Rosanna Weaver is programme manager for executive compensation As You Sow.
Her face looks at the camera in a way that
is totally different to how teenagers take selfies now. There’s no elaborate
expression, but there is, for some reason, a hint of a smile. Maybe the
instinct to smile when a camera is pointed overcomes her in the moment.
But this is not a sharable moment. Her name
is Czesława Kwoka, and her photograph has been colorized, but even in the black
and white original the uniform of Auschwitz-Birkenau is unmistakable.
The colorization is by Brazilian artist Marina Amaral, and it brings to
life a young person who died many years ago. Her face stares out at us across
the decades. In one photograph, she wears her camp-issued headscarf and looks
up and to the side. She is pretty, but she is thin. Her hair is roughly cut
short. Her lip is cut. The photographer who takes her pictures later testifies
that she has just been beaten by a guard. Later, when he is ordered to destroy
them, The photographer risks his life to save some of the pictures, including
those of Czesława.
She is deported to Auschwitz, along with
her mother in 1942. It’s not clear why, her family is Catholic, not Jewish, but
her uniform has a red triangle alongside her prisoner number, that means
political enemy, so it’s possible that someone in her family is in some
organization that the Nazis dislike.
She’d be 92 now if she had survived. She might still be alive, lots of people live to be 92 or older.
But she does not survive. All that remain
of her are those three photographs, now colorized, staring out from our new
technology, and our wondering of what she might make of this new world.
She arrives in Auschwitz in December 1942.
Some weeks later, in February 1943, someone decides that her life isn’t worth
her reaching 92, or reaching one more day. They inject phenol, a poisonous
acid, into her heart.
Chris Bostic is Deputy Director for Policy of ASH, Action on Smoking and Health. Which, since 1967 has been campaigning against Big Tobacco to reduce the death toll from smoking.
So this is a famous clip of Ellen Degeneres
on her TV show talking about some ridiculous products aimed at women.
Ellen is a pretty funny character, but she
really doesn’t need to do much work to get a laugh at the idea of pens
specially for women.
But this clip refers to one trope that was
going around a while back, called the Pink Tax.
The idea was that products aimed at women
were having their prices jacked up by the evil patriarchy so that women had to
pay more for the same things than men. The whole idea was really just a
clickbait thing, and it was confused as to whether it referred to products that
were marketed at women’s preferences, or products that women needed to be different
to men’s products because of their physiology.
Ellen’s example is a pretty clear case of a
product that you can literally pay any price you like for. You can go to a
discount store and buy packs of dozens of pens for a dollar or so, or you can
spend hundreds of dollars for a single premium pen. I found one
pen for sale online that costs more than $5,000 – but hey, it’s got free
shipping. And all those pens do pretty much the same job; what you write won’t
be any better because you wrote it with a pen that costs thousands of times
more than the cheapest pen out there.
But why does this extreme price difference
exist? Surely the laws of the market should flatten out the prices. Well,
clearly they don’t. Because here’s a secret of capitalism. If you’re selling
pork bellies or currency futures, supply
and demand set the prices, it’s a true marketplace. But if you’re buying a pen
because you want to sign a card that you’re sending to someone – do you really
shop around? Of course not.
What sets the price is what the market will
bear. What people will pay without complaining too much. If the pen costs a
dollar, will you go to the next store to see if they’re selling it cheaper? No.
and even if you know that the next store sells it for only 50 cents, will you
go there if you’re already in the place that sells it for a dollar? Very
And the manufacturers and retailers know
this. They even do market testing to see what price they can get away with
charging, and build their whole product around that information. That’s why
women’s shampoo costs more than men’s, because women are willing to pay more
for it. That’s also why men’s cars and home stereo systems cost more than
women’s – because men are willing to pay more for them.
And before you ask, yes there are such
things, marketers don’t write that on the label, but those markets are strongly
That brings me to a campaign that did have
a bit more sense to it, but was still misguided. Value Added Tax, called VAT is
a sales tax in all EU countries, and it’s pretty high, in some countries up to
25 per cent, but typically around 20 per cent. And in most EU countries, that
sales tax was charged on tampons and other women’s hygiene products.
There are active campaigns to have it
removed from these products because they are regarded, reasonably enough, as
necessities. From the start of this year, 2020, that campaign was successful in
Germany. The tax there was 19 per cent, and it’s just been cut to just seven
per cent. So a win for women, right?
So instead of this being a tax cut for
women, it was a tax cut for the producers. Because the price of consumer
products isn’t really set by the cost of production, it’s set by what the
consumers are willing to pay. This isn’t even a secret, IKEA the massive
Swedish furniture say that the
first thing they design on their products is the price tag, and everything
else follows from that.
The point is that, particularly when it comes
to market forces, it’s hard – it’s nearly impossible – to do anything that
doesn’t have unintended consequences.
Back in August I talked here about the
pro-democracy protests, anti-Putin protests in Moscow, and I noted that,
compared to the similarly-motivated protests in Hong Kong, there were small.
People might grumble, but there is no arguing that Putin has very widespread
support in Russia, and the protesting was done by a particular well-educated
That last point is important; television,
regular broadcast television, is hugely popular in Russia; it is hugely
influential, and it is totally under the thumb of the Kremlin. Just last week, Alisa
Yarovskaya, a prominent journalist on a Russian regional TV station in north
west Siberia asked Putin at a press conference why Moscow wasn’t supporting a
project to build a bridge to link two local towns, a project that the regional
governor had proposed.
But as I said in August, the young, urban,
often well-educated people who are most likely to support democracy often just
bypass Kremlin propaganda and get their news online; often they speak English
or some other foreign language and keep well-informed via foreign news sites.
But there might be a road block coming on that bypass.
This week the Russian government announced
that it had successfully tested what is called Runet. This is the internet –
sort of. The ‘sort of’ there is important. If you work in a large office, your
computer is connected to the internet so you can send email and check websites,
right? Not quite. A typical computer in a large office is connected to the
company network, and that is connected to the internet, so you can look up
So rather than you following a link to the Challenging
Opinions website, and your computer getting the content of that website, an
office computer asks the company server for the Challenging Opinions website,
the server gets that content and passes it on to the user’s computer.
Or maybe not, if your office blocks the Challenging
Opinions website. A lot of employers block porn, or social media, or job search
websites or all sorts of other content. They’re allowed because it’s their network.
But you go home, and unless you put on your own filter, you can access whatever
content you want.
But not if you live in China, or Iran, or
Thailand or Turkey or a growing number of countries that block content at the
But Russia is going one step further here. As
well as setting up what is essentially a gigantic version of a company
intranet, where you get selected access to the outside internet, they are
forcing telecom companies to comply with the Runet system, which would allow
them to not block the internet, but then create a parallel internet system that
works only in Russia, and that allows Russians online, but only to view content
that originates in Russia.
So people would only be able to send and
receive emails or other content within Russia. And if you’re thinking VPN, they’ve
thought of that too. VPN is a way to encrypt your internet traffic and disguise
where it is coming from and going to. Almost all VPN traffic would be totally
blocked by Runet.
Russia has also introduced a law that requires
government-controlled apps to be pre-installed on all smartphone sold in the
country. Essentially what they are doing is not seeking to put their citizens offline,
they are seeking the ability to disconnect Russia’s online from the rest of the
This has been called the ‘splinternet’. Where the internet is
still there, but autocracies set up a system whereby websites, messaging
systems and so on continue to work, but only the ones that they approve, and only
the ones that they can spy on when they want to.
Ivan Eland is a senior fellow at the Independent Institute. He has a PhD in Public Policy from George Washington University and has been director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues.
You’re used to me spouting on here based on
not much more than my own prejudice, but here’s a topic that I am actually
qualified to talk about. I studied linguistics, and I have quite a bit of
experience in language learning.
And anyone who has learnt a second language
will know that the words and phrases in one language often don’t map exactly to
the ones in another. A language is a complete speech convention, it’s not like
Morse code where you transfer words directly. Things work differently from one
language to another. Some languages have several non-interchangeable words
where another language has just one or maybe none, and this can make problems
for a language learner who hasn’t grown up with the experience of knowing when
to use which word.
And this means that people familiar with
language learners will quickly learn to spot what is the native language of the
learner by the mistakes that they make in their target language, the language
they’re learning. There’s even a name for it, it’s called native language interference. Believe it or not, this is useful
when it comes to understanding the comments in the hugely popular online
version of the British newspaper, the Daily
The comment was from someone with the
username DMreader and gave their location as Lovely England, it was on an
article about a request from a Russian-backed separatist in Ukraine to Nigel
Farage to support his cause.
Articles, in case you’re not a linguist,
are words like a and the. So, if you want to say ‘I ate the apple’ you’re talking about a
specific apple known to the listener; but if you say ‘I ate an apple’ then you’re not specifying to the listener which
apple, because it’s not important.
Now, here’s the thing about Russian. The
Russian language doesn’t have articles
at all. If you want to say ‘I ate an
apple’ you say ‘Я съел яблоко’;
if you want to say ‘I ate the apple’
it’s the same, ‘Я съел яблоко’, in
both cases literally ‘I ate apple’. It’s
easy to leave out a word that you don’t have a translation for, but if you’re
an language learner, it’s much trickier to work out when to use words in your
target language that have no equivalent in your native language.
For this reason, Russian learners of
English have a particular problem with knowing when to use articles, knowing
when not to use them and knowing which one to use. This might be surprising
until you think just how complicated some conventions of English actually are. This
rule about using the word the for
specific things and a or an for non-specific ones doesn’t always
It’s often way more complex than that. If
someone says ‘I went to the bank’ or
‘I went to the beach’ it’s likely
that they are not referring to a specific bank or beach known to the listener,
and sometimes we leave articles out altogether, and say ‘I went to school’ or ‘I went
to work’. Sometimes this grammatical rule gets totally reversed. You might
walk into a store and ask ‘Do you have
the Daily Mail?’, you use the
when you don’t mean a specific one, you mean any of thousands that were
Then go into the café next door to meet a
friend, they ask you do you have a newspaper, and you answer ‘Well, I have a Daily Mail’ when in this
case you are referring to the specific copy that you just bought, for some
It gets more complicated when you use
negatives, sometimes the negatives can replace the article – ‘I have a computer’, ‘I have no computer’; and sometimes they
can’t – ‘I have the book’, ‘I don’t have
the book’. This makes things even harder for Russian speakers, because
where English has several negating words, no,
not, don’t Russian has only one, нет.
This is where the comment by DMreader in Lovely England on a Daily Mail online article about Nigel Farage and Ukraine from a while back comes in, I’ll read it verbatim.
There’s a number of things there. Let’s
leave aside the content, why someone in ‘Lovely England’ would be so concerned
that the Nigel Farage take a stance on the conflict in Ukraine; let’s just look
at the language.
“…stay away from business that’s not concern of ours…” That’s weird phrasing. You could say ‘not a concern of ours’, you could say ‘no concern of ours’, but ‘not concern of ours’ isn’t something typical of an English speaker.
Then there’s the mention of ‘one pro-Russian activist with a common sense’.
With ‘a common sense’? Who says that?
Not native speakers. And ‘sees the situation in a logical order’? that’s a
strange way to put it, but it seems to me to be a direct translation of Russian
phraseology. Not to mention that we are expected to believe that DM reader in
Lovely England seems well-up not just on the conflict in Ukraine but also
Farage’s position on it.
But I don’t.
Looking at the language, and I have
significant expertise in this area, I haven’t a shadow of doubt that this text
was written by a Russian-speaker. But here’s the thing. This text wasn’t
written recently; it wasn’t ever written at the time of the UK Brexit
referendum. It was written in April 2014, years before either that referendum
or that presidential election. The Daily Mail online is the biggest UK online
news source, and an obvious target for campaigns of influence.
They might have started sloppy, with
writers who have middling English doing heavy-handed messaging, but it would be
foolish to think they’ve given up on it, or not gotten better at it. Make no
mistake, this is information warfare.
But it’s better than bombing Malaysian
airlines, I suppose. Or Afghan wedding parties for that matter.
FAIR’s contention that all levels of society suffer a significant net financial disadvantage caused by undocumented immigration is an outlier that is not replicated in other studies.
About 40 men were taken to a barn and shot.
Following that, at least 300 men, women, and children, including infants were
rounded up and locked in the barn, which was doused with gasoline and set on
fire. Anyone who tried to escape was shot. All of them died.
This is what happened in a small village
called Jedwabne on July
10 1941, in nazi-occupied Poland. Before the massacre, Jedwabne had a
population of about 1,500 Jews and 700 Catholics. Some of the details are lost
to history because of the fog of war, but one thing is notable about this outrage.
There were nazi forces present in the village earlier that day, and some may
have taken part on the periphery, but the massacre was not carried out by
In Jedwabne, the Jews were murdered by
their neighbors. They were killed by Catholic Poles who they had lived beside
for generations. Clearly there were ethnic tensions before the nazi invasion,
and these were exacerbated by the perceived, and sometimes real support for the
Soviet Union in the Jewish community – the area had been under Soviet
occupation until a few months previously.
In post-war communist Poland, there were
trials of people accused of participating in the pogrom; several local catholic
men were convicted. Their trials fell drastically short of anything that could
be considered fair or impartial. Despite this, there is no serious historical
source that disputes the central fact that local Catholic poles murdered
hundreds of their Jewish neighbors.
No serious historical source. That doesn’t mean that it isn’t disputed.
The 2018 Polish law effectively extended a
practice in Poland’s schools to the whole of society, making it impossible to
tell that truth. There was an international outcry, and the law was changed to
remove the prison sentence, but the law remains.
Poland’s legally-compelled anti-Semitic
lies are an example of what happens when people can’t win an argument on the
facts, so they make up their own facts. This is poison for public debate, but
it’s not the only example of this.
So, if a geography teacher sets a pop quiz
with a question which is closest to the age of the earth, five billion, five
million, 5,000 or 500 years, and a student get it wrong, and ticks 5,000
instead of five billion, the teacher isn’t legally allowed to mark them wrong.
And, presumably if a student says that the
sun orbits the earth, or the earth is supported by elephants on the back of a
giant turtle, or any number of religious-inspired answers, the teacher is
legally obliged to mark them right. And even if the student gets some basic
math wrong, says that two plus two equals five, what’s to stop them from saying
that’s based on their religious belief, so top marks please?
Once the answer is based on what’s in the
student’s mind, not what’s true in reality, there is nothing to hold on to.
These two examples are on different scales,
but they both show a disconnection from the real world. If the facts aren’t the
way you want them to be, you just pass a law to change them, or at least to
force people to agree with you.
Any belief system that must be shielded from
reality by the force of law doesn’t have much going for it.
I know that some listeners are in the UK,
but most aren’t, and for you in the majority, although you’ve probably heard of
Brexit, you mightn’t really be sure why it is such a big and difficult issue.
It is a big and difficult issue, but the fact that it is a big and difficult
issue makes it difficult to explain.
I’m not going to bore you to death here
with all the details, but I have come across one fairly simple example of why
it is so difficult. Cows. The reason – or one of the reasons anyway – is cows.
I’ll explain why in a minute, but first
some basics. The EU is a huge trading bloc, currently 28 nations, with several
more trying to get in, and one trying to get out – the UK. They are separate
countries, but for trading purposes they work as one. If your business in one country
wants to sell something to a customer in another country, you just put it on
the back of a truck and send it to them. No extra paperwork, no taxes.
Tariffs with other countries are the same
for all 28. They have to be. It wouldn’t be possible to have one tariff for
Chinese goods going to France and another for Chinese goods going to Germany,
because then you could just bring it into the one with the lower tariff and
send it to the other.
Product standards are the same as well, so
that you can make a product or component in one country and put it on the back
of a truck and send it to any of the others. It’s been like that for more than
Many people in Britain want to leave the EU
so that they can set their own tariffs and product standards independently.
That would mean that the UK and the EU would have to put up tariff barriers and
product standards checks between each other, but that’s what the UK wanted and
that’s their right. But it’s causing a lot of unexpected problems, because the
people who proposed this didn’t really think that they would win the 2016
referendum, and didn’t really think through any solutions to problems, the big
and difficult problems it would cause.
And because they are big and difficult
problems, they are difficult to explain to anyone, let alone to understand,
which is why people are getting very frustrated with the process. And I’m not
going to bore you to death by trying to explain the all, but I’ll give one
example. That’s where the cows come in. They are Irish cows.
And everyone likes them. Everyone
especially likes the butter and cheese that their milk makes. All that rain and
green grass makes it taste good. It’s put in products that are sold all over
Europe, even in some beverages that are sold around the world. But one things
that the cows don’t know, that you should know.
Ireland is divided. When Ireland became
independent about 100 years ago, part of the island remained under British
control, as part of the UK. That’s what UK stands for, United Kingdom of Great
Britain and Northern Ireland. Some people in Northern Ireland like it that way,
others not so much. That’s caused a lot of problems in the past, but one reason
why it wasn’t such a problem in recent decades is because of the way that
border became invisible. A division that still lets people live, work and trade
anywhere they want isn’t that much of a division.
The Republic of Ireland, the much larger
independent part is far more economically advanced, and that’s where those
premium dairy products come from. They are so popular that their factories have
a huge demand for milk, and they buy a lot of it from Northern Ireland.
Northern Ireland is happy to have this marked, because it’s quite a poor area,
income levels are about half that of the Republic, and the North relies much
more heavily on agriculture.
And, like I said, there’s no tariffs, no
border checks, no problem, if you want to sell a product like milk or anything
else from one EU country to another, which is technically what they are doing,
even though most people in Ireland don’t really see it like that.
Then comes Brexit. Because Northern Ireland
is legally part of the UK, it’s leaving the EU as well. And so are their cows.
That’s a big problem.
The EU doesn’t import milk products. It’s
not impossible, but the tariff to import each liter or gallon of milk is about
five times bigger than the profit margin for producing that milk, so actually
it is impossible, and WTO rules mean that just can’t be changed. That’s bad for
the dairy factories in the Republic of Ireland, but it’s a catastrophe for the
dairy farmers in Northern Ireland. One-third of all their milk goes to those
factories in the Republic.
They really can’t export their milk
anywhere else, milk isn’t the sort of product that you can put in shipping
containers unprocessed, and Northern Ireland just doesn’t have the industrial
base to process it.
I guess they could build it, but building
up an industry like that takes years, if not decades. Farmers can’t tell the
cows to wait that long to get milked. Farmers can’t even afford to keep feeding
their cows if they have nowhere to sell their milk. This bit is not big and
difficult to understand, it’s pretty simple. If the UK does what’s called a
no-deal Brexit, Northern Ireland farmers would have to shoot one third of the
The thing that is big and difficult to
understand, is that almost everything in the European economy is cows. Not cows
exactly, but the same idea, just much more complicated. What I mean that no
products are made anywhere. Almost everything is made everywhere. Every
business, in the last quarter of a century has become intricately intertwined
in a web of suppliers and customers right across those 28 countries.
Sure, there are a few businesses in Britain
that don’t buy any components or services from other EU countries, and only
sell within Britain, but they are a tiny minority.
In the UK, almost everyone’s job is,
metaphorically, cows. And everything that anyone buys, it’s cows all the way
down. And, if trade barriers spring up between the UK and the rest of the EU,
all those cows will be lined up and shot.
Randall Holcombe is a Research Fellow at the Independent Institute, and DeVoe Moore Professor of Economics at Florida State University. In the past He has also served as President of the Public Choice Society, President of the Society for the Development of Austrian Economics and as a member of the Florida Governor’s Council of Economic Advisors as well as a number of academic roles.
I saw a little
story from Chicago during the week. Not something that’s going to make
headline news, but it’s interesting. It comes from a City Council budget
hearing submission by Library Commissioner Andrea Telli. I told you, this isn’t
But it is interesting. What the Chicago
public libraries did was abolish fines for the late return of books. You know the
sort of thing, you get two weeks to read the book, but if you don’t bring it
back in time, you have to pay a dime or whatever for every extra day. The theory
is that people will be more likely to bring back their books on time if they
have to pay a fine for them being late.
Chicago said, forget it, bring us back the books when you can, no worries.
What happened? The return rate soared by
240 per cent. That goes against what you might expect, why would so many more people
bring back their books when the penalty is removed? There’s a couple of
First, these fines are comparatively tiny,
and they were only ever likely to be enforced when someone came into the
library, probably to return the books, so to a degree they were more of a
deterrent than an encouragement to bring the books back.
But secondly, human motivations aren’t as
simple as that. People often do things for people, not because they have a
financial motivation, but because they want to be good people. And, sometimes
financial motivation just doesn’t work.
Did that make the parents show up on time? No,
not by a mile. Actually, it made them show up even later, and significantly
later. As the authors of the study wrote, the parents regarded the payment not
as a fine, but as a fee, and many thought it was a fee well worth paying. And,
the fact that they were paying for the service meant that they lost non-financial
motives to be on time, such as the sense of moral duty not to force the teachers
to stay late at work.
But what was really interesting was when
the kindergarten abandoned the fine system. Did the parents go back to normal, and
pick their kids up not-quite-on-time, but not as late when they were paying for
the extra time?
No. It seems that the experience of paying
the fine, or the fee, permanently changed the parents’ outlook. Once they saw picking
up their kids on time was not a moral duty, but a transaction, it seems that
they couldn’t go back. Even after the fine system was withdrawn, they still saw
it as a transaction, just maybe a better value one. So the introduction of
money damaged the social contract.
The point here is that not every motivation
is money, even in today’s world, people still can be motivated by a sense of duty
to people even when they have no real connection with them. Whether it is
fighting to defend people you’ve never met, caring for them as teachers or
medics, keeping an orderly line in a busy café or braking to let someone merge
into traffic, that sense of duty is, literally, priceless.
That sounds like a rhetorical flourish, but
it isn’t. It’s literally the truth.
Most cities around the world, including in
India, have sensors which monitor the levels of various pollutants, but one of
the most important to monitor is called PM10s and PM2.5s. I won’t get into the
technicalities but that’s basically a particle so small that our nasal hairs,
the mucus on our airways and the other ways that our bodies have evolved to
deal with impurities in the air, are unable to stop. We have no natural defenses
And they’re bad.
Breathing elevated levels of these
particles is associated with a whole range health problems including bronchial asthma,
chronic obstructive pulmonary disease, interstitial pneumonia and birth
defects, and they are listed as a grade 1 carcinogen, the worst type.
There is a scale that
basically measures how polluted the air is, it counts how many particles
are in each cubic meter of air, anything under 50 is good, under 100 is
satisfactory, between 200 and 300 is poor and there’s a warning with that it “may cause breathing discomfort to people on
prolonged exposure, and discomfort to people with heart disease”.
Not nice, but it’s not the worst. Between 300
and 400, very poor air quality “may cause
respiratory illness to the people on prolonged exposure. Effect may be more
pronounced in people with lung and heart diseases”.
And the top of the scale, between 400 and
500 “may cause respiratory impact even on
healthy people, and serious health impacts on people with lung/heart disease”.
The scale doesn’t go higher, but the pollution can still get worse. Although there
are no official classifications for the readings, the equipment can register
higher readings in extremely polluted areas, but even they have their readings.
In the past few weeks, in some Indian cities,
many sensors are all giving the same reading: 999. That would be a horrifying
reading, if it were true. It would mean that the pollution level was double the
top of the range of the worst category of pollution. But it’s not true. The air
pollution isn’t that bad.
The reading is 999 because that’s the
highest reading the sensors can give. When they were designed, nobody imagined
that they would need to measure air that badly polluted, so the design
limitation is that readings of 1000 or above can’t be registered, they all
appear as 999, so we don’t have real data, but even though we don’t have the
true reading, we know that it is truly awful. It’s the equivalent of smoking 50
cigarettes a day.
live map of world air quality shows that air pollution is worst in poor Asian
countries, by a long way. There are some environmental campaigners who advocate
a return to a low-tech village life and who idealize some third-world ways of
life; what they don’t realize is that what they are describing is poverty;
And people in grinding poverty like that
will do almost anything to improve their lives right now. That may be cutting
down a tree to get firewood to cook their next meal, burning smoky coal to keep
warm or driving a dirty diesel truck to earn a few bucks.
You can try to explain to them that they
are endangering their long-term future, but when your short term future is in jeopardy,
that’s not so persuasive. It’s like telling someone going before a firing squad
that they shouldn’t have that last cigarette, it’s bad for them.
It’s true that the world faces gigantic
environmental challenges. The way to solve them is to move forwards, not
backwards. We have developed technologies that were unimaginable a few decades
ago. The choice isn’t between taking people out of poverty and meeting those
challenges. In fact, it’s probably not possible to do one without the other.
Scot Faulkner was the National Director of Personnel for the Reagan-Bush presidential Campaign of 1980. He went on to serve the Reagan Administration in executive positions at the Federal Aviation Administration, the General Services Administration, and the Peace Corps. He serves on the boards of numerous corporations and foundations and he’s the author of a bestselling book called Naked Emperors: The Failure of the Republican Revolution, published in 2007.
I was talking last week about how the libel laws in England prevent journalists from working, and keep stories about the rich and powerful under wraps. That doesn’t happen much in the US.
As I mentioned last week, the US follows a 1964 precedent called New York Times v O’Sullivan, from a libel case taken by Montgomery police commissioner LB Sullivan who said that some inaccuracies in a piece about the policing of civil rights demonstrations in Alabama libeled him.
In the UK he would have been certain of a
win and probably a big payout, but the Supreme Court agreed with the New York
Times that they are going to make some honest mistakes from time to time and if
that could put them out of business, that would effectively restrain their free
They ruled that proving the facts is not
enough to sue. You must prove the journalist knew, or should have known the
truth and maliciously or recklessly wrote something false anyway. Basically you
have to prove what was in their mind, an almost impossible task.
Fetzer had made up multiple ludicrous
theories to claim that the shooting didn’t happen, that the murdered boy never
existed and published them in a book. When, probably unwisely, Leonard Pozner
published his son’s birth certificate, Fetzer accused him of faking it.
Someone once said that every decision is
made for two reasons, a good reason and a real reason. I suspect that the real
reason that Fetzer lost the case is because he is a vile individual who made it
his life’s mission to terrorize the grieving parents of murdered children in a
crazed attempt to bend reality to match his ideology.
But the good reason, the reason it was
possible to find against him legally is because there was ample evidence that Fetzer
had oceans of evidence to show that what he was writing was untrue, but he
published it anyway. He had, after all, been posting on it online obsessively,
so he could not claim to have been misinformed.
It’s sort of ironic that his obsessiveness actually
hurt him legally, rather than helped him, but this was a very exceptional legal
case. It’s extremely rare for anyone to win a significant libel case, which is
why it’s rare that they are even taken. Is this a good situation?
The rise of fake news cannot be seen in
isolation from this issue. There are some outlets out there that freely publish
lie after lie, that make a lot of money doing that because it brings in the
clicks, and the people who are being lied about can basically do nothing about
The effect of this is that public pressure,
which can sometimes convert into political pressure, is making big tech
companies into a poor substitute for libel courts. Facebook, twitter and others
are feeling the pressure to get fake news off their platform, or at least to be
given less attention, and they are responding, to some degree. They try to
outsource the decision as to what is fake and what isn’t, but they can’t run
away from it totally. Many of the platforms – as they call themselves to try to
avoid the tag ‘publishers’ – many of them have been deleting posts, closing
accounts, banning people.
Conservatives in particular have complained
about being victimized about this. Whether they’re just being snowflakes or
have a genuine grievance is another question. But this highlights a question
that we aren’t tackling. There’s a list of things – no effective libel laws,
frictionless publishing for everyone with a phone, social media companies not
being a privatized judge and jury, and the defense of people who are the
victims of merciless campaigns of lies.
You can have some of the things on that list,
but you can’t have all of them.
In our discussion, I mentioned the fact that the number of hours of minimum-wage working required to fund a year at university has skyrocketed since the 1960s:
There was an interesting little aside in an
episode of South Park a few years back, but if you live in the UK, you may not
have caught it, because that episode of South Park, the cartoon with
eight-year-old Colorado boys who seem to know too much and too little about
life was never shown in the UK. The episode had a poorly-drawn caricature of
the actor Tom Cruise, who improbably shows up at the house of one of the boys,
gets offended, hides in the boy’s wardrobe and won’t come out.
You get the impression that the writers are
trying to make a point.
But don’t make that point in England.
American libel laws started out very
similar to the ones in England, but they have diverged radically, and that
change has become such a part of the culture in the US that it’s hard for many
people grasp the difference. The main change came about from a case in the US
York Times v O’Sullivan. I don’t want to go deep into the legality, but
basically, in 1964, the New York Times published a piece on policing civil
rights demonstrations in Alabama which contained some inaccuracies, and the Montgomery
police commissioner LB Sullivan considered that constituted a libel against
He sued for libel. In the UK that would be
a slam-dunk. You accuse someone of something you can’t prove in court.
Ka-ching, they get a big payout, supposedly to compensate them for the loss of
their good name.
But the New York Times fought the case to
the Supreme Court arguing that the First Amendment meant that they needed some
latitude. If they publish millions of words a day, they are going to make some
honest mistakes and if that could put them out of business, that would
effectively restrain their free expression.
The court agreed, and changed the standard
to take a libel case. Someone suing now doesn’t just have to show that what was
written was wrong; they have to show that the publisher was malicious or
reckless in writing it. It’s no good to just prove the facts support you; you
have to prove the journalist knew, or should have known the truth but wrote
something false anyway.
That sounds reasonable, but it puts a
burden on the person taking the case to effectively prove what was going on in
the mind of the journalist when they wrote it, and the only way to do that is
to ask them, and it’s pretty unlikely that they will voluntarily admit to
malice or recklessness.
In the UK, the old standard still applies;
in fact it has got much stricter. All along, if you could afford an expensive
lawyer, and if you got wind that some journalist was going to publish a story
about you that you didn’t like, and if you could take them to court in time, you
could get an injunction, an order not to publish. The only way to fight this
was to prove every detail of the story in court, an impossible burden for most
But journalists developed a couple of
strategies to fight this. One was to keep the stories top secret until
publication, but that meant you couldn’t ask the subject for a comment and
risked missing out some aspect of the story, increasing the risk of a libel
case. Another was, if you got injuncted, not to report the story, but report on
So the courts started issuing what are
called superinjunctions. That’s a court order not only not to publish a story,
but also not to publish the injunction, or report that the injunction exists,
or report anything about the case whatsoever, and it applies to anyone who
knows anything about it, so by definition no journalist can report it.
There have been a few high profile cases,
including one taken by the chairman of the Conservative party. In the 1980s he
won half a million pounds sterling, a gigantic fortune at the time, from a
newspaper that reported that he had paid a prostitute for sex. Decades later,
he was convicted of perjury, the story was entirely true. The newspaper was
from a big media group, but other smaller publications have been totally put
out of business by libel awards.
But that was the 1980s, before the internet
took hold. That brings me back to South Park and Tom Cruise. Now anything that
is published anywhere is, give or take the odd great firewall, published
everywhere. Including England.
That gives us what is called libel tourism. People
with no connection to the UK at all, going to the UK to sue other people with
no connection to the UK for what they wrote in publications with no connection
to the UK. That path has been somewhat narrowed, following a change in the law in
2014, but it’s still there, and that’s why the episode from South Park that
I’ve taken that clip from has never been shown on British TV.
South Park hit back with another episode
where a whole host so stars lock themselves in the boy’s wardrobe, and when
they come out you hear this exchange.
I’ll sue you in England seems to be the
ultimate threat that a celeb can make to a publisher, because it’s basically
impossible to sue in the US.
Whatever about the international impact,
this affects British politics profoundly. If you want to know how profoundly,
try to find out how many children the UK prime minister, Boris Johnson has.
British reporters, if they mention the topic at all, usually say that he has ‘at least’ five children. His Wikipedia
entry, at the time of recording, in the quick facts box says ‘Children: 5 or 6’. He has four children
with his second wife, another with a woman he had an affair with while he was
married to his second wife – that information came out in a court case – and there
are persistent rumors of at least one more child with another woman, but
The British libel laws are said to allow
politicians to sleep soundly in other people’s beds, but I’m much more
concerned about them being used to prevent information vital to the public good
being published. One oil company, called Trafigura used a superinjunction to
prevent the publication of a report that they had been illegally
dumping toxic waste on beaches in West Africa. We found
out about that because of a concerted action including a member of the
British parliament who managed to mention it in a speech, under parliamentary
For the rest – we don’t know, because we
don’t know. That’s the problem with libel laws being too strict. But what about
the almost – almost – non-existent libel laws in the US – more next week.
But my point about the British laws is not
so much about the scandals that people try to suppress, but break through, not
even about the stories that are successfully stymied by legal action, but about
the much larger number of stories that never get that far, because journalists
are too afraid to write them, or just don’t even start on the research because
they know that there is a good chance that they will never be able to publish.
Rawls is in jail. And that’s where he’s staying. He lost his case at the
3rd US Circuit Court of Appeals in Philadelphia. So what has he been convicted
Rawls, a former Philadelphia police officer
has been in jail 17 months because he invoked the
Fifth Amendment, he said he wouldn’t give self-incriminating information to
police investigating him. But the Fifth Amendment is, you know, the Fifth
Amendment. It guarantees the right not to incriminate yourself.
The exact text is no person “shall be
compelled in any criminal case to be a witness against himself”. So how come
the court denied his appeal, with three judges voting unanimously against him? It’s
partly because the information that the police and the courts want him to hand
over, and that he is refusing, are the passwords to encrypted external hard drives
that were connected to his computer. The police seized them, along with his
computer because they believe they contain child porn, and they do have good
reason to believe that, and they convinced a judge to give them a warrant to
seize and search his computer.
The appeals court ruled that forensic
examination showed that Rawls had downloaded thousands of files, the hash
values of which indicated they were child pornography. That’s a bit of geek-speak but it means they
were monitoring his online activity, they didn’t get the actual files, but they
recognized that they were extremely likely to be identical to files of known
child porn images.
There was other evidence – one image
depicting a pubescent girl in a sexually suggestive position was found on his
computer, Rawls’ sister had said her brother showed her hundreds of pictures
and videos of child porn, and that logs on his computer that suggested the user
had visited groups with titles common in child exploitation.
There are some problems with that evidence,
logs of a computer visiting pages with titles common in child exploitation
doesn’t mean that the computer downloaded child porn, and they don’t prove who
generated those logs; but that said, you can be damn sure I wouldn’t be
leaving Francis Rawls alone with any child
But Rawls hasn’t been convicted of
anything, he hasn’t even been charged with anything, but the court ruled that
the Fifth Amendment doesn’t apply; the lower court, the appeals court and the
police, all agreed that the presence of child porn on his drives was a
“foregone conclusion.” That’s where my real problem was. If it is a
foregone conclusion, why not just use the evidence that shows it is a foregone
conclusion to charge and convict Rawls?
We’ve had a speaker from the Electronic
Frontier Foundation on the podcast before and one of their attorneys said about
this case “compelled decryption is
inherently testimonial because it compels a suspect to use the contents of
their mind to translate unintelligible evidence into a form that can be used
against them. The Fifth Amendment provides an absolute privilege against such
self-incriminating compelled decryption.”
It’s hard to have sympathy with someone
who’s probably a pedophile, but that’s the whole point. If our rights can be
cancelled by just being accused of being a criminal, then none of those rights
will last long. There’s no point in saying that everyone is entitled to a fair
trial, as long as they are not suspected of being a criminal.
So if anyone you’ve ever been sexting with
decides to take a trip to New Zealand, you can expect your private photos to be
shared around the break room of the border guards, and then be sent on to all
their friends, and their friends’ friends, and so on.
It’s long been established that countries
are entitled to check the goods coming across their borders to make sure they
are legitimate, the right taxes are paid and so on. When the electronic age
came in, that seems to have been quietly extended to examining the data stored
on laptops, phones and so on.
I just don’t buy the line that this is to
protect us from terrorists or organized crime. Anyone who is wise to these laws
will be smart enough to make sure they only travel with clean devices. If they want to store or transport incriminating
data, they can just encrypt it, email it to themselves, and pick it up once
they have crossed the border.
Sure, these laws might pick up the odd dumb
criminal, but that leaves the question – are you willing to sacrifice all of
your privacy, hand over all your data to the border agents of any country you,
or anyone you’ve been in contact with travels to for them to make use of on
their next bathroom break or to pass on to their secret police, just to pick up
the odd dumb criminal?
Challenging Opinions brings you a special showcase edition of the Getting Off podcast, presented by Jessa and Nick. It’s dark-humored criminal defense attorneys discussing famous crimes, trials, and all things criminal justice.
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We’ve been hearing a lot about Ukraine in the past week, and
I can promise you’ll be hearing a lot more about it the coming weeks and
months, and maybe even years. I’m not going to try to keep you up to date with
what’s going on in the White House, that’s not really the job of a podcast, certainly
not this podcast.
Our brains don’t really work so well with
very small or very large numbers. If I ask you to imagine the distance from
earth to the sun, from earth to the nearest star, or earth to the nearest
galaxy, it’s tempting to just think very, very far in all three cases, even
though each one is millions of times more than the previous one.
I’m sure some smartass out there will be
thinking that the most dangerous animal is man, but I’m thinking of other
animals that kill humans.
And by a mile, the
winner is the mosquito. To put it in context, sharks typically kill five or
six humans per year, worldwide. Depending on your sources, mosquitoes kill somewhere
between 700,000 and 2.7m
people per year. Get that, mosquitoes kill at the very least 100,000 times
more people than sharks. They are estimated to be responsible for about 17 per
cent of all the disease on the planet. I can’t wait for Mosquito Week on the Discovery Channel.
Black people make up 27 percent of the population, but represent 71 percent of drivers pulled over by police officers. Last year, the town issued 29,072 traffic citations, according to statistics from the Missouri attorney general’s office.
I say a couple of weeks back, but the
detection made last month was actually of something that happened 900 million
years ago, long before the dinosaurs walked the earth. It was detected last month
because that’s how long it took the gravitational waves to arrive at earth from
where this event happened, 900 million light years away.
Reese Erlich has won numerous journalism awards including a Peabody award. He’s also a freelance journalist who writes for CBS Radio, Australian Broadcasting Corp., NPR and VICE News, and his Foreign Correspondent column distributed nationally in the US.
I mentioned the pro-democracy protests in
Hong Kong a few weeks back, particularly the fact that a huge proportion of the
city’s population was taking part in them. Since I talked about them, the
protests have been covered widely in the western media, and they haven’t
dissipated, they are continuing every weekend.
During our discussion, I metioned the Dickey Amendment, which forbids the Centers for Disease Control and Prevention from advocating or promoting gun control, but has widely been interpreted as preventing the CDC from studying the health effects of gun ownership.