Reason Magazine - Staff > Jesse Walker

Drunk Without Power

jwalker@reason.com (Jesse Walker) — Mon, 01 Dec 2008 12:00:00 EST

There is a legend many conservatives tell about the ways the Founding Fathers have been remembered. Once upon a time, the tale goes, historians gave the men who created this country the respect they deserve. Then hippie revisionists took over the academy, and now schoolchildren are indoctrinated with every unpleasant rumor and fact about the Founders that the tenured radicals can find.

This story has many holes, even when the subject is George Washington or Thomas Jefferson. But when it comes to Luther Martin, the long-winded Baltimore attorney who stood up for states' rights during the debates over the U.S. Constitution, the truth is almost exactly the opposite. For two centuries, Martin has been remembered, if he is recalled at all, for the unappealing rumors and facts that had attached themselves to him. Those unflattering portraits, which depicted the defender of decentralism as a prolix dipsomaniac who stood athwart the Constitutional Convention yelling "Stop!," were initially spread not by radical academics but by Martin's fellow Founders. Now the independent historian Bill Kauffman, who may not be a hippie but certainly is a revisionist, has rehabilitated Martin's reputation in an irreverent and enjoyable biography, Forgotten Father, Drunken Prophet. Martin may have been an alcoholic prone to rambling, Chavezesque speeches, Kauffman says, but he was also a prescient critic of the problems built into America's Constitution....

Read the rest of this article in The American Conservative.

Republicans Seek Bailout

jwalker@reason.com (Jesse Walker) — Fri, 21 Nov 2008 15:00:00 EST

WASHINGTON—In the wake of their party's devastating losses in the last election, a delegation of Republican leaders has come to Capitol Hill requesting a rescue package of $25 billion. "We're seeing a potential meltdown in the conservative movement," party chair Mike Duncan told lawmakers Thursday morning, "with consequences that could impact directly upon millions of middle-class Americans and cause further devastation to our economy. I support the free market, but the Republican Party is too big to fail."

"There's tons of jobs that depend on the Grand Old Party," agrees Senate Minority Leader Mitch McConnell (R-Ky.). "I don't just mean the employees of the GOP itself. I mean all our partners and suppliers, everyone from Bechtel to the Connecticut for Lieberman Party. There's the field tech at Fox News, the secretary at the Heritage Foundation, the guy who keeps the shredding machine humming at Halliburton. Yes, Sean Hannity can always go back to pitching steakhouses. But not everyone has a valuable skill to fall back on. What about Frank Luntz? What do you say to him?"

Critics argue that Republicans need to feel the pinch of failure if the party is ever to reconstitute itself. "If you reward their losses, they'll just keep losing," says AFL-CIO President John Sweeney. "They won't learn any discipline, and they'll keep making the same mistakes." Even some supporters of the rescue package were disturbed when an internal memo surfaced containing the party's plans for the bailout money. Approximately 15 percent was to be spent running ads about Bill Ayers in central Ohio, 25 percent was earmarked for "the Chalabi account," and 45 percent was to be used building infrastructure near Nome, Alaska.

Within the GOP itself, a few figures worry a bailout might come with too many strings attached. "I'd love to get some money from the government, but not if it means those liberals in Congress will be writing our next platform for us," says party strategist Karl Rove. "Who knows what concessions they'll demand? Give them a say in what we do, and you might suddenly see Republicans proposing an enormous new entitlement, or imposing federal mandates on local schools, or even nationalizing banks. The party of Goldwater would be dead."

With Democrats controlling both Congress and the White House, few expect the bailout to be at the top of the Washington agenda. Nonetheless, sources close to the president-elect say that even if the rescue proposal fails, Barack Obama might find another way to help the institution that did more than anything else to fuel his rapid rise from the Illinois State Senate to the Oval Office. "Obama owes his career to the Republican Party, and he's not about to forget that," says one insider. "Mark my words. By the time we're two years into his administration, the GOP will be reinvigorated like never before."

Managing Editor Jesse Walker is the author of Rebels on the Air: An Alternative History of Radio in America.

What's the Matter With Libertarians?

jwalker@reason.com (Jesse Walker) — Thu, 20 Nov 2008 12:00:00 EST

The Wrecking Crew: How Conservatives Rule, by Thomas Frank, New York: Metropolitan Books, 353 pages, $25.

One of the screwier sentiments circulating in libertarian circles holds that liberals should love George W. Bush. After all, he spends lots of money! It’s an analysis for people who’d rather joust lazily with strawmen than engage their opponents’ ideas. Real-life liberals don’t want the government to spend money willy-nilly; they want it to spend money on specific things. And the items they have in mind are not, by and large, the items chosen by Bush.

In The Wrecking Crew, a brief and breezy polemic by one of the left’s rising stars, Thomas Frank offers a similar argument about libertarianism. Under Bush, Frank points out, federal spending has exploded and corruption has oozed from official Washington. Obviously, we’re watching the free market in action, because businesses benefit! Really.

Frank, formerly the editor of the radical journal The Baffler and currently the token lefty on the Wall Street Journal op-ed page, doesn’t just fail to distinguish between crony capitalism and free markets. He actively refuses to recognize the difference. “Laissez-faire,” he admits, “has never described political reality all that well, since conservative governments have intervened in the economy with some regularity.” Yet that doesn’t prevent him from declaring a little later that “what makes a place a free-market paradise is not the absence of government; it is the capture of government by business interests.” If you relied on Frank for your information, you would never dream that the idea of laissez faire initially emerged not as a defense against left-wing regulators, who were scarce in the 18th century, but as a critique of subsidies, government-imposed monopolies, and what Adam Smith called the “mean and malignant expedients of the mercantile system.” In other words, the “free-market paradise” was supposed to be an alternative to “the capture of government by business interests.”

Frank knows that libertarians believe the state is the engine by which some segments of society loot the others. “Governments are instituted among men in order to help one group in society exploit another,” he writes, summarizing Albert Jay Nock’s Our Enemy, the State. They “are then captured by some other class, which sets about exploiting some other group, and so on.” For the free market set, says Frank, “there is no conceivable instance in which the state might be reformed or function morally: only oppression succeeding oppression all the way to the far horizon.”

Frank won’t acknowledge the implicit alternative: a society with much less government, where competition replaces privilege and cooperation replaces coercion. Instead he treats the Nockian perspective as a piece of psychological projection, less a description of state power as it is ordinarily exerted than a forecast of the Bush era. Free marketeers believe the state is essentially a tool for looting the treasury; therefore, Frank concludes, when free marketeers are in power, they loot.

In the waning months of an administration marked by enormous interventions on behalf of business interests, there has been an understandable surge of interest in both libertarianism, the ideal of a government that doesn’t intervene on behalf of any particular player, and social democracy, the ideal of a government that manages to help the masses without being captured by corporations. The best way to understand The Wrecking Crew is as propaganda for one of those alternatives against the other.

To that end, the book does everything it can to conflate libertarians not just with the Bush regime but with conservatives in general, regarding the two groups’ on-again, off-again alliance since the 1930s as a more permanent and deep-seated connection. “The conservative coalition has changed over the years,” Frank informs us, but “a commitment to the ideal of laissez-faire” has “remained steadfast.” When he turns his attention to the present day, he paints the Republican regime of cronyism and militarism, and its ugly results from Baghdad to New Orleans, as a specifically libertarian dystopia.

For evidence, Frank expends much breath describing the ways work once done at taxpayers’ expense by the federal bureaucracy itself is now done at taxpayers’ expense by federal contractors. There is a glimmer of an indictment of the pro-market movement here: Some libertarian economists have argued that contracting out exclusive services to private providers will be more efficient than doing the work in-house, and that this could serve as a stepping stone toward moving those functions to the free market. I don’t feel compelled to defend that view, since I have limited sympathy for it myself; still, I should note that the free market case for outsourcing has always stressed the need for competitive bidding, transparency, and other elements obviously absent from the sweetheart deals and no-bid contracts that attract Frank’s attention. And much of the spending Frank describes doesn’t even fall under the category of contracting: Simple earmarks earn a lot of his anti-market ire, as if Milton Friedman dreamed of a world where more pork went to businesses than to nonprofits.

Frank’s argument about government regulation is a bit more sophisticated. It may appear, he declares, that Republicans have done little to roll back the regulatory state, but looks can be deceiving. When the plutocrats despise a department but the masses support it, he contends, the “standard method” is to put the bureau “under the control of someone who is either spectacularly ill-suited for the job or vocally opposed to that department’s mission,” a strategy that “avoids the tactlessness of repealing or abolishing agencies while achieving the same results.” His examples include Howard Phillips, appointed chief of the Office of Economic Opportunity under Richard Nixon in order to wipe out the agency’s subsidies to the left; and James Watt, Ronald Reagan’s first secretary of the interior, who was famously friendly to ranchers, drillers, miners, and other businesspeople who wanted access to public land.

Frank recognizes that it isn’t exactly unprecedented for an industry to capture the agency that is supposed to regulate it. He quotes the railroad lawyer Richard Olney, attorney general in the second Grover Cleveland administration, explaining why he didn’t want to destroy the new Interstate Commerce Commission, an agency ostensibly designed to stop rate discrimination: “It satisfies the popular clamor for government supervision of the railroads, at the same time that that supervision is almost entirely nominal.” Frank does not discuss the other reason many railroad companies supported the ICC, and indeed lobbied to create it. As the historian Gabriel Kolko pointed out in his 1965 study Railroads and Regulation, freight rates in the late 19th century kept dropping, despite the industry’s attempts to stabilize them via voluntary agreements; when those efforts failed, the companies decided to use regulations to “bring under control those railroads within their own ranks that refused to conform.” That meant strengthening the commission, by giving it the power to set standard rates.

In other words, pro-business officials weren’t deregulating the railroads through inaction; they were regulating the rails in a way designed to assist the industry’s dominant companies. This was no aberration. When trucks started carrying freight, the same agency imposed a host of rules whose chief effect was to impose entry barriers against upstarts. The Civil Aeronautics Board was essentially an open conspiracy to eliminate competition in the airline business. There was a revolving door in the late 1920s and early ’30s between broadcast networks and the Federal Radio Commission, which dutifully reduced the power levels and transmission hours of smaller stations. When the New Deal regime replaced the agency with the broader Federal Communications Commission, that state-corporate partnership remained in place.

The result of such cozy arrangements is not just corruption but stagnation. In 1973—at a time when, by Frank’s account, “the country had embarked on a massive regulatory offensive, and reversing it would require conservative mobilization on an equally massive scale”—one observer wrote that “it is difficult to provide evidence of what innovations would have occurred without regulation; yet it is clear that technological lethargy logically adheres in the very structure of regulation.”

Was that cynical critic some corporate apologist slandering a sensible system? Nope: It was Mark Green, now president of the Air America radio network and a serial left-wing candidate for public office. He made that observation in The Monopoly Makers, a book assembled by Ralph Nader’s Study Group. By the 1970s, while the business-friendly Nixon administration was getting behind the “regulatory offensive” that Frank praises, the Naderites had become so disenchanted with the status quo that many of them were willing to call for substantial deregulation. Within a few years, Nader and that notorious Nockian, Sen. Ted Kennedy (D-Mass.), would push airline deregulation through Congress, at which point it was signed into law by the John Galt of presidents, Jimmy Carter. This incident is absent from Frank’s description of the “conservative mobilization” against regulation.

Instead he writes about episodes such as Watt’s tenure at Interior, an alleged example of deregulation being enacted in practice rather than statute. But Frank misses the most telling detail of Watt’s reign: The secretary was cool to the idea of moving public assets to the private sector. Indeed, he helped nudge Reagan away from a proposal to sell even a small fraction of federal lands. In this, he followed the preferences of the industries that used that terrain. They preferred the below-market rates they negotiated with regulators to the full costs they’d have to pay in an open market.

The alleged regulatory rollback of today tends to follow the same pattern. The agencies have sometimes, as Frank writes, pulled back from practices that offend the dominant players. The Department of Agriculture, for example, watered down its meat inspection processes in the Bush and Clinton eras. But the department hasn’t been shy about wielding its hammer against industry outsiders. When the owner of Montana Quality Foods, an independent meat packer, informed the government that he had received contaminated beef from the heavily subsidized giant ConAgra, the food cops jumped into action and investigated...the whistleblower. And the department actually prohibited a small company in Kansas, Creekstone Farms Premium Beef, from testing its own cattle for mad cow disease. After all, if Creekstone advertised the fact that its beef was 100 percent safe, the bigger packers would have to either lose market share or respond to the competition by doing all that expensive inspecting themselves.

Such favoritism resembles the way the mid-20th-century FCC treated the Austin broadcasting operations owned by Lyndon Johnson’s wife. If a rule stood in the Johnsons’ way, the commissioners found a way to waive it. But if an upstart wanted to compete with the couple’s local monopoly, the government came up with an excuse to block it.

The FCC, incidentally, has arguably been more interventionist under Republican chief Kevin Martin than it was under the last Democrat to fill the position, William Kennard. More broadly, according to an August report from the Weidenbaum Center at Washington University in St. Louis and the Mercatus Center at George Mason University, regulatory spending has gone up more than $20 billion in constant dollars since Bush became president. Regulatory staffing has decreased in some areas, including labor and the environment, but only slightly—and it has increased by more than 80,000 employees overall. This is not a regulatory apparatus that has been hollowed out and rendered ineffective. It is a government pursuing the same general industry-boosting approach it took from the ’30s through the ’70s. If Frank wants to imagine that we’re in an era of laissez faire now, he ought to extend his fantasy back to the period he prefers.

But he won’t. Frank, who first came to prominence as a caustic cultural critic, now writes with a gosh-wow earnestness about the Roosevelt-Truman-Johnson era; he spends more time describing a gooey civic text from 1945 called We Are the Government than he does exploring the government’s actual activities in the ’40s. Frank has a long history of disdaining any American figures, from Barry Goldwater to the Beats, who challenged the mid-century liberal consensus. In this book he extends his animus even to the public’s post-Watergate skepticism, pointing out that it “permanently poisoned public attitudes toward government and stirred up a wave that swept Ronald Reagan into office six years later—and made antigovernment cynicism the default American political sentiment.” This is the domestic equivalent of a neocon fretting about the Vietnam Syndrome.

Frank’s narrative reaches a crescendo when he describes the Northern Marianas, a U.S. commonwealth in the Pacific where taxes on capital were low, minimum wage laws were weak, construction permits were granted freely, and, in a sharp break from all that deregulation, an army of foreign guest workers were legally prohibited from changing jobs without official permission and thus were largely helpless in the face of abuse. When the Interior Department started making noises about overruling some of those policies, the island government hired the rightwing fixer Jack Abramoff to make its case to the nation. Abramoff dutifully began to boast about the benefits the territory had accrued with its lower taxes and lighter business regulations. Those advantages were real, but they were only part of the story. As long as those workers were legally chained to their employers, exploitation was inevitable.

You might conclude from this that labor mobility in the Marianas needed to be deregulated. Frank concludes that the free market is a fraud. Specifically, he says: “What went on in the [Northern Marianas] could not have happened without the active involvement of the state. Yes, this was a free-market paradise, as the libertarians assured the world on dozens of occasions, but a free-market system never simply means do what thou wilt.”

So is there any merit at all to this book? Actually, there is. Frank devotes a lot of space to the underside of the right in the Reagan years, when Abramoff and Ralph Reed were College Republicans instead of corrupt appendages to the political class. This is the one section where he makes a real contribution to our understanding of the last three decades, sifting through ancient direct-mail packages and low-circulation right-wing journals to paint a vivid picture of a milieu that hasn’t received much attention from historians.

The account that emerges is sometimes superficial, but Frank has noticed something that many mainstream pundits miss: the flat-out weirdness of the 1980s right. Modern Republicans often chide the liberals of that decade for not realizing the Soviet Union was on the brink of collapse, but the conservatives could be even further off base. Just a few years before the Communist system collapsed under its own weight, paranoid cold warriors imagined Moscow as a virtually all-powerful giant, its tentacles pulling stateside liberals’ strings while our weak-willed society teetered toward surrender.

Meanwhile, Rambo-era conservatives cast themselves as a band of guerrilla heroes, openly drawing on their Marxist enemies for inspiration. Frank actually understates the levels of irony here. He describes the right’s love affair with a series of morally dubious anticommunist rebellions in the Third World, with the Angolan thug Jonas Savimbi receiving the veneration that a certain sort of leftist gives to Che Guevara. “Angola had been one of the very last countries in Africa to be freed from colonial domination,” Frank explains, “but unlike so many other ‘national liberators’ over the preceding decades, Savimbi was not a Communist.” Somehow Frank neglects to mention the funniest part of the tale: Savimbi was a communist, or at least had played that role when his biggest benefactors were based in Beijing rather than the Heritage Foundation. In Cambodia, similarly, the right exalted the nationalist opponents of the Vietnamese occupation while tiptoeing around the fact that they were effectively fronts for Pol Pot, the bloodthirsty former dictator who made Mao look like a mild-mannered McGovern volunteer. The same people who accused liberals of being naive communist dupes were themselves...naive communist dupes.

Against this background, the young Abramoff and others drew freely on libertarian language about the virtues of the market and the evils of the state, even as they prepared for careers of using the state to feather their nests. This phenomenon is genuinely disturbing, and if Frank had been willing to take his foes’ ideas seriously he could have expanded his discussion of it into a potent critique.

Frank is wrong to blame the libertarian attitude toward government for the crony capitalism of the Bush years. But it is true that many conservatives used the libertarians’ anti-statist rhetoric as they acquired power, then turned around and behaved like stock villains from the free market imagination. Worse yet, some people in the libertarian movement were their willing partners, if not in the looting spree then in the selective outrage that helped those unprincipled opportunists take over Washington.

Someone could write an interesting book about that. But not Frank. For one thing, he’d have to contrast such corruption with the behavior of all the free market organizations that refused to fold their principles when a funder’s interests were at stake. More important, he’d have to acknowledge that there is such a thing as a libertarian principle in the first place, that it’s possible to take a stand for economic liberty and anger a wealthy corporate donor in the process.

If Frank embraced that sort of intellectual rigor, his thesis would have unraveled. He would have had to treat the people who believe in unfettered markets as more than just a front group for the regime that brought us billion-dollar bailouts and a trillion-dollar war. And that would mean acknowledging that Frank’s political tribe is not the only conceivable alternative to the Bush Republicans.

Managing Editor Jesse Walker is the author of Rebels on the Air: An Alternative History of American Radio (NYU Press).

Satan's Faces

jwalker@reason.com (Jesse Walker) — Fri, 31 Oct 2008 15:00:00 EDT

If you head to a Halloween party tonight in a devil's mask and a flowing red cape, you'll embody an array of ideas that might seem mutually exclusive: the allure of a Devil's Food Cake and the fear of the demon within, the cosmic enemy in a Jack Chick comic and a camp figure on South Park. Over the last two millennia, Satan has worn many masks. In the pluralistic postmodern era, he wears them all.

The most thorough account of Lucifer's many guises may be A History of the Devil: From the Middle Ages to the Present (2000), a sweeping chronicle by the French writer Robert Muchembled. An historian at the University of Paris XIII, Muchembled is spending this semester as a visiting professor at the University of Michigan; his most recent tome, Orgasm and the West: A History of Pleasure from the 16th Century to the Present (2005), will make its American debut at the end of the year. If you think there might be some thematic overlap between the two books, you're correct. "I still had this question, after so much research: Why did you have people thinking some women had intercourse with the devil?" Muchembled says. "The problem of pleasure is also important here, because in the trials the judges were asking the witches, 'Did you get pleasure from the devil?' The answer would always be, 'No, not at all! It was very painful, it was ice cold.'"

By Muchembled's account, our shifting visions of Satan are closely linked to some of the central events and trends of the last millennium: the wars of religion, the rise of the modern state, the regulation of sexuality, the ever-present search for scapegoats. He draws on a rich variety of cultural artifacts to make his case, from medieval sculpture and painting to modern movies and comics, from the "devil books" of 16th century Germany to the canards of 17th century France.

The first major change in the European conception of the devil, he argues, took place at the end of the Middle Ages. Before then Satan was seen as a small-scale, almost comic figure, cursed with a shrewish wife and regularly outsmarted by ordinary peasants. Tales along those lines persisted in Western folklore for centuries afterwards, but as new forms of sovereignty emerged on Earth a similar process took hold in Hell. Lucifer grew larger, and so did the number of demons at his command. In the art of the 14th century and afterwards, Muchembled writes, "The signs of Lucifer's power are now heavily emphasized: he is bigger than the other demons, seated, and even, exceptionally, wears a crown." The threat of an afterlife in Hell, meanwhile, reenforced the power of the earthly authorities. If the rise of powerful monarchs allowed a new model of Satan to take hold, the new Satan in turn proved advantageous to the monarchies.

A similar coevolution was at work in the witch-hunting mania of the early modern era, which spread with the wars that pitted Protestants against Catholics. "Contemporaries," Muchembled reports, "were impatient for the return of social harmony, not through tolerance, which was hardly a functioning concept at the time, but under a firm hand that would ensure that every transgression was vigorously punished." It was a worldview in which both Satan and the state were, in effect, arms of God, punishing deviants both on Earth and in the underworld.

Meanwhile, the number of deviants deserving punishment was multiplying. In cultures that increasingly prized obediance and conformity, the authorites found fresh ways to ask their subjects to obey and conform. "The diabolic discourse," Muchembled notes, had already begun "to refer to the human body as it ought not to function," an association that over time would take in everything from legends of human-animal chimeras to new efforts to control sexuality. In 16th century France, it would mean a wave of moral prohibitions intended to strengthen the state by enforcing a particular family structure. Royal edicts buttressed the authority of men over women and of parents over children; there were crackdowns on sodomy and adultery, and an "increasingly close supervision imposed on women."

Muchembled draws the obvious connections between this repression and the misogyny of the witch hunts. But the cultural effects did not stop there. The era's intolerant attitudes applied to actual knowledge as well as carnal knowledge: It is in this period that we see the first legends of Faust, the scholar who traded his soul to Mephistopheles for a quarter century of power, pleasure, and enlightenment. In that day, Faust's ends as well as his means were considered suspect. "To know everything, to do everything and to taste everything"—Faust's dream—"was now seen as a rebellion against God," writes Muchembled.

With the end of the wars of religion and then the dawn of the Enlightenment, Hell's power waned. It became possible for young Romantics to openly identify themselves with the devil, taking an idea nascent in Paradise Lost and transforming it into a full-blown commitment to Satan as a rebel angel. Superficially, this may look like a growth in Lucifer's strength—actual Satanists, publicly parading their infidelity!—but in practical terms it meant he was being tamed. Baudelaire famously told us that the devil's greatest trick was to persuade us that he does not exist, but you could as easily argue that nothing deflates his power, on Earth if not afterward, like an encounter with his terrestrial representatives. Compare the Luciferian conspiracies of the witch-hunters' imagination to the pathetic reality of a suburban Satanic coven. We may have our periodic panics over heavy metal murders or ritual child abuse, but there's nothing like the loser who spent every math class carving the words "Iron Maiden" onto his desk to keep our worst fears in check. That's the Dark One's minions?

Today, advertisers have embraced a mild Satanism of their own, with candies pitched as "sinful" and demonic figures appearing on hot sauces and beers. In some ways we've come full circle. South Park, the most Rabelaisian entertainment on TV, offers a throwback to the devil of a thousand years ago: henpecked, fallible, easily outwitted, more an object of burlesque than a figure of fear.

Unfortunately, Muchembled's discussion of the modern era is the weakest part of his book. He offers insightful comments on texts ranging from the tales of H.P. Lovecraft to the films of Val Lewton, but he tries to force them into an oversimplified dichotomy between the cultures of Europe and the United States. This requires a less-than-nuanced view of both the contents of American pop culture and the ways different audiences receive it; there are no references here to Jack Chick parodies or to South Park, no hints that a Pentagram-sporting Middle American metalhead might bring some ironic distance to that occultic imagery. (Instead, we get the usual European disapproval of American firearms.) When I spoke with Muchembled, he granted that he had painted the U.S. with a broad brush, but he suggested that you could still divide modern attitudes toward the devil, both in America and elsewhere, into "two sides. One saying the devil exists. The other saying no."

Not that there's any shortage of secularized Satans for people who've given up on formal religion. The fear of the devil within us certainly persists, though Freud and others have given us a different vocabulary with which to discuss him. And external Satans? They're as close as the cocaine in your cousin's closet or the pedophile living under the bridge into town.

For Halloween tonight, revelers will dress as witches and ghosts, vampires and aliens, zombies and werewolves and Old Nick himself. It will be lighthearted fun, an evening of collective play-acting that nearly everyone involved will recognize as make-believe—a throwback of sorts to the old medieval carnivals.

At the same time, fearful families across America will be on the lookout for razors in their apples and poison in their candy, for serial killers and child molesters. The Texas blogger Scott Hanson has pointed out that there's only one known case of a trick-or-treating child being abducted by a stranger; it happened 35 years ago, and the criminal in question "had no prior record and wouldn't have been on any sex offender registry even if it had existed." This shouldn't be surprising, given that young trick-or-treaters generally go out with adult supervision. Nonetheless, state and local governments will put on their annual show of protecting children against everyone on the local registries, whether or not the offenders' crimes involved minors. In a move that seems excessive even in the current climate, New York has made it illegal for sex offenders to possess Halloween candy. And in Texas, the San Antonio Express-News reports, they're "required to turn off their porch lights and are prohibited from having any exterior decorations between 5 p.m. and 5 a.m. on Halloween, with parole, probation and police officers checking to see if they comply."

Call it a protective ritual against an unseen enemy. In our terrors, like our joys, we might not be so different from our ancestors after all.

Jesse Walker is the managing editor of reason and the author of Rebels on the Air: An Alternative History of Radio in America.

Beyond the Fairness Doctrine

jwalker@reason.com (Jesse Walker) — Tue, 28 Oct 2008 07:00:00 EDT

First the good news: The fairness doctrine is still dead, and it probably will stay dead even if Barack Obama becomes president. The doctrine, a rule that gave the government the power to punish broadcasters for being insufficiently balanced, was killed off 21 years ago. It isn't likely to return, despite persistent rumors that the regulation's rotting corpse will crawl from its coffin and disembowel Rush Limbaugh.

But you can't blame talk radio fans for worrying. When the Federal Communications Commission enforced the doctrine, from 1949 to 1987, it was a convenient club for politicians and interest groups itching to silence their critics. During the last couple of years, House Speaker Nancy Pelosi and other prominent Democrats have publicly pined for its return, a change that would effectively require any outlet that transmits Sean Hannity's show to either devote a chunk of its schedule to rebutting him or, more likely, dial back its political programs altogether and air a jock or a psychiatrist instead. Pelosi's party hasn't come close to restoring the rule, but they've handed a powerful political weapon to the opposition: Every time the Dems raise the subject, right-wing radio shows and blogs broadcast the news to an angry conservative base. In a year when rank-and-file Republicans are uncomfortable with their party's presidential nominee, it's a potent way to persuade them to hold their noses and vote for John McCain.

And so the conservative weekly Human Events warns that "liberals are chafing at the bit, waiting for regime change in Washington to give them the ability to reinstate the ‘fairness doctrine.' " Michael Medved, the movie critic and AM talker, announces in towering capital letters that "THOSE RADIO HOSTS WHO CLAIM THAT MCCAIN AND HIS DEMOCRATIC RIVALS ARE ‘INTERCHANGEABLE' SHOULD NOT IGNORE THIS CRUCIAL ISSUE." And Cliff Kincaid of Accuracy in Media—an organization that never shied from wielding the fairness doctrine against the left—frets that "if Obama captures the White House and gets the opportunity to appoint the FCC chairman, liberals would then have a 3-2 majority capable of bringing back the Fairness Doctrine through administrative action, without the need for congressional approval."

It won't happen, says Obama. On June 25, in a savvy political move, his press secretary sent an email to the industry journal Broadcasting & Cable. Deftly deflating the scare, the secretary stated flatly that "Sen. Obama does not support reimposing the Fairness Doctrine on broadcasters."

Now the bad news. There's a host of other broadcast regulations that Obama has not foresworn. In the worst-case scenario, they suggest a world where the FCC creates intrusive new rules by fiat, meddles more with the content of stations' programs, and uses the pending extensions of broadband access as an opportunity to put its paws on the Internet. At a time when cultural production has been exploding, fueled by increasingly diverse and participatory new media, we would be stepping back toward the days when the broadcast media were a centralized and cozy public-private partnership.

Such threats might not rile up the red-state base the way the fairness doctrine does, in part because it's far from clear that the GOP would be any better. Under its current chairman, Republican Kevin Martin, the FCC has been no friend to either free enterprise or free speech. It has sharply increased federal restrictions on the media, with a sanctimonious crusade against "indecent" broadcasting; new regulations for satellite radio, wireless phones, and other communications industries; and an attempt to assert unprecedented powers over cable TV. "Martin is the most regulatory Republican FCC chairman in decades," says Adam Thierer, director of the anti-censorship Center for Digital Media Freedom. "He wants to control speech and will use whatever tools he has to get there."

An Obama FCC might mean still more steps toward reregulation. Coming on the heels of Martin's commission, it could also mean a relative reprieve—even, in some areas, a move away from command and control. A lot depends on events, and a lot depends on which interest groups acquire the most influence in his administration. Here are four factions to keep an eye on.

The Players

The idealists. There is a loose coalition on the left that calls itself the media reform movement. Its members are rarely the most powerful people in the room, but they inevitably shout the loudest. They gather in public-interest groups—Free Press, Public Knowledge, the Media Access Project—that cast themselves as populists fighting the major media corporations, which they accuse of centralizing power and shutting out dissident perspectives. In their more libertarian moments, they'll call for opening up more spectrum, loosening copyright controls, and rolling back culturally conservative restrictions on speech. Prominent reformers will also, alas, support a host of new economic regulations and speech controls.

Some members of the movement, such as the communications historian Robert McChesney, prefer to stress the reregulation. In his 2008 book The Political Economy of Media, McChesney goes so far as to describe "private ownership of media" as one of "the primary internal impediments to a viable free press." Other reformers, such as the legal scholars Lawrence Lessig and Tim Wu, aren't so statist; even when they call for new controls, they say they prefer broad and simple rules aimed at encouraging innovation, not diktats meant to force a specific outcome. "We need to radically carve back on the scope and reach of what the FCC is doing," Lessig says, "not to the world of no regulation, but to the world of regulation for the objective of facilitating proper competition, not protecting against competition."

Lessig has met with Obama to discuss technology policy, and while he has his disagreements with the candidate—he didn't appreciate Obama's vote this year to give telecom companies retroactive immunity for illegally assisting government spies—he strongly supports the Democratic ticket. From the other end of the coalition, McChesney told the National Conference for Media Reform in June: "Our job doesn't end if he's elected. It begins. But at least we're in play."

Incidentally, Trinity Church, the controversial house of worship that Obama attended until May, is affiliated with the United Church of Christ, a body that has been heavily involved with the media reform movement. During the last few years, the church has urged the FCC to limit product placement on television, to refuse to renew the licenses of stations that don't offer enough children's programming, to let more low-power radio stations on the air, to block media consolidation, and—yes—to restore the fairness doctrine.

Minority broadcasters. Obama has the overwhelming support of the black community. Generally speaking, that includes blacks in the broadcasting business. The Democratic coalition has a history of calling for more minority-owned enterprises, and that's not likely to change during an Obama presidency.

There's some overlap between this group's goals and those of the media reform movement. Public-interest lobbies frequently proclaim the need for more racial diversity in both ownership and programming, and organizations such as the National Association of Black Owned Broadcasters (known by the delightful acronym NABOB) often join the reformers in condemning concentrated ownership of the media. But the two policy programs are not an exact match. When the small businesses that make up much of the minority broadcasting community look at some of the regulations endorsed by the reformers, they see red tape and bureaucratic discrimination. David Honig, a veteran of Jesse Jackson's Rainbow Coalition who now runs the Minority Media and Telecommunications Council, has fiercely criticized the FCC for the ways "regulation acts as a filtering device to guarantee entry by favored groups and to discourage entry by disfavored groups."

Naturally, the tune changes when the regulations favor minority ownership. Both Honig's group and NABOB think the commission should prefer nonwhite applicants when awarding broadcast licenses.

Tech support. Barack Obama may consult with activists eager to bring the media and telecom companies to heel, but he receives plenty of industry support as well. Some of those companies donate money to both candidates, but the lion's share of the loot is going to the Democrat. As of July, according to the Center for Responsive Politics, Obama had received $12,351,351 from the communications and electronics sector, as opposed to just $3,055,535 for McCain. The computer and Internet industries favored Obama over McCain, $3,729,991 to $920,554; TV, movie, and music companies preferred Obama as well, $4,701,382 to $815,451. (Telephone utilities, on the other hand, gave $379,835 to the Republican and $249,072 to the Democrat.)

This pattern has alarmed Obama's supporters in the media reform camp. Writing in May, McChesney and The Nation's John Nichols warned that "industry money is going to Obama in anticipation of his victory." At the National Conference for Media Reform, McChesney added that the reformers would need to "apply pressure" from the other direction.

It's worth noting, though, that the reformers and industry aren't always at odds. The most prominent example is net neutrality—the idea, endorsed by Obama, that Internet providers should not discriminate in price or priority between different uses of the Net. Like the reformers, but for its own self-interested reasons, Google strongly supports legal enforcement of this principle. As of July, Google accounted for $373,212 in donations to the Obama campaign.

The bureaucracy. And then there's the commission itself, which has its own momentum. "The FCC is, structurally, an independent agency," points out Kevin Werbach, an assistant professor of legal studies at the Wharton School, a prominent champion of spectrum reform, and an Obama supporter. "The president selects the chairman and nominates the commissioners, but the president does not tell the FCC it must rule this way or that way on a particular proceeding."

Both of the current Democratic commissioners, Jonathan Adelstein and Michael Copps, have supported increases in regulatory controls, with Copps in particular leading the charge against both vulgar broadcasting and media mergers. Neither is likely to leave next year. For some observers, that alone is enough to indicate what to expect from a new administration. It's "not hard to envision an Obama FCC—just read the speeches and opinions of Adelstein and Copps, and you're there," says Ben Compaine, co-editor of the Journal of Media Economics. (Both Adelstein and Copps declined to be interviewed for this article.)

With those frequently conflicting forces in the background, here's how the most important issues at the FCC might play out under Obama.

'Indecent Speech'

In the last seven years, the commission has ramped up its war on "indecency," levying unprecedentedly high fines and attempting to extend its influence into cable and satellite broadcasting. (Under current law, its rules against swearing and smut do not apply to such subscription services.) This shift of policy actually preceded 2004's Super Bowl debut of Janet Jackson's right breast, but the crackdown has only intensified since then, with steeper fines and sillier targets.

"Give credit where it's due," says Thierer. "Obama is pretty good on this issue." The Democrat's official technology plan condemns violent, sexual, and bigoted speech and images in the media, but it also states directly that the candidate "values our First Amendment freedoms and our right to artistic expression and does not view regulation as the answer to these concerns. Instead, an Obama administration will give parents the tools and information they need to control what their children see on television and the Internet." That's a far cry from the views of Kevin Martin, who once said, "You can always turn the television off and, of course, block the channels you don't want. But why should you have to?"

That said, the bureaucratic momentum on this issue favors the current crusade. In 2004, People asked the man who put Martin in charge of the FCC what to do about "foul language and sexual titillation" on television. Bush's reply: "They put the on/off button TVs for a reason." It was a wise answer, just like Obama's comments about the First Amendment. And it didn't prevent the crackdown.

"I don't follow Obama as much as I follow the FCC," says Matthew Lasar, a left-leaning historian at the University of California at Santa Cruz and a frequent contributor to the tech site Ars Technica. "Think in terms of what he's going to inherit." The drive for higher indecency penalties isn't coming only from the Republican chairman. On the Democratic side, Adelstein and Copps are enthusiastic censors as well, with Copps in particular urging the commission to come down harder on vulgar expression. In 2004, when the agency fined Clear Channel $755,000 for a series of crass radio skits and some related incidents of improper recordkeeping, Copps objected that the company's stations should have paid even more—or, better still, lost their licenses to broadcast altogether: "I am discouraged," he wrote, "that my colleagues would not join me in taking a firm stand against indecency on the airwaves."

"Michael Copps and Jonathan Adelstein are pretty invested in the indecency process, because it brings various parties together around the issue of believing in regulation," says Lasar. "They see this as a way to draw people into the pro-regulator camp." Reversing that trend would mean facing down an entrenched independent bureaucracy. "I'd be surprised if Obama can make much of a dent in that, assuming he really wants to," Lasar concludes.

Congress, too, seems attached to regulating indecent language. The judiciary, however, may be leaning in another direction. In July the U.S. Court of Appeals for the 3rd Circuit ruled that the FCC "acted arbitrarily and capriciously" when it fined CBS $50,000 for Janet Jackson's nipple slip. In a similar case, involving the government's right to punish stations for airing unplanned, fleeting four-letter words, the 2nd Circuit rebuffed the commission on the same grounds, adding that it was "skeptical that the Commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster." The government has appealed that decision, and the U.S. Supreme Court will hear the case soon.

Local Speech

During the last few decades, radio stations have relied increasingly on programs produced elsewhere. With voicetracking technology, a DJ in Dallas can record hours of shows for stations around the country in less than 30 minutes, complete with regional references to be inserted into different outlets' transmissions. Meanwhile, local musicians and community activists often have trouble getting any airtime at all.

It's technologically feasible to let the locals start small stations of their own, but regulators have made that a long, cumbersome, and expensive process. The entry barriers range from costly technical requirements to outdated channel separation rules that tighten the number of available licenses.

The obvious solution is to reduce those barriers. But you'll also hear calls to compel existing stations to make room for more locals, or to require broadcasters to air other kinds of "public interest" programming. Think of it as the flip side of the indecency debate: This is the speech that everyone professes to like, at least when it takes the form of broad buzzwords such as diversity and localism and not actual programming that might offend people.

In January, for example, the FCC released a report on broadcast localism, which among other recommendations suggested that each station should "convene a permanent advisory board made up of officials and other leaders" to advise it on "community needs and issues." The report also declared that the commission should give aggrieved listeners "more straightforward guidance" on "how individuals can directly participate in the license renewal process."

It sounds mild—but then again, so did the fairness doctrine, which merely asserted that stations should "afford reasonable opportunity for discussion of conflicting views on matters of public importance." When "individuals" decide to "participate" at license renewal time, that's when would-be censors crawl out of the woodwork. The United Church of Christ, for example, has distributed a manual to activists with advice on how to target a station for termination. It includes a sample petition, filed by Rocky Mountain Media Watch in 1998, urging the government to "protect" the public by refusing to relicense a Denver TV outlet, on the grounds that its newscasts "are severely unbalanced, with excessive coverage of violent topics and trivial events, and, consequently, inadequate news coverage of a wide range of stories and vital social issues. In addition, newscasts present stereotypical and unfavorable depictions of women and minorities."

Imagine having to contend with such petitions, from both the left and the right, every time you have to ask the FCC for permission to keep broadcasting. Even if you get to keep your license, it'll mean spending more time and money dealing with the hassle. The natural impulse will be to throw some bones to your critics, especially the ones who have managed to land spots on your community advisory board.

For some Republicans, the suggested regulations are a way to bring the fairness doctrine back into the conversation. In a June letter to Kevin Martin, House Minority Leader John Boehner charged the FCC with a "stealth enactment of the Fairness Doctrine," arguing that "the recreation of pre-1980s advisory boards will place broadcast media squarely on a path toward rationed speech." A group called Save Christian Radio worries that since the community advisory boards must be "broadly representative of an area's population," the new rules could mean that "Christian broadcast stations could be forced to take programming advice from people whose values are at odds with the Gospel."

Maybe yes, maybe no: The FCC is still receiving citizen comments on its initial proposals—most of them running against the idea—so it's hard to say how onerous the final rules will be, if indeed they're passed at all. But if you're worried about an Obama administration, this is where there's the most potential for mischief. The candidate has broadly endorsed rules requiring more local programming. He also supports a proposal the Martin commission has rejected: shortening the time between broadcast license renewals from eight years to two.

Much of the media reform movement has endorsed these ideas. The minority broadcasting community is less enthusiastic. In the spring, the Minority Media and Telecommunications Council and the Independent Spanish Broadcasters Association submitted comments to the commission criticizing the localism report, arguing that "many of the proposals...would have a disproportionate negative impact on minority broadcasters because of their relatively small size and limited access to capital." In particular, "very few small, local broadcast owners can afford to formally administer the permanent advisory boards."

Opening Up Spectrum

A better way to promote localism is to allow more local stations on the air. At this point the technical cost of starting a station is so low, and the potential competition for advertising is so cutthroat, that an open marketplace might actually favor small, volunteer-run, noncommercial outlets created out of a passion for music or to express a particular point of view. For a rough comparison, look at the Internet, where passion-driven websites proliferate even when e-commerce hits a downturn.

Ushering in those stations requires little more than loosening the federal government's grip. Simply allowing FM broadcasters to use the space allocated to TV channel 6, for example, could make room for thousands of new stations around the United States. But that option, like many others, has been shut off, largely because the National Association of Broadcasters is good at persuading Washington to protect the incumbent industry from competition.

Unsurprisingly, the lobbyists who push hardest for these barriers are often the first to protest the public-service regulations beloved by the media reform movement. Meanwhile, the media reformers can suddenly sound like libertarians when the topic turns to letting community groups start their own stations. Many of them, in fact, support even more sweeping changes to the FCC's controls on the electromagnetic spectrum. In his 2001 book The Future of Ideas, Lessig wrote that "the only thing that government-controlled spectrum has produced is an easy opportunity for the old to protect themselves against the new. Innovation moves too slowly when it must constantly ask permission from politically controlled agencies." The real debate, he argued, is between those who think spectrum should be treated as private property and those who believe new technologies allow the ether to function as an open commons.

Both Obama and McCain would probably be pretty good on the specific issue of allowing more community outlets. William Kennard, the Clinton-era FCC chair who championed licensed low-power radio, is an Obama adviser. McCain initially opposed the idea—in 1999 he suggested that anyone who wants to start a low-watt station should get "a Web page or a leased access cable channel" instead—but he has reversed himself since then. Last year he co-sponsored the Local Community Radio Act, which would allow more stations on the air.

It's harder to imagine either candidate pushing for sweeping spectrum reform. But there is one policy debate that could propel that issue onto the table: the question of "white spaces," unused spots in the spectrum between the frequencies used by TV broadcasters. Many in the media reform movement have been pushing the FCC to open those areas to unlicensed devices delivering wireless Internet access. Microsoft unveiled a prototype last year that it said could use those spaces without interfering with television signals. (So far the commission doesn't agree.) A number of free market economists, meanwhile, have called for the FCC to auction off the spaces and let different potential users bargain for the right to use them. Still other policy watchers have called for a mix of the two approaches. What all these ideas have in common is that they would allow much more flexible uses of spectrum, pulling the FCC back from its role as the zoning board of the airwaves and setting a precedent for larger reforms.

Even if Obama's appointees let that happen, industry lobbies could still stop the idea. "I would expect the National Association of Broadcasters would do what they did with low-power FM," says Lasar. "They'd take a fear-mongering campaign to Congress and make some sort of bid for a law to restrict what the FCC can do." Legislators of both parties, he argues, are "pretty susceptible to the National Association of Broadcasters' position, which is that unlicensed broadband applications will create a gigantic crisis for the entire broadcasting industry, will interfere with TV, will interfere with medical devices, will ruin the world. Which they have all but said in FCC proceedings."

Back-Door Regulation

In a June debate before the conservative Federalist Society, former FCC chief Reed Hundt, serving as a surrogate for Obama, said the candidate "doesn't think there should be any more media consolidation until new policies are developed to promote diversity and localism." The candidate himself co-sponsored a bill last year to prevent the FCC from loosening the rules restraining newspapers from owning broadcast stations and vice versa.

Meanwhile, out in the marketplace, the media have been going through a wave of deconsolidation, most of it market-driven. CBS recently announced that it will sell off 50 radio stations. Clear Channel, the biggest radio chain, put more than 400 stations up for sale in 2006. Time Warner has been spinning off properties for years. It's weird to work up a sweat about media monopolies at a time when the media themselves are sweating over the new forms of competition they're facing—weirder, at least, than it was a decade ago, when the headlines were filled with mergers and AOL Time Warner stood like a colossus atop the horizon.

The persistant concern with consolidation would be harmless, even productive, if it manifested itself as a sustained effort to let more people onto the airwaves. But that's not where it seems to be heading now. An FCC on the prowl against "media monopolies" is an FCC that's more willing to interfere with future mergers. Not to block mergers, but to extract concessions.

Last year America's two satellite radio companies, XM and Sirius, asked the government for permission to merge. Thirteen months later, the Federal Trade Commission approved the deal. Four months after that, the FCC agreed that the marriage should go forward, but it also attached some conditions to the ketubah. Among other commitments, the combined company would have to cap its prices for three years, extend its service to Puerto Rico, and offer "à la carte" programming packages in which customers can unbundle their subscriptions and pay only for particular channels.

In other words, the FCC imposed new controls on a single business, and it did so without the rulemaking procedures that are ordinarily required before regulations can be adopted. In the process, it may have found a way around institutional impediments to its power. The "à la carte" proposal, for example, has been enthusiastically supported by Chairman Martin (and by John McCain), who thinks it would be a good way to help viewers avoid indecent programming. It is less popular among the people who run niche channels—including, by and large, the minority broadcasting community—because it will cut into their potential audiences. So far Martin hasn't been able to make the idea law. But if he can impose it on enough cable companies through the back door, a formal change to the federal code might not be necessary.

This isn't a new threat. The Bell Atlantic/NYNEX merger of 1997 started the ball rolling, with a series of conditions the companies embraced "voluntarily" before the FCC approved the combination. But the agency has grown more brazen since then, as commissioners from both parties learned to love the process. Given that bipartisan backing, neither Obama nor McCain is likely to restrain them. The industry hasn't protested much either. When the government imposes company-specific laws, you can divide most businesses into two categories: those that have managed to survive the process and those that aren't affected by the conditions.

The good news is that the commission refrained from restricting what XM/Sirius could actually put on the air. (Clear Channel, for example, had asked the FCC to bar the satellite network from offering any local content, thus insulating its terrestrial stations from space-based competition.) But as these back-door regulations grow more common, it's easy to imagine a future commission insisting that, say, a media conglomerate submit its cable channels to the same indecency rules imposed on over-the-air stations.

Convergence

It used to be easy to divide the broadcast issues at the FCC from the other areas it regulated. Not in the Internet era, when you might find yourself receiving TV shows over your phone lines. Today, some of the most intrusive restrictions on broadcasting aren't even enforced by the FCC. It's the Federal Election Commission that restricts the content of paid political speech during a campaign, and it's the Copyright Office that imposes onerous fees on Web radio stations, threatening to drive the entire industry off the Net.

Within the FCC, the issues surrounding broadband deployment could become a foothold for controls on online expression. Consider the adventures of M2Z, a California-based company that wants to build an ad-supported national broadband network in which consumers can pay extra for speedier connections. In 2007 it asked the FCC to grant it the spectrum for free. When the commission refused, the company sued to overturn the decision. Then Kevin Martin proposed another sort of back-door regulation: The government would auction off the spectrum, but it would attach conditions on how those airwaves could be used—conditions that happen to dovetail with M2Z's original business plan.

You needn't be fond of the incumbent wireless industry—hardly free market heroes—to appreciate how inappropriate it is for the government to tilt the scales in a single firm's favor. But it wasn't just wireless companies and supporters of equal treatment who protested Martin's plan. Civil libertarians were aghast, because Martin's conditions included a requirement that the auction winner filter pornography from its free tier of services.

At press time it's unclear whether Martin's slanted auction will ever take place. But there's a broader issue at stake. When the commission starts granting favors to companies in exchange for regulatory concessions, it's just a matter of time before those regulations include restrictions on speech.

That's the threat to fret about under the next FCC, be it Democratic or Republican. It's hard to imagine President Obama trying to bring back the fairness doctrine: Even if he's prone to breaking his campaign promises, it's just dumb to invite a fight with a big, noisy enemy that's able to instantly mobilize an army of angry listeners. The real danger is more subtle and more mundane. It's a bipartisan bureaucracy slowly, steadily increasing its power.

Managing Editor Jesse Walker is the author of Rebels on the Air: An Alternative History of Radio in America (NYUPress).

The Great Recycler

jwalker@reason.com (Jesse Walker) — Wed, 01 Oct 2008 15:35:00 EDT

Other Victorians

jwalker@reason.com (Jesse Walker) — Wed, 03 Sep 2008 17:40:00 EDT

When the 17-year-old daughter of a Republican vice presidential candidate turns out to be pregnant and unwed, our culture-war stereotypes turn inside-out. In 2008, under the appropriate circumstances, a Christian conservative can be more tolerant of teen sex than a liberal Democrat.

"Life happens," said Steve Schmidt, a spokesman for Sen. John McCain (R-Ariz.), when Bristol Palin's condition was revealed. "We appreciate the fact that the Palins addressed the issue in a straightforward manner and that they are providing loving support to the teenager and her boyfriend," commented the Concerned Women for America. "Being a Christian does not mean you’re perfect," added James Dobson. "Nor does it mean your children are perfect. But it does mean there is forgiveness and restoration when we confess our imperfections to the Lord."

Some on the left have taken the same approach. Most significantly, Sen. Barack Obama (D-Ill.) asked his supporters to "back off" from criticizing the Palin family, pointing out that his own mother had been 18 when he was born. But others have plunged gleefully into the so-called scandal. Where conservatives called for tolerance and understanding, the libs said, Where was the girl's mom?

The high-minded approach to this was to bring up the pregnancy in tandem with Gov. Sarah Palin's support for abstinence-only sex ed, thus seeming to reduce the issue to a matter of public policy. The Stranger's Dan Savage, for example, wrote this on Monday:

Yes, ordinary American families face this situation all the time. Fewer would face this situation, however, if we had comprehensive sex education in the United States, and teenagers had access to accurate information about birth control methods and contraceptives were made easily available.

It should be obvious, but apparently isn't, that virtually no one following this story has any idea what Bristol Palin and her boyfriend knew about contraception, nor whether they didn't use birth control at all, used it improperly, or used it properly but it failed. If they didn't use any birth control, we do not know why they made that decision. We do not know whether Sarah Palin (who may oppose teaching about birth control in the government's schools, but is not opposed to contraception) talked with her daughter about birth control; nor do we know what, if anything, Palin's boyfriend's parents imparted to him. We do not even know how Bristol Palin feels about "this situation." In short, we don't have the slightest idea whether comprehensive sex education would have changed the Palin family's lives one iota. I'm no fonder of abstinence education than I am of any other form of social engineering, but the efforts to turn the Palin pregnancy into a school-policy anecdote are absurd.

But at least Savage paid respect to Bristol's autonomy. ("It’s great that Bristol is choosing to keep this baby. As the adoptive parent of a child born to a pair of unwed teenagers, I’m certainly not in favor of abortion in all circumstances.") Move away from the pundits and into the ordinary conversations of Palin's ordinary opponents, and the talk gets uglier.

"Way to go," writes one Boston Globe reader. "Great example for all young girls. Get pregnant at 17." Another adds: "She cant even control her own daughter in her home, and she wants to run the country!! no way!!" At mixx.com: "if Gov. Palin can't control what happens underneath her own house roof and how would she be able 2 run the White House." At Fox News: "if she cant control her daughter AND bring her up proper, she has no business as a Vice President." A blogger called the Homosecular Gaytheist, a handle that might suggest a certain social tolerance, instead calls Bristol "the slutty alcoholic daughter of Sarah Palin" and asks, again, "How will Sarah Palin fare in running the entire country after the inevitable death of John McCain if she can’t even run her own family?" Control, control, control. Foucault would have a field day.

And no, I'm not just cherry-picking obnoxious blog comments. I'm repeating the ones that resemble arguments I've heard out here in the real world, talking to neighbors and eavesdropping in cafés. (Well, not the "slutty alcoholic" bit. That one may be sui generis.) Some of this may just be partisanship gone wild, just as some of the Republican defenses of Bristol Palin would melt away if she were an Obama. But these aren't just hardcore Blue Team cheerleaders talking. They're normal Americans working themselves into high dudgeon because Sarah Palin was an insufficient Sex Cop. It's the same burst of puritanism that greeted the pregnancy of Jamie Lynn Spears. But it's a peculiar sort of puritanism, because it's aimed at young women who plan to keep their babies. Apparently, not everyone approves of the Juno narrative.

It's easy to accuse Palin's Christian defenders of fair-weather tolerance, to suggest that they wouldn't be so sanguine if Bristol, say, decided to raise her child without a father. It's easy and, in many prominent cases, it's probably right. But that isn't the only fair-weather tolerance on display.

Jesse Walker is reason's managing editor.

The Yippie Show

jwalker@reason.com (Jesse Walker) — Wed, 27 Aug 2008 12:00:00 EDT

Viewing the trial as a theatrical experience, I had great respect for the judge. He was witty, filled with his own sense of drama, and committed to his role with a furious passion....The part did not call for a Solomon because the law stank. It called for a yippie judge who could play in a real-life political version of "The Flintstones." Julie was our man, and together we made it happen.—Chicago Eight defendant Abbie Hoffman on Judge Julius Hoffman, in Soon to Be a Major Motion Picture, 1980

Forty years ago this week, the Democratic Party gathered in Chicago to choose a presidential nominee. Protesters—some violent, most not—gathered there too, to denounce the Vietnam War. By the end of the four-day convention, the city's cops had gone berserk on national television, assaulting demonstrators, reporters, and random bystanders while the network cameras rolled. The police, wrote Mike Royko of the Chicago Sun-Times, "beat people beyond the point of subduing them. They chased them down and left them bleeding." Inside the convention hall, Sen. Abraham Ribicoff of Connecticut accused the mayor of unleashing "Gestapo tactics in the streets of Chicago."

According to a report to the National Commission on the Causes and Prevention of Violence, the week was an extended police riot. According to a federal grand jury, it was a leftist conspiracy. Eight activists were charged with inciting the chaos; the accused included Abbie Hoffman and Jerry Rubin, the most public faces of a loose coalition of radicalized hippies called the yippies. The yippies had called for a Festival of Life in the streets and parks of Chicago—an alternative, they said, to the Democrats' Festival of Death. They brought a puckish sort of guerilla theater to the city, nominating a hog called Pigasus for president and threatening to add LSD to the city water supply. (The authorities actually stationed National Guardsmen by the reservoir, just in case the pranksters were serious.) Hoffman and Rubin weren't the only important yipsters, but they were the ringleaders of the gang. After the riots, when the news of the indictments came down, some other notable yippies—satirist Paul Krassner, disc jockey Bob Fass, Fugs founder Ed Sanders—formed a conga line on Hoffman's roof and sang, "We're not indicted! We're not indicted!"

After a three-ring trial, the defendants were eventually acquitted on all charges, though some of them had to appeal the initial verdict before they were completely cleared. The convention and its aftermath had been a victory for the yippies.

It was a victory for their enemies, too. The central story of Chicago wasn't just that cameras captured bloody police violence every evening. It was that the great American TV-viewing public overwhelmingly told pollsters afterwards that they sided with the cops. "That was our shortsightedness," says Krassner. "When we started chanting, 'The whole world is watching, the whole world is watching,' we didn't go to the next step, which was, And how are they gonna feel about it?"

The Polarization Artists

In Nixonland, his insightful study of the period, the historian Rick Perlstein points out that Nixon "welcomed conflict that served him politically. A briefing paper came to the president's desk in the middle of March instructing him to expect increased violence on college campuses that spring. 'Good!' he wrote across the face." Jerry Rubin welcomed the polarization as much as Nixon did. "We yippies must reprint [George] Wallace speeches, get him TV time and open up offices for him all over the country," he wrote in his 1970 book Do it! "He's the best Marxist rabble-rouser in Amerika today. He's our best organizer." And: "To build their myth they exaggerate our myth—they create a Yippie Menace. The menace helps create the reality."

Then there's this remarkable passage:

The right wing is the left wing's best ally.

Who was the first person to call the battles at San Francisco State College "a guerilla war—Vietnam at home"?

SDS?

Fuck no.

Ronnie Reagan!

(I can now reveal a secret. The last time I voted in an election, I cast my free Amerikan vote for the only movie star in the race, Ronnie Prettyboy.)

I doubt it's literally accurate that Rubin voted Reagan for governor, but there's a poetic truth lurking behind the sarcasm. The party of anarchy thrived on repression. The party of law and order thrived on disorder.

Krassner never cared for that sort of thinking—as a stand-up comic, he says, he was "always willing to sacrifice a target" when an unjust leader left office—but he understands it, and occasionally he felt flashes of it himself. I mentioned the memo that made Nixon scrawl Good! He replied with a memory of his own:

When Cronkite came on and reported the Kent State shootings, he said, 'Something has happened that many Americans were afraid would happen,' something like that. It was a moment of horror, but I remember saying to myself, 'Good.' I wasn't glad it happened, I had terrible sympathy for the people who were killed and their families and fellow students. But a month or a couple of weeks before that, in some southern college, some black students got killed. And I thought, Now white people will see that it's their own that are getting it. Now maybe they'll get more involved.

That sort of strategizing doesn't always work out as planned. "The right wing believes so intensely in their own bullshit," Rubin wrote, "that they are too stupid to deceive and govern effectively. Unlike the liberals, they don't know how to divide-and-conquer." It turned out that Nixon and Reagan were adept at dividing and conquering after all. In politics, it's a mistake to assume you're the only one who understands how the media work.

Understanding Media

Forty years ago, the yippies seemed unusual because they fused the political radicalism of the New Left with the long-haired, grass-smoking lifestyle of the counterculture. Today that combination is so familiar that many people don't even realize that the protesters and the hippies initially distrusted each other. What seems most curious about the yippies today is the way they mixed hard left politics with a deep appreciation for pop culture. Abbie Hoffman announced that he wanted to combine the styles of Andy Warhol and Fidel Castro. Jerry Rubin dedicated Do it! not just to his girlfriend but to "Dope, Color TV, and Violent Revolution." Even when praising a form of mass culture that had earned some grudging respect from the late-'60s left—rock 'n' roll—Rubin's list of musicians who "gave us the life/beat and set us free" included not just raucous originals like Jerry Lee Lewis and Bo Diddley but Fabian and Frankie Avalon, commercial confections that most lefty rock intellectuals disdained as insufficiently authentic. In one chapter, Rubin complained that if "the white ideological left" took over, "Rock dancing would be taboo, and miniskirts, Hollywood movies and comic books would be illegal." All this from a self-proclaimed communist whose heroes included Castro, Chairman Mao, and Ho Chi Minh.

It's not that the yippies swallowed pop culture uncritically. (Hoffman kept a sign attached to the bottom of his TV that said "bullshit.") It's that they saw the mass media's dream-world as another terrain to fight in. Krassner remembers the yippie circle analyzing virtually everything on the tube, even "watching shows like The Smothers Brothers and comparing that with Laugh-In, that Laugh-In was using easy reference jokes about controversial issues, whereas the comedy in The Smothers Brothers really represented how they felt."

Seven years after Chicago, Jerry Rubin turned up on the second episode of Saturday Night Live, pitching a product called Up Against the Wallpaper. Hoffman attacked the sketch as "a major sellout....He was a caricature of Jerry Rubin making fun of the '60s, but he was not pushing a point, an alternative." If you're plotting Rubin's political trajectory, you can mark 1975 as the year he moved to the right of Tommy Smothers.

Trajectories

To fully comprehend the yippies, you have to look at what they did in the '70s and '80s as much as the '60s. Hoffman got arrested on cocaine charges and subsequently spent six years underground. Rubin plunged into the New Age movement and sampled a series of self-improvement techniques. In his 1976 book Growing (Up) At 37, Rubin wrote about his experiences with everything from primal scream therapy to est; in one bizarre section, the man who once preached the life-changing virtues of LSD now waxed poetic about carrot juice.

Meanwhile, out on the lam, Hoffman wrote this in a letter to his wife:

Drugs have no intrinsic value. All communist countries have correctly outlawed them. There are loads of other exhilarating ways to get high. Communist governments have a cultural revolution to achieve that is national in scope. Our task in the U.S. is to build countercultural institutions that make the raising of children breeding grounds for revolution and rebellion against the wishes of the dominant, decadent culture.

His real views revealed at last? A temporary affectation by a man whose underground life had unleashed an identity crisis? Or maybe just a spasm of guilt in the wake of the coke bust? Who knows for sure? When he surfaced in the '80s, Hoffman crusaded against Reagan's drug war, and his passion for the issue certainly seemed sincere then.

By that time, Rubin had come up from the broader cultural underground, getting a job on Wall Street and later arranging networking parties for young professionals at the Palladium. I saw him debate Hoffman in the mid-'80s, when he and his sparring partner toured together as the Yippie vs. Yuppie show. Hoffman was high on the Sandinistas; Rubin preferred Gary Hart. The majority of the audience seemed to think Rubin was a right-wing sellout. Most of the rest thought Hoffman was a dinosaur who hadn't changed with the times.

Neither view was entirely accurate. Rubin insisted that his new self wasn't so distant from his old self, declaring in 1982 that his networking salons came "out of my 1960s organizing experience." He added, "I really don't think that I've become the person or symbol that I preached against in the '60s. I'm not a warmonger or munitions seller or corporate pig." Hoffman, in his own way, was intensely aware of the differences between the decades. In the last book he published before his death, 1987's Steal This Urine Test, he described a 1983 environmental fight in which "our protest song (as it should be in all environmental battles) was 'America the Beautiful.'...[I]t was very hard to sing it during the sixties as we were being shot, clubbed, jailed, and illegally wiretapped by the government. Especially hard while the mob sang all the patriotic songs. Today it seems appropriate." When Hoffman committed suicide in 1989, the Fifth Estate, an anarchist newspaper in Detroit, complained in an otherwise warm obit that his rhetoric had grown suspiciously patriotic in the last decade of his life.

This is what happens when the counterculture spills out of the '60s and sloshes all over society. It takes new forms, from Rubin's New Age capitalism to Hoffman's all-American socialism. I doubt the yuppie networkers at Rubin's Manhattan salons—young professionals hunting for business partners, bedmates, coke connections—thought of themselves as children of the '60s. But they were, just as surely as Hoffman's Springsteenian patriots were creatures of the Reagan era.

Yippies and CREEPs

The official yippie organization, the Youth International Party, kept chugging away in the '70s and afterwards, putting out a paper filled with conspiracy theories and paeans to pot. More recently, its surviving members have opened an archive and performance space in Greenwich Village, dubbed the Yippie Museum and Cafe. Jerry Rubin's favorite uncle was a vaudeville star; now the movement he helped to start has its very own vaudeville venue.

And that, in a roundabout way, leads us to one more parallel between the yippies and the Nixonites. Both were masters of the media-savvy political prank.

In 1967, for example, Hoffman called a press conference to announce the invention of LACE, a drug that made people have sex. Three couples in his apartment demonstrated the imaginary chemical's alleged effects for the onlooking press corps, who went on to report that the protesters were planning to spray their new weapon at cops and National Guardsmen at a demonstration outside the Pentagon. "The function of this was to manipulate the media," says Krassner. "We said we were going to spray them at the Pentagon. Of course this made the local papers, the newsmagazines, and the wire services—and a lot of people became aware of a demonstration that they hadn't heard of before." The possibility of seeing some cops and hippies getting it on, or perhaps getting sprayed themselves, surely swelled the crowds as well.

There are obvious differences between such antics and the dirty tricks deployed by Nixon's Committee to Re-Elect the President, but there are structural similarities as well, a common interest in cracking open the media and playing with the narratives being projected. In 1972, when Pete McCloskey challenged Nixon in the Republican primaries, a young conservative named Roger Stone made a donation to the insurgent's campaign in the name of the Young Socialist Alliance. (The original plan was to use the Gay Liberation Front, but Stone felt that would be an affront to his masculinity.) According to the Senate Watergate Report, Stone and his confederate Herbert Porter then "drafted an anonymous letter to the Manchester Union Leader and enclosed a photocopy of the receipt."

I called up Stone and asked him about the yippies. "Classic street theater," he replied, with a hint of professional admiration. "The voters or the consumers are getting too much information. You have to cut through that by being provocative. It's what the yippies figured out."

What does that have to do with the Yippie Cafe? Just that Stone, who shares the cafe proprietors' distaste for New York's draconian drug laws, showed up there last month. He brought along a bunch of College Republicans with short haircuts and ill-fitting suits, and he performed a stand-up comedy act cum political rant. Some of the spectators laughed, some heckled, some clapped, some stared.

"I did OK," says Stone. "They said, 'Who are these short-haired guys with you?' I said, 'This is the national committee of the Hitler Youth.'" When Abraham Ribicoff invoked the Nazis in Chicago, all hell broke loose on the convention floor. Forty years later, Stone was greeted with laughter and beer.

Jesse Walker is reason's managing editor.

Remixing Television

jwalker@reason.com (Jesse Walker) — Fri, 18 Jul 2008 12:00:00 EDT

Dead on the Fourth of July

jwalker@reason.com (Jesse Walker) — Tue, 08 Jul 2008 12:00:00 EDT

The first time I met Jesse Helms was in 1981. My fifth grade class had risen early, boarded a bus in North Carolina, and taken a five-hour trek to Washington, where we tried to pack a week's worth of civic tourism into a single day. Zipping through the U.S. Senate, we filed in for a photograph with our state's senior senator.

"So these children are from Raleigh?" Helms said to a staffer.

"No," came the reply. "Chapel Hill."

A hint of a scowl crossed the Republican legislator's face. Or maybe it just seemed that way to me, knowing as I did that he hated my hometown and the liberal-leaning university it contained. When the state was mulling a plan to build a zoo, Helms had cracked that it should just put a fence around Chapel Hill.

That would not be an appropriate comment for this occasion, so our host changed the subject. His eyes scanned the crowd of kids, and apparently they fell on my nametag. Before I understood what was happening, he was shaking my hand. "My name's Jesse, too," he drawled. "Maybe we're related!" I stood there dumbly, surprised and paralyzed; before I knew it, my namesake was gone and we were marching to the next stop on the tour.

One of the class chaperones fell into step beside me. "Thanks," he said, "for not spitting in his face." I got the impression from his tone that a part of him would have liked it if I had spat at the senator. If Jesse Helms hated Chapel Hill, then virtually everyone I knew from Chapel Hill hated Helms right back.

By the '90s that contempt had spread far beyond our city and state. If you asked the average liberal about Helms in 1995, there were two things he was likely to tell you: that the senator was a racist and that the senator was a censor. The evidence for the first charge, if you cared to ask, would be a TV ad he ran in his 1990 campaign, in which a white man crumples a job application after a racial quota keeps him from finding work. The evidence for the second charge would be Helms' crusade against the National Endowment for the Arts, a federal program that funded material he considered obscene.

In other words, the typical Helms-bashers were actually prettifying the picture. The man was a Jim Crow nostalgist who wanted to obliterate the line between church and state, and they were whining about his run-of-the-mill conservative stances on affirmative action and Robert Mapplethorpe. You'd think Helms was just another Republican, notable only for his accent and his ties to the tobacco industry. But he was much more than that. You needn't favor racial preferences or federal art subsidies to find Jesse Helms objectionable.

Helms was, almost literally, a child of the segregationist order. His father was a cop in Monroe, North Carolina; in his recent book Righteous Warrior: Jesse Helms and the Rise of Modern Conservatism, the historian William Link writes that the senior Helms "was expected to maintain the racial hierarchy through intimidation and, if necessary, brute force." (Link quotes a black Monroe woman who said the officer used "his power to the fullest, in the wrong way.") The constable's son came to prominence as a defender of that racist regime, but he made those old arguments in a new medium, reading virulent editorials on WRAL-TV in the '60s. "Are civil rights only for Negroes?" he said in one 1963 broadcast. "White women in Washington who have been raped and mugged on the streets in broad daylight have experienced the most revolting sort of violation of their civil rights. The hundreds of others who had their purses snatched last year by Negro hoodlums may understandably insist that their right to walk the street unmolested was violated."

In the 1950s, an alliance emerged between free-marketeers and segregationists. It was not an inevitable union: Jim Crow laws were, in addition to all their other injustices, an intrusive array of restrictions on freedom of contract and freedom of commerce. But the alternatives suggested by the civil rights movement often restrained those freedoms from the other direction, opening space for a coalition that would have seemed much stranger a generation earlier. Thus, in 1964, the Deep South voted for Barry Goldwater, a man who had taken the lead in desegregating his family's department store, the Arizona Air National Guard, and the Phoenix public schools years before the law required any of those institutions to be integrated. He had also voted for federal civil rights bills in 1957 and 1960. But he shared the segregationists' hostility to two provisions of the 1964 Civil Rights Act, and that mutual interest allowed conservative activists to create a political realignment.

If Goldwater relied on the votes of racists he despised, then Helms was the other side of the alliance: a segregationist who could speak the language of liberty but never really adopted freedom as a principle. Helms realized early on that it looked better to position yourself as a foe of big government than as a defender of state-created privileges, so he preferred to talk about the new powers the federal government was claiming, not the old powers the state government had exercised for decades. In other words, he learned to talk like Goldwater. But there's little doubt that his sympathies lay with the larger system of legally enforced white supremacy. Helms maintained that the South had no racial problems until the feds "manufactured" them; according to Link, he established quiet ties to the White Citizens' Councils and similar groups.

Helms' anti-statist rhetoric wasn't entirely a pose. As a Raleigh city councilman in the '50s, for example, he led a lonely fight against the federal urban renewal program. But anyone tempted to believe the right-wing direct-mail king Richard Viguerie's eulogy for the senator—sample quote: "It's the free market views, policies, and leadership of President Reagan, Jesse Helms, and Milton Friedman that have led the world to experience the greatest movement out of poverty in history"—should review Helms' record in office. As far as economic policy was concerned, his chief concerns were preserving and extending the trade barriers that protected North Carolina's textile industry and the subsidies that supported North Carolina's tobacco farms.

In social policy, Helms favored anti-porn statutes, "voluntary" school prayer, and—"in the best interest of public health"—sodomy laws. In international affairs, he pushed for U.S. aid to some of the most repellent figures on the world stage, from the Salvadoran death-squad organizer Roberto D'Aubuisson to the Mozambican terror group RENAMO. After the Cold War ended, some critics of American foreign policy hoped that Helms' hatred of the United Nations and nonmilitary foreign aid would transform him into an old-fashioned isolationist who eschewed foreign entanglements. That isn't how it worked out. Over the course of the decade, Helms sponsored bills to tighten the embargo against Cuba and to send $100 million in military aid to Bosnia. After some early dithering, he also came out for expanding NATO into Eastern Europe. By the end of his career, he couldn't even hold the line against the foreign aid he loved to criticize: Under the influence of his buddy Bono, Helms put his weight behind a $200 million assistance package for Africa.

In other words, the man was no more committed to limited government abroad than he was committed to it at home. But he maintained his reputation as a skinflint isolationist. And why not? A good politician knows how to lie, and Helms was an expert politician.

1983: another school, another field trip to Washington, another audience with the man who shares my name. Now a smartassed seventh grader, I set a goal for myself. Tired of receiving mass-produced deceptions via the newspapers and television, I would get a legislator to lie to me personally. I approached the senator. "Excuse me, Mr. Helms," I said in a deferential tone. "My name is Jesse Walker. I don't know if you remember me, but we met a couple years ago on another class trip."

The senator took the bait: "Why, of course I remember you, Jesse." He smiled warmly, looked me straight in the eye, spoke in a confidential tone, and gave me the heartiest handshake I had ever encountered.

It should have been a private moment of triumph. Instead it taught me what a born politician can do. For a second, I forgot the whole plan and believed him.

Jesse Walker is reason's managing editor.

Warcraft on Terror

jwalker@reason.com (Jesse Walker) — Tue, 01 Jul 2008 07:00:00 EDT

Is your game room breeding jihadists? Probably not, but just to be sure the Office of the Director of National Intelligence wants to “study the emerging phenomenon of social (particularly terrorist) dynamics in virtual worlds and large-scale online games.”

In other words, they’ll be watching for security threats in role-playing games like World of Warcraft and virtual worlds like Second Life, where large populations interact pseudonymously. The office’s February report on its data mining activities includes a description of “Reynard,” a foxy “seedling effort” to begin such studies.

What, exactly, would video game terrorism look like? The report is vague, saying only that Reynard would “identify the emerging social, behavioral and cultural norms” in such spaces and “then apply the lessons learned to determine the feasibility of automatically detecting suspicious behavior and actions in the virtual world.” It isn’t clear what behavior would qualify as “suspicious” in online games—many of which, after all, center around sessions in which groups conspire to coordinate attacks on their enemies.

Reynard is of a piece with the office’s larger data mining project, which aims to “discover or locate a predictive pattern or anomaly indicative of terrorist or criminal activity.” Game worlds are just one of many corners of cyberspace being covered. The report acknowledges that “application of results from these research projects may ultimately have implications for privacy and civil liberties,” adding that the office is therefore “also investing in projects that develop privacy protecting technologies.” This attention to individual rights, it declares, is “a unique research effort within the intelligence community.”

The Age of Nixon

jwalker@reason.com (Jesse Walker) — Tue, 10 Jun 2008 07:00:00 EDT

Artifact: Hear! Hear the pipes are calling!

jwalker@reason.com (Jesse Walker) — Wed, 18 Jun 2008 12:00:00 EDT

Nothing says “Scotland” like the great Highland bagpipe, that unwieldy contraption of air, tubing, and hide. You can imagine a grieving piper playing “Scotland the Brave” in 1305 as word spreads across the glens of the death of William Wallace, that patriot with the face of Mad Max. You can imagine it, but it’ll be fiction: In his forthcoming book Bagpipes, the historian and musician Hugh Cheape argues that the instrument didn’t exist until the early 19th century.

Rich Scottish expatriates created the Highland Society of London in 1788 to preserve “the martial spirits, language, dress, music and antiquities of the ancient Caledonians.” Preservation was the mother of invention: The society’s annual pageants, The Guardian reports, “helped create the ‘stage Highlander,’ a largely invented character who played bagpipes designed specially for these events. The mythology surrounding the great Highland pipes increased when allegedly authentic pipes linked to great events in Scottish history were given to national museums.”

It wasn’t the first time romantic nationalists would devise their own traditions. But that’s only part of the story. In the two centuries since then, Scots have embraced the instrument. The faux tradition became a real tradition, and the great Highland pipes are now as Scottish as Sean Connery in a kilt.

Note: The tartan kilt is a factitious tradition as well. But Connery, scholars report, has been a part of Scotland forever.

The Central Committee Is in Session

jwalker@reason.com (Jesse Walker) — Thu, 12 Jun 2008 15:00:00 EDT

The Federal Communications Commission (FCC) is holding an open meeting today, giving students of public policy a chance to observe an especially egregious arm of the regulatory state. If you want to see what's wrong with Washington, the FCC is as good a place as any to start looking: Since its birth in 1934, it has manifested three fundamental problems.

The commission is corrupt. I don't just mean the sort of corruption where the chairman loosens his tie, puts his feet up on his desk, and doles out favors to the companies that scratched the right backs—though you'll find plenty of that in the commission's history. Even when the body is being relatively transparent and above-board, it is beholden to politically connected lobbies. The FCC controls an important economic resource. Naturally, important economic interests try their best to influence its decisions.

The most flagrant example of this might be the welcome the commission gave to FM radio. The technology was an enormous leap forward: It allowed stations to broadcast without static, and it allowed more signals to coexist on the spectrum. It also worried RCA, which was investing heavily in the development of television; the company fretted that consumers might not pay for both a new FM radio and a new TV set. RCA didn't control the patent on FM, so it pressured the FCC to favor the other technology. The regulators obliged, and a series of roadblocks appeared in FM's path. The most destructive decision came in 1944, when the commissioners suddenly reassigned the FM broadcasters' portion of the ether to television, instantly rendering every FM receiver obsolete.

Sometimes the benefits of FCC corruption were more narrowly focused. The most infamous illustration might be the case of Lady Bird Johnson, whose broadcasting empire relied on the Washington connections of her husband, future president Lyndon Johnson. The Johnsons got rich off their stations, with the FCC smoothing the way whenever they needed an application approved and throwing up regulatory hurdles when someone threatened their monopoly on Austin's TV market.

Does such winner-picking still go on today? Decide for yourself. The commission intends to auction off some wireless spectrum soon. FCC chief Kevin Martin wants to impose some restrictions on how that spectrum can be used—restrictions that happen to dovetail with the business model of one well-connected startup. The business in question, M2Z, wants to build an ad-supported national broadband network, with additional tiers where consumers can pay extra for speedier connections; last year it asked the commission to grant it the spectrum outright. The regulators refused, and the company promptly sued to overturn the decision. But if the auction goes forward as planned, the commission will have effectively bequeathed the spectrum to the corporation anyway.

You needn't be fond of the incumbent wireless industry—not exactly free-market heroes themselves—to appreciate how inappropriate it is for the government to weigh the scales in any single firm's favor. Those incumbents have protested the plan, leading Martin to take his proposal off the agenda for today's meeting. But that doesn't mean the idea is dead: Martin says he hopes to introduce it next month instead.

Despite this unpleasant history, the FCC believes it is qualified to serve as a moral guardian for the rest of us. Which leads us to problem number two.

The commission is sanctimonious. For seven decades, the nation's scolds and censors have used the FCC as a tool to shape the sounds and images allowed on the airwaves. In 1952, for example, then-commissioner Paul Walker announced with satisfaction that his agency had "surveyed the programming of some of the television stations in operation, and found that some of them had reported no time devoted to broadcasts of a religious nature. We felt in view of this fact that regular renewal of their licenses would not be in the public interest." The stations quickly revised their schedules, and the commission agreed to renew their licenses after all.

These days the FCC is less likely to shoehorn something onto a station's schedule, but it's more than willing to slice something off the program. This practice also has a long history. It was the FCC that enforced Spiro Agnew's crusade against "drug lyrics," an especially vague stricture at a time when some fretful listeners managed to detect traces of narcotics in "Puff the Magic Dragon" and "Hey Jude" (for the phrase "let her under your skin"). Agnew himself believed the Beatles song "With a Little Help from My Friends" was a coded message in which "the 'friends' were assorted drugs with such nicknames as 'Mary Jane,' 'Speed' and 'Benny.'" Rock stations suddenly faced much more uncertainty about what they were allowed to play, and worried program directors reined in their DJs, hastening the decline of freeform radio.

More recently, the FCC under Michael Powell and then Kevin Martin has waged war on "indecent" material, stepping up enforcement even before Janet Jackson's infamous nipple slip in 2004 and ramping its penalties still higher since then. Now Martin wants to tell a company that intends to offer a free national wireless network that it'll have to filter out the porn if it wants access to the ether.

The company? M2Z, of course—or, to be precise, whoever wins the auction tailored to M2Z's business model. Don't expect any objections: The smut-free proviso was already present in M2Z's plans. The execs there understand what Washington wants.

And then there's problem number three:

The commission is technocratic. The next time someone tells you central planning is dead, remind him that there is an arm of the federal government that decides in advance how different chunks of the electromagnetic spectrum will be used, and that it also reserves the right to determine which entities will be allowed to use it. It's true the commission has adopted several market "mechanisms" in the last few decades: FCC-approved broadcasters now have the right to sell their licenses to other FCC-approved broadcasters, and spectrum is usually distributed by auction rather than pure fiat. But even an auction can be bent to the planners' will.

For evidence, look—again!—at the M2Z situation. If the auction goes forward according to Martin's reported plans, the bidding won't be open to just any telecom company. Applicants will have to use that spectrum for a particular sort of service. They will even be pushed to adopt a particular business model. There are phrases to describe such an arrangement. "Free market" is not one of them.

But that is how the Federal Communications Commission works. In theory, its job is to manage the nation's spectrum in the public interest. In practice, inevitably, that means its job is to pick and choose among the definitions of "the public interest" offered by rival industry lobbies and moralistic pressure groups. Corruption, sanctimony, and the conceit of central planning: That's the FCC—and Martin's pet auction—in a nutshell.

Managing Editor Jesse Walker is the author of Rebels on the Air: An Alternative History of Radio in America (NYU Press).

The Wire Vs. The Sun

jwalker@reason.com (Jesse Walker) — Sun, 01 Jun 2008 00:41:00 EDT