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.
Relationship Status: It’s Complicated
So you may not have heard, but the Brits held a referendum and voted to exit the European Union. This has garnered some interest in the democratic process.
Referenda have always been controversial to some extent, but for reasons unknown Reuters, Newsweek, and the Washington Post all ran pieces decrying the very existence of the UK/EU referendum, which did not turn out the way that most journalists and news outlets believed that it should have. In Newsweek, Rob Cox describes it thusly:
Imagine, as an analogy, that you are sick. You go to a doctor. But suppose your “doctor” doesn’t study the facts, doesn’t know any medicine and makes her decisions about how to treat you on a whim, on the basis of prejudice or wishful thinking.
Imagine the doctor not only prescribes you a course of treatment, but literally forces you, at gunpoint, to accept the treatment.
We’d find this behavior intolerable. You doctor owes you a duty of care. She owes it to you to deliver an expert opinion on the basis of good information, a strong background knowledge of medicine and only after considering the facts in a rational and scientific way. To force you to follow the decisions of an incompetent and bad faith doctor is unjust.
But this is roughly what happens in democracy. Most voters are ignorant of both basic political facts and the background social scientific theories needed to evaluate the facts. They process what little information they have in highly biased and irrational ways. They decided largely on whim. And, worse, we’re each stuck having to put up with the group’s decision.
Unless you’re one of the lucky few who has the right and means to emigrate, you’re forced to accept your democracy’s poorly chosen decisions.
Let’s run with the doctor analogy, for a moment. He posits the people in both the position of the doctor and the patient. The more direct analogy, though, is to consider the government professionals as the doctor. Let’s assume, being the knowledgeable and good individuals that they are, that they are good doctors. At the end of the day, though, the decision on medical care is more likely to reside in the patient. The patient with little or no medical training at all, in most cases. The doctor can refuse treatment, but can’t force treatment most of the time. They are there to advise and perform.
The overall theme from the three pieces is constant: Leave it to the experts. Leave it to the doctors. What’s notable about the analogy, however, is that it reveals the limitations of the very thing it advocates. For the most part, doctors don’t choose your treatment. Rather, you choose your treatment from the options that they (your insurance company, the state, etc) give you. Most frequently, their job is to inform and advise. In the case of the referendum, that’s exactly what happened. The politicians gave the public the decision, they campaigned for one option or another, and left it to the people.
If one is predisposed to believe that the Brexit is an unambiguously bad idea, it’s quite seductive to accept the argument that the “doctor” shouldn’t have given “the patient” the choice, any more than a doctor would give chemotherapy to a patient with the flu. That’s fair. But that’s not an argument against referenda; that’s an argument against the Brexit. More abstractly, though, the argument is about whether or not the people should be involved in the big, complex decisions. Or whether we should leave it to the experts.
More often than not, I am in agreement with Cox and the others. Leave it to the professionals. If they make bad decisions, vote them out! That’s how indirect democracy works, and it’s a good system. I generally agree with this. However, there are some questions that are so fundamental that I believe they really ought to be left to the people. One area of fundamentality would include elections, for example. We can’t trust the experts to get everything right because they have skin in the game, and they can make decisions that make voting them out more difficult. Another area deals exactly with issues like Brexit: collective status.
One thing to keep in mind here is that “collective status” does not merely apply to Leave in the sense that the UK just voted and Scotland did last year. It also applies to joining. The EU is itself a bit complicated because, except for the most recent additions, the union was formed a little bit at a time. The “EU” that the UK originally joined is not the EU that exists today, different both in degree and kind. It’s not always easy to determine which, if any, of the alterations needed a vote (and with what threshold). It should also be pointed out that some political entities of some countries did not vote to join in the first place, which seems relevant.
In 1967, 1993, 1998, and 2012, Puerto Rico held a plebiscite to determine its legal status: State, territory, or independent. This is a very complicated issue, and it can easily be argued that the politicos of Puerto Rico know best what status is best for the territory. But I cannot imagine elevating them to statehood, or granting them independence, without a public vote. It’s too big and too fundamental a decision to be left to people whose views and interests may diverge greatly from the populace. There is a general consensus around this, because the Puerto Rico establishment and the US establishment both tend to want statehood, but nobody is really acting until they can get at least a majority in a straight vote.
That is not to say, however, that Cox and the others are completely wrong. Far from it, as voters are actually pretty terrible. They are subject to campaigns built on hyperbole and falsehoods. They have collective moods that can turn out to be quite transient. It’s one thing for this to be the case when handling day-to-day affairs, and even who is elected to government. But when we’re talking about such fundamental and foundational decisions, we really don’t want them to be made based on a whim or a transient mood. So the problem is not, as many have said, that the people are given a direct voice. The problem is that a temporary 51% can overrule everybody. The problem with the Brexit vote is not that it was held, or even that they made the wrong decision, but that the decision was (theoretically) made by 52% of the population, and that 52% could be 47% a year from now. Or today. Who knows?
Big decisions are best made when made by a consensus. Sometimes you can’t get a consensus, of course. And what to do then? Well, assuming it’s not time-critical, nothing. Status quo bias is often considered fallacious, but it’s often quite reasonable. The status of a political entity is one of those times, generally speaking. Dynamism has its virtue, but so does stability. It’s hard to invite investment when legal status is always up for grabs. That applies to both the private sector and the public sector. If Puerto Rico has one foot out the door, we’re not likely to institute many 20-year plans, and a lot of good plans can take 20 years. If Britain’s status within the EU is tenuous, then so will be investment in either direction.
What constitutes “a consensus”? Well, the more agreement the better, obviously, but it’s not 50%+1. I wish I could look at the UK, Scotland, Puerto Rico, Catalonia, Quebec, and a spectrum of states and give a number like 60% or 2/3. It’s going to depend. I look at the first three of these situations (I don’t know enough about Catalonia or Quebec) and I believe 60% ought to be sufficient, though in the case of the UK you might also want more than 50% in each of its constituent parts. Even if there was less than 60%, though, there could be wiggle room. If instead of 52% the Brexit vote had gotten 56%, and then five years later another referendum got 58%, it might be worth pulling the trigger so that investment (and everything else) can move forward. The important thing is that you have more than a majority that is not a product of transient sentiment, preferably with support moving in the right direction and the youngs on the right side and the olds on the wrong.
All of this ends up putting the power right back into the legislature and government. Which, contra my seeming disagreement with Cox and others, is as it should be. And which is, it’s worth noting, what is happening with the Brexit, Puerto Rico, and so on. Parliament has the power to put a stop to this, and if they choose not to that is the decision that the duly elected representatives of the United Kingdom chose. Congress (including supporters of Puerto Rican statehood) disregarded the results of the 2012 Puerto Rico plebiscite because the results just didn’t provide sufficient clarity of consensus. The fault in the Brexit campaign, and Scotland before it, was giving so freely the impression that 50%+1 makes it a done deal. That lead to what seems like a commitment that they are either going to have to follow through on or renege on.
That’s not a position they should have put themselves in. That’s not a position we should ask or expect countries to put themselves in.