Aaron Williamson's webl

When the White House first began posting photographs taken by its official photographer on Flickr, it caused a minor kerfuffle about licensing: the photos were posted under a Creative Commons Attribution (CC-BY) license, even though works of the U.S. government are in the public domain.  It turned out that the White House chose CC-BY because “public domain” wasn’t an option Flickr’s interface offered, and CC-BY is the least-restrictive CC license.  In short order, Flickr added a “United States Government Work” option for the White House and the whole thing was fixed.

Sort of.

A friend just posted about a White House photo on Flickr, which is appropriately designated as a United States Government Work.  However, beneath the photo is the following text:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, or promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

Several things about the section in bold are problematic.  The first is that it contradicts the law, and the government’s own statement of the law (linked to from the Flickr page), by prohibiting derivative works as well as, it would seem, many other permissible uses.  The limitation to publication by news organizations contradicts the public’s right to distribute copies of the photos, and to display them.  The release by “the subject(s) of the photograph” may be intended to remind users that some states recognize individuals’ rights to the use of their likeness in certain limited contexts (recall another Flickr-related licensing dispute), but those laws do not justify a broad proscription on use by anyone other than news organizations.

Maybe after one more time around, the White House will figure out what “public domain” really means.

Matt Asay does not believe in a fundamental right to Internet access. His most recent barely considered core dump of generalities begins with this bit of popular conservo-libertarian retcon: “While the framers of the U.S. Constitution talked about the rights of assembly, speech, and religion, our modern world has crowned new rights.”  He goes on to lament the “entitlement culture” which has produced one or two European Politicians who believe Internet access is a fundamental right, and to pioneer the notion that people should have fewer rights and more (unenforceable) responsibilities.

Matt is wrong¹ about history.  Nevermind that his thesis, about the framers’ niggardly disposition of rights, enumerates only those granted in the First Amendment (that’s out of 10).  By simplifying to absurdity the history of the Bill of Rights, and omitting completely the development of rights over the course of U.S. and world history, Matt leaves not even a single fun-sized marshmallow of credible context to support his rhetorical toothpick-house.

His conception of the constitutional framers as a unitary band of Democratic-Republicans is shallow, ignoring that the Constitution is and has always been a product of compromise, and that the Bill of Rights is by its own terms² an irreducible minimum statement of rights, not an exhaustive list.  To give Matt some credit, he correctly points out that “US constitutional rights tend to keep govt *out* of citizens’ lives,” and he believes that a right to access does the opposite (roundaboutly, via increased taxation). But Matt’s questionable comprehension of constitutional history is not entirely (or even mostly) why he’s so wrong.

The problem with all of these bothersome rights, Matt says, is that they create a slippery slope.  If you give someone a right, then they might think the right is attended by specific guarantees.  Deftly unwinding the logical integrity of a single tweet, Matt points out that if people are given a right to use a channel of communication simply because that is how one interacts with government, then there is no literally no possible way to distinguish that channel from any other.  If the right to participate in government means that the government must enable that right, then they have to in every conceivable, to the full extent imaginable.  End result?  The government has to buy me the New York Times AND the Wall Street Journal so I can make an informed voting decision.

Matt went to law school, scout’s honor.  At Stanford.  Presumably he took Constitutional Law and learned that over this country’s 230-odd years, Congress and the courts have managed to define, adapt to technological changes, and where necessary narrow a great number of rights, all without giving me a free newspaper.  They’ve addressed some of the issues Matt touched on — for instance by requiring balanced treatment of controversial issues by broadcasters — but the unlimited expansion of rights with which Matt is concerned has been repeatedly thwarted by reasonable people.

But again, one need not engage Matt on the battlefield of grand constitutional theory to see why he is wrong.  One need merely do what Matt seems never to ever do before reaching — and blogging — his opinion: read past the headline.  Because the “fundamental right” Matt is up in arms about isn’t the one he thinks it is.  The European Commission did not consider “codifying Internet access as a basic human right.”  Rather, it merely considered an amendment prohibiting ISPs from limiting subscribers’ access without a court ruling:

[T]he Parliament’s lower house… passed an amendment to the telecommunications package making it illegal for any E.U. country to sever Internet service unless a citizen is found guilty in court…

As the New York Times notes, “the amendment was intended as a rebuff to a proposal before the French National Assembly that would allow a government agency to sever Internet service based on industry complaints.”³ It does not create a right to access for those who haven’t paid for it or impose any other great taxpayer burdens.

So Matt is wrong even about the topic of the debate — the “fundamental right to Internet access” is a strawman he’s set up.  I don’t think he intended to mislead anyone, he just didn’t do his homework.  He read a couple of headlines and one politician’s puffery and took it from there (this is a common M.O. for Matt, which is a major contributing factor to his always being wrong).  But even that immanently defeatable strawman (I don’t know anyone, myself included, who would argue for creating a fundamental right to Internet access, and certainly not absent a detailed plan for implementation and some strong limits on scope) is more than a match for Matt, who relies on popular historical revisionism and an unrealistic parade of horribles to refute the argument that no one is making.

1. Matt Asay is Wrong will be a recurring feature of the copiesofcopies webl. [↩]
2. See the Ninth Amendment. [↩]
3. French Anti-Piracy Proposal Undermines E.U. Telecommunications Overhaul, May 7, 2009.  Matt claims that Parliament voted against the amendment, which is incorrect.  The parliament instead temporarily defeated a deal permitting three-strikes style laws, by introducing the amendment.  This can all be found in the first two paragraphs of the article Matt cites. [↩]

I was on the treadmill when this segment on CNN about conservatives’ opposition to Obama’s health care policies made me wheeze uncomfortably with laughter.  A swiftboat organization called Conservatives for Patients’ Rights–led by disgraced, corrupt healthcare CEO Richard Scott–has paid $20 million for a piece of the media spotlight on the issue.  The campaign demonstrates everything that is wrong with 21st-century conservative politics, the casting of corporate-interest lobbying as grassroots campaigning being first among the problems.

But what got me laughing was Scott’s pithy demonstration of another problem: conservatives’ refusal to acknowledge the complexity of political issues or the merits of opposing arguments.  No doubt on the advice of his swiftboat-PR consultants, Scott blithely dropped this line during his CNN spot:

Are the decisions that I make with my doctor for my care going to be dictated by some federal bureaucracy? That’s very scary.

I won’t bother connecting the dots.  Suffice it to say that I think it’s disingenuous for conservatives to rally under this particular banner.

David Foster Wallace, with whose loss the senselessness of our time increased measurably, wrote much during the 90s that is relevant to the present political morass.¹  Most literally relevant is Up, Simba, on McCain’s 2000 primary run and the appeal of that candidate’s character.²  But in the unlikely context of his review of a Dostoevsky biography, DFW also nails the importance of Obama’s campaign:

Our intelligentsia distrust strong belief, open conviction.  Material passion is one thing, but ideological passion disgusts us on some deep level.  We believe that ideology is now the province of the rival SIGs and PACs all trying to get their slice of the big green pie . . . and, looking around us, we see that indeed it is so.  But [biographer Joseph] Frank’s Dostoevsky would point out (or more like hop up and down and shake his fist and fly at us and shout) that if this is so, it’s at least partly because we have abandoned the field.  That we’ve abandoned it to fundamentalists whose pitiless rigidity and eagerness to judge show that they’re clueless about the “Christian Values” they would impose on others.  To rightist militias and conspiracy theorists whose paranoia about the government supposes the government to be just way more organized and efficient than it really is.  And, in academia and the arts, to the increasingly absurd and dogmatic Political Correctness movement, whose obsession with the mere forms of utterance and discourse show too well how effete and aestheticized our best liberal instincts have become, how removed from what’s really important — motive, feeling, belief.

I don’t think I’m a personality cultist devoted to an empty idea of “change,” because of the change I’ve seen already: Obama already reclaimed belief — ideology — from its abusers and made it more believable.  He’s not going to fix everything, in fact his administration is likely to be a disappointment.  But to restore conviction from its debased position in American politics is a real accomplishment and maybe the one I’m really voting for.

1. Full disclosure: all of the “much” I refer to here and in fact all I’ve ever read of DFW I read in Consider the Lobster. [↩]
2. And most timely is DFW’s account of the McCain 2000 campaign’s implosion upon “going negative” against George Bush II. [↩]