a vast gulf between Trump and Adolf Hitler, who made hate a conscious, deliberate and solemnly declared instrument of policy, and who later approved wholesale extermination of hated “races.” Yet not since Andrew Jackson and his hate for Native Americans have we Yanks had a president who so close to explicitly, and so often, has encouraged the violent expression of racial and ethnic hatred.

Nevertheless, Trump’s own coddling of native hate is as nothing compared to the reality and danger of a type of hate we Yanks deal with now every day: terrorism. We Yanks have within our midst people who seek to do us harm, or who can be encouraged or cajoled to do us harm. And we have a large group of native Yanks who are prepared to respond with spastic violence if such harm occurs on a more than minuscule scale.

On what does this potential explosion of mutual violence—action and reaction—depend? What might well trigger it? Our most holy of holies, free speech.

As is now known to our intelligence services and widely announced, jihadist terrorism has morphed into a new phase. Although it still seeks massive, spectacular attacks like 9/11, it is “settling for,” and constantly encouraging, “lone wolf” attacks that kill just a few Americans at at time, “at retail,” so to speak. It hopes to make up in “volume”—in the sheer number and unpredictability of small attacks—what it loses in the audacity and widespread terror of high-casualty attacks like 9/11 and 7/7/05 in London.

The mechanism for fomenting many small attacks is absurdly simple. The terrorists intend to use the most powerful and flexible medium of communication ever invented—our own Internet—to delude and recruit marginal youth and get them to “make their names” by killing their fellow citizens.

There is no lack of irony here. The terrorists seek to advance their perversion of a great religion, Islam, by taking advantage of the holiest of holies of our secular democracy, free speech. And they plan to do so primarily by exploiting the capabilities of privately run social media like Facebook, which are accustomed to almost complete liberty, even license.

After all, private media were not even on our Founders radar when they drafted our First Amendment; only government was. Our Founders feared only a revivified Crown, not a kind of uncontrolled private power that wouldn’t exist for another two centuries.

So terrorists working inside and outside our borders intend to turn what most of us Yanks think of as the crowning glory of our culture into its Achilles Heel. They dream not only of killing as many of us (at retail) as they can, but of fomenting a race war among different factions in our crowded cities.

If we persist in holding free speech absolute, they may well succeed.

But the terrorists haven’t reckoned with the most crucial facet of democracies and the most valuable thing that law schools teach: flexibility. Great principles must bend, not break, when placed under great stress.

As so it must be with free speech. We must recognize that allowing jihadists to use social media to recruit our citizens to kill us is as close to Holmes’ “crying ‘fire!’ in a crowded theater” as is ever likely to occur in practice. We must bend social media’s speech license—and even decrypt them when necessary—in order to preserve equally important principles: life and social peace.

There is no slippery slope here. It will be easy enough, after the fact and in the contemplative atmosphere of our courts, to distinguish between attempts to mint terrorists and legitimate political discourse. And none of the expedients that we adopt will be permanent in any way; they will only last as long as necessary to insure the decisive defeat of this form of retail terrorism. Likely they will not survive extinction of the so-called “Islamic State” (as a territorial entity) by more than a decade.

Rigidity and overconfidence are two of the most common authors of defeat. We cannot let our sworn enemies deprive us of life and peace by capitalizing on an extreme view of our most sacred secular principle. We must bend it, not break it, to meet the current emergency and then straighten it out again as quickly as possible. Even Lincoln suspended habeas corpus during the Civil War.

Free speech that disables

What a culture most believes can be its greatest point of vulnerability. So it is with us Yanks and the Brits and free speech. For there is a menace much more subtle, and therefore far more dangerous, than the misuse of the social media that we Yanks invented to recruit our own youth to kill us in our homes and on our streets.

As I have analyzed elsewhere, that menace is the greatest threat to the very concept of democracy since ancient Greece and Rome first experimented with it. It is “fake news.”

To understand the extent of the menace, we must distinguish “fake news” from the type of political propaganda that has appeared for millennia. Even the ancient Egyptians built the Pyramids and the Colossus of Rhodes to impress more primitive societies with the impossible scale of their grandeur.

For centuries, propagandists have tried to convey the supremacy of their politics and culture through opinions and impressions. The tools they have used have been mostly abstractions: evaluations, testimonials and abstract reasoning like Thomas Paine’s Common Sense or Karl Marx’ Das Capital.

But now, with the advent of the Internet, propaganda has reached a new height—or depth, if you prefer. It can now propagate false facts, i.e., the raw material out of which each of us develops our own impressions and opinions. If present trends continue, it can give each of us an utterly false and manufactured view of physical, historical and social reality, and it can mold that false “reality” to our own, personal, individual psychological makeup. It can tailor a delusion to each of us personally, in order to maximize the chance that each of us will “buy” it.

Never before in human history has this been possible on the same massive and yet personalized scale. On behalf of the German Nazi regime, Joseph Goebbels made his propaganda too highbrow. He hired the best and most talented German writers and actors (those who hadn’t yet fled Nazism) to appeal to the German people’s upwardly-mobile instincts, albeit in service of a “lowbrow” national philosophy of racial superiority and brutal conquest. Fox—our Yankee national “improvement”—went Goebbels one better. It appeals directly to the lowbrow in all of us, with shouting, bullying, common prejudice, facile widely-accepted false conclusions, and endless repetition.

But what’s coming to a screen or smart phone near you soon will make Goebbels’ and Fox’ propaganda both seem childishly primitive. It’s so-called “news,” apparently “real,” but entirely manufactured. It will have doctored or fully made-up audio and video. It will bring you ineluctably to the conclusions the propagandists want to promote, by your own, personal “perception” and reasoning. And it will do so in part by exploiting your own publicly available personal idiosyncrasies, as revealed in such things as your own public comments and Facebook “likes.”

Never before has manufacturing such fake news on the necessary scale been possible. What makes it possible today is three new things: (1) exponential advances in the storage capability and speed of computer devices, in accordance with Moore’s law (that the capacity integrated circuits doubles every two years); (2) the Internet’s “many to many” communication capability, which has been used only desultorily until recently, but which is the backbone of social media; and (3) the emergence of functioning artificial intelligence (AI), which, for the first time in human history, can put all this together in accordance with the design of an arbitrary, even diabolical, human intelligence.

Even the flexibility and “balance” touted by this essay may not save Western democracies. Why? Because it’s hard to counter a type of propaganda that plays right into your most sacred cultural value: freedom of speech.

When you believe, as if in a religious dogma, that “truth” will arise from the cacophony of competing voices, how can you possibly counter thousands of varying versions of “truth,” all entirely manufactured, and all prepared with all the skill, finesse and subtlety of which modern media are capable?

More fundamentally, how do you distinguish deliberately manufactured “truth” from the many variations in impressions and legitimate opinion that the First Amendment is sworn to protect? Our First Amendment absolutely prohibits an arbiter of truth, let alone a government one. So quis custodiet ipsos custodes (Latin: “who will guard the guardians”)? Can Mark Zuckerberg protect us? Will he?

Conclusion (for now)

The one thing that might save democracy is a bit of delay. It will take some time for anyone, even with the resources of Murdoch’s News Corporation, to perfect the sophisticated type of “fake news” juggernaut described above.

But in the meantime, there will be a lesser but still potent menace. For that you need look no further than Vladimir Putin.

Forget about any alleged “complicity” by President Trump and his campaign and/or transition team. Our investigatory apparatus will continue to chew on that and, at the appropriate time, spit out its conclusions.

But what Vladimir Putin and his minions did in our last election is already partly secret and may never be fully known. What we do know is that he, his trolls, and his fake news created a lot of confusion. They made our ordinary voters doubt what they think they know, doubt what their government tells them, and doubt even what their duly constituted intelligence services deigned to reveal.

How else can you explain that fact that our pols and our electorate seem to have utterly blown off the solemn conclusion of no less than all seventeen of our national intelligence services, with “high confidence,” that Putin and Russia tried mightily to influence our recent election and elect Donald Trump as our president?

Most probably, Putin and his FSB got the idea of meddling in our election too late to develop a consistent line to plug, and far too late to implement the best method to instill it in key parts of our electorate. What they mounted was self-evidently an ad hoc, experimental enterprise, limited to a few key, battleground states.

But an enemy doesn’t have to have a consistent, whole world view. All he has to do is sow doubt, confusion, and discord. Isn’t that precisely and self-evidently what Putin and his crew did? Isn’t that what he is still doing, as our own president fights within and without his own administration to belittle and curtail investigation of this foreign interference?

Preparing millions of individually tailored fake world views to move the needle of democracy precisely in a desired direction may be a tactic of the future. But sowing doubt, confusion and discord in what is ostensibly the world’s most powerful democracy is self-evidently a successful fait accompli.

This—not the Soviet Union’s or Russia’s nuclear arsenal—is the greatest threat we Yanks have ever faced. Just as HIV has caused a terrible global pandemic by attacking our bodies’ own immune systems, trolling and fake news as propaganda subvert our own Yankee culture by exploiting our prohibition on limiting or controlling anything resembling news. Just as HIV uses our bodies’ own immune systems against us, fake news uses our most sacred cultural principle against us.

It doesn’t matter now how long it takes for Putin (or anyone else, domestic or foreign) to turn this currently blunt instrument into a precise generator of any desired policy. Proof of concept already has been made. Putin has shown the world how to throw the most powerful nation in human history into doubt, confusion and discord. The ability to affect policy in detail, as if by some sort of mind control, will follow.

In the meantime, we have the most unqualified president in our national history—unqualified by both experience and character. We know, because our best spooks charged with knowing tell us, that Russia and Putin tried mightily to produce this result.

If we don’t soon find a vaccine or cure for this political version of AIDS, what is now the world’s leading society may suffer the most precipitous decline of any great empire in human history. Next to this threat, what happens to Trump and his Cabinet is minor stuff, hardly worthy of an historical footnote.

Errata: An earlier version of this post called free speech the “very first clause” in our First Amendment. It’s not. Clauses prohibiting the establishment of religion and restrictions on its free exercise come first. Also, the earlier version cited Goebbels’ first name as “Heinrich.” It’s not; it’s “Joseph.”

Errors like these help illustrate the thesis of this post. Human memory is fallible, including my own, although I’ve thought (and some might say “obsessed”) about these facts for at least half a century. With the name, my aging memory probably conflated Himmler’s first name, which was “Heinrich,” with Geobbels’.

Logically, these errors don’t detract much from my conclusions, except perhaps by reducing my general credibility. But imagine how an artificial intelligence, imbued with all the rules by which human psyches sum things up, might string together a bunch of “minor” errors like these, easily missed, to sway a reader’s or viewer’s opinion on something of substance. I regret these errors inasmuch as I know that real facts matter, and that how much they matter is not always apparent in advance.

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