Tim Lee

Larry Lessig, Demagogue?

Tom Sydnor and Richard Bennett have both made a big deal of the fact that Larry Lessig is purportedly a demogogue. Richard, for example, says:

It’s an error to consider Lessig a serious scholar with serious views about serious issues. He’s a performer/demagogue who will latch onto any issue that he can use to promote the Lessig brand.

At the Stanford FCC hearing, he portrayed capitalism as a law of the jungle, in pictures of tigers eating prey. What intellectual critique if appropriate to refute that point of view, a picture of George Soros writing a fat check to Free Press so they can bus partisans to the hearing?

Now as it happens, I watched Lessig’s Stanford presentation, so I know what Richard is referring to here. And while this characterization is not wrong, exactly, it’s certainly not a fair summary of Lessig’s point. Here’s what he actually said:

If we had right policy, I don’t think that we would be talking about questions of trust. I don’t think the Department of Justice after the IBM case was talking about whether we trust IBM, or trust Microsoft, or trust Google. We don’t talk about trusting a company just like you don’t talk about trusting a tiger, even though the brand management for tigers has very cute images that they try to sell you on how beautiful and wonderful the tiger is.

If you looked at that picture and you thought to yourself the great thing for my child to do would be to play with that tiger you’d be a fool because a tiger has a nature. The nature is not one you trust with your child. And likewise, a company has a nature, and thank god it does. Its nature is to produce economic value and wealth for its shareholders. We don’t trust it to follow good public policy. We trust it to follow that objective. Public policy is designed to make it profitable for them to behave in a way that serves the objectives of public policy, in this case the objective of an open, neutral network. It makes it more profitable for them to behave than to misbehave.


This point, as far as it goes, is absolutely right. If we set up the broadband marketplace poorly, so that corporations have incentives to behave in ways that harm their customers, they will do so. This, for example, was the story of most transportation markets in the 20th century–trucking, railroad and airline companies were able to use the power of the ICC and CAB to form cartels for their own benefit at the expense of consumers. This is why we need to make sure our markets are set up in a way that corporations are led by their own self-interest to do what’s in the best interests of customers. The disagreement between people like Lessig and TLF contributors is that we have different opinions about the best way (markets vs. regulations) to hold companies accountable.

Now of course what Lessig is missing here is that regulatory bodies also have a nature. Indeed, one of the greatest economists of the 20th century, made this point with the tiger’s smaller, fuzzier cousin:

What would you think of someone who said I would like to have a cat, provided it barked? Yet your statement that you favor an FDA provided that it behaves as you believe desirable is precisely equivalent. The biological laws that specify the characteristics of cats are no more rigid than the political laws that specify the behavior of governmental agencies once they are established. The way the FDA now behaves, and the adverse consequences, are not an accident, not a result of an easily corrected human mistake, but a consequence of its constitution in precisely the same way that a meow is related to the constitution of a cat. As a natural scientist, you recognize that you cannot assign characteristics at will to chemical or biological entities, cannot demand that cats bark or water burn. Why do you suppose the situation is different in the social sciences?

Notice that Lessig and Friedman are drawing identical analogies between social institutions and fuzzy animals. And the basic point of their analogies is identical: just as particular kinds of animals have particular characteristics that can’t be changed, so too do human institutions (corporations in Lessig’s case, government agencies in Friedman’s). When making policy, we largely have to take human nature and human institutions as they are, rather than wishing vainly that we could change human nature and cause human institutions to begin behaving in ways contrary to their nature.

Now, I obviously come down more on Friedman’s side than Lessig when it comes to questions of regulating the telecom sector. But there’s nothing remotely objectionable about Lessig’s tiger analogy, and to claim that Lessig “portrayed capitalism as a law of the jungle” is obscurantism at best. Lessig has some coherent, if often flawed, ideas about telecom policy. Let’s take those ideas seriously and explain what’s wrong with them. It only makes us look foolish to pretend he’s Michael Moore with tenure.

April 30, 2008 | Comments |

Viewing 43 Comments

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    "It only makes us look foolish to pretend he’s Michael Moore with tenure."

    Don't say 'us' there, Tim. There are people who look foolish here, but you're not one of them.
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    Tim, really. When Milton Friedman made his critique of regulatory bodies he did it in words. When Lessig made his critique of capitalism, he did it in pictures. That's the point I was trying to make. Lessig puts on a thin veneer of scholarship, but his message is largely in the images and sounds that go into his presentations. When you confine your analysis of his presentation to the words he speaks, you sound like somebody who goes to a foreign film only to read the subtitles.

    Look at the audience reaction to Lessig at the FCC hearing. Is all that yelling, hallelujah, and shrieking praise consistent with the dispassionate analysis of public policy, or is a modern-day Nuremberg Rally?

    Every time you make this claim that Lessig has serious ideas with which you happen to slightly disagree, you help him with his brand.

    "Michael Moore with tenure" isn't a bad description, actually, but I'd say Lessig is the Michael Moore of Powerpoint.

    And this brings me to a point I wanted to make about Snydor's article. He would have done better to ignore the books and concentrate exclusively on the videos. There's a large collection of Lessig talks on YouTube, and it's only in these that the full power of his intellectually destructive demagoguery comes across.

    And BTW, if you're going to use your power as a contributor to this blog to bash commenters, it's only fair to allow commenters to reply with full blog posts. Many blog readers don't read comments, so my defense against this attack of yours will fall largely on deaf ears because it's below the horizon.

    @Luis: whatever point you're trying to make on Lessig's behalf has been made multiple times. Please be quiet, you annoy me.
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    My point is not on Lessig's behalf, Richard; it is actually mainly on Tim's. He's trying to argue a serious, scholarly point; you and Tom are using the techniques of demagogues to advance your political agendas. I'm just trying to point that out. I'm glad I'm irritating you; I merely regret that I haven't spent more time over the past eight years irritating those who are intellectually dishonest and willing to sacrifice their integrity for gains in power.
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    Here's the tiger image from Lessig's FCC testimony:

    http://bennett.com/blog/pitchers/smalltiger.jpg

    It really doesn't matter what he said after showing it, as the audience was so busy reacting to the image it probably didn't hear whatever excuses he offered for making such an obvious emotional appeal.
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    He showed a picture of a bloodthirsty tiger, and the audience clapped partway through the passage I quoted above. Somehow I don't think that rises to the level of "intellectually destructive demagoguery." It's not nearly as bad as, for example, publishing a paper that consists largely of out-of-context quotes of an ideological opponent. Lessig is a compelling speaker. He's also a serious scholar. The former doesn't negate the latter.

    As far as my posts being more prominent than your comments, I think most of our readers are smart enough to click through to the comments page if they want to see what you have to say.
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    My last comment, with a link to Lessig's tiger, is awaiting moderation.
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    I see the comment has been approved now.

    Tim, if readers are smart enough to click through to the comments to read what I have to say, why didn't you put your criticism of my comment in a comment rather than in a post that didn't require any click-through? That's what we call an inconsistency in my trade.

    If Lessig is a serious scholar, please show me where he has advanced the discussion of any public policy issue by first-rate scholarship. And no, simply arguing that copyright terms should be shorter based on an emotional argument doesn't cut it. I want to see just one example of ground-breaking, serious scholarship, not just grist for the Powerpoint mill.
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    I did it as a post rather than a comment because I thought some people who weren't following the previous discussion might find my point interesting. And anyway, life isn't fair. You're welcome to have any policy you like for responding to commenters on your blog.

    And I consider most of Lessig's long-form writing to be serious scholarship, although not always scholarship I agreed with. I'm not going to waste time arguing specifics because I'm sure we have differing views on what makes scholarship "first rate."
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    Just find a single serious law review article, and then we can see if it makes any novel arguments. I submit that the popular press - source of such things as "Code" and "Future of Ideas" isn't the typical venue for scholarship, nor is the Powerpoint deck.

    So far, the argument that Lessig is more demagogue than scholar stands unrefuted.
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    Just find a single serious law review article, and then we can see if it makes any novel arguments.

    Leaving aside the gross assumption that there are no novel arguments in Lessig's popular works (Code in particular is one of those books that is so novel that everyone takes it for granted now), finding his serious law review articles is pretty easy. If you were actually serious about it (you're not, but I'll play along) you might start at... I dunno, maybe his list of published articles? Or perhaps the Stanford publication search tool, which lists 70 journal articles published before 2000 (the date of his first book)?

    There you'd find such significant articles as Reading the Constitution in Cyberspace and The Law Of The Horse, which are only two of the most frequently cited papers in recent legal literature. (I'm told his purely Constitutional work is also excellent, but I haven't read any of it.)

    I'll certainly grant that you have to start at the bottom of his own page, with the older stuff, but it was on the strength of that work, and not his books, that he was granted tenure at Harvard and Stanford, two institutions which may well tenure demagogues, but only if they are also serious scholars.
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    When did trying to reach a non-specialist audience make someone a "demagogue"? Was Carl Sagan a "demagogue" when he chose to use TV?
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    This guy's a total performer, and a shill. He's not to be taken seriously. He's an "academic" for the YouTube age -- short sound bytes for those of us with a 30 second Internet video clip attention span. His whole career has been about failure -- he lost the Eldred case, he was thrown off the Microsoft anti-trust legal team, so he decided to attach his star to Google and teach this nonsensical p.r. type of legal "theory" on copyright. Who does it benefit, why his corporate patron Google of course!

    If they can successfully "dumb down" intellectual property protections to a sufficient degree (with Lessig's help) they can hoover up movies, books, news, music any content they want and then advertise around it to make gazillions while the copyright owners get nothing. That's what this is about.

    Oh and by the way, despite his protestations that he really cares about copyright, he slipped up I guess talking to a bunch of hackers in Germany. Here he is at the 23c3 hacker conference drinking a beer at the podium no less and opining on what he REALLY thinks about copyright (sorry in advance for the language, but its his quote and it give him up for the fraud that he is):

    "...If I thought that there were a simple way to say fuck you to copyright and we’re going forward with free culture, um or at least the particular version of copyright because again I’m an old communist, I believe in copyright, but if it thought there was an effective way to do that then I would be much more encouraged by that type of strategy."

    Watch it for yourself: http://video.google.com/videosearch?q=lessig+23...
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    I'm noticing a pattern. Those attacking Lessig are doing so by calling him names or quoting him out of context.

    No one hitting back against him seems willing to offer anything that actually responds to the substance of his arguments.

    Funny, that...
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    The point, Mike Masnick, is that Lessig himself has made a career out of calling names and quoting people out of context, not of making serious arguments. So why treat him differently than the way he treats others?

    One good example of Lessig's penchant for inaccurate quotation was cited on this blog recently vis a vis Lessig's dishonest use of a partial quotation from Gerald Faulhaber at Lessig's first End-to-End conference. Did you read that?

    The main problem I have with Lessig from a policy perspective is his attempt to increase the FCC's powers to regulate details of Internet service plans under the guise of end-to-end, BTW.

    In the domain of network engineering, end-to-end is a model of network operation that simply refrains from performing error correction at the network layer of a multi-hop packet network.

    The practice is either useful or not depending on the time requirements of the application, and has no policy implications at all. But Lessig has built an empire on a twisted application of it. Only a dishonest man would attempt to do that.
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    TLM,

    Actually he did win an important case (Hardwicke) against the school where he was repeatedly raped as a child.

    Also, several people here seem to have trouble with the idea that Lessig could both argue the position of Milton Friedman in courts, in briefs and in scholarly work, and also make videos explaining these positions to people who might not read those kinds of works. (I get the feeling the latter category includes many of his adversaries.)

    And Richard,

    He didn't make his career out of calling people names: he made it by clerking for notorious communists Richard Posner and Antonin Scalia, and by arguing originalism and orthodox economics to the Supreme Court in Eldred.
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    Lessig had a major change of mind about libertarianism during his stay at the Berkman Center, Timon. Pre-Berkman, he was on track toward a respectable, if humble, career as an originalist, but post-Berkman he's been trying to play the part of the rock-star intellectual who's saving the Internet from the capitalists. It's night and day.

    And his arguments in Eldred were simply disingenuous manipulations, which is why the court threw him out on his ear, including Scalia.

    And yes, I know Lessig was molested as a child, and suspect the experience has something to do with his present emotional state, but it's not relevant to subjects under discussion unless you're seeking a sympathy vote. He has more than enough money to get therapy.
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    There were two issues related to Hardwicke that were brought up by others: 1) his win-loss record, and 2) his honesty.

    That is a charming pop-psychological diagnosis, BTW, and a great illustration of how much more serious you are than Lessig.
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    I didn't offer any diagnosis, Timon, I said the emotional trauma is not relevant. But perhaps you've got something anyway: the only case Lessig has ever one was one in which he had a personal stake. So rather than showing off for the court with arguments too clever by half, he made an honest and earnest attempt to win by engaging in some serious, non-demagogic lawyering.

    But if that's the case, it's something that's only happened once in Lessig's career, and is therefore an outlier.
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    Timon: Lessig and his acolytes always fall back on the "but he clerked for Scalia and Posner" as if that somehow burnishes his street cred as a deep libertarian free market thinker (it doesn't, he's not, and that was a long time ago before his -- ahem - "transformation").

    But it definitely serves his interests to try and sell this canard. That way he's sort of the Internet "everyman" attractive to both leftists and libertarians -- the "strange bedfellows" phenomenon that the media always finds so newsworthy.

    Without the Scalia/Posner connection (and a smattering of lets be charitable and say well-intentioned but misguided free marketeers) all he's left with is a very shrill constituency with some, shall we say interesting viewpoints:

    Free Press' Robert McChesney he of the "The United States is, I think, by any honest account, the leading 'terrorist' institution in the world today..." Lessig's on the Free Press board.

    Cory Doctorow he of the "I believe that bits exist to be copied. Therefore, I believe that any business-model that depends on your bits not being copied is just dumb, and that lawmakers who try to prop these up are like governments that sink fortunes into protecting people who insist on living on the sides of active volcanoes." Doctorow was one of the first Creative Commons/Lessig proteges.

    This isn't stuff that's taken out of context. Look at his followers. It's the Matt Stoller's the MoveOn.org's the Gigi Sohn's the San Francisco based "street theater" EFF loonies.
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    He didn’t make his career out of calling people names: he made it by clerking for notorious communists Richard Posner and Antonin Scalia, and by arguing originalism and orthodox economics to the Supreme Court in Eldred.

    And by being one of the most-cited legal scholars in the country over the past seven years (that would be the period after he left Berkman and became a "street theater loony.")

    (I look forward to the creative way in which that is dismissed as well, as it inevitably will be.)
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    "He’s sort of the Internet “everyman” attractive to both leftists and libertarians." Couldn't have put it better myself!

    And Richard, what a pity that George A. Akerlof, Kenneth J. Arrow, Timothy F. Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen, Milton Friedman, Jerry R. Green, Robert W. Hahn, Thomas W. Hazlett, C. Scott Hemphill, Robert E. Litan, Roger G. Noll, Richard Schmalensee, Steven Shavell, Hal R. Varian, and Richard J. Zeckhauser were snookered by Lessig's left-wing demagoguery. Probably because your comments were not visible on the front page of TLF, where everybody could read them!