The Ninth Circuit's Prop 8 ruling and marriage

In light of the last entry that talked about the word "marriage" and its civic and religious connotations, it seemed way past time for me to finish reading the Ninth Circuit Court of Appeals' ruling on the challenge to the legality of California's Proposition 8.

The quick background on Prop 8 for those of you who might not have been paying attention: in 2008, California voters approved a ballot initiative, Proposition 8, that "amended the state constitution to eliminate the right of same-sex couples to marry". Predictably, Prop 8 was challenged in court. Governor Jerry Brown and state attorney general Kamala D. Harris declined to defend the amendment, but Prop 8's original sponsors won the right to put up a defense. Eventually a U.S. district court ruled Prop 8 unconstitutional; naturally, that ruling was appealed and it wound up before a three-judge panel of the Ninth Circuit. The panel issued its ruling two weeks ago, upholding the lower court by a 2-1 majority. (The proposition's proponents are seeking review by the Ninth Circuit en banc. In the meantime, same-sex marriages remain illegal in California as long as the issue remains "live" before the courts.)

The majority's decision is full of history and caveats and minute legal distinctions designed to reassure everyone that these three judges have stayed well clear of arriving at a conclusion regarding the legality of same-sex marriage as such. The majority found that

1. California once permitted gay marriage. Specifically, California courts struck down previously approved legislation that had restricted marriage to a man and a woman, and in the wake of that decision individual counties "issued more than 18,000 marriage licenses to same-sex couples".
2. Prop 8 modified the state constitution so that same-sex couples could no longer enter into "marriage".
3. Prop 8 did not affect state laws that afforded "domestic partnerships" many (or perhaps all) of the same rights and benefits as "marriages".

The majority concluded that Prop 8's sole substantive effect was to deny same-sex couples the right to call their unions "marriages". It also concluded that denying the use of the word was a form of harm that was not permitted by the Equal Protection Clause of the Fourteenth Amendment.

I think the majority on the appeals court is wrong in its conclusion. I agree that the word "marriage" carries a lot of weight. But as I wrote in the last entry, what I'd like is to relieve it of that weight -- or rather, of the weight it carries in a civil context. Let there be no "marriages" from a civil standpoint. Call the joining of two people in a lifetime commitment to one another "domestic partnership" or "civil union" or "linkage" or something else. Leave "marriage" to churches and temples and synagogues and mosques, if they want it. Informally you can still be "an old married couple" but when it comes time to declare your filing status to the IRS, let the category be called "joined" or "bonded" or some other term that currently sounds silly and made-up, but with time will become the accustomed way for government to describe two people committed to one another for life.

It's worth noting the dissent of N. R. Smith, because I suspect Smith's reasoning is close to how the the U. S. Supreme Court's conservatives will think about the case. While agreeing with the majority that most of Prop 8's proponents' arguments are specious, Smith nevertheless feels that the actions of the legislature, or in this case the directly expressed will of the voters of California, deserves the fullest possible deference by the courts. According to the relevant legal standard, Smith contends, Prop 8 is constitutional if it can be "rationally related to a legitimate governmental interest". Smith does not say that Prop 8 is so related, nor is it necessary for that to be proven in court: the mere possibility suffices.

Smith's reasoning may sound odd, but it's at least as persuasive as the majority's confused reasoning about the worth of the term "marriage". Moreover, any excuse to defer to the will of a state legislature, and even better in this case, to the will of a state's voters directly expressed, will appeal to the Supreme Court's conservatives. I don't see the Ninth Circuit panel majority's reasoning finding much support among the Supreme Court's more liberal wing, though. It relies heavily on sentiment rather than precedent.

(Whether the Ninth Circuit agrees to an en banc rehearing, this matter eventually will find its way to the high court. When it does, look for the Court to resolve the Prop 8 debate on the narrowest basis, and if at all possible without touching on the constitutionality of same-sex marriage. Even if the politically-motivated Scalia wants to make a statement against it, he'll have a hard time convincing other justices to join him: they will be wary of leading the public on a still-contentious issue.)

Stop calling it "marriage"

Professor Richard H. Thaler wrote a piece for the New York Times' Business Day section, "Gay Marriage Debate Is About Money, Too". He makes the point that while at the state level, same-sex couples in some states are eligible for virtually the same legal and economic benefits as straight ones, it's a different case at the federal level.

Federal law bestows a long list of rights — more than 1,000 — on legally married couples. Spouses may give each other unlimited bequests tax free, and they are permitted to file joint tax returns. If one spouse is a citizen, the other can become a citizen, too, and spouses get special treatment from Social Security. For some couples, a lot of money is on the line. That’s why you are reading this column in the business section.

But the Defense of Marriage Act defines "marriage" as solely between one man and one woman, so same-sex couples lose out on those federal rights.

Thaler suggests a modification to DOMA that would open up those federal rights to same-sex couples: stop talking about unions between people as "marriage", at least in the civil sphere. Call it something else: "domestic partnership", "civil union", "foobarfaz".

Marriage, of course, would continue, but would no longer be regulated by the government. Instead, weddings would become like many other important ceremonies from graduations to funerals: private matters.

I had this idea a couple of years ago. Bureaucratically it's a fig leaf, if you'll pardon the religious allusion. However, philosophically, it represents a way out of one of the most contentious and pointless arguments we're having.

Opposition to same-sex marriage is rooted in religion or personal prejudice. Period. Opponents have failed abjectly to make any argument that doesn't come down to one of those two sources.

Thaler's proposal doesn't address the roots of the opposition to same-sex unions. It does, however, remove the greatest sticking point: calling those unions "marriage". For opponents, the idea of two people of the same sex being able to sacralize their union the same as their straight counterparts is disgusting. The solution is not to force the religious connotations of "marriage" to include same-sex unions. Rather, the idea should be to remove the religious associations from what government describes as a legally cognizable union between two people.

Religion is not necessary in a governmental view of a couple. By coining a different term for government to use to describe that couple, and reserving the term "marriage" to those for whom it has religious significance, we not only would defuse this battle in the culture wars, but we'd take a step toward disentangling the messy commingling of civil and religious concepts that "marriage" is today in the eyes of the law.

For those that wish to battle on for equal rights for same-sex couples in their churches, more power to them. That fight, though, must be recognized for what it is: a struggle for equality within religious institutions. It's a fight that should be fought by those who are a part of those institutions. It must not be fought by proxy in the civil sphere, in the hope that government will compel those religious institutions to Do The Right Thing. I suspect some gay-marriage advocates have that goal in mind. Government may not play that role, though. All that marriage-equality advocates should be looking to accomplish in the civil sphere is to get government to extend civil rights and benefits to all couples who meet whatever terms for union the law requires.

Warning, clueless tech blogger

I don't like to dump on other bloggers for making mistakes: stones, throwing, glass houses ... you get my drift.

However, I'll make an exception for Time magazine's Techland blogger Matt Peckham, whose piece "Apple's Mountain Lion Developer Preview Bricked my MacBook" ticked me off not just for over-the-top idiocy -- that's too common to get worked up about -- but for spreading unnecessary fear, uncertainty and doubt among the general public.

I need to go line by line for a little bit to explain the depth of my frustration. Bear with me.

No really, the developer preview of Mountain Lion bricked my MacBook Air last night. As we’re fond of saying here at Techland, “Whoopsie-doodle.”

(If that's how they talk at Techland, you're gonna be keeping strange company, Harry. Sigh.) Well, you've repeated your main point, Mr. Peckham. Adding "no, really" suggests you didn't expect your readers to believe the headline. That, in turn, suggests you believe those readers believe Apple software doesn't cause bad things to happen to their electronics. Now, your readers' trust in Apple's software is not a problem. Your undermining of that trust is. I'll explain why a little further on.

I blame myself, of course, something I’m fond of calling “bad user on device error,” though inside, I was silently picturing Apple’s new slightly-more-hostile-looking kitty growling “Brick you, Peckham.”

I blame you too, Mr. Peckham, so at least we agree on something. Yet even here, in your first self-deprecating remark (the first of several), you made a mistake: you didn't explain why you were at fault. I would, but it will make more sense if I wait.

On a whim, I’d signed up for Apple’s $99 a year Mac developer program yesterday afternoon to have a look at the Mountain Lion developer preview, which Apple just released.

A big alert klaxon went off in my brain as I read that. You can certainly sign up for Apple Developer Connection (ADC) on a whim, but you had better have some idea of what that actually means if you're going to be mentioning the fact to a worldwide audience of non-technical people.

ADC is a service for developers -- people who write software. It gives them access to documentation, tools, and support they need to make their software work on the Mac (or on the iPhone/iPod Touch/iPad).

These developers need to get a taste of the next version of Mac OS X long before the rest of us can get our grubby hands on it. There will be new frameworks, changes to existing ones, new policies and best practices (for user interaction, accessing system resources, and who knows what else), changes to the file system -- hundreds of differences, big and little, between what is and what is new. Any one (or many) of these might cause a developer's existing software not to work any more. The developer, then, has to make sure that its software works, or is modified to work, on the new system. That way, when Apple officially releases Mac OS X 10.NEW, the vast third-party ecosystem of applications (software) is ready to run on 10.NEW as well. (I use "10.NEW" to denote whatever the next new release of OS X is. Mountain Lion will be Mac OS X 10.8, for instance.)

Apple doesn't wait until 10.NEW is completely ready before outside developers get to see it. Rather, Apple decides when 10.NEW is mostly ready -- "feature-complete and free of devastating bugs" are the usual criteria. "Feature-complete" means that all the big new functionality is present in its final form, especially the functionality that non-Apple developers can (or sometimes must) use. "Free of devastating bugs" is a subjective measure; a good software company has a feel for when its work is ready for (sufficiently expert) others to try out.

Why not wait until 10.NEW is completely ready before sharing it with outside developers? There are a bunch of reasons, none of which I have the space or time to get into right now. It suffices to say that this is the way every commercial OS vendor (that I know of, anyway) does business and that it makes good sense.

Now, getting back to our Mr. Peckham -- it seems painfully obvious that he is not a developer. Ergo, he lacks the large body of knowledge and experience necessary to understand what "having a look at a developer preview" really entails.

After waiting a few hours for the nearly 4GB of install data to come down (courtesy the App Store), I did an over-the-top upgrade, just as many of you probably did when you first bought Lion.

Bzzzzt!

CRUCIAL MISTAKE: he installed over his working system.

Installing a beta version of any software (and that's what a "developer preview" is, a beta version) makes you a test pilot for that software. You might have heard that bad things can happen to test pilots.

The engineers did their best to get the shiny new flying machine in tip-top condition for you. However, they're breaking new ground with the design. They can't foresee all that will take place when the machine goes through the process of getting and staying airborne. If you're lucky, the problems will be non-catastrophic, like the engines not starting. If your luck isn't so good, you could end up breaking new ground, too -- inside the flaming wreck of that shiny new flying machine.

Installing the developer preview of Mountain Lion over his current system irreversibly committed Mr. Peckham to using that version of Mountain Lion on his main machine. No developer in his right mind would do that.

Any developer knows to dedicate at least one system exclusively to testing. That way, a flaming wreck from a beta version of 10.NEW means, at worst, a complete reinstall of the working OS X version while you update your Facebook page on your blissfully still-functioning main machine.

Back to Mr. Peckham's saga. We'll skip ahead a bit. (Don't worry if you don't know what iDisk is: it's not important for my analysis.)

So with no way to access iDisk, short of bringing it up in Apple’s clumsy browser interface, I decided it was probably time to switch back to Lion and wait for Cupertino to release a less buggy preview.

He is on the cusp of discovering, too late, the CRUCIAL MISTAKE. Let's see how painful the learning process is. (Emphasis in the following is in the original.)

Only what I didn’t realize, and maybe I missed it somewhere in the fine print, is that the developer preview replaces Apple’s hidden system restore partition — which on my summer 2011 MacBook Air had been packing Lion — with Mountain Lion. When I dropped back to the system restore feature by holding down the “r” or “option” buttons at reboot, my only choice was to restore a clean copy of Mountain Lion itself.

The ominous, three-note descending chord of doom has blared from the soundtrack; our hero is staring into the camera, a look of horror slowly dawning on his face.

I'm not sure how the OS X system-restore partition works, but let's think about it for a moment. Suppose that, whenever Mountain Lion is actually released by Apple, you get it running on your machine by upgrading over Lion. You happily use it for several months without incident -- then something bad happens that requires you to restore. What would you expect the result to be? You'd expect your machine to come back to life as the functioning, Mountain Lion-based system it was before the Something Bad happened, right?

How disappointed would you be if, instead, your machine came back to life as a Lion-based system? That wouldn't make any sense to you. And yet, that's what Mr. Peckham expected.

Actually, that's not quite fair. I can guess what he really expected, or rather, wanted: he wanted the system to be "restored" to working order. However, that's not a well-defined request as far as computer software is concerned. "Restore" has a very specific meaning in the OS X context, and Mr. Peckham didn't know what it was.

So, he can't get back to Lion, only to Mountain Lion. What else is amiss?

And even that has problems in the preview.

Well, uh, yeah: things can still be buggy in developer previews. Oh, sorry, I beat that dead horse already. Continue. (I'll skip his specific description of "what else is amiss" since it's not relevant to us.)

My options at this point were: Limp along with a buggy, feature-shorn version of Mountain Lion until the next update, or — I thought anyway — go buy a USB copy of Lion for $60 and restore from that.

"Until the next update" suggests that Mr. Peckham believes he would have been able to upgrade his way out of his mess. He would have been sorely disappointed, if my experience is any guide. Once you have "upgraded" from 10.OLD to 10.NEW, you cannot "upgrade" to a newer version of 10.NEW on top of that. As far as certain key pieces of the system are concerned, you are already running 10.NEW. (I'm glossing over details I'm not qualified to explain.) Really, his only option was to reinstall Lion from scratch.

Off to the Apple Store I went, just before close, dropping $60 on something I’d technically already paid for (as Billy Joel would say, “And so it goes…”). Only that didn’t work either. Attempting to restore from the USB stick just brought up a giant circle with a slash through the middle, making me wonder whether Mountain Lion hadn’t switched out something at the firmware level.

Mr. Peckham has illustrated the perils of willy-nilly OS upgrades in finer fashion than I thought possible.

Defeated, I left my laptop at the Apple Store with a request that they zap the thing back to Lion using their doubtless broader array of imaging tools.

If I were the Apple Store, I'd consider charging him for the service. But perhaps that's too harsh, given his travails already.

Like I said, I blame myself, not Apple (though it’s not just me — the developer forums are full of others having exactly the same problem). But what a night…and another cautionary tale, for early adopters.

And here, at the end of his piece, we come to the heart of my beef with Mr. Peckham.

He blames himself, and yet can't resist parenthetically adding that he's not the only one having this problem. Now, strictly speaking, the fact that others are having this same problem takes the blame off of him and places it squarely on Apple (though I question his ability to discern whether or not others are actually suffering "exactly the same problem", since many slippery roads can lead to the same crash site and the same slippery road can lead to crashes in different places). However, the real problem is that he doesn't specify for what he blames himself. It's a good question that leads to an even better one: what is the real problem here?

The real problem is not the technical issue, which falls under Apple's bailiwick as I noted. The real problem is that Mr. Peckham wrote an entire piece detailing the technical woes he suffered after performing an upgrade he was not qualified to undertake.

What's the problem with writing up his experience? There would be none, if he had done so in one of the developer forums he mentioned. Perhaps he did. But we know he didn't stop there.

Time is not a specialist publication aimed at developers: it's a general-purpose magazine aimed at everyone. Everything it publishes is intended for a non-technical audience.

We can assume a number of people have read his piece and come away with the impression that Apple has released a dreadfully buggy piece of software intended for general consumption. These people do not realize how much the words "developer preview" imply. Among other things, "developer preview" implies that instability of the severity Mr. Peckham experienced, while regrettable, is always a possibility!

More to the point, "developer preview" implies that users like Mr. Peckham are not supposed to be trying the software out! It's intended for -- wait for it -- developers! People who know how to cope with buggy software! People who have a real reason to get the advanced peek!

Mr. Peckham has done Apple a huge disservice by writing up his ill-conceived and ill-starred experience as if it were just another journalistic sneak-peek at a soon-to-be-released product. Mountain Lion is obviously not ready for that kind of test, and Apple didn't intend the developer preview to be evaluated in that way.

Maybe Mr. Peckham doesn't understand what "developer preview" means. In that case, somebody more knowledgeable should be vetting his posts before they're published. The more troubling possibility is that he knowingly and opportunistically took an unpolished OS pre-release for a spin and reported on his subpar experience because he knew it would get him page clicks. In that case, he should be disciplined for sleaziness.

Time should apologize for his fatuous and misleading post no matter what.

Were I in Apple's shoes, I'd kick him out of ADC. As far as I'm concerned, he obtained his membership under false pretenses.

If this piece is typical of how he does business, Matt Peckham should be considered harmful.

The U.S. vs. the ungodly

It's one thing to read something like this:

A Gallup poll last year showed that, while 9 per cent of Americans would not vote for a Jewish presidential candidate, 22 per cent wouldn’t support a Mormon and 32 per cent would not vote for a gay or lesbian candidate, 49 per cent would refuse to back an atheist for president.

It's a shocking statistic. Yet it somehow doesn't convey the real meaning of the numbers, not the way these simple vignettes from atheists in the Bible Belt do.

“I’ve been told things like ‘I hope you have an accident, die and go to hell.’ So that’s what I’ve been up against.”

...

“I used to be a good running friend with somebody who doesn’t live far from here. I mentioned on one occasion that I was an atheist and I’ve never seen him again.”

Julian Baggini's piece "In God We Must: Why won't the U.S. accept its atheists?" (courtesy of Slate, originally from the Financial Times) is full of statistics and stories. So many of both, in fact, that it's a little overwhelming. The article is an eye-opener, and while the view stinks, at least now we know where we stand with respect to the devout.

Given all of this, you might think followers of other religions, such as Muslims and Jews, would be just as threatening. But that does not seem to be so. “People might not like the Buddhists and Mormons but at least they feel like they’re people who believe in a higher power and that confirms their beliefs,” says Johnson. “But somebody like an atheist, it just throws their beliefs into their face.”

David Silverman, president of American Atheists, concurs: “We challenge the whole concept that you can’t be good without God. We challenge the idea that religion is important in the first place, and that really makes them uncomfortable.”

I'm mindful of the words of Harold Bloom, from his book The American Religion (published in 1992):

Where there is overwhelming religious desire, there must also be religious anxiety, for which the pragmatic name is Fundamentalism, the great curse of all American religion, and of all religion in this American century. Fundamentalism, strictly considered, is an attempt to overcome the terror or death by a crude literalization of the Christian intimation of immortality. ... [Fundamentalism] is the shadow side of what is most spiritual and valuable in the American Religion.

(p. 39)

Here, perhaps, is the root of the trouble.

A report from the Pew Research Center last November showed that 53 per cent of Americans say it is necessary to believe in God to be moral.

I find the image of human beings implied by this viewpoint to be extraordinarily unattractive. It suggests that sin, to use the Christian term, is so intractable that human beings require an omniscient policeman constantly looking over their shoulders to stay on the straight and narrow.

Compared to the aforementioned 53 percent, this misanthrope's outlook on his fellow man is indecently sunny.

I, after all, consider myself living proof that believing in a deity is not necessary to lead a moral life. Human beings can find the wherewithal to live without harming their fellows, which is how I define morality.

The worst part of the intolerance is, it keeps atheists "in the closet", as Baggini's piece illustrates over and over. Here is, perhaps, his most poignant example: the words of an Alabama woman.

“Being on crack, that was OK. As long as I believed in God, I was OK.” So, for example, “I’m not allowed to babysit. I have all these cousins who need babysitters but they’re afraid I’ll teach them about evolution, and I probably would.” I couldn’t quite believe this. She couldn’t babysit as an atheist, but she could when she was on crack? “Yes.”

To say this woman's family has its priorities royally screwed up is ... well, it's so obvious, it almost doesn't bear stating at all.

When you believe that Darwin is more dangerous than drug addition, you are not thinking straight.

If you think evolutionary biology is part of a Satanic plot to put your children's souls in jeopardy, you have let religion gain too great a hold on your life. You need to take a time-out and do some serious thinking about what kind of example you're setting for those children. You also need a serious and thorough remedial course on what science is. The same basic biology underlies not merely evolution, but medical science -- like what your pediatrician practices. If you trust the latter is beneficial, you really have no reason to mistrust the former. Otherwise, you should have the moral fiber to follow the example of the Amish, who forsake modernity to hold onto their religious principles.

You devoutly godly folk should ponder one more thing: perhaps the reason more people than ever are describing themselves as "unaffiliated" with any religion is that fewer and fewer religions are making it inviting to be devout. Your attitude toward atheists is merely one manifestation of the intolerance you exude.

For religions supposedly founded on a gospel of love, that might be considered unfaithful to their original spirit.

Moore on the Watchmen prequels

While reading about Marvel's fight with Gary Friedrich, I ran across Susan Karlin's account of Alan Moore's comments on the Watchmen prequels DC will be publishing. It's a good complement to my earlier entry about the prequels.

I used to think Moore was a crank, rather like the Free Software Foundation's Richard Stallman. Both men were fierce, vocal advocates for creator control in the 1980s, when such a position made them, well, cranks in the eyes of most observers. Both men are still vocal advocates for creator control today, though I doubt they would see eye to eye on what exactly constitutes a "creative work". Moore's remarks in the Fast Company piece go a long way toward making him the more reasonable of the two, in my eyes.

DC comes in not just for anger on Moore's part, but scorn, too.

“It seems a bit desperate to go after a book famous for its artistic integrity. It’s a finite series,” says Moore. “Watchmen was said to actually provide an alternative to the superhero story as an endless soap opera. To turn that into just another superhero comic that goes on forever demonstrates exactly why I feel the way I do about the comics industry. It’s mostly about franchises.”

Like a lot of comics pros (and fans), he has been driven away from mainstream publications and publishers.

“There’s a widespread cultural barrenness across art and political culture. But there are some pockets of resistance on the extreme margins, like the techno-savvy protest movements, small press, the creator-owned comics, that seem to be getting some signs of hope for the future,” he says. “All of the genuinely interesting work is being done on the margins, with independent companies, self-producing, and alternative distribution networks.”

A tangential note: accompanying the article is a sample by Darwyn Cooke, an artist tasked with at least one of the prequels. It's apparently meant to be evocative of the artwork in real comic books of the time in which the prequel stories are to be set. The art is about as interesting to me as dried mud. Oh well, DC wasn't going to get me to subscribe anyway.

Speaking of dishonorable behavior by comics publishers ...

In the last entry I wrote of DC Comics:

... the company has a long and dishonorable history of legalistically impoverishing writers and artists who made it a ton of money ...

I am far more familiar with DC than with Marvel, but that doesn't mean I should give the latter a pass on this score.

Scott Tipton's Comics 101 alluded to Ghost Rider creator Gary Friedrich's troubles stemming from his lawsuit against Marvel Comics over ownership of the character. More details and a thorough explanation of why Marvel and its corporate master, Disney, are morally wrong, are available in Eric Larnick's piece for Moviefone. The net result of Friedrich's lawsuit is, he is on the hook to Marvel/Disney for $17,000. Friedrich can't afford to pay. The publisher has the creator over a barrel, and not for the first time -- more like the hundred-and-first.

Because they're making an example out of Gary Friedrich to scare away generations of comic creators from attempting to fight for a share of profits from the work they provided. In this case, a cease-and-desist would have been enough to prevent Friedrich from stepping out of bounds moving forward. Whether you side with Friedrich's specific claim or not, it's indicative of unfair business practices that have plagued the comics industry since the first appearance of Superman. Comic companies want to scare away men -- now reaching their retirement age -- from trying to collect on work they did as freelancers. That work now generates millions of dollars of revenue in movie sales and merchandising.

Definitely look at the slide show following Larnick's article for the stories of several other, better-known creators being screwed by big publishers.

Because there are (at least) two sides to every lawsuit, it seems only fair to point you at Marvel Publisher Dan Buckley's and Marvel Chief Creative Officer Joe Quesada's comments on the Friedrich matter, courtesy of Kiel Phegley and Jonah Weiland of Comic Book Resources.

First and foremost, Marvel has not settled with Gary. What has been misinterpreted as a settlement is a court document that Gary's very own attorneys agreed to, along with Marvel's attorneys. That document basically ends his lawsuit against Marvel at the trial court level with Marvel having won and Gary's case dismissed. By agreeing on a number for the profits Gary made from selling unlicensed Johnny Blaze/Ghost Rider merchandise after the court has decided that Marvel is the owner of that copyright, it allows Gary's attorneys to file his appeal now rather than have Gary litigate further. It is in no way a "fine" or "punishment" for Gary. It is something that the court asked both parties to do and agree upon.

What neither Quesada nor Buckley went on to say, because they were not asked, is whether Marvel/Disney is trying to collect this amount right now, which is the crux of people's concern for Friedrich (and the source of many people's great anger at Marvel/Disney). If this is just a number on a court document, a document required to close out the underlying lawsuit so as to permit Friedrich to file an appeal, then we might be castigating Marvel/Disney unjustly. Yes, he might well owe that amount (or more) if things don't go well for him down the line, but he's not yet on the hook for it. That, at least, is how I interpret Quesada's version of what happened. I could, of course, be wrong. It would have been nice if Phegley and/or Weiland had nailed this point down.

Whether the money is payable immediately or not, if Friedrich is known to be unable to pony up $17,000 right now, one wonders how his attorneys will be paid for the appeal. They could be working on contingency, hoping to score a large percentage of a favorable ruling or settlement; the way the lawsuit has been terminated, though, with Marvel emerging as the copyright owner, doesn't bode well for Friedrich's claims on appeal. The attorneys might be acting pro bono, or their fees might be covered by a legal defense fund of some kind. (Sorry, I'm not interested enough in this point to find out. I just thought I'd mention the possibilities.)

Any way you look at it, Marvel/Disney is in a superior position. It has much, much deeper pockets and a favorable court ruling on its side. I hope Friedrich has a rabbit or two to pull out of a hat.

By the way, Andrew Wheeler at Comics Alliance has some thoughts on the broader effects of Friedrich's fight with Marvel/Disney. The chilling effect on other writers and artists is likely to be felt right away, whatever the merits of the company's position. Again, it's in a superior position to any of the creators by virtue of its much, much deeper pockets.

It makes me think twice about putting any more money into those pockets by seeing any of its movies. (But keep buying the comics: the creators get some of that revenue.)

More Watchmen

I feel so out of it, comics-wise. Nary a whisper had reached me that DC would publish prequels to Watchmen, the groundbreaking comics miniseries (or graphic novel, if you like) by Alan Moore and Dave Gibbons. It's a good thing I check in on Scott Tipton's Comics 101 now and again.

Being out of the comics world also makes me less enthusiastic about the new series than Tipton is. I'm unfamiliar with most of the names associated with the projects, and those I know, I don't like. (In fairness, I admit that I know nothing of J. M. Straczynski's comics work. It's his defense of the often abysmally bad dialogue on his TV series Babylon 5 that prejudices me against him.)

Moore, as anyone familiar with his reputation would expect, has condemned DC's use of his and Gibbons' characters. Before you jump to the conclusion that this is another instance of DC screwing a creator (the company has a long and dishonorable history of legalistically impoverishing writers and artists who made it a ton of money), know that Moore's claim is moral rather than legal; Tipton explains the ownership conundrum. He also identifies the very weak link in Moore's rhetoric:

Moore's objections from a literary standpoint don't really hold up from my perspective, as this is someone who's built his entire career off of reinterpreting the literary creations of others, whether it's Mick Anglo's Marvelman, Len Wein's Swamp Thing, Siegel and Shuster's Superman, Robert Louis Stevenson's Edward Hyde, H.G. Wells' Invisible Man or J.M. Barrie's Wendy Darling. It's easy to reflexively say, "how dare they use those characters without Moore's permission!", until you realize that L. Frank Baum probably wouldn't have liked what Moore did with Dorothy Gale in LOST GIRLS.

But if that undercuts Moore's position on the moral high ground, it also highlights a vulnerability in DC's strategy.

Moore is a first-rate reinterpreter, but he often has had the advantage of very low expectations for the characters he touches. With apologies to Len Wein (who, in an ironic twist, is writing one of the Watchmen prequels), I don't think anybody expected greatness from Swamp Thing. Superman, while iconic, was never nuanced. Marvelman ... well, Marvelman was simply a footnote in comics history until Moore came along. ("Marvelman" is still merely a footnote in comics history, technically speaking, since for legal reasons Moore had to christen his reimagined version of the character "Miracleman".)

In Moore's hands, these characters became the stuff of comics legend (or in the case of Superman, Moore's story became a legend alongside the character). That placed something of a burden on the fellows who had to follow in Moore's footsteps. How well did that work out?

With apologies to Rick Veitch on Swamp Thing, not spectacularly well; in his hands the series was notable mostly for the issue DC nixed, featuring Jesus Christ (and out of Veitch's hands, the series went downhill fast). In the case of Superman, DC was lucky that (1) Moore's story was a one-shot, and (2) the story was pre-Crisis; rebooting the character allowed Moore's story to be viewed as a last valentine to the old Superman rather than a challenge to current writers. And as for Marvelman, er, Miracleman, well, Moore's successor was Neil Gaiman. You might have heard of him: he wrote what is considered to be one of the greatest comics series of all time, Sandman. To my mind, Gaiman's run is as impressive as Moore's, though since we only saw a half-dozen of Gaiman's planned eighteen issues you could argue that we just don't know if the quality would have held up.

So in the "following in Alan Moore's footsteps" lottery, the odds in this small survey are 2-1 against (and that's if you give Gaiman's work on Miracleman the benefit of the doubt; otherwise, it's 3-0). It's actually worse than that, though, when you consider that comics have produced only a handful of writers, if that many, of Gaiman's caliber (and Moore is one of them). I don't know that any of the writers DC has assigned to the Watchmen prequels is of that caliber. I do know that none of them has Moore's cachet.

Moore is not the only major-league creator in whose footsteps it's risky to follow. The writers assigned to explore corners of Gaiman's Sandman mythos after that series ended didn't produce results anywhere near as entertaining or imaginative. And just how hard it would be to follow Frank Miller's Batman: The Dark Knight Returns was proved by, of all people, Frank Miller: The Dark Knight Strikes Again was a great letdown.

Readers are going to be bringing a lot of expectations to the Watchmen prequels, expectations that they didn't bring to Watchmen itself. And DC doesn't have Alan Moore reinterpreting those characters. If (low expectations + Alan Moore) = (big success), what does (high expectations - Alan Moore) equal?

I feel sorry for Jeremy Lin

This is something like the third or fourth straight night during which Knicks phenom Jeremy Lin has been featured on the 10 PM newscast I watch. He seems like a nice fellow who has been managing all the attention with aplomb. On the other hand, the attention has been overwhelmingly positive. At some point it will turn negative: that's the ugly reality of who we are.

Assuming Lin is the nice fellow he seems to be (remember, Tiger Woods seemed like a nice fellow, too), I hope he has the fortitude to cope with the backlash as well as he has handled the adulation.

School ain't so simple

While doing a little research on the article I mentioned in the previous entry (about which I'll have more to say later), I ran across an article by Tom Weber for Minnesota Public Radio. Here's a comment from one mother opposed to any mention of sexual orientation in school:

"We send our kids to school to help them learn to read, write, do math, science, not to have lessons on homosexuality woven into the classroom curricula."

It's an awfully tempting vision: a school in which only the most basic, uncontroversial subjects are taught.

It's also completely unrealistic.

Come on, lady: kids aren't robots. They don't just sit quietly and absorb knowledge in the classroom. They are living, breathing, thinking, still-developing people. They talk with one another. They have encounters, good and bad, with people they've never met. Things happen that make them happy or sad. You want them to ignore all that and focus on what matters. I daresay you wouldn't be able to live up to your standard of education. You're not facing reality.

The best that a school can do is to try to keep the extraneous stuff from overwhelming students. Neither teachers nor administrators can stop that stuff from happening.

By the way, the reason your school district is having to have a discussion at all on the subject is, your school board laid down a rule that had the chilling effect of barring faculty and staff from even counseling kids suffering from homophobic bullying. Why was that rule instituted? It was at the behest of misinformed, religiously motivated parents who feared (and still fear) that any discussion of sexual orientation opens the door to the dreaded "gay recruitment" whereby innocent kids are turned to the Dark Side as part of Teh Gays' sinister strategy. In short, your school board bowed to pressure from deeply fearful and woefully ignorant religious zealots.

The trouble is, that rule didn't stop the kids from saying whatever they pleased. And somehow, most of what was said on the subject of sexual orientation and same-sex attraction was ... vile. Hateful. Ignorant. Reprehensible. (I don't doubt the kids saying these things learned them from their parents, by the way.)

That shouldn't be part of the school day either. Yet it is.

And as long as it is, we can't afford the fantasy that our kids are only supposed to "learn to read, write, do math, science" in school. We have to deal with what they're actually hearing, and saying, and doing.

If you're clinging to the notion that school is a sterile environment in which knowledge should be poured into kids' brains, divorced from all relationship with real life, then you helped to create the mess in which that school district finds itself.

And if you have that simplistic a mindset, your kids just might be the ones making school hellish for others. Ever consider that?

Shaking my head

I'm still reading an article on gay teens in a smallish town. I'm having a hard time getting past quoted remarks by "anti-gay crusader Barb Anderson".

"Open your eyes, people," Anderson recently wrote to the local newspaper. "What if a 15-year-old is seduced into homosexual behavior and then contracts AIDS?"

At first, I got very, very angry.

Then I started thinking of any number of really nasty things to call her.

Next, I thought of sarcastic rejoinders.

Then it occurred to me that Barb Anderson isn't ever -- not if she were to live to be a million -- going to listen to insults. Why should she? I wouldn't.

At one time I wouldn't have imagined switching places with her. I would have thought she didn't deserve that courtesy. I'm still not sure she does.

She is totally, abysmally wrong. A kid isn't going to be seduced into same-sex behavior unless he or she is already internally wired to enjoy it.

I don't doubt Anderson has had the opportunity to read information that flatly contradicts her beliefs. She nevertheless still believes she's right and people like me are wrong.

Two sides, each convinced to its core that the other is fundamentally wrong, neither willing to give an inch -- in Anderson's case, because of religious doctrine; in mine, because of actual experience with gays that transcends any strictures laid down in a religious text I will never believe is inerrant, or even a reasonable guide to morality. (People like Anderson convince me that you need to gloss over a lot of nastiness in the Bible before it can be regarded as a good guide to living.)

But Anderson and I live in the same country. Somehow, we have to arrive at a modus vivendi.

I can't imagine how that will happen.

And that's why I'm shaking my head.

Is Wall Street sorry?

And by "sorry", I mean are our former financial lords and masters genuinely penitent?

It's hard to tell, though Gabriel Sherman's piece for New York magazine, "Is This the End of Wall Street As They Knew It?", tries to make that argument. Not only is legislation enacted in the wake of the financial crisis starting to bite (or at least Wall Street firms are starting to flinch proactively), but some bankers, hedge fund managers and brokers are apparently searching their souls, prompted in part by the Occupy movement.

No one on Wall Street liked to be scapegoated either by the Obama administration or by the Occupiers. But many acknowledge that the bubble-bust-bubble seesaw of the past decades isn’t the natural order of capitalism—and that the compensation arrangements just may have been a bit out of whack. “There’s no other industry where you could get paid so much for doing so little,” a former Lehman trader said.

Not that everyone is regretful. Banking analyst Dick Bove, for one, thinks the reforms instituted in the wake of the financial crisis have "castrated" big financial institutions.

“We’ve made a decision as a nation to shrink the growth of the financial system under the theory that it won’t impact the growth of the nation’s economy.”

Actually, Mr. Bove, I think we've made a decision as a nation that we're just going to have to do without the recent and anomalous growth rate of the financial sector, so as to safeguard the entire economy. What you call "shrinking the growth", the rest of us call "reining in the insanity". We're in our current hole because we tried it your way, remember?

In spite of the hopeful note Sherman's piece sounds, there's still more than a whiff of hot air blowing in some parts of Wall Street. JPMorgan Chase CEO Jamie Dimon said:

“The mortgage mess is the biggest financial mess we’ll see in our lifetime.”

I'm not nearly as optimistic as Dimon is.

(Thanks to LongReads for the link.)

Peter Hoekstra sounds like a bigot

[UPDATE: I retitled this post and reworded it somewhat to make clear that it's Hoekstra's and Kenyon's words (and actions) that are the problem, rather than the men themselves.]

Peter Hoekstra is a candidate in the Republican primary for one of Michigan's Senate seats. He ran a campaign ad during the Super Bowl on Michigan TV stations. The ad features an Asian American woman playing a mainland Chinese native.

Steven Yaccino's and Jonathan Weisman's blog entry in the New York Times describes the resulting furor:

While Mr. Hoekstra defended his commercial as revealing the “reckless spending” of Debbie Stabenow, the incumbent senator and a Democrat, critics denounced the spot as racially insensitive.

“Debbie spend so much American money,” the woman said. “You borrow more and more from us. Your economy get very weak. Ours get very good. We take your jobs.”

First, a curious anomaly: the woman's broken grammar is accompanied by a faultless American accent. An odd decision, considering that the two never go together in my experience.

But let's get to Hoekstra's response to his critics.

“There’s nothing racist in this ad,” he said in comments posted online by The Detroit Free Press.

[link in original text]

And the "political director" of the firm that made the ad, Bill Kenyon, justified the ad's content thusly:

“We only have 30 seconds, so we wanted to throw out something visually that evoked the image of China,” he said. “We were trying to portray this as China, not an American enclave of Chinese at some American university.”

Kenyon identified the actress as "an American whose parents are Chinese".

Here's a bulletin for those who believe Kenyon and Hoekstra: this ad is racist. No ifs, ands, or buts.

You can argue that the charge of racism should only be leveled at those who make statements or take actions that they know are bigoted. I, for one, try to make allowances for offensive statements that seem to arise out of ignorance rather than malice. Perhaps you think Hoekstra and Kenyon should be given the benefit of the doubt, that they're just abysmally ignorant, not prejudiced.

Kenyon and Hoekstra don't deserve that consideration.

Kenyon works in the media: he's smart enough to know what inflames what I've heard described charitably as "low-information voters". This ad touches on some of the oldest themes of anti-Asian prejudice:

• Asians never speak English properly.
• Young Asian women are pretty, alluring, and dangerous. The danger in this case is not merely sexual (this is the historical trope: Asian women seduce innocent Caucasian men and lead them to ruin), it's explicitly stated to be economic -- and the girl in the ad knows it.
• The Yellow Peril is always just around the corner, just waiting to despoil America.

These tropes are embedded so deeply in American culture as a result of media (mis)representations over the last century that a lot of Americans don't even realize they're there, much less that they're wrong. Not just morally wrong, but factually wrong. They make up part of the seemingly ineradicable set of stereotypes surrounding portrayals of Asians and Asian Americans in the media. (Don't believe me? Check out Asian Americans and the Media by Kent A. Ono and Vincent Pham, published by Polity in 2008. Ono and Pham do a good job of exposing the prejudiced assumptions underlying portrayals of Asians and Asian Americans through the years.)

But back to the ad. You could argue that the improper speech arises from the girl playing a supposed native of mainland China. Okay, then how about having her speak Mandarin, and subtitling her words in (proper) English? That would have been much truer to life and might have prevented the ad from being controversial at all.

I wonder if that's why it wasn't shot like that.

Oh hell, let's not be coy: I'm sure that's why the ad wasn't shot like that. If the idea even came up during production, Kenyon undoubtedly nixed it because the ad wouldn't have had anywhere near the emotional resonance with some viewers. Again, Kenyon knows his stereotypes.

As for Hoekstra, his airing of the ad and his subsequent denial of its racist content, without even pretending to address legitimate criticisms of that content, are disgraceful.

Of course, there's no way to address those criticisms, so there's no way to defend the ad. Hoekstra knows that. He approved the ad and plans to keep running it anyway. That's what makes him sound not merely prejudiced, but arrogant.

There's no way, and I see no need, to sugar-coat the result of his despicable behavior: Hoekstra looks and sounds like a bigot.

Thoughts on Facebook

Lori Andrews made a persuasive argument that "Facebook is using you" in the New York Times Sunday Review. Or, well, not just Facebook, but everybody selling you for ads online.

Ads that pop up on your screen might seem useful, or at worst, a nuisance. But they are much more than that. The bits and bytes about your life can easily be used against you. Whether you can obtain a job, credit or insurance can be based on your digital doppelgänger — and you may never know why you’ve been turned down.

Meanwhile, Nick Bilton in the New York Times Bits blog wonders, Where's Our Cut?" (Bilton claims it's many Facebook users asking that question, not just him, but it's more fun to claim only Bilton wants to know.)

Without me, and the other 844,999,999 people poking, liking and sharing on the site, Facebook would look like a scene from the postapocalyptic movie “The Day After Tomorrow”: bleak, desolate and really quite sad. (Or MySpace, if that is easier to imagine.) Facebook surely would never be valued at anything close to $100 billion, which it very well could be in its coming initial public offering.

I'm already on record as agreeing wholeheartedly with Andrews' point. However, Maciej Ceglowski was the first to bring it to my attention, and much more pithily:

Social networks exist to sell you crap.

Andrews is just extending Ceglowski's original point.

In general I'm a reductionist when it comes to communication. I prefer to read rather than to listen or to watch, because reading lets me absorb information more rapidly. Where I'm not a reductionist, though, is in my relationships with good friends. Friendship is a part of life in which mere information about the other person is not enough to sustain the relationship. Talking with a friend is not just about exchanging information: it's also about facial expressions, gestures, laughter, flickering looks away or at me, subtle changes in the voice and posture, the taste of the food and drink we share. It's about the mood we create and the feelings we share.

Facebook friendships, though, are all about the information. Whether in written or image form, Facebook posts are information dumps. It's a reduction of friendship to merest acquaintanceship, if that. And that's why I have never had much interest in Facebook. I absorb enough information without being subjected to a torrent from people with whom I (and they) can't be bothered to maintain stronger ties.

That all said, am I sympathetic to Bilton's (admittedly tongue-in-cheek) plaint?

Nope.

Nobody forced Facebook's users to join, or to post, or to participate in any other way. Facebook's investors and staff set up an infrastructure, made it available to all without charge, and let fate run its course. Yes, it's the users who created the content that make Facebook at all interesting. However, they did so because they benefited from doing so. The benefits users derive have not disappeared or been reduced in magnitude because of Facebook's IPO.

What has changed is that the whole world now knows how much investors (whoever they are) think Facebook is worth.

Some of you might agree with Bilton on one point:

I for one would feel more comfortable with Facebook looking through my phonebook, wallet and underwear drawer if I knew I was going to get paid for it.

Oh please.

Let me repeat: nobody held a gun to your head and forced you to upload your life to Facebook. You did it because it was free and because you got something out of it. Are you pissed Zuckerberg and company are getting (a lot) more? Oh well. Life sucks.

Are you chagrined that your personal information is such a profitable resource, and that somebody else is making the profit? Again, oh well. If you use reward cards, you've been giving up your shopping habits (and possibly other information, like your credit record) for years. There's this for rewards cards, though: at least you get some kind of tangible benefit in return.

Still, Facebook gave you what it promised. If you feel cheated, you should have thought a little harder before you agreed to use the service. Or get over your bitterness and marvel that you and your friends are worth so much.

Gamification

"Gamification" is apparently the term used to describe applying game elements to non-game settings. Natasha Singer's piece for the New York Times says:

Companies like Recyclebank, for example, use game incentives, like points and rewards, to prompt consumers to perform eco-friendly activities. Other businesses offer awards like virtual badges to induce their employees to embrace corporate goals and increase productivity. Meanwhile, a number of well-known retailers and brands, including Samsung and Warner Brothers, are employing point reward systems as a way to engage customers more deeply.

[links omitted]

It's all about games, so it must be harmless, right? Well, this is corporate America we're talking about. What do you think?

“Why not call it a new kind of analytics?” says Professor [Ian] Bogost, a founding partner at Persuasive Games, a firm that designs video games for education and activism. “Companies could say, ‘Well, we are offering you a new program in which we watch your every move and make decisions about our advertising based on the things we see you do.’ ”

And as for in-house use?

“We used to provide incentives to employees by means of compensation and benefits,” like raises and pensions, he says. “This seems to be a move to use these no-cost incentives.”

Now, it needs to be noted that Prof. Bogost is the only critic of gamification cited in the article. Still, when was the last time you heard corporations giving away stuff they couldn't afford, or acting in your best interests rather than theirs?

Gamification is all about playing games with the consumer, or maybe the employee. That was pretty obvious to me, but judging by the number of people who have responded to the efforts cited in the article, what's obvious to me isn't obvious to a lot of others.

Publish or perish is foolish

Last night I was shooting the breeze with a friend in academia, and we came to the old "publish or perish" rule. "Publish or perish" says that untenured professors have to have a minimum number of their papers accepted and published by reputable journals, or risk not being considered for tenure.

It struck me that this rule is as useless a criterion by which to judge a professor's worthiness for long-term employment as the long-discredited "lines of code per day" metric for programmers. Both guidelines fail dismally in the quality department.

American politics as a Turing test

I just finished reading Marc Parry's profile of Jonathan Haidt in the Chronicle of Higher Education. To see if the piece was missing anything obvious, I perused some of the comments.

Back-and-forths between allegedly conservative and allegedly liberal commenters in online fora all follow a depressingly familiar pattern. Conservatives are caricatured as heartless, selfish bastards (and presumably bitches) and/or blindly obedient dupes of authority. Liberals are caricatured as delusional busybodies without a scintilla of real-world experience who lust after unfettered federal power to remake the nation along the lines of what they're irrationally convinced is their morally and intellectually superior vision.

The remarks by supposedly flesh-and-blood human beings are so predictable, I wouldn't be surprised to find that software has been masquerading as at least some of the people in these exchanges for some time -- that is, that a sophisticated (but not necessarily "smart") program and its creator have been subjecting us to a real-life Turing test. If so, kudos to the creator; now could you please stop?

Sometimes I'm disheartened enough by online political commentary to wonder if, rather than a Turing test, we're witnessing a large-scale conversation between dueling instances of Eliza instead.

Greg Stebner

Greg Stebner is a voiceover specialist whose work includes any number of documentaries. I know his voice mostly from programs centered on World War II. In these programs, Stebner's voice creates a sense of foreboding as he describes the dark days just before and early on in the war, when Nazi Germany, Italy and Japan appeared as if they would overrun the globe. Even in narrating the triumph of the Allies, Stebner evokes somberness, as if mindful of the 50 million who died before hostilities were concluded.

I assumed the coloration of his voice was a function of the subject matter. However, I just watched a 2005 documentary on Boston's massive, fifteen-year-long construction project, the Big Dig, and to my surprise, Stebner's narration had the same foreboding tone, even though the Big Dig has been something of a triumph (though a costly one). I can only assume that his voice naturally carries a certain amount of tension. It's a fascinating quality.