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.

La primauté de la législation

La semaine dernière, la Cour supérieure du Québec a rejeté la demande visant, entre autres, à faire déclarer inconstitutionnelle la “Loi 204”, qui exempte rétroactivement l’entente sur la gestion du futur amphithéâtre de Québec, conclue entre la ville de Québec et Qubecor, de l’exigence d’un appel d’offre (dans la mesure où cette exigence s’y appliquait, ce que la ville a toujours nié), dans De Belleval c. Québec (Ville de), 2012 QCCS 2668. Les demandeurs avaient formulé une multitude d’arguments constitutionnels à l’encontre de la loi. Ils soutenaient qu’elle violait la primauté du droit, notamment en raison de son caractère rétroactif, ainsi que la Charte canadienne des droits et libertés et la Charte des droits et libertés de la personne (québécoise), en enfreignant leurs droits à la liberté de conscience et à la liberté d’expression, à la sécurité, à un procès équitable, et aussi en étant vague et excessive. Une si longue liste de prétentions est généralement un mauvais signe – un signe de désespoir sinon d’incompétence de l’avocat – et elle l’a été en l’espèce. Le juge Jacques n’a pas été persuadé.

L’argument le plus étoffé des demandeurs portait sur la rétroactivité de la Loi 204. La plupart des philosophes du droit qui se sont penchés sur  la primauté du droit considère la non-rétroactivité du droit comme un élément essentiel de ce principe. Le droit est censé guider l’action de ses sujets. Or, une loi rétroactive, qui applique certaines conséquences à des actions déjà commises, ne saurait le faire. De plus, comme l’a fait remarquer notamment Lon Fuller, elle remet en cause l’intégrité des autres lois en vigueur, laissant entendre qu’elles sont susceptibles d’amendement rétroactif. Même une loi rétroactive qui accorde des bénéfices ou écarte les sanctions (plutôt que d’en imposer), comme la Loi 204, peut être problématique à bien des égards, comme le soutient Jeremy Waldron dans un article intitulé “Retroactive Law: How Dodgy Was Duynhoven“. La rétroactivité est une des critiques les plus communes de la common law ou du droit prétorien en général, par exemple dans la célèbre formulation de Jeremy Bentham, qui comparait la common law à la “loi” qu’un homme donne à son chien en le battant pour une transgression quelconque (dont le chien n’avait évidemment pas idée qu’il s’agissait d’une transgression), et les défenseurs de la common law, tels que Ronald Dworkin et F.A. Hayek, font beaucoup d’efforts pour repousser cette attaque.

Cependant, la jurisprudence canadienne est claire. Outre la garantie de la non-imposition de sanctions criminelles rétroactives à l’alinéa 11(g) de la Charte canadienne, rien n’empêche les législatures canadienne de légiférer de façon rétroactive. C’est l’enseignement, par exemple, de l’arrêt de la Cour suprême Colombie‑Britannique c. Imperial Tobacco Canada Ltée, 2005 CSC 49, [2005] 2 R.C.S. 473, où la Cour à jugé constitutionnelle une loi créant rétroactivement un recours permettant au gouvernement de recouvrer les dépenses causées par le tabagisme. Le juge Jacques rejette donc l’argument fondé sur la rétroactivité – avec raison, eu égard à la jurisprudence qui le liait (et qu’il ne manifeste, du reste, aucune envie de remettre en question).

Cette jurisprudence, à mon avis, est un désastre. Le grand A.V. Dicey qui, à la fin du 19e siècle, faisait l’éloge à la fois de la “souveraineté du Parlement” et de la primauté du droit (qu’il a été le premier à étudier de façon systématique), s’en serait félicité. (Ce n’est pas une coïncidence que Dicey était plutôt favorable aux “indemnity acts” – des lois rétroactives écartant des sanctions que le droit normalement en vigueur attache à certains actes, similaires la Loi 204.) Cependant, les opinions académiques sur la primauté du droit ont bien changé depuis un siècle. Or, les tribunaux canadiens ont toujours une compréhension très étroite de la primauté du droit, la limitant à l’exigence de l’existence de règles de droit et d’une autorisation juridique pour toute action gouvernementale, mais excluant – sauf garantie constitutionnelle explicite – tout autre exigence de forme, de procédure ou de fond que la primauté droit, telle que comprise par les philosophes du droit, impose aux législatures (et que le professeur Waldron revoit, par exemple, ici).

Les autres arguments des demandeurs sont rejetés encore plus facilement. La Loi 204 ne limite pas leur liberté de conscience ou d’expression, puisqu’elle ne les empêche pas de s’exprimer. Elle ne menace en rien leur sécurité. Elle ne les prive pas de leur droit d’ester en justice, même si elle change le droit applicable au litige qu’ils ont amorcé. Elle n’est ni vague ni excessive. Il est difficile de voir sur quoi étaient fondées ces prétentions, et il n’est pas surprenant qu’elles soient rejetées.

Le problème de la Loi 204, sur le plans des principes juridiques, c’est bien sa rétroactivité, et aussi son manque criant de généralité, une autre exigence classique de la primauté du droit que les tribunaux canadiens ne reconnaissent pas. On pourrait dire qu’au lieu de la primauté du droit, la jurisprudence canadienne, très réticente à censurer les législatures, donne effet à la primauté de la législation.

En Français S.V.P./In English Please

In 2008, the Township of Russel, just outside Ottawa, passed a by-law requiring any new commercial sign to be bilingual. An angry activist and a shopkeeper challenged the validity of the by-law. The Court of Appeal for Ontario has rejected their challenge, in Galganov v. Russel (Township), 2012 ONCA 409, released last Friday.

Before getting to the challenge itself, the court addressed the preliminary issue of Howard Galganov’s standing to bring it. Mr. Galganov neither lives nor carries on a business in the township, and is not personally affected by the by-law. At common law, he does not have standing. But subs. 273(1) of Ontario’s Municipal Act, S.O. 2001 c. 25, provides that an illegal by-law can be quashed on application of “any person”. That’s great, says the court, but “any person” isn’t just any person. “The words ‘any person’ in s. 273(1) of the Act mean ‘any person who has standing under the common law relating to standing'” (par. 15). The old presumption that legislation will not be intepreted to depart from the common law unless clear language indicates that it does still has some life in it.

Be that as it may, another applicant, Jean-Serge Brisson, has a shop in the township, which carries a unilingual French sign, so there is no question about his standing to challenge the by-law. His first claim was that the by-law was ultra vires the township, essentially because the Municipal Act does not include an explicit grant of power over language to municipalities. The court rejected that submission, saying that these days, grants of powers to municipalities are broad and general, and there is no need to look for such a specific authorization as Mr. Brisson claimed was necessary, and holding that the by-law at issue was authorized by par. 11(2)(5) of the Municipal Act, which provides municipalities with the power to make by-laws “respecting the … [e]conomic, social and environmental well-being of the municipality.” Mr. Brisson argued

that, instead of promoting the economic or social well-being of the municipality, the By-law detracts from it.  This argument is based on the supposition that a commercial establishment with a bilingual exterior sign signals that it will be able to serve customers in both languages.  If a commercial unilingual English establishment is compelled to post an exterior bilingual sign, customers will be misled and upset if they cannot be served in French (par. 33).

The court gave this claim short shrift, on the ground that it was not supported by evidence; indeed, there was expert evidence to the contrary. Actually, one can question whether it is the court’s role to venture on such an inquiry at all. No court would question whether an act of Parliament really tended to promote the “Peace, Order, and good Government of Canada” – it is enough that Parliament thinks it does. However, Parliament is sovereign within the competence defined by division of powers provisions of the Constitution Act, 1867, and subject to the Charter. A municipality only exercises limited delegated powers, so courts are justified in ascertaining whether municipal by-laws are within the bounds of the delegation. The problem here is that delegation is so vast that its terms cannot be policed without the courts’ inquiring into the wisdom of the legislation, which is something courts are not very good at, and ought to be (though perhaps they are not) uncomfortable with doing.

Mr. Brisson’s second claim was that the by-law was unconstitutional because it contravened the Charter‘s protection of freedom of expression. Following the Supreme Court’s decision in Ford v. Québec, [1988] 2 S.C.R. 712, which struck down Québec’s prohibition on commercial signs in languages other than French, the court accepted that the by-law did infringe freedom of expression as guaranteed by s. 2(b) of the Charter. However, it held that the by-law was saved by s. 1 of the Charter. Its objective, “the promotion of the equality of status of both French and English,” is pressing and substantial, and it is rationally connected to the objective. As usual, the real question is that of proportionality. Apparently, Mr. Brisson’s main argument on this point was that the by-law prevented people from having signs in a language other than French or English. But the by-law does no such thing, the court points out. “Persons engaged in commerce can use any language of their choice along with French and English (par. 80). Indeed it is rather shocking that much Mr. Brisson and his lawyers placed much reliance on this claim.

The court went on to add that “in the past, Brisson has chosen to express himself only in English; he now chooses to express himself only in French on his exterior sign while continuing to employ English in other aspects of his business. To require him to employ English on his sign in addition to French is a minimal impairment of his right to freedom of expression” (par. 83). That, it seems to me, is bad reasoning. What does it matter that Mr. Brisson chose to express himself in English in the past, if now he wants to express himself in French only? The court seems to be questioning his good faith, or to be contradicting its own holding that his freedom of expression has been infringed. But that is not its role. It has nothing to do with answering the question that the case actually raises: does forcing shopkeepers to express themselves in French and English, whether they want to or not, the least restrictive means open to the township of achieving its pressing and substantial objective of promoting the equality of status between French and English. The court’s judgment, in my view, does not actually answer that question.

No New Thing in the Cloud

The Stanford Encyclopedia of Philosophy has a new entry on “Information Technology and Moral Values,” by John Sullins, a professor of philosophy at Sonoma State University. It is a useful summary of (many of) the moral issues that information technology raises, and a reminder that issues that we are used to considering from a policy standpoint also have moral dimensions. At the same time, it is a reminder that there is no new thing under the sun – itself an old observation.

Generally speaking, the moral issues which prof. Sullins thinks information technology are pretty much the same moral issues that you would expect a left-leaning intellectual to worry about in just about any context – income inequalities, gender inequality, “justice”. (I might be wrong to attribute these leanings to pof. Sullins of course; I have no other ground for this attribution than the article. And yet it feels like ground enough.) A libertarian or a conservative would probably have written a substantially different-sounding piece on the same topic; different-sounding, but equally predictable. New technologies seem not so much to create moral issues as to serve as a new canvass on which to apply our old concerns.

A couple of specific examples seem also to confirm the timeless cynicism (or is it wisdom?) of Ecclesiastes. One is given by prof. Sullins himself:

The move from one set of dominant information technologies to another is always morally contentious. Socrates lived during the long transition from a largely oral tradition to a newer information technology consisting of writing down words and information and collecting those writings into scrolls and books. Famously Socrates was somewhat antagonistic to writing and he never wrote anything down himself. Ironically, we only know about Socrates’ argument against writing because his student Plato ignored his teacher and wrote it down.

Socrates worried that writing would cause people to stop learning stuff – why bother when you can look it up a book? Just imagine what the grumpy old man would have said about Google and Wikipedia.

The second example came to mind when reading prof. Sullins’ discussion of the concerns raised by the “Moral Values in Communicating and Accessing Information.” Among the concerns he explores under this rubric are that with “[w]ho has the final say whether or not some information … is communicated or not” and that over the accuracy of the information communicated about someone or something (and the problem of who bears the burden of ensuring accuracy, or perhaps of dealing with the consequences of inaccurate information being communicated).  This reminded me of the passage in The Master and Margarita where Yeshua Ha-Notsri – Jesus – tells Pilate that he “is starting to worry that this whole confusion” about what he told the people “will go on for a very long time. And it’s all because he is writing down my words incorrectly.” “He” is the Levi Matvei – Matthew. As Yeshua goes on to explain, Matvei follows him “with a goat-skin and writes all the time. But I once looked at this goat-skin, and was horrified. I never said anything, anything at all of what’s written there. I begged him: for God’s sake, burn your goat-skin! But he tore it from my hands and ran away.” He might as well have been trying to get Facebook to delete some information about him, right? As the ensuing confusion shows, there are indeed dangers in recording information about someone without his consent, and then communicating it to all sorts of not always well-intentioned people.

So there is nothing new in the cloud, where this text will be stored, any more than under the sun, on goat-skins, or anywhere else, is there? Yet it is just possible that there is nothing new only because we do not see it. Perhaps new technologies really do create new problems – but we are so busy trying to deal with old ones that we do not notice.