Happy Canada Day!

A few quotations to indulge, for a day, in that un-Canadian feeling, patriotism.

“There is room enough in this country for one great free people; but there is not room enough, under the same flag and the same laws, for two or three angry, suspicious, obstructive nationalities.” – Thomas D’Arcy McGee

“[L]et your motto be Canada first, Canada last, and Canada always.” – Sir Wilfrid Laurier

“Our hopes are high. Our faith in the people is great. Our courage is strong. And our dreams for this beautiful country will never die.” – Pierre Elliott Trudeau

Happy Canada Day, everyone!

The Separation of Spending and Speech

I commented yesterday onVincent Marissal’s column in La Presse about the impact of social media on the upcoming election campaign in Québec – and the way in which the social media undermine the regulation of the electoral process that limits the electoral expenses of “third parties” – citizens, groups, or organizations that are neither political parties nor candidates for office. I want to return to this topic, focusing now on its theoretical, rather than its practical, implications.

The current schemes for the regulation of electoral campaigns in Canada are premised on the idea that one must, generally, spend in order to speak – or at least, in order to make one’s speech heard by any significant number of people. So long as this premise holds, a limit on electoral spending is a limit on electoral speech. And, subject to a few exceptions (such as the publication of letters to the editor or op-eds in newspapers, at the newspapers’ expense), which were also exempt from the electoral regulations, that premise did in fact hold true until the advent of social media.

It no longer does. A tweet might be read by thousands, even hundreds of thousands of people. A YouTube video can be seen by millions. And their authors will not have to pay a dime for the dissemination of their messages. Spending and speech have come apart – and a key assumption underlying the regulation of elections in Canada no longer holds true. So what becomes of our current regulatory schemes? Should we discard them as obsolete? And if so, what should we replace them with?

The answer to these questions depends on the purpose for which we regulate electoral campaigns. The trouble is that our current regulations have not one, but two purposes On the one hand, as I noted in an op-ed Cyberpresse published in April, our electoral regulations aim to suppress the influence of money on the electoral process, which they assume to be unfair and/or pernicious. On the other, they aim, as I suggested in a recent post, to put political parties at the centre of the electoral process, by consigning “third parties” to the margins. These two purposes worked together so long as spend-to-speak model of electoral communications held, because limiting electoral expenses by third parties served both. But now it no longer does. It still works to reduce the influence of money, but limiting or prohibiting electoral expenditures by third parties no longer prevents them from speaking, loudly and to very large audiences, though social media. That is a central point of Mr. Marissal’s column – political parties can no longer be sure of controlling the electoral debate, and outsiders can easily play an important role in it.

So if our main concern is with the role of money, we can keep our electoral regulations as they are. Indeed, they are arguably less troubling now than they once were, since they do not actually prevent people from speaking out on political issues. In effect, they only direct that third parties must, during election campaigns, speak through social media. Only, I wonder if such a rule has any point. It is not money, after all, that our current regulations try to subdue, but the people who have a lot of it, individually or collectively. And if these people are able to speak anyway, through social media, what do we care to prevent them from spending their money on something they can get for free? If, however, our concern is to maintain the party- and candidates-centred model of elections, the current regulations are obsolete and utterly inadequate to the task. New rules are required – as well as the will and the means to police their application to the internet’s wilderness. I doubt that our governments have either.

Une campagne 1.9

Vincent Marissal a publié une chronique intéressante dans La Presse ce matin, sur “la première vraie campagne 2.0” que le Québec vivra lorsque les élections seront déclenchées – vraisemblablement dans les prochains mois. Contrairement aux États-Unis, où internet et, surtout, les réseaux sociaux ont transformé les campagnes électorales dès 2004, et certainement en 2008, le changement a tardé à se faire sentir au Québec. M. Marissal relève une autre différence: alors qu’aux États-Unis ce sont les candidats (notamment Barack Obama) qui ont donné aux nouveaux médias un rôle central dans les campagnes électorales, “la révolution 2.0 au Québec viendra probablement des électeurs plus que des partis politiques.” Comme toute révolution digne de ce nom, celle-ci va heurter les habitudes et les normes établies, non seulement sur le plan politique, qui n’est pas de mon ressort ici, mais aussi sur le plan juridique. Je me concentre, dans ce billet, sur les aspects pratiques des changements qu’elle amène, gardant une réflexion théorique pour un autre, bientôt.

Comme le souligne M. Marissal, la Loi électorale québécoise essaie de circonscrire les interventions dans une campagne électorale aux partis politiques. Les dépenses des “tierces parties” – c’est-à-dire tout le monde sauf les partis politiques enregistrés et les candidats – sont très sévèrement limitées. Or, dit-il,

Twitter, Facebook et surtout YouTube permettent ce que la loi électorale québécoise interdit: des interventions de tierces parties, non officiellement associées à un parti politique, anonymes le plus souvent et dont les interventions ne sont pas comptabilisées dans les dépenses électorales. …  [P]lusieurs groupes, en particulier du côté des artistes, sont très mobilisés contre le gouvernement Charest et … ils ne se gêneront pas pour intervenir lors de la prochaine campagne électorale sur les réseaux sociaux. En fait, c’est déjà commencé. … Encore là, toutefois, l’univers 2.0 appartient à tout le monde, et rien n’empêche des groupes favorables aux libéraux (ou opposés au PQ, à la CAQ ou à Québec solidaire) de jouer aussi cette carte [ce que certains font déjà].

Cependant, les choses ne sont pas si simples. La Loi électorale s’applique, en principe, aux interventions sur les médias sociaux. À cet égard, comme en d’autres matières, elle est plus restrictive que la Loi électorale du Canada, ainsi que la législation équivalente de certaines autres provinces. L’article 319 de la loi fédérale, par exemple, exclut de sa définition de la “publicité électorale” qu’elle réglemente et limite “la diffusion par un individu, sur une base non commerciale, de ses opinions politiques sur le réseau communément appelé Internet.” La loi québécoise ne contient pas d’équivalent de cette exemption (elle-même plutôt étroite puisqu’elle n’applique pas, notamment, à l’expression pré-électorale de groupes).

Par contre, elle ne contrôle que les “dépenses électorales”, c’est à dire “le coût de tout bien ou service utilisé pendant la période électorale” pour aider un candidat ou un parti ou leur nuire (art. 404). En supposant qu’il s’agit du “coût” à la personne qui communique un message, la communication d’un message électoraliste sur les médias sociaux n’est pas couverte par cette définition, puisqu’elle est gratuite. Cependant, peu importe le moyen de communication choisi, la production d’un message électoraliste sera couverte par la définition de la Loi électorale si elle entraîne des dépenses.

Donc si vous tapez une missive anti-PLQ chez vous et la diffusez sur Facebook, vous ne contrevenez pas à la loi, puisque vous ne dépensez que votre temps. Mais si vous tournez une vidéo dénigrant ce même PLQ, dont la production et le montage en coûtent quelques centaines de dollars, et que vous la diffusez sur ce même Facebook ou sur YouTube, vous avez engagé une dépense électorale – ce que la loi vous interdit de faire.

Bref, M. Marissal a raison de dire que les médias sociaux changent ou, du moins, permettent de contourner, les règles du jeu établies avant leur apparition. Mais ils ne permettent pas de s’en affranchir tout à fait. Comme après la plupart des révolutions, l’ancien droit est tenace. On n’aura pas peut-être pas une campagne tout à fait 2.0 – mais au moins, 1.9.

Who Plays on a Level Field?

Any regulation of the democratic process reflects a certain normative view of an idealized democracy. For example the decision of the Supreme Court of the United States in Citizens United v. Federal Elections Commission, 558 U.S. 50 (2010), to allow corporate and union spending on electoral campaigns reflects a (stated) view that democracy functions best when the quantity of political speech speech is maximized, and is impaired if any category of speakers is silenced. Canadian electoral legislation and the leading cases in this area decided by the Supreme Court of Canada, Libman v. Québec (A.G.), [1997] 3 S.C.R. 569, and Harper v. Canada (A.G.), 2004 SCC 33, [2004] 1 S.C.R. 827, reflect a different normative view, which Colin Feasby, the most prolific writer on the law of democracy in Canada, has called an “egalitarian model” of elections. But such ideals leave much unsaid. The Supreme Court of the United States says that it maximizes freedom and the amount of information available to voters, but pays little attention, for example, to the likely detrimental effects the need to raise funds for an unlimited-expenses campaign has on the performance of elected officials (and candidates for office).

What does the Canadian “egalitarian model” leave unsaid? A metaphor that the Supreme Court uses in Harper, that of “a level playing field for those who wish to engage in the electoral discourse” (par. 62) is helpful to try to understand. The Supreme Court probably invoked it for no reason beyond its feel-good appeal to our sense of fair play (though the appeal is lost on some, including the Chief Justice of the Supreme Court of the United States, John Roberts, who, in Arizona Free Enterprise Club v. Bennett, (2011) 131 S. Ct. 2806, at 2826, Chief Justice Roberts has observed that although “‘[l]eveling the playing field’ can sound like a good thing … in a democracy, campaigning for office is not a game.” But I would like to extend the metaphor a little, and explore the implications of describing electoral debate as a football game (or a chivalry tournament – or, perhaps less romantically, a duel – for those who read the French version of the judgment, which speaks of debate “à armes égales”; the imagery is somewhat different, but still amenable to the interpretation I am about to suggest) because it reveals more than the Court probably intended about the roles of those involved in the political process under the egalitarian model.

If the electoral process as envisioned by the Supreme Court is a football game played on an “even playing field,” political parties are of course the teams playing on that field. According to the adherents of the egalitarian conception of democracy, they are the primary competitors for the prize of political power. Political parties are like professional sports teams, with coaching and scouting staff of consultants and opposition researchers, their farm clubs of youth organizations, their practice rosters of backbenchers and, of course, their fans among the voters. These fans, along with less interested spectators, are seating in the stands around the playing field. A few of them might unfurl some home-made banners to make their opinion of the proceedings or the competitors known, but for the most part they will, at most, cheer their favourites and boo the opponents. There are even cheerleaders around the field, although they wear suits, as befits members of editorial boards. Neither players nor spectators, they try to stir up the enthusiasm of the latter for the former.

This extended metaphor highlights some salient features of the egalitarian model of elections implemented by Parliament in the Canada Elections Act, and endorsed by the Supreme Court, such as the special status of the media and, most importantly, the central role of political parties in electoral discourse and the relative passivity of the voters. The metaphor only breaks down on Election Day, when the voters are at last allowed to leave the stands, and to choose the winner of the game they have (or have not) been watching.

I think this is a rather less rosy picture than that which the Supreme Court would like us to see. Metaphors, even old and stale ones, are dangerous that way.

In with the New?

Last week, I suggested that “[n]ew technologies seem not so much to create moral issues as to serve as a new canvass on which to apply our old concerns.” But there is no doubt that our legal rules, unlike perhaps moral ones, need updating when new technology comes along. How this updating is to happen is a difficult question. Lon Fuller, in his great article on “The Forms and Limits of Adjudication,” distinguished “three ways of reaching decisions, of settling disputes, of defining men’s relations to one another,” which he also called “forms of social ordering”: elections (and, one has to assume, resulting legislation), contract, and adjudication. All three can be and are used in developing rules surrounding new technologies, and the distinctions between them are not as sharp as Fuller suggested, because they are very much intertwined. Some recent stories are illustrative.

One is a report in the New York Times about a settlement between an unspecified group of plaintiffs and Facebook regarding Facebook’s approach to what it calls “sponsored stories” which tell us that such and such friends “like” a certain company’s page. Pursuant to the settlement, Facebook “will amend its terms of use to explain that users give the company permission to use their name, profile picture and content [and] offer settings that let users control which of their actions — which individual like, listen, or read — will appear in Sponsored Stories.” More than the (substantial) costs to Facebook, what interests me here is the way in which this settlement establishes or changes a rule – not a legal rule in a positivist sense, but a social rule – regulating the use of individuals’ names and images in advertising, introducing a requirement of consent and opt-out opportunity.

What form of social ordering is at work here? Contract, in an immediate sense, since a settlement is a contract. But adjudication too, in important ways. For one thing, the settlement had to be approved by a court. And for another, and more importantly, it seems more than likely that the negotiation would not have happened outside the context of a lawsuit which it was meant to settle. Starting, or at least credibly threatening, litigation is probably the only way for a group of activists and/or lawyers to get a giant such as Facebook to negotiate with them – in preference to any number of other similar groups – and thus to gain a disproportionate influence on the framing of the rules the group is interested in. Is this influence legitimate? Even apart from legitimacy, is it a good thing from a policy standpoint? For example, how do “we” – or does anyone – know that this particular group is motivated by the public interest and, assuming that it is, capable of evaluating it correctly and of being an effective negotiator? I think these are very troubling questions, but there are also no obvious ways of preventing social ordering through adjudication/negotiation even if we do conclude that it is problematic.

That is because alternative modes of social ordering are themselves flawed. Legislation is slow and thus a problematic response to new and fast-developing technologies. And adjudication (whether in a “pure” form – just letting courts develop rules in the process of deciding cases – or in the shape of more active judicial supervision of negotiated settlements) comes with problems of its own.

One is the subject of a post for Forbes by Timothy B. Lee, who describes how the fact that judges are removed from the communities that are subject to and have to live with the rules that they develop leads them to produce rules that do not correspond to the needs of these communities. One example he gives is that “many computer programmers think they’d be better off without software patents,” yet one of the leading judges who decides cases on whether there should be such patents “doesn’t have a very deep understanding of the concerns of many in the software industry. And, more to the point, he clearly wasn’t very interested in understanding those concerns better or addressing them.” Mr. Lee believes that this would be different if the judges in question happened to have friends or family members among the ranks of software developers. Perhaps – but, as he acknowledges, it is not possible for judges to have personal connections in every walk of life. Even trying to diversify the courts will only do so much. Furthermore, the individual experiences on which Mr. Lee thinks judges should rely might be atypical and thus tend to produce worse, rather than better, rules. Here too, questions about just how much judging ought to be informed by personal experience – as a matter both of policy and of legitimacy – are pressing.

Another set of questions about the courts’ handing of new technologies is the subject of a great paper by Kyle Graham, a professor at Santa Clara University and the author of the entertaining Non Curat Lex blog. Focusing on the development of liability rules surrounding new technologies, and using the examples of some once-new gadgets, mostly cars and planes,  prof. Graham points out that

[t]he liability rules that come to surround an innovation do not spring immediately into existence, final and fully formed. Instead, sometimes there are false starts and lengthy delays in the development of these principles. These detours and stalls result from five recurring features of the interplay between tort law and new technologies … First, the initial batch of cases presented to courts may be atypical of later lawsuits that implicate the innovation, yet relate rules with surprising persistence. Second, these cases may be resolved by reference to analogies that rely on similarities in form, and which do not wear well over time. Third, it may be difficult to isolate the unreasonable risks generated by an innovation from the benefits it is perceived to offer. Fourth, claims by early adopters of the technology may be more difficult to recover upon than those that arise later, once the technology develops a mainstream audience. Fifth, and finally, with regard to any particular innovation, it may be impossible to predict whether, and for how long, the recurring themes within tort law and its application that tend to yield a “grace” period for an invention will prevail over those tendencies with the opposite effect. (102)

I conclude, with my customary optimism, that there seem to be no good ways of developing rules surrounding new technologies, though there is a great variety of bad ones. But some rules there must be, so we need to learn to live with rotten ones.

Small is Beautiful

How many judges should a country’s highest court have? Those of Canada and the United States both have nine, but Jonathan Turley, of George Washington University, argues in an op-ed in the Washington Post that that’s not nearly enough. Although made with the U.S. context in mind, his argument, if persuasive, would be relevant to Canada since our supreme courts happen to be of the same size. But it is not persuasive, and instead, it illustrates the dangers of what might be called casual comparativism – the use of half-baked, half-ignorant comparisons between legal systems, which are more often than not misleading, and can be used to reach and justify unwarranted conclusions.

Prof. Turley is concerned that the Supreme Court of the United States often decides cases of the greatest importance by 5-4 votes. The problem with this is that the “court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws.” A nine-member court is bound to endure bitter splits into two camps, with one or two swing voters in the middle.

This is something that countries with larger high courts manage to avoid: Germany (16 members), Japan (15), United Kingdom (12) and Israel (15). France uses 124 judges and deputy judges, while Spain has 74. These systems have structural differences, but they eliminate the concentration-of-power problem that we have in the United States.

The current number of the Supreme Court’s members is, he points out, an historical accident and, he adds, “one of the worst numbers you could pick.” He thinks a 19-member court, similar in size to circuit courts in the United States, would be much better. Such courts

are often divided … [y]et, it is rare that one or two of those judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts of this size have proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.

Prof. Turley expects other benefits from an expansion of the Supreme Court’s membership, including the possibility to have its judges ride circuit again, as they did until the Civil War in the United States, and serve as temporary additions to intermediate appellate courts, breathing in the real air of legal practice, to supplement the rarefied atmosphere (to borrow an expression from Lord Denning) of the highest court.

As I said above, I do not find this a compelling argument.

There are no guarantees of a larger court not being split of course, perhaps quite evenly, just as there is nothing in the number nine that condemns a nine-member court to a permanent 5-4 split. Indeed, even the U.S. Supreme Court decides many cases unanimously, and others by large majorities. And as the Supreme Court of Canada’s statistical report on its work from 2001 to 2011 shows, its decisions are, more often than not (in around 75% of the cases), unanimous despite its having nine members. Indeed I wonder if a larger court would not be susceptible to more complex, three- or four-way splits, which are a bigger problem for the certainty and clarity of the law than a clear-cut 5-4 (though in 1990s, the Supreme Court of Canada was much more fractured than now – despite having only nine members).

As  for the reference to “countries with larger high courts,” it is quite misleading. It ignores obvious comparison points – Canada and Australia – whose judicial systems are most like that of the United States, and whose supreme courts have nine and seven members respectively. It refers to the very large French Cour de cassation, but ignores the Conseil constitutionnel, which has nine appointed members (in addition to former presidents, who are entitled to sit there as well). It refers to the total membership of the Supreme Court of the United Kingdom, but ignores the fact that it sits in smaller panels, typically of five judges. The same is true of the Federal Constitutional Court of Germany, which typically sits in panels of three or eight. (Now in fairness, it is not entirely clear whether prof. Turley proposes that his 19-member Supreme Court to sit in full or in smaller panels – but smaller panels would arguably cancel out the reduction in the power of individual judges which he advocates.) So the examples invoked seem to disprove, rather than to support, his claims.

As the comparison with the Supreme Court of Canada suggests, to the extent that the Supreme Court of the United States is “dysfunctional” as prof. Turley believes (which I doubt), the solution to the problem must be in changing the legal and political culture in which it is embedded. This is perhaps even more difficult than changing the number of judges, but will be more effective. As for Canada, our nine-member court seems to serve us just fine.

Google, Speaker and Censor

Some recent stories highlight Google’s ambiguous role as provider and manager of content, which, from a free-speech perspective, puts at it at once in the shoes of both a speaker potentially subject to censorship and an agent of the censors.

The first of these is an interesting exchange between Eugene Volokh, of UCLA and the Volokh Conspiracy, and Tim Wu, of Harvard. Back in April, prof. Volokh and a lawyer from California, Donald Falk, published a “White Paper” commissioned by Google, arguing that search results produced by Google and its competitors are covered by the First Amendment to the U.S. Constitution, which protects freedom of speech. The crux of their argument is that “search engines select and sort the results in a way that is aimed at giving users what the search engine companies see as the most  helpful and useful information” (3). This is an “editorial judgment,” similar to other editorial judgments – that of a newspaper publisher selecting and arranging news stories, letters from readers, and editorials, or a guidebook editor choosing which restaurants or landmarks to include and review and which to omit. The fact that the actual selecting and sorting of the internet search results is done by computer algorithms rather by human beings is of no import. It “is necessary given the sheer volume of information that search engines must process, and given the variety of queries that users can input,” but technology does not matter: the essence of the decision is the same whether it is made by men or by machines (which, in any event, are designed and programmed by human engineers with editorial objectives in mind).

In a recent op-ed in the New York Times, prof. Wu challenges the latter claim. For him, it matters a lot whether we are speaking of choices made by human beings or by computers. Free speech protections are granted to people, sentient beings capable of thought and opinion. Extending them to corporations is disturbing, and doing so to machines would be a mistake.

As a matter of legal logic, there is some similarity among Google, [a newspaper columnist], Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship.

And it does not matter that computer algorithms are designed by humans. A machine can no more “inherit” the constitutional rights of its creator than Dr. Frankenstein’s monster.

Prof. Volokh responds to the arguments in a blog post. He thinks it is a mistake to treat the intervention of the algorithm as an entirely new event that breaks the constitutional protection to which editorial decisions of human beings are entitled. The algorithms  are only tools; their decisions are not autonomous, but reflect the choices of their designers. To the extent that similar choices by human beings are prohibited or regulated, they remain so if made by computers; but to the extent they are constitutionally protected – and it is a large one – the interposition of an algorithm should not matter at all.

This is only a bare-bones summary of the arguments; they are worth a careful reading. Another caveat is that the constitutional analysis might be somewhat different in Canada, since our law is somewhat less protective of free speech than its American counterpart. However, I do not think that these differences, however significant they are in some cases, would or should matter here.

The argument prof. Volokh articulates on Google’s behalf reflects its concern about having its own speech regulated. That concern is one it shares with the traditional media to which prof. Volokh repeatedly compares it. But Google is also different from traditional media, in that it serves as a host or conduit to all manner of content which it neither created nor even vetted. It is different too in being (almost) omnipresent, and thus subject to the regulation and pressure of governments the world over. For this reason, is often asked to act as an agent of the regulators or censors of the speech of others to which it links or which its platforms host – and, as much as it presents itself as a speaker worried about censorship of its own speech, it often enough accepts. It provides some of the details – numbers mostly, and a selection of examples – in its “Transparency Report.” To be sure, much of the content that Google accepts to remove is, in one way or another, illegal – for example defamatory, or contrary to hate speech legislation. And as a private company, Google does not necessarily owe it to anyone to link to or host his or her content. Still, when its decisions not to do so are motivated not by commercial considerations, but by requests of government agencies – and not necessarily courts, but police and other executive agencies too – its position becomes more ambiguous. For example, one has to wonder whether there is a risk of a conflict of interest between its roles as speaker and censors’ agent – whether it will not be tempted to trade greater compliance with the regulators’ demands when it comes to others’ content for greater leeway when it comes to its own.