Tag Archives: law

Interrogating Ethnography comments

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Elite law schools have better views.

I’ve edited out 4 minutes of stammering and ums, and a couple of errors, from my comments on Steven Lubet’s new book, Interrogating Ethnography: Why Evidence Matters, from this conference held over the weekend. So here it is in 16 minutes:

It turns out some people saw things differently from how I did, and I had a lot to think about. Comments welcome.

(There was a court reporter and video, so a complete record of all the panels should be available at some point.)

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See you in court, Mr. President (about that Twitter account blocking)

On June 7, I described how President Trump’s Twitter account blocked me, and the argument for why that violates the First Amendment. I can now report that the Knight First Amendment Institute at Columbia University has filed a lawsuit on my behalf demanding that the President unblock us. The other plaintiffs are Trump-blocked Twitter users as well: Rebecca Buckwalter, Holly Figueroa, Eugene Gu, Brandon Neely, Joseph Papp, and Nicholas Pappas (the Knight Institute is also a plaintiff). The announcement is here.

This was the tweet I sent 15 minutes before discovering I was blocked by @realDonaldTrump:

last tweet to trump

Our argument is that the President created in his Twitter stream a “designated public forum,” and he can’t legally exclude people from that based on their political views.

Here’s my part of the story, as told to the Knight communications team:

I’m okay with the fact that the candidate I wanted lost the election. Our family was upset by the outcome, but I approached this like a civics lesson for the children: We told them that this is a democracy, and the next best thing to winning an election is using the democratic process to speak up. It is all of our responsibility to use the tools we have to engage in our democracy.

Social media are among the most effect tools I have to speak out. I have a blog and as a professor I publish academic writings, but Twitter gives me the broadest audience most immediately. For example, I’m delighted when I write a blog post that is read by a few thousand people. But because of my audience on Twitter, I can reach as many as 100,000 people with one of my tweets replying to the president. It’s true that there are some people who use the reply threads on Twitter just to trade insults, which may not be the most productive sort of conversation. But they also allow you to see a range of opinions of people who agree or disagree. Since I’m not a political commentator by profession, and I’m a parent, Twitter is the only way I can connect with that many people with just a few minutes of time every day (it helps that he and I seem to wake up at the same time in the morning so I can reply right away).

Being blocked by Trump diminished my ability to respond and engage in the political process. There has been measurable impact on my ability to be heard. Yes, I can still say what I want to say, but not to those I want to speak to, when I want to say it or in the way that means the most to me. It’s disempowering to be prohibited from speaking. And I’m troubled that the president can create a space on Twitter — where there are millions of people — that he can manipulate to give the impression that more people agree with him than actually do.

The complaint specifies:

Defendants’ blocking of Professor Cohen from the @realDonaldTrump account
prevents or impedes him from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads.

If I complained about random citizens blocking me on Twitter, you could call me a whiner or a snowflake. But the President is not a random citizen, he is a public official — even, yes, my president — and complaining about him blocking me from his official public forum is not a personal beef, it’s a Constitutional obligation. That’s why we have a Constitution, and the court system to enforce it.

Here is the Knight Institute’s original letter demanding that he unblock his critics, sent prior to filing the suit. Attorney Alex Abdo has responded to some objections to their approach in this post. Here are the stories of the plaintiffs.

I’m happy to talk more about this, in coordination with the legal team. Wish us luck!

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Trump blocked me on Twitter and that violates the Constitution

On Twitter, users have the option of blocking other users, which prevents them from viewing the blocker’s tweets, getting notified when they tweet, and participating in the comment thread below the blocker’s tweets. Apparently, Donald Trump’s Twitter account has started blocking people who criticize him. As of yesterday, I’m one of those people.

blocked

Yesterday, the Knight First Amendment Institute, a new outfit with a hefty endowment at Columbia University, sent a letter to the President outlining why this practice violates the First Amendment and demanding that he unblock users. You can read the letter here, but the gist of it is that the President’s account operates as a “designated public forum” for the federal govnernment and that suppressing speech on the basis of people’s political beliefs in that context is illegal. (See coverage here and here, and an argument against this logic here.)

Here is Trump spokesperson Sean Spicer explaining that Trump’s tweets are “official statements by the President of the United States”:

My case illustrates how Trump created a public forum, used for official purposes, and then excluded me from participating in that forum on the basis of my political opinions.

When Trump was elected I made a case for “drawing a new line through the political landscape: for versus against Trumpism,” and oriented my political activity as a citizen accordingly. It turns out that the most efficient way I could get this message out was in the Trump threads on Twitter, by making simple memes stating opposition to Trump or mocking him. It’s not a sophisticated operation, but it didn’t take up very much of my time, and for the effort I think it had good results. (Maybe because my Twitter identity is “verified” or I have a relatively large number of followers, my tweets seemed to appear near the top of the thread if I posted them promptly.)

And I discovered that the Trump Twitter threads are a place to meet and argue with real people, strangers from other bubbles, about the most pressing issues of the day. Sure, most of the dialogue is pointless shouting and insults, which I am naturally way above, but not all of it, and for every person shouting there are many people reading along, who may be influenced by what they see. (For example, think of the young people living in Trump families described so well by Amy Harmon.)

My memes and statements were viewed by hundreds of thousands of people, according to Twitter’s analytics, often appearing right below a Trump tweet. Clearly, this is not what the President wants, but just as clearly it is one small part of how democracy works these days. Here are a few examples of images I made and posted, or comments, with links for people who aren’t blocked so you can see them, screen images to avoid that (if you follow the links you can see the discussion in the threads).

From June 4:

2

From June 3:

1

From June 6:

3

From June 2:

4

From May 31:

5

From May 28:

6

From May 18:

7

From May 16:

8

From May 13:

9

From May 7:

10

You get the idea. Maybe putting up these memes feels like carrying a sign at a protest, but in this case it’s a political forum organized by the President and limited to those he selects based on their political statements. I don’t know how this legal argument will fare in the courts, if it gets there, but in this case as in so many others, his actions are bad for democracy.

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Transgender discrimination is sex discrimination

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The people defending segregated bathrooms have weird ideas about privacy.

The Obama Education department says schools can’t discriminate against transgender students if they want federal funding, under Title IX of the Education Amendments. This relies on an interpretation of the law, which did not include gender identity in 1972. The law permits sex segregated bathrooms, athletics, and classes that teach body stuff, but by this interpretation they have to permit transgender students to use the facilities consistent with their gender identity. I’m not a legal expert, so this is just a semi-informed thought.

Some conservatives believe Obama is wrong because the new rule tries to make sex socially constructed, which it isn’t. On Fox News Sunday, George Will said:

The ’64 Civil Rights Act bans discrimination on the basis of sex. The administration is saying sex is a synonym for gender identity. Not true. The “party of science” ought to know that sex is a matter of chromosomes. And the — those advocating for transgender rights have been saying for years that indeed it is a matter of sexual gender identity that is not the same as sex. So what is sinister here is the — is the president saying the language of the law simply doesn’t mean what it says.

(This is one of the reasons I don’t defend the sex-versus-gender distinction anymore).

The defense of sex segregation rules that exclude transgender people is based on notions of privacy that are counterintuitive (to me), whereby being seen naked by someone of the same sex is not a privacy violation but being seen naked by someone of another sex is. This has been litigated a lot with respect to prisons, where female prisoners have been successful in using privacy claims in some cases to get same-sex guards assigned to do strip searches and shower supervision. Although I support female prisoners’ attempts to reduce abuse by having female guards, the process we’re going through is part of a progressive weakening of sex segregation, which is mostly good. In fact, I think it would be a shame if we ended up shoehorning transgender rights into this binary-privacy construction, defending the right of transgender people to be seen naked only by the proper binary-category of people.

I don’t think transgender rights require creating new categories of protection, or changing the definition of sex and gender (although there’s nothing wrong with that necessarily). I think transgender discrimination is sex discrimination because it denies people the privileges one sex enjoys on the basis of their sex. I particularly like the logic of Judge Vaughn Walker’s Proposition 8 decision in California, in which he explained how sex discrimination creates sexual orientation discrimination, in that case by denying lesbians homogamous marriage rights:

Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. … Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

I think you can apply the same logic to transgender rights with respect to bathrooms, etc. Laws insisting on sex-matched bathroom use have the effect of forcing only transgender people to use bathrooms with people of the other gender. If you’re going to have sex segregated bathrooms, it’s an equal protection problem if transgender people disproportionately suffer the negative consequence of that. But underlying that, it’s a problem of sex discrimination: because of her sex, a trans woman can’t use the facility that she is most comfortable with.

Under the new education guideline, schools can provide everyone with an individual-user options (but not force only transgender people to use them), or they don’t have to have sex-segregated bathrooms at all (although they would presumably have to provide individual-user facilities as an option).

If people are deeply committed to the gender binary, the last bastions of which are sex-segregated bathrooms and athletics, then I think they are right to be freaking out. As much as transgender rights activists often reinforce the gender binary by asserting a right to cross it without challenging it, the very debate we’re having undermines the concept. Eventually, someone could argue successfully that sex segregated bathrooms are sex discrimination for everyone, which they obviously are – and the justification for that is weakening.

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For (not against) a better publishing model

I was unhappy to see this piece on the American Sociological Association (ASA) blog by Karen Edwards, the director of publications and membership.

The post is about Sci-Hub, the international knowledge-stealing ring that allows anyone to download virtually any paywalled academic paper for free. (I wrote about it, with description of how it’s used, here.) Without naming me or linking to the post, Edwards takes issue with pieces like mine. She writes:

ASA, other scholarly societies, and our publishing partners have been dismayed by some of the published comments about Sci-Hub that present its theft as a kind of “Robin Hood” fairy tale by characterizing the “victims” as greedy publishers feasting on the profits of expensive individual article downloads by needy researchers.

My first objection is, “ASA … have been dismayed.” There have been many debates about who speaks for ASA, especially when the association took positions on legal issues (their amicus briefs are here). And I’m sure the ASA executives send out letters all the time saying, ASA thinks this or that. But when it’s about policy issues like this post (and when I don’t agree), then I think it’s wrong without some actual process involving the membership. The more extreme case, on this same issue, was when the executive officer, Sally Hillsman, sent this letter to the White House Office of Science and Technology Policy objecting to the federal government’s move toward open access — which most of us only found out about because Fabio Rojas posted it on OrgTheory.

My second objection is to the position taken. In Edwards’ view, the existence of Sci-Hub, “threatens the well-being of ASA and our sister associations as well as the peer assessment of scholarship in sociology and other academic disciplines.”

Because, in her opinion, without paywalls — and Sci-Hub presumably threatens to literally end paywalls — the system of peer reviewed scholarly output would literally die. As I pointed out in my original piece, if your entire enterprise can be brought down by the insertion of 11 characters into a URL, your system may in fact not be sustainable. Rather than attack Sci-Hub and its users, “ASA” might ask why its vendor is so unable to prevent the complete demolition of its business model by a few key strokes. But they don’t. Which leads me to the next point.

The Edwards post goes way beyond the untrue claim that there is no other way to support a peer review system, and argues that ASA needs all that paywall money to pay for all the other stuff it does. That is, not only do we need to sell papers to pay for our journal operations (and Sage profits), we also need paywalls because:

ASA is a nonprofit, so whatever revenue we receive from our journals, beyond what it costs us to do the editorial and publications work, goes directly into providing professional and educational services to our members and other scholars in our discipline (whether they are members or not). … The revenue allows ASA to provide sociologists in the field competitive research grants, pre-doctoral scholarships, specialized career development, and new digital teaching resources among many other services. It is what allows us to work effectively with other social science associations to sustain and, hopefully, grow the flow of federal research dollars to the social sciences through NSF, NIH, and many others and to defend against elimination and cuts to federal support (e.g., statistical systems and ongoing surveys) so scholars can conduct research and then publish outstanding scholarship.

In other words, as David Mamet’s character Mickey Bergman once put it, “Everybody needs money. That’s why they call it money.”

This means that finding the best model for getting sociological research to the most people with the least barriers is not as important as all the other stuff ASA does — even if the research is publicly funded. I don’t agree.

Better models

There are better ways. Contrary to popular misconceptions, we do not need to go to a system where individual researchers pay to publish their work, widening status inequalities among researchers. The basic design of the system to come is we cut out the for-profit publishers, and ask the universities and federal agencies that currently pay for research twice — once for the researchers, and once again for their published output — to agree to pay less in exchange for all of it to be open access. Instead, they pay into a central organization that administers publication funds to scholarly associations, which produce open-access research output. For a detailed proposal, read this white paper from K|N Consultants, “A Scalable and Sustainable Approach to Open Access Publishing and Archiving for Humanities and Social Sciences.”

This should be easy — more access, accountability, and efficiency, for less — but it’s a difficult political problem, made all the more difficult by the dedicated efforts of those whose interests are threatened by the possibility of slicing out the profit (and other surplus) portions of the current paywall system. The math is there, but the will and the organizational efforts are lagging badly, especially in the leadership of ASA.

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I don’t give activists unsolicited advice, except: don’t talk to the police

I have previously criticized universities and news outlets for their handling of racism on and around campus (and sexual assault, too). But I’m not in the business of giving activists advice. So I’m speaking out of turn on one side point here, to recommend: don’t talk to the police. (Nothing personal.)

The campus police at UW have released body camera video of them escorting a student from class and arresting him for allegedly spray-painting anti-racist graffiti. (For critical commentary on this situation, here’s a statement from faculty at staff, including a bunch of sociologists; and a letter of support for students from the faculty and staff in Afro-American studies.) Several things are disturbing about this; I’d like to call attention to the conversation. Here’s the video, with my comment below:

(Other videos from the police department, showing other parts of their interactions, are here.)

I have no idea whether this man has broken any laws, and know nothing about his motivations. I’m also not against spray-painting statements in public spaces in all cases; it may be effective and justified, for example in this case at the University of North Carolina:

ssgraf

Sometimes good people do illegal things, for good reasons, and we shouldn’t be surprised when activists get arrested for it. But that’s not relevant to this point, which is just that there is no good reason to talk to the police in a situation like this — at least no good legal reason (there may be good political or other reasons).

From the moment the cop says this (at 1:00), he’s lying continuously:

Alright, man, here’s what’s going on today. We have some information… Is it you, or is it somebody else, because I have information, I just want to get your side of the story…

This is such a generic statement that there’s no need to consider the facts of this situation. He does not want to get your side of the story, he wants to arrest you and make it easy for a prosecutor to get a conviction in his case. This is the clearest real-life example I can remember of this crucial lesson: don’t talk to the police. This is not unique to activists, everyone should know this.

If you aren’t one of the 6 million people who’s watched it already, I highly recommend this video (especially if you, like many activists, are at heightened risk of arrest and prosecution).

Of course, standing up to a trained, armed, police officer who has done this many times is difficult, and I assume I would blow it (again), but I think the more you prepare yourself for the possibility the more likely you are to pull it off.

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How to steal 50 million paywalled papers

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From Flickr CC / https://flic.kr/p/9KU6T1

I’m not a criminal mastermind, so I could be wrong, but I can’t think of a way to steal more — defined by list price — per unit of effort than using sci-hub to access paywalled papers I don’t have legitimate subscription access to read.

I don’t know the scientific term for this, but there has to be some way to describe the brokenness of a system based on the ratio of effort expended to damage done. For example, there are systems where even large effort is unlikely to cause serious harm (the US nuclear weapons system), versus those where minor efforts succeed but cause acceptable levels of harm (retail shoplifting). And then there is intellectual property, where small investments can inflict billions of dollars worth of damage.

Syed Ali and I have a short piece with some links to the news on sci-hub at Contexts. Alexandra Elbakyan says it took her about three days to develop the system that now gives anyone in the world access to almost 50 million paywalled articles. Of course, a lot of people help a little, by providing her with access information from their subscribing universities, but it still seems like a very low ratio of criminal energy to face-value payoff.

Example

Now that sci-hub is in place, how hard is it for an untrained individual to steal a $40 article while risking almost nothing? As hard as it is to insert 11 characters into a paywall URL and wait a few seconds (plus your share of the one hour I expended on this post).

Here’s an example. In the journal Society, published by Springer, an article in the current issue is currently available for $39.95 to non-subscribers. But Society is a “hybrid open access” journal, which means authors or their institutions can pay to have their paper unlocked for the public (I don’t know how much it costs to unlock the article, but let’s just assume it’s a rollicking awesome deal for Springer).

So for this example I use one of the unlocked articles, so you can try this without stealing anything, if that feels more ethical to you, but it works exactly the same way for the locked ones.

The article is “Saving the World, or Saving One Life at a Time? Lessons my Career with Médecins Sans Frontières/Doctors Without Borders/MSF has Taught Me,” by Sophie Delaunay. This is the launch page for the article:

http://link.springer.com/article/10.1007/s12115-015-9965-4

From there, you can download the PDF (it would say “Buy Now” if the article weren’t unlocked) at this link:

http://link.springer.com/content/pdf/10.1007/s12115-015-9965-4.pdf

Or you can steal it for free by inserting

.sci-hub.io

into the URL, after the corporate domain thing, like this:

http://link.springer.com.sci-hub.io/content/pdf/10.1007/s12115-015-9965-4.pdf

Don’t ask me how it really works, but basically it checks if the article has been requested before — in which case it’s cached somewhere — and if it hasn’t been requested before it uses fake login information to go get it, and then it stores the copy somewhere for faster retrieval for the next person. That’s why your stolen PDF may have a little tag at the bottom that says something like “Downloaded from journal.publisher.com at Unfamous University on Recent Date.” If the article comes up instantly, you didn’t really steal it, you’re just looking at a stolen copy; if you have to watch the little thing spin first then it’s being stolen for you. With this incredibly smart design the system grows by itself, according to demand from the criminal reading public.

What’s the punishment?

I have no idea what risk Alexandra Elbakyan or her compatriots face for their work. I don’t imagine the penalty for any given user is greater than the penalty for shoplifting a $39.95 bottle of Awesome Wasteproduct. And for me sharing this, I would expect the worst thing that would happen would be a stern letter on legal letterhead. But maybe I’m naive.

Anyway, the point is, it says something about the soundness of the academic publishing edifice that doing this much damage to it is this easy.

What are the ethics?

I am aware that some reasonable people think sci-hub is very wrong, while others think the current system is very wrong. I know that many people’s current paychecks depend on this system continuing to malfunction as it does, while others never earn the higher incomes they otherwise could because they can’t get paywalled articles. I understand corporate journals add some value through their investments. And I know that the current system denies many people access to a lot of information, with social costs that are unquantifiable. And there is some inherent value to not breaking the law just in general, while there is also value to breaking bad laws symbolically. How you balance all those factors is up to you.

Some people think it’s even wrong to discuss this. What does that tell you?

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