In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
By Burt Likko (aka Transplanted Lawyer)
This post is about what exists in reality and how I’ve seen it, not what I think that reality ought to be or my moral approval or disapproval of it. On balance, I’m not particularly happy with seeing the world this way but I believe it to be a useful and accurate lens with which to understand things.
Class And Personal Experience
Perhaps the most consistent thing about the many phases of my own law practice has been the very wide spectrum of people that I have met, people from all sorts of walks of life in so many different phases of their lives. It’s hard to say whether one’s own experience is truly representative of the world under the best of circumstances, and my experiences have comes from people who are facing legal troubles. And you get a good sense of what people really are made of when you see them grappling with their troubles. So a substantial part of what I have to say here is based on the least reliable sort of evidence, which is anecdotal. I’ve little else other than media to rely on for observations about broad social classes, however – media both popular and academic, to be sure, but really, what other sources of information does anyone have about the way one’s own society is structured?
Also having substantial weight on my observations here is a book which has been influential among my peer group, Paul Fussell‘s Class. Prof. Fussell wrote this slim and trenchant observation on American society in 1983, in an attempt to explode the myth that the United States enjoys a classless society. Fussell identified nine primary socio-economic classes in the modern United States – five of which he described as “proletarian” or less – and asserted that upward mobility between the classes was extraordinarily difficult even if one overcame the odds and acquired sufficient money to afford the kinds of things that members of the next rank up might acquire with minimal difficulty.
For instance, Fussell posited that a “high proletarian” would simply never be comfortable or fit in as part of a world of “middle class” people, because the high prole’s recreational preferences, aesthetic tastes, educational experiences, and socialization habits would not match those of her neighbors. She would leave Christmas lights on the eaves of her house all year, change her own oil in the driveway of her house rather than take it to a mechanic, buy cheap beer to serve at a party when her guests would be expecting imports and white wine, prefer televised stock car racing to the Super Bowl, and so on. But more to the point would be that the high proletarian would in all probability never even get to the point that she would be in a position to make such a series of faux pas to her new neighbors because the kind of jobs she would need to get in order to make that kind of money would never open up to her – there would be formal qualifications for education and work experience that she could not meet, and social hurdles during job-selection processes which she could not overcome because of her lack of a peer group in the class to which she aspired.
The highest and lowest economic classes were, according to Fussell, at such economic extremes as to be functionally invisible to the rest of society – the very poor living under bridges, committing petty theft and scrounging garbage cans for their very survival and keeping out of sight of others so as to avoid detection by a world that hates them for their poverty; the very wealthy living in rarefied and isolated enclaves having isolated dinners served to them by their servants, in which the only subject able to generate any emotion was the pressing imperative for the preservation of capital.
The basic observation that the United States is a classified society, and that class boundaries are by this phase of our history significantly ossified and impermeable, seems so true as to be beyond reasonable dispute.
In later editions of the book, Fussell added a new chapter, alleging the instance of a “Class X” which transcended the nine-tier system originally posited. “Class X’ers” engaged in the arts for their existence, could come from nearly any of the classes, and ‘enjoyed’ social mobility. Wealth to them would be irrelevant and if they exhibited skill at their craft, they could gain both fame and fortune and in that sense find easy acceptance in nearly every level of society. I have always been of the opinion that Fussell was induced to add this by his editors, who found the overall thesis of the original book too depressing despite Fussell’s interjection of acidly humorous observations about the behaviors of specimens from all nine classes. The existence of such a class is in too great of contrast, too blandly optimistic, and too obviously calculated to please editors of large New York publishing houses, to enjoy substantial credibility.
Real-life experience shows that there are artists and then there are artists. There is an economic spectrum within the arts and the great, great majority of those who make their career in the arts do so in exchange for shockingly low amounts of money and live in tremendous obscurity. Those who seek entrée into the elite levels of the arts world need the right kind of education (not necessarily found in a university, mind you) before undertaking their careers and the right kind of peer network so as to be noticed by the right kinds of people. In other words, they already need to at least be in the proximity of other elites in order to become elite themselves – which is, ultimately, the definition of a class.
Real-life experience contrasts with Fussell’s nearly thirty-year-old observations in many other ways. I look at myself – as a lawyer enjoying a good income and a superior education, I should fit in to what Fussell described as the “upper middle class,” the third-highest tier in Fussell’s taxonomy – a collection of people who have significant economic comforts, who actually want for nothing, but do not consider themselves wealthy and aspire to greater wealth than they have. But my neighbors are an aircraft engineer, a postal worker, an assistant human resources manager at a community college, a termite exterminator, a drywall applicator, and a retired plumber. Some have been to college, one (other than I) has completed graduate school. These people span the sorts of professions from “middle prole” to “upper middle”; but unlike the “upper middle” Fussell described, I actually know and socialize with my neighbors periodically. We all enjoy professional football, wear similar kinds of clothing when off work, we all sporadically enjoy nights out at various performing arts venues, and we all drink high-end beer and mid-range wines when we get together. The traits and backgrounds of these people (myself included) are all blended together.
This is not to disparage Fussell, who provides a useful framework upon which to build. But it is to say that economically, it’s not necessarily any great shakes to be a lawyer anymore and it’s entirely possible to have a very comfortable existence without the kind of educational and professional background that Fussell associated with the middle or upper middle class. Fussell’s regime is not fundamentally incorrect – but it is too compartmentalized. It describes a continuum, not a stratification.
Capital And Class
At the same time, Fussell observed that there are people of fantastic wealth, people for whom money is so plentiful as to never be an issue. These people, he says, behave differently than those who have to work for a living. Real-life experience bears that observation out and it is enduring. They have to do something with their money and they typically put it in things like real estate and securities. Thus, I encounter such people as clients. For them, money is like air – there is always a lot of it around and even if they don’t have it themselves at a particular moment, there will always be more around. There are differences in behavior and world view that come from that background.
Such people sometimes seem to lack anything one could identify as a “job.” They own stuff, they do things, but there seems to be little by way of structure or pattern to it. Some day-trade online for a few hours a day, some scour real estate opportunities in something like an orderly way, but for the most part they don’t pay a lot of attention to what other people do to support their activities. Like their lawyers – they hire me to do certain things and leave me alone to do them. This is pleasant enough for my practice, but in dealing with them they seem to lack a realistic understanding of what is happening on the ground with their own assets. Indeed, they are often unaware of the value of their own assets or the (highly variable for both better and worse) extent of their own creditworthiness.
More importantly, they don’t always have, or at least have access to, the money which so permeates their existence. And they don’t always live particularly well. I’m not talking about Mitt Romney flying coach to the winter Olympics because coach seats were the only ones available for the flight he wanted. I’m talking about trust fund babies who continually mooch money from their accountant friends while smoking a lot of pot and buying new guitars to ornament their beach houses. I’m talking about people on the make who try to put together eight-figure business deals based on half-baked ideas, and who have temper tantrums when their lawyers present them with bills for a few thousand dollars.
Those tantrums seemed inexplicable to me when I first encountered them, before I realized that my clients simply didn’t have the money and were using their emotions as a substitute for the money I had requested. All the shell games with future money and investors’ money they promised me at the end of the tantrums were proof that for them, the money was like the air – it was simply there, somewhere, and its presence was sufficient. Beyond that, they had never given thought about money at all.
The takeaway is that proximity to capital is the key to this class. Most of the people I’m referring to here earned their money the old-fashioned way – they got it from their parents, who got it from their parents, and so on and so on. Consequently, ready access to liquid money is not always a defining trait of this class, but money permeates their existence in a way that it does not for those who make their living like me and most likely like you, my Reader, by exchanging some kind of useful work – whether that is manual labor, intellectual work, or professional services – for money and thus survive.
Entitlement And Class
On the other end of the spectrum, I get to see people – middle-aged, sometimes even elderly – who seem to have little experience at all working. Their entire economic lives revolve around various kinds of entitlement payments from a variety of governmental agencies. Perhaps there is relatively more of this here in relatively generous California than in other parts of the country. But my experience living in Tennessee tells me that such people are found there in appreciable numbers as well. These are the apparently able-bodied people who always pay their rent late because they’re waiting for their Social Security and state disability payments, which despite being electronically wired to bank accounts, always seem to arrive late.
What amazes me about dealing with this collection of people is not so much that they can survive on this kind of existence. The governmental entitlement programs are designed to achieve that goal and while the shoe doesn’t always fit well, it does seem to fit most of the time. There are two things that stand out for me. First, a significant number of those who live in this way seem to do so with little real understanding of, and sometimes even apparent contempt for, people who exchange labor for money.
I say “contempt” rather than “resentment” because when I encounter them (either when they solicit my services or when I am evicting them from the homes they have failed to pay rent on) they do not evidence any real jealousy for either my station in life or my clients’. As best I can perceive, for them working is for suckers; why work when you can get the same money for doing the stuff you would rather be doing anyway? These are people in the entitlement system who grew up within it, who never really leave it for very long, and who seem to consider the ability to navigate it a fundamental life skill. They view others who lack those skills the same way I view people who do not understand the importance of having a driver’s license or a checking account. This is why I refer to this group of people as a class – they are born into it, socialized into its values, and consequently face significant difficulties migrating out of it.
The second observation is that for some of these people, there seems to be a pretty substantial skill set, a collection of experiences and shared knowledge passed from person to person – a curriculum, if you will – that leads to a lifestyle that seems almost enviable.
An unemployed person lacking formal educational credentials can live in section 8 housing, in a bigger house and a nicer neighborhood than I do, paying double-digit monthly rent out of pocket, which may or may not be paid at all. AFDC provides enough money for the entire family to eat on – and indeed in many cases to eat out at restaurants with some frequency. General relief provides money. State disability and social security disability payments provide more money. Periodic low-end employment results in continuing eligibility for unemployment benefits, as well as opportunities to make workers’ compensation and wrongful termination claims, from which both money and disability eligibility is extracted. The end result is that for one who is able to navigate the paperwork, one can achieve a comfortable lifestyle not involving work but including material comforts such as new cars, new clothing, state-of-the-art cell phones in near-constant use text messaging friends, and cable television. Should the rent go unpaid, they can frequently stall out the eviction for six months or more, and there is little lasting consequence for them as a result. When they get sick, their medical care and medications are paid for by a panoply of public assistance programs.
This may seem a lot when taken at first glance, but it really isn’t all that improbable. In terms of absolute dollars, cable TV, cell phones, clothing, and even auto leases are not terribly expensive anymore. One suspects that the cars lack insurance, that cash is not always readily available, and credit is on a downward spiral. Still, it’s hard to feel sorry for such folks because their lifestyles – the actual consuming they do – appears to exceed that of a large number of people who exchange their labor for money; they are able to engage in such consumption in exchange for conforming the patterns of their lives (how many children they have, where they live, etc.) to incentives created by the government and filling out the appropriate paperwork.
Abuse, Not Cheating
I hesitate to call such people “welfare cheats,” however, because it’s clear that they aren’t cheating the system – they are working within it, conforming to its rules, exercising their rights. They comply with the law. That’s not cheating. It might be something else we don’t like (call it “abuse”), it might be a cynical manipulation of the system beyond its intent, but particularly if your ethic is that the system permits something and therefore you can do it, it is more than possible to work the system into a life that features things that many people who actually work for a living cannot afford to enjoy – not the least of which is substantial amounts of free time.
This is not to say that everyone who is enrolled in government entitlement programs behaves in such a way, which when cumulated in that fashion looks very dishonest. Not everyone possesses either the skill set or the – how to put this politely? – disposition towards the government’s role in society necessarily to manipulate the system in this fashion. I’m telling myself that this sort of thing is exceeding rare. But I can’t say it’s nonexistent, having seen it with my own eyes. What I tell myself is that my own view of things is skewed; my own personal sampling of what’s out there in the world comes from being in the courthouse more days than not, and the population of a courthouse is, by definition, selective to include people who have legal problems and therefore not representative of the population as a whole.
The Tennessee Taxonomy
What all of this demonstrates to me is that wealth and affluence are different things. There are those who do not need to work, those who do need to work, those who lack the ability to work. But one’s degree of poverty or affluence is a variable independent of one’s ability or need to work for a living. My observation is that there are three classes of people – those who do not need to work for a living because of their association with (although not necessarily personal possession of) capital; those who exchange their labor for money in order to survive; and those who get what they need to live by way of governmental entitlements. This is a continuum, not a stratification. One might have access to capital but still either need or want to work for a living in order to secure cash flow. One might have a background of life “in the welfare system” but genuinely seek real employment.
What’s more, within each of these three broad bands of ways of life, there are degrees of affluence and poverty. Some “capital-class” people live very affluent lives, some have kind of sketchy existences. As common experience for most of us shows, some people make better money at their jobs than others. And some people are very good at working the system and some are not so good at it.
So it’s not right to say we have an “upper class,” a “middle class,” and a “lower class.” Fussell’s term “proletarian” was intended to reach people who do manual labor, construction trades, and the like, and do not enjoy wealth. But it is possible to make a reasonably handsome living turning a wrench, if you do it the right way and in the right place. It is possible to engage in a traditionally high-status profession like law, and only reap a meager income.
One’s class is determined not by one’s social status, education, or even income, but rather in how one’s subsistence is derived. This is a function of heredity.
One’s affluence is not determined by one’s income, but rather by one’s consumption. This is much more widely variable than might appear at first glance and Fussell’s taxonomy is either outmoded or was never actually right. This is why I’ve put together a new chart, a two-dimensional taxonomy that examines consumption separately from the means by which consumption is made possible.
The result is something that to my mind looks a little bit like a map of the state of Tennessee. I have it that way because it seems to me that those within the capital class will only be allowed to fall so low by their fellow class members – wealthy family, well-off associates, and so on – and will probably not wind up in abject, grinding poverty no matter what. And I want to reflect that while it is possible for those who live mainly on entitlements to live affluent lives, this is actually a pretty rare phenomenon.
Both axes of this taxonomy are not intended to be broken down into discrete units. If I had more skill at graphics, I’d show the colors fading smoothly in to one another. The curves of the left and right sides, representing the extremes of affluence and poverty, are not ones I’m married to, particularly, although the general shape is, I think, correct. So I’ll ask your indulgence, Reader, in imagining it drawn more proficiently than I have done here.
Government entitlements and subsidies may also be perceived in certain kinds of tax incentives – home ownership, for instance, is subsidized by the home mortgage interest deduction. I include those who are employed by the government in the “Labor Class” because they do, in fact, exchange their labor for money, and therefore have the same intellectual system of what skills and activities are valuable as those who pursue employment in the private sector. They have simply chosen to exchange their labor for the government’s money rather than a private employer’s money.
I’ve struggled as to how to classify Social Security in this taxonomy; people say, “But I earned Social Security,” and the benefits are derived, in part, on how much of the SSI tax one has paid throughout one’s lifetime. But Social Security is also used for disability regardless of what one has (putatively) paid in to the system and the system exists to ensure at least minimal survival-level income for everyone no matter what they’ve paid in. One’s retirement income also comes from savings and investments. The right way to treat it, as I see it, is to place it somewhere in between “Labor Class” and “Entitlement Class”; on my crudely-drawn chart, those who live mainly on Social Security would be right about the line between those two. One would move up or down based on what kind of other income was coming in.
Finally, should note that capital-class people will only be allowed to fall to a certain depth on the affluence-poverty scale, while entitlement-class people do eventually face an upper limit on how far they can rise on that scale. That is why my chart looks, roughly, like a map of the state of Tennessee. That is designed to represent the fact that there are floors and ceilings that apply based on how one’s sustenance is derived.
The big point of all this is to define wealth not as either net capital or the size of one’s income stream, but rather in terms of consumption – and to separate that level of consumption from the manner in which that consumption is obtained.