rule of law

Topic

VOTE!

/ Rick Ellrod / 5 Comments

Representation

In America, we have a presidential and congressional election coming up in November.  I want to take a moment out to incite every American to vote.

Every now and then, it’s helpful to remind ourselves of first principles.  In a democratic polity—a “republic” in the sense used in American law and political theory—the people of the polity govern themselves.  (Please note that these terms are “small d” democracy and “small r” republic.)  The way we do this, in a representative government, is to elect representatives.  Since those representatives make most decisions as to law and government, voting in elections is the primary way in which we govern ourselves.  It’s kind of a big deal.

The Crucial Hero(es)

In America, voter turnouts, even in presidential elections, tend to be relatively low.  Why would people skip their key chance to take charge of their government?  I suspect much of this failure to take part in governing ourselves stems from a combination of things:  inertia (it takes some little trouble to register and vote), plus a pervasive sense that my one vote doesn’t affect the outcome.  Why make the effort if it doesn’t matter?

The logical flaw in this understandable attitude is that things can matter in the aggregate, even if any one item is not the sole decisive element that changes the outcome.

Will Smith and Jeff Goldblum deliver the virus in Independence Day (the movie)The stories that inspire us, and help form our attitudes, tend to undermine this recognition and subliminally support our reluctance to participate.  A story is more dramatic if everything comes down to the actions of one, or a few, people.  If James Bond doesn’t pull off this next stunt, the World Will Come To An End.  Will Smith and Jeff Goldblum, alone, deliver the computer virus that takes down the mother ship in Independence Day, which conveniently disables all the rest; the entire tension of the plot is funneled through that one bottleneck, as it were.  A few superheroes save the universe—well, half of it—in the Avengers movies.  In Netflix’s just-released Enola Holmes movie (mild spoiler), the heroine’s actions save the one person who casts the deciding vote on a British reform act.  We love this trope.

The desire to make everything come down to a few people’s desperate actions can even warp the adaptation of a story.  A number of small, but annoying, changes in the plot of Peter Jackson’s Lord of the Rings movies seem to stem from a tendency to have every crucial point depend on the actions of the nine members of the Fellowship.  For example, in the books, the Ents meet and decide the time has come to attack Isengard.  In the movies, the Ents decide not to act—until Pippin and Merry maneuver Treebeard to where he can see Saruman’s wanton destruction of the forests (on the absurd assumption that the Shepherd of the Trees didn’t know about that already).

Pippin lights the beaconIn the books, Denethor sensibly sends a messenger from Minas Tirith to Rohan to call for help.  But the movies leave it to Gandalf and Pippin to fire up a beacon that transmits the call to Rohan.  (The fact that the lighting of the beacons is one of the most terrific scenes in the whole series doesn’t entirely mitigate the plot diversion.)  When the Corsair ships sailing up the Great River to Minas Tirith turn out to contain relief for the city rather than further invaders, the movie makes this just Aragorn, Legolas, and Gimli, along with the faceless army of the Dead—rather than a whole array of human reinforcements from South Gondor, as in the books.

Aggregates and Bottlenecks

But when we return to the mundane world, we have to put aside this tempting way of telling a story.  We don’t often see this pattern of world-saving heroic acts.  We find instead that crucial changes depend on the combined actions of innumerable people, all doing the right (or wrong) things.

Milo Manara honors heroic women

Milo Manara honors heroic women

The present moment can provide us a heightened appreciation of these unnoticed individual actions.  The early days of the COVID-19 pandemic saw an outpouring of support rightly directed to the unsung heroes—doctors and nurses and medical technicians, grocery store clerks, people who make toilet paper—unsung because they are too many to spotlight individually.  (Although individual acts of appreciation are still a just way to honor those continuing acts of undemonstrative service.)  Indeed, everyone has to act in concert if the pandemic is to be contained.

Peter Jackson’s Gandalf gets the underlying point right in one of the Hobbit movies:

I have found it is the small things, everyday deeds of ordinary folk, that keeps [sic] the darkness at bay.  Simple acts of kindness and love.  (The Hobbit:  An Unexpected Journey (2012), at about 1:42)

We must all be heroes now.

Of course, going in and making some marks on a piece of paper doesn’t feel much like heroism—even less so than wearing a facemask.  Perhaps it feels a little more dramatic when we’re braving the chance of coronavirus infection to cast our ballots.  And if that way of viewing our action as a daring deed spurs us to act, by all means indulge!

But in this kind of case, the only way to achieve anything is by small actions, each of which contributes to a whole.  The entire set makes a difference; but there can’t be an entire set unless there are individual acts.  In voting, as in picking up one’s trash, or in the innumerable actions that make up a free market, we must carry out the individual actions to produce the aggregate effect.

Turning the Tide in Real Life

If we need further encouragement, we can look to the additional fact that even one vote, or a few, can sometimes make the crucial difference.

Virginia Board of Elections draws lots to decide tied electionRight here in Virginia, we had an election in 2017 that resulted in a literal tie:  an equal number of votes for each candidate.  A purely random action had to be used to break the tie.  “Each candidate’s name was placed in a film canister; those were then placed into a bowl and one name was drawn.”  (NPR, 1/4/2018)

Even a few votes, even one, can make the critical difference, as recounted here and here—notably including “the year 2000 U.S. presidential election, decided by a few hundred votes in the state of Florida”  (Jared Diamond, Collapse:  How Societies Choose to Fail or Succeed (2005), “Further Readings” for ch. 16, p. 556)  Over and above my contribution to the whole, I cannot know in advance whether my vote might not be, in fact, the deciding factor in a hotly contested election.

Moreover, even if the outcome of an election might be clear without my vote, adding to the total is not pointless.  In today’s atmosphere of distrust and suspicion, the clearer and more decisive the result, the less opportunity there will be to cast doubt on the results.  Every vote added to the total reduces the number of people who will be convinced that the results are false, and thus directly supports the rule of law.

This concern also bears on the notion of voting for a third-party candidate.  In the upcoming election, many people may be sufficiently dissatisfied with both major parties to be motivated to cast their ballots for a third-party contender.  It might feel virtuous to spurn both parties and “vote one’s conscience” in favor of a candidate who cannot win.  But in practice, that action will only serve to make the results less clear, at a time when clarity is vitally needed.

L’Envoi

Voting is much trickier—even perhaps a heroic act, as noted above—in these pandemic times.  Nevertheless, there are avenues available by which all of us can safely exercise the franchise.

Drop box for ballotsFor my own locality in Virginia, here’s a guide to voting early, voting by mail, and voting on Election Day.  The local paper has a Web site on How to Vote, by state; I haven’t researched that reference in detail, but it may be useful.  Here are three articles on drop boxes for ballots.

I urge every eligible voter to take part in this crucial action of self-government.  Unless you’re actually in the hospital in a coma (or the like), there’s no excuse not to participate.

Civilization and the Rule of Law

/ Rick Ellrod / 2 Comments

We’ve talked about how the Star Trek-Star Wars divide reflects preferences for a more lawful or more chaotic world; how F&SF stories often show us a defense of civilization against chaos; and how civilization makes science possible and rests in turn on human technology.  But both order and technology can be oppressive.  The missing element is the rule of law.

Universal Laws

It’s a crucial element of right governance that there are rules applying to everyone, as opposed to the arbitrary wishes of a dictator, who can make decisions based on favoritism, political preferences, or personal relationships.  The Wikipedia article describes rule of law as “the legal principle that law should govern a nation, as opposed to being governed by decisions of individual government officials.”

Rule of Law pyramid

(Rule of Law Institute of Australia)

As we saw in The Good King, the concept of the rule of law goes back at least to Aristotle.  It became a central principle of the American founders via the English tradition of John Locke.  “Rule of law implies that every citizen is subject to the law, including lawmakers themselves” (Wikipedia again).  It is thus in tension with kingship, where rule is almost by definition arbitrary and personal.  But one can have mixed cases—kings who are bound by certain laws, as in the British constitutional monarchy.

Without the rule of law, we depend on the good behavior of those who have power of some sort—physical, military, economic.  We slide toward the “war of each against all,” where might makes right and the vulnerable are the pawns of the strong.  Autocracy soon follows, as people look for any means to find safety from those who are powerful but unscrupulous.  Hence the quotation from John Christian Falkenberg, which I’ve used before:  “The rule of law is the essence of freedom.”  (Jerry Pournelle, Prince of Mercenaries (New York:  Baen 1989), ch. 21, p. 254.)  Strength itself, a good thing, is only safe under laws.

Test Cases

It’s easy to miss the importance of the rule of law.  We’re typically born into a society with better or worse laws, and criticize them from the inside.  It’s less common to find ourselves in straits where lawfulness as such has collapsed.  Regrettably, sizable numbers of people are exposed to such conditions in the world today.  But many of us are fortunate enough not to see them ourselves.  As always, fantasy and science fiction provide useful “virtual laboratories” for examining the possibilities.

Tunnel in the Sky (audiobook) coverA classic SF case is where a group thrown into a “state of nature” attempts to set up a lawful society.  For example, in Heinlein’s Tunnel in the Sky (1955), students from a high-school class on survival techniques are given a final exam in which they are dropped onto an unspecified planet to survive for up to ten days.  When an astronomical accident leaves them stranded, they need to organize for the long term.  Rod Walker, the hero, becomes the leader-by-default of a growing group of young people.  The tension between this informal leadership and the question of forming an actual constitution—complete with committees, regulations, and power politics—makes up a central theme of the story.

David Brin’s post-apocalyptic novel The Postman (1985), later made into a 1997 movie with Kevin Costner, illustrates the power of civil order, the unstated practices of a culture, as recalling—and perhaps fostering—the rule of law.  The hero, a wanderer who happens to have appropriated a dead postman’s uniform and mail sack, presents himself as a mail carrier for the “Restored United States of America” to gain shelter in one of the isolated fortress-towns, ruled by petty tyrants, that remain.  His desperate imposture snowballs into a spreading movement in which people begin to believe in this fiction, and this belief puts them on the road toward rebuilding civilization.  The result is a sort of field-test not only of civil order and government, but of what Plato famously imagined as the “noble lie.”The Postman movie poster

Last time, I cited Niven & Pournelle’s Lucifer’s Hammer (1977), where a small community headed by a United States Senator hopes to serve as a nucleus for reconstructing civilization after a comet strike.  We see at the end the strong pull of personal rule or kingship:  as the Senator lies dying, the future of the community will be determined by which of the competing characters gains the personal trust and endorsement of the people—and the hand of the Senator’s daughter, a situation in which she herself recognizes the resurfacing of an atavistic criterion for rule.  Unstated, but perhaps implicit, is the nebulous idea that deciding in favor of scientific progress may also mean an eventual movement back toward an ideal of rule by laws, not by inherited power.

Seeking a Balance

The “laboratory” of F&SF is full of subversions, variations, and elaborations on the rule of law.  In particular, we should note the counter-trend previously discussed as “chaotic good.”  Laws can be stifling as well as liberating.

The Moon is a Harsh Mistress coverHeinlein’s The Moon Is A Harsh Mistress (1966) imagines how the “rational anarchy” of a lunar prison colony is mobilized to throw off autocratic rule.  The healthy chaos of the libertarian Loonies is hardly utopian, but the story does make it seem appealing.  Interestingly, Heinlein returned to this setting with a kind of critique twenty years later in The Cat Who Walks Through Walls (1985), where the post-revolution lunar anarchy seems much less benign, seen from an outsider’s perspective.

While fantasy seems to concern itself with this issue much less than science fiction, consider the region called the “Free Commots” in Lloyd Alexander’s Chronicles of Prydain.  When protagonist Taran visits this area in the fourth book (Taran Wanderer), he finds a society of independent villages, where the most prominent citizens are master-craftspeople.  They neither have nor need a lord to organize them.  The Commots contrast favorably to the feudal or wilderness regions through which Taran travels.  A kind of anarchic democracy, as an ideal, thus sneaks into what otherwise seems to be a traditional aristocratic high fantasy.Taran Wanderer book cover

One way of managing the tension between a government of laws and a culture of liberty is the principle of subsidiarity:  the notion that matters should be governed or controlled at the lowest possible organizational level where they can be properly handled.  It’s frequently illustrated in G.K. Chesterton’s ardent defenses of localism.  In The Napoleon of Notting Hill (1904), extreme localism is played for laughs—“half fun and full earnest,” to borrow Andrew Greeley’s phrase.  The more mature Tales of the Long Bow (1924), which might qualify as a sort of proto-steampunk story, treats the idea more seriously, in the form of an oddly high-tech (for 1924) revolt of local liberty against overweening and arbitrary national rule.

The Fragility of Civilization

When we grow up taking for granted the rule of law, we can fail to see how vulnerable it is—along with the civilization that it reflects and makes possible.

“The Establishment,” as they used to say in the 1960s, seems vast and invulnerable.  When we’re trying to make a change, it seems insuperable, so rigid that nothing can be done about it.  But this is an illusion.  The structure of civilization, good and bad, is fragile.  It’s easier than we think to throw away the rule of law, so painfully constructed (as Rod Walker found), in favor of shortcuts or easy answers to our problems.

One thing F&SF have brought us is a better sense of this vulnerability.  The spate of post-apocalyptic tales in recent years—zombie apocalypses, worldwide disasters, future dystopias like The Hunger Games, going all the way back to the nuclear-war stories of the 1950s—do help us appreciate that our civilization can go away.

But that collapse doesn’t require a disaster.  Civilization, and the rule of law, can erode gradually, insidiously, as in the “Long Night” stories we talked about earlier.

Historically, the Sixties counterculture fostered anarchists who felt “the Establishment” was invulnerable.  Often with the best of intentions, they did more to undermine civil order than they expected.  Those who now see no better aim than breaking up the structures of democratic government and civil life—whether from the side of government, or from the grass roots—also fray the fabric of civilization.  The extrapolations of science fiction and fantasy illustrate why eroding the rule of law should not be taken lightly.

Near the bottom of David Brin’s Web home page, he places the following:

I am a member of a civilization

It’s good that we have a rambunctious society, filled with opinionated individualists. Serenity is nice, but serenity alone never brought progress. Hermits don’t solve problems. The adversarial process helps us to improve as individuals and as a culture. Criticism is the only known antidote to error — elites shunned it and spread ruin across history. We do each other a favor (though not always appreciated) by helping find each others’ mistakes.

And yet — we’d all be happier, better off and more resilient if each of us were to now and then say:

“I am a member of a civilization.” (IAAMOAC)

Step back from anger. Study how awful our ancestors had it, yet they struggled to get you here. Repay them by appreciating the civilization you inherited.

It’s incumbent on all of us to cherish and defend the rule of law.  Give up civilization lightly, and we may not have the choice again.

The Good King

/ Rick Ellrod / 8 Comments

I began to wonder some years back about the curious preference for monarchy in futuristic settings.  In the world at large, monarchies have been retreating in favor of republics and democracies, at least in theory, since 1776.  Why are SF writers so fond of equipping future societies with kings, emperors, and aristocracies?

Star Kingdoms

We can pass lightly over the old-time, pulp-type stories where royal rule is merely part of the local color:  Burroughs’ A Princess of Mars (1912), Edmond Hamilton’s The Star Kings (1949), E.E. Smith’s The Skylark of Space (1928) with its Osnomian royal families.  Here, like flashing swords and exotic costumes, monarchy is simply part of a deliberately anachronistic setting.  Similarly in high fantasy, where aristocracy comes naturally in the typical pseudo-medieval milieu.

But we see royal or aristocratic governments in more modern stories too.  Asimov’s Foundation stories are centered around a Galactic Empire.  (Since that series was based on Gibbons’ The History of the Decline and Fall of the Roman Empire, an Empire was inevitable.)  Similarly in Star Wars, which draws heavily on Asimov.  Jerry Pournelle’s CoDominium future history has a First and a Second “Empire of Man.”  David Weber’s heroine Honor Harrington serves the “Star Kingdom of Manticore” (later “Star Empire”), modeled closely on England around 1810.  Lois McMaster Bujold’s Vorkosigan Saga contains a number of polities with different forms of government, but many of the stories focus on Barrayar, which has an Emperor.  Anne McCaffrey’s popular Pern series has no monarch, but has two parallel aristocracies (the feudal Holders and the meritocratic dragonriders).  It got to the point where I began to feel a decided preference for avoiding monarchical or imperial governments in SF storytelling.

The Lure of Kingship

Aragorn with crownThere’s something that attracts us in royalty—or we wouldn’t see so much of it.  I encountered this puzzlement directly.  As a kid reading The Lord of the Rings, I was as moved as anyone by the return of the true King.  I asked myself why.  If I don’t even approve of kingship in theory, why am I cheering for Aragorn?

The reasons we’re drawn to monarchy seem to include—

  • Kings are colorful. (So are princesses.)
  • Stability
  • Personal loyalty
  • Individual agency

The first point is obvious, but the others are worth examining.

Stability

It’s been pointed out that even in a constitutional government, a monarch provides a symbolic continuity that may help to hold a nation together.  British prime ministers may come and go, but Queen Elizabeth is always there.  (Literally, at least within my lifetime.)  This gives some plausibility to the idea of a future society’s returning to monarchy.

Something like this stabilizing function is behind commoner Kevin Renner’s half-embarrassed harangue to Captain Rod Blaine, future Marquis of Crucis, in Niven & Pournelle’s The Mote in God’s Eye:  “maybe back home we’re not so thick on Imperialism as you are in the Capital, but part of that’s because we trust you aristocrats to run the show.  We do our part, and we expect you characters with all the privileges to do yours!”  (ch. 40)

Unfortunately, relying on the noblesse oblige of the aristocrats doesn’t always work out well.  It depends on who they are.  For every Imperial Britain, there’s a North Korea.  When the hereditary succession breaks down, you get a War of the Roses or Game of Thrones.

Too much depends on getting the right monarch.  By the law of averages, it doesn’t take long before you get a bad ruler, whether by inheritance or by “right of conquest”—and you’re up the well-known creek.

Personal Loyalty

Personal loyalty appeals to us more strongly than loyalty to an institution.  One can pledge allegiance to a state—but even the American Pledge of Allegiance starts with a symbol:  the flag, and then “the Republic for which it stands.”  Loyalty to an individual moves us more easily.

This kind of loyalty doesn’t have to be to a monarch.  Niven & Pournelle’s Oath of Fealty explores how loyalty among, and to, a trusted group of managers can form a stronger bond than the mere institutional connections of a typical modern bureaucracy.  One can be faithful to family (the root of the hereditary element in kingship), to friends, or even an institution or a people.  But it’s easiest with an individual.  This loyalty is the basis for the stability factor above.

Individual Agency

The vast machinery of modern government sometimes seems to operate entirely in the abstract, without real people involved.  “Washington said today . . .”

In fact it’s always people who are acting.  But it’s easier to visualize this when you have a single person to focus on.  “When Grant advanced toward Richmond . . .”  In the extreme case, we have the ruler who claims to embody the state in his own person:  “L’état, c’est moi” (attributed to Louis XIV, the “Sun King” of France).

In a fascinating 2008 essay, Jo Walton quotes Bujold on political themes in SF:  “In fact, if romances are fantasies of love, and mysteries are fantasies of justice, I would now describe much SF as fantasies of political agency.”  A science fiction character is frequently involved in effecting a revolution, facing down a potential dictator, or establishing a new order—exercising autonomous power.  Walton links this notion of political agency to the fact that SF illustrates change:  “SF is the literature of changing the world.”  The world-changers can be outsiders, or they can be the rulers themselves—as in a number of the examples above.

It’s not surprising that we’re attracted to characters who act outside the normal rules.  We (especially Americans, perhaps) are fond of the idea that good people can act in ways that are untrammeled by the usual conventions.  I’ve already mentioned Robin Hood.  And the whole concept of the superhero—the uniquely powerful vigilante who can be relied on to act for the good—is powered by this attraction.

But this idealization of individual initiative is also dangerous.  Too much depends on getting the right hero—or the right monarch.  It can only work if the independent agent is seriously and reliably good:  virtuous, in the classical sense of virtue as a well-directed “habit” or fixed character trait.  Even then, we may be reluctant to give any hero unlimited power.  Too much is at stake if it goes wrong.

The Rule of Law

Our admiration for the powerful ruler is always in tension with our dedication to the rule of law:  “a government of laws, not of men,” in the well-known phrase attributed to John Adams.  We can see this as far back as Aristotle:  “law should rule rather than any single one of the citizens.  And following this same line of reasoning . . . even if it is better that certain persons rule, these persons should be appointed as guardians of the laws and as their servants.”  (Politics book III, ch. 16, 1287a)

No human being can be trusted with absolute authority.  This is the kernel of truth in the aphorism that “power tends to corrupt and absolute power corrupts absolutely.”  But we can’t get along without entrusting some power to someone.  When we do, it had better be someone who’s as trustworthy as possible.

The Ideal of the Good King

Thus the true king must be a virtuous person—a person of real excellence.  This is the ideal of an Aragorn or a King Arthur, whose return we’re moved to applaud (even against our better judgment).  (It should be obvious that the same principles apply to the good queen—or emperor, empress, princess, prince:  the leader we follow.  But I’ll continue using “king” for simplicity’s sake.)

What virtues do we look for in a good monarch—aside from the obvious ones of justice, wisdom, courage, self-control?

If the ruler or rulers are going to be “servants of the laws,” they require humility.  A king who serves the law can’t claim to be its master.  Arrogance and hubris are fatal flaws in a ruler.  For example, we should always beware of the leader who claims he can do everything himself and is unable to work with others.

The good king is also selfless—seeking the common good of the people, not his own.  Self-aggrandizement is another fatal flaw.

In effect, what we’re looking for is a ruler who doesn’t want to rule:  a king who believes in the sovereignty and the excellence of common people.

Aragorn defers to FrodoIt’s significant that Aragorn, our model of the good king, is introduced in LotR as “Strider,” a scruffy stranger smoking in a corner of a common inn.  Even when he’s crowned in victory, he remembers to exalt the humble.  The movie has him tell the four hobbits, “You kneel to no one.”  Tolkien’s text is more ceremonious:  “And then to Sam’s surprise and utter confusion he bowed his knee before them; and taking them by the hand . . . he led them to the throne, and setting them upon it, he turned . . . and spoke, so that his voice rang over all the host, crying:  ‘Praise them with great praise!’”  (Book VI, ch. 4, p. 232)

We see the same essential humility and selflessness in other admirable leaders, kings or not:  Taran in the Chronicles of Prydain, and the revolutionary princess in Lloyd Alexander’s Westmark trilogy; Niven & Pournelle’s Rod Blaine; Jack Ryan in Tom Clancy’s novels; “Dev” Logan, head of Omnitopia Inc. in Diane Duane’s Omnitopia Dawn—the unpretentious opposite of the “imperial CEO.”  America was fortunate enough to have such an example in the pivotal position of first President, George Washington.

The Alternative

At the other end of the spectrum, the most dangerous person to trust is an unprincipled and unscrupulous autocrat—someone convinced of his personal superiority and infallibility.  Giving power to an individual who has no interest in serving the common good, but only in self-aggrandizement, puts a nation in subjection to a Putin, a Mussolini, a Kim Jong-un.

The antithesis of the good king is the tyrant, who, however innocently he may start out, figures in our stories mainly as the oppressor to be overthrown.  It’s much better, if possible, to intercept such a potentially ruinous ruler before the tyranny comes into effect:  Senator Palpatine before he becomes Emperor, Nehemiah Scudder before he wins his first election.  Allowing the tyrant to gain power may make for good stories, but it generates very bad politics.

If we must have strong leaders, then in real life as well as in stories, character is key—and hubris is deadly.

The Internet Strikes Back

/ Rick Ellrod / 2 Comments

Occasionally, science fiction can’t avoid being shaped by actual facts.  Usually these are scientific facts, but sometimes economic, social, and even legal factors play a role.  It’s illuminating to look at the recent court decision on “network neutrality,” or “Internet open access,” from a science fictioneer’s point of view.

The question of “net neutrality,” or whether Internet service providers (ISPs) such as telecommunications and cable companies can control what people send and receive over the Internet, has been in play since at least 1998.  The Internet first became accessible to the general public by dial-up service over the public switched telephone network in the mid-1990s (who can remember the once-familiar sound of a dial-up modem connecting?).  Since the telephone system was a common carrier like a railroad or the Postal Service, required to carry anyone’s traffic as long as it didn’t harm the network, there was initially no question of the carriers’ controlling anyone’s Internet communications.  But when people began shifting to “broadband” Internet service over cable systems, which had not traditionally been treated as common carriers, new questions arose.

The Federal Communications Commission (FCC) tried three times to establish some kind of rules of the road that would prevent ISPs from blocking or altering people’s Internet communications.  Third time lucky:  on June 14, 2016, the U.S. Circuit Court of Appeals for D.C. upheld the FCC’s 2015 “Open Internet Order.”  The decision was published as United States Telecom Association v. FCC, __ F. 3d ___ (D.C. Cir. June 14, 2016) (USTA).

 

The ISPs like to frame the dispute in terms of the FCC’s “regulating the Internet.”  Actually, it’s almost the reverse.  All the FCC rules do is prevent the ISPs from regulating the Internet—from controlling what individual users can see on the Web and what they say in messages.  It would be more accurate to say that FCC is setting up rules that foster a free market.  This is why the technology industry, except for carriers and their proxies, is generally in favor of net neutrality.

Like many other tech-driven changes explored in science fiction, our ability to use the Internet has far-reaching consequences.  The court observed:  “Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie.”  (p. 26)

This particular change wasn’t often investigated by SF.  You can find early depictions of something like the Internet.  Characters in James H. Schmitz’s 1960s-1970s Federation of the Hub stories use a network presciently dubbed the “ComWeb,” both to communicate and to access information, as one commentator remarked, “on ‘Internet time.’”  The cyberpunk genre deals with world-wide networks—but I don’t recall a story where the neutrality issue played a role.  (On the other hand, I haven’t read all that much cyberpunk.)  Some stories show the Internet “waking up”—Internet as artificial intelligence:  for instance, Spider Robinson’s “Solace” in Callahan’s Legacy, “Webmind” in Robert J. Sawyer’s Wake.  But that’s another matter entirely.  In most of these stories, the network is just there; control over it by the ISPs isn’t an issue.

But, like a science fiction thought-experiment, the net neutrality controversy shows some of the qualities a modern society needs in a communications system.  For example—

  • Transmission integrity—trustworthiness.  If the system arbitrarily changes the information passing through it, it won’t be very useful either for trade or for speech.  As the USTA court said:  “the Commission explained that ‘[u]sers rely on broadband Internet access service to transmit “information of the user’s choosing,” “between or among points specified by the user,”’ without changing the form or content of that information.  2015 Open Internet Order, 30 FCC Rcd. at 5761 ¶ 361 (quoting 47 U.S.C. § 153(50)).”
  • Universality (which implies affordability).  This was a key feature of the original telephone monopoly—the “social contract” under which the Bell System was allowed a legislative monopoly in return for providing universal service at regulated rates.

Much of the battle over net neutrality revolves around visions of the kind of alternate futures that might result from different legal regimes.  The FCC’s rules, which act to clear a space for free action and competition, are designed to ward off certain kinds of problems that could develop in such alternate futures.

First among those problems is the economic dominance that can be gained through gatekeeper control of communications.  A cabal of ISPs that controlled all communications could prevent entry by competitors; “pick winners and losers,” deciding which new companies and products would succeed; and siphon off the profits from such new and innovative enterprises, right down to the level where a company that relies on communications can barely break even.  Thus, although the ISPs fully recover the network’s costs from end users’ payments (Americans pay more for lower speeds than in many developed countries), they also seek to be paid by the “edge providers” whose Web sites we visit, not only for those companies’ own Internet connections but also for the pure privilege of reaching the ISPs’ subscribers—in other words, to be paid three times for the same network.

In a free market, it’s essential to have a common medium in which trade can take place.  We analogize the Internet to the streets and roads of our transportation system; but if someone owned the only road leading to your home, and could bar certain traffic at will (including mail delivery), they’d have you over a barrel.

We do see examples of this kind of economic dominance by a few organizations in SF stories, though not usually in the communications realm.  In Dune, when the Spacing Guild joins the alliance against the Atreides family, the game is up—the Guild has a monopoly on interstellar travel.  In Heinlein’s Friday, the Shipstone company controls (stored) energy—and in Heinlein’s much more concise short story “Let There Be Light,” we see how entrenched interests can prevent disruptive innovation.  In a similar way, a cartel that controlled communications—without neutrality requirements—in our information-centric society could establish an economic oligarchy.  There are some fascinating stories to be written there . . .

It’s an illusion to think that in the absence of all regulation, we would have free independent individuals trading with each other on an equal basis.  What we’d have is warlords fighting over slices of a steadily shrinking pie.  One of the functions of the rule of law is to create a space in which a free market can exist—to establish the preconditions for free interaction by all economic players.  This is true of enforceable contract law in trade (just as similar principles require enforceable traffic laws on the roads).  A novel example of how legal protections create reliable conditions for trade is the notion of setting up well-policed areas where people who buy and sell online can meet to exchange their goods, without having to fear being robbed—an “Exchange Zone for Online Purchases.”

To gain the advantages of the Internet’s “flat distribution model,” in which even a small business can buy and sell worldwide without having to make major capital investments, one must be able to communicate freely and inexpensively.  The USTA court noted that “[a]ccording to the Commission [FCC], such rules encourage broadband deployment because they ‘preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet.’”  (p. 17, citing Verizon, 740 F.3d at 628)

But we also use the Internet to create pathways for speech—a central First Amendment interest.

Some ISPs—Verizon in an earlier case, Alamo Broadband in the USTA proceeding—have argued that their own First Amendment rights forbid any imposition of net neutrality rules.  Their position is that on the networks they control, they are the “speakers”—and they cannot be compelled (as a common carrier) to transmit any speech they don’t want to carry.  In other words, when you use your Verizon Internet account to read the latest article by your favorite columnist, it isn’t the columnist whose speech is protected by law:  it’s Verizon’s.  And when you e-mail your best friend your opinions on the upcoming election, it isn’t you speaking—it’s Verizon who can exercise “editorial control” over how your message comes out at the other end.  According to this argument, if you wrote “I love Obama” (or Trump, or Sanders, or Hitler), the ISP could substitute “I hate . . .”  It’s their speech.

Fortunately, the USTA court declined to accept this argument.  If the ISPs had prevailed, the results would have been ironic.  It would have been imperative to build a government-owned network at once, one that people could use to communicate without interference—because governments are forbidden by the First Amendment from controlling people’s speech.  And by the same token, the ISPs would have been forced to police every Web site they delivered to subscribers, from pornography to political opinions—since they would be the speakers.

This scenario sounds as absurd as some science-fictional extrapolations.  But in a world where tyrannies around the globe are doing their best to exercise exactly such speech control by acting as Internet gatekeepers, it’s not hard to imagine ISPs doing the same thing.  And it’s hard to say which would be worse.

 

In sum, the FCC and the court have taken the right path in this case.  The alternatives could make extremely interesting ideas for stories.  But unlike the thought-experiments of SF, this is a real-life experiment, with actual consequences.  It’s important that we get it right.