Michael Yuri

A quick thought on judicial confirmation hearings.

I recently watched a webcast of a panel discussion involving Justices Breyer and Scalia and a few British judges. The American Justices were asked how much they care about the specific facts of the case before them, as opposed to the broader issues involved in the case. And both Breyer and Scalia agreed that when they hear a case, they worry a lot more about the precedent that the case will set than they worry about doing "justice" to the particular parties in front of them. This affects everything from the decision to grant certiorari (they care more about circuit splits than whether a specific case was wrongly decided by a lower court) to the hypotheticals they ask at oral argument.

Now, if a judge agrees with this approach (and I would bet the vast majority of judges would agree at least as far as the role of the Supreme Court is concerned), doesn't this completely undercut the claim by Court nominees that they can't opine on a given topic because it's so highly dependent on the exact details of the specfic case before the Court?

Yesterday, during Judge Alito's confirmation hearing, the issue of cameras in the Supreme Court came up again. I find myself strangely torn.

The typical arguments made in favor of televising the Supreme Court are familiar, and I find them convincing for the most part. I also support greater transparency in government and, more generally, the free flow of information. And here's an article by Professor Akhil Reed Amar from a few years ago making the case that the Court's stance on cameras is hypocritical in light of its First Amendment jurisprudence. But my ambivalence stems from one of the arguments often made by proponents of Supreme Court TV that I find unconvincing: Televising Supreme Court oral arguments will help to educate the general public about the Court and give us a populace better informed about the legal system and American government more broadly.

The problem with this idea is that oral arguments are just not central to what the Supreme Court does. The real action in the Supreme Court (and appellate courts generally) is in the briefs. It's not unusual for the Court to spend a large amount of time during an oral argument focusing on an issue that doesn't even appear in a footnote in the final opinion. Or to use up the entire hour and barely touch on the key questions that will ultimately decide the case. And there may be good reasons for this. The central issues may have already been spelled out in great detail in the briefs, and the Justices don't want to waste time going over the same ground. Or the litigators may feel that they already have a pretty good idea where most of the Justices are going to line up, so they focus on smaller points in the hope of winning over one or two swing Justices.

But for the average member of the public who is never going to take the time to read the briefs and understand the real issues at stake in the case, the oral argument looks like the whole show. In some sense, a person who watches the oral argument and then hears the judgment of the Court might be less well informed than someone who hears the judgment alone.

But then I think of my own experience. I've spent more than a few hours listening to oral arguments, and I feel that I've gotten quite a bit out of it. It has helped me to get to know the individual Justices, as well as learn about individual cases and the law more generally. I appreciated it when the court immediately released the recordings of Rumsfeld v. FAIR and Ayotte v. Planned Parenthood this year, and I'm impatiently awaiting the posting of the 2004 oral argument mp3's on Oyez. If they started televising the Court I would probably stick with the audio, but I would love to see same day availability of the recordings.

So what's my problem? Is this just elitism on my part? Access to this information is good for me, but the unwashed masses aren't capable of handling it? Probably. Maybe once the oral arguments start getting more attention, the media will do a better job of explaining what they're really about. I hope so, since this seems to be inevitable in the near future.

Okay, so every day was overly ambitious. Sorry about that. But I promise I'll have a bunch of new posts on Thursday.

I just read this article on Findlaw's Writ about the proposed .xxx top level domain. Unfortunately, this article manages to completely miss all of the nuances in the debate, by hiding a critical premise underlying the author's argument.

Here's how the author frames the issue:

Let's face it -- adult content, including explicit sexual pornography, runs rampant on the Internet. Internet users can implement specific searches looking for such content, and normally they will find what they are looking for. Other times, people inadvertently will stumble onto such explicit content when searching for something else; indeed, a domain name may give one the impression that the site is suitable for a general audience of all ages, only to turn out that it displays graphic sexual content that is inappropriate for minors or adults not wishing to view such content. So, what to do?

So the problem is that people who don't want to access explicit content have difficulty avoiding it because it is so ubiquitous. Okay, fair enough. But how does creating a new top level domain solve the problem?

Well, the author tells us:

[A]n Internet user easily could judge, based on seeing a .xxx domain name, whether the user truly wanted to visit such a site to view adult content, or if the user wanted to avoid visiting and seeing such content.

And:

[I]f one knows in advance the type of content displayed on a Web site by way of a domain name designation, that individual then has the power and free will to decide whether or not to view that content.

So what's missing? There's no explanation of how simply creating a new top level domain will do anything whatsoever about the innumerable adult websites already existing outside of it or any new ones that may be created even after the .xxx domain comes into existence. The hidden assumption here is that the creation of the .xxx domain will accomplish this goal by working in conjunction with some sort of purge and forced relocation of adult sites in the existing top level domains.

And this exposes the real battle lines of the debate. If the new domain is completely voluntary and has no effect on the use of the existing domains, then free speech advocates have immediate complaints. But this doesn't make the anti-indecency crusaders happy at all. It does nothing to reduce the glut of pornography already out there under .com or .net or anywhere else.

On the other hand, anyone who's concerned about civil liberties on the internet should be worried about the possibility that the anti-indecency side might win out and leave the .xxx domain the only acceptable place on the internet for explicit sites. All the familiar arguments over where the line is drawn on indecency and who gets to draw it (especially with international organizations like the UN itching to take a bigger role in controlling the internet) will be back in play.

The proponents of the new top level domain have tried to stake out a position in the middle. Use of the domain will be completely voluntary, but it will be overseen by a governing board, and will provide a forum in which the industry can self-regulate.

This kind of self-regulation may provide a benefit to porn consumers if it really provides a place where they can be free of malicious sites and credit card scams associated with the seedier side of the internet, but it will do nothing to benefit people who are trying to avoid pornography unless its accompanied by additional measures to force explicit sites out of the other top level domains.

Some have suggested that the whole thing is a protection racket. Pornography companies will buy .xxx domains to demonstrate that they are following the rules and being good citizens to avoided being targetted by politicians looking to crack down on obscenity.

I think it looks more like a classic case of Bootleggers and Baptists regulatory capture. The established players in the industry want to create the "voluntary" standards. They hope these standards will eventually be imposed on everyone, imposing heavy costs on low budget operations and limiting competition. Meanwhile, the anti-indecency crowd is hoping that the existence of self-regulation among the more "respectable" companies will give them the ammunition to go after the non-complying companies.

This outcome is hardly far-fetched. Joi Ito, a member of ICANN's board who is a proponent of the new .xxx top level domain, has responded to censorship concerns by saying:

I think the .XXX proposal is more about creating incentives for legitimate adult entertainment sites to come together and fight "bad actors" and is not focused on forcing people to use the .XXX domain.

But how do the "legitimate" sites have any power over bad actors if there's nothing compelling these sites to buy into the .xxx domain? Later in the post, Ito endorses another blogger's summary of the situation which says in part:

The fact that .XXX could be a political hook on which the governments of the world could hang Internet zoning laws could make the decision more palatable, but it's still a political minefield for ICANN.

In other words, governments will buy into .xxx because it will give them political cover for internet censorship. Politicans like Joe Lieberman endorsed the creation of the .xxx domain for the explicit purpose of forcing all adult sites out of the wider internet. Vinton Cerf, the Chairman of ICANN, explained in a Congressional hearing the reasons for ICANN's initial rejection of .xxx:

[O]ne of the problems that we encountered is not knowing how we would prevent any pornographic sites from registering in other than xxx. The principal question was enforcement. It wasn't clear how to do that and whether it could be effectively done.

But all of these issues are hidden if you ignore the ugly details of how the proposal could actually achieve the promised results.

Every year, on New Year's Day, Edge publishes a new edition of it's World Question Center. The idea is to ask the same broad, open-ended question to a hundred or so top intellectuals in various fields, and see what they come up with.

The responses are usually a pretty interesting mix of ideas. A number of them just use it as an opportunity to push the same ideas they've been peddling in their latest books. But there are always a few ideas that I find new and profound. And a few people who strike me as very confused. But your mileage may vary.

This year's question is "What is your dangerous idea?":

The history of science is replete with discoveries that were considered socially, morally, or emotionally dangerous in their time; the Copernican and Darwinian revolutions are the most obvious. What is your dangerous idea? An idea you think about (not necessarily one you originated) that is dangerous not because it is assumed to be false, but because it might be true?

It's a new year, and I'm going to take another crack at blogging. No promises that I'll succeed, but I'm going to make a real effort to try to post at least one entry worth reading every day.