Per Curiam
-- A man has to do something for a livin' these days

-- Bloggin' ain't much of a living, boy
Friday, March 05, 2004
Licensing Away the Message: Eric Gibson of Opinion Journal takes an insightful look at the works of Dr. Seuss, and what has become of those works since his death in 1991. Gibson laments that the fantasy and absurdity of the great author has been commoditized, and along the way, the message has been changed:

    He created a world of cheerful illogic and unreason that was still somehow plausible. And his characters are invariably more entertaining than menacing. The Grinch is as arch as the mustache-twiddling villains in the early silent movies, and the Cat is a kind of giddy anarchist--who is at least courteous enough to clean up after himself.

    But if the literary Seuss is Edward Lear, the Hollywood Seuss is "Saturday Night Live"--adult-themed humor that gets its laughs by pushing the envelope and trading in adolescent versions of sex, violence and scatological humor. The characters themselves are slightly frightening, as if in the grip of dark impulses.

Today's world is one of cross-marketing, branding and royalties -- if you have a great book and do not make a movie, you are doing your fans a disservice by holding back additional opportunities to experience the magic of your work, and only hurting yourself by leaving the millions of dollars on the table. Some adaptations are better than others -- Mystic River, X-Men, the Harry Potter series -- but there are still fans of all three that will argue the true message of the original work was lost in translation, all for the sake of profit.

Is this commercialization inevitable in today's capitalist culture? At least one prominent creator has said no. Many people reading remember the wonderful world of Calvin and Hobbes, created by Bill Watterson. The popular comic strip, which ran in over 2400 newspapers between 1985 and 1996, featured a mischievous six-year-old and his real-to-him best friend stuffed tiger, Hobbes. The genius of the strip could be seen in the name. Calvin was named after the sixteenth-century theologian who believed in predestination and human salvation. His foil in the series was Hobbes, whose monniker reflected his pessimistic view of humanity. Watterson was the master of the allegory -- while children enjoyed the surface-level humor of a mischievous first grader who avoided school, disliked girls and annoyed his parents, adults caught the underlying philosophical messages and intellectual humor of the strip.

However, while his fellow cartoonists capitalized on their success in other markets, Watterson declined. Garfield became an animated series, plush suction-cup car ornaments and stuffed animals. The Far Side has been plastered on coffee mugs and t-shirts. For Better or Worse became an animated series, as did Baby Blues. But in a unique move that cost him millions of dollars, Watterson has refused continuous requests to license his creation. The only use he has made of his strips have been compilations, nearly all of which have been New York Times bestsellers. As he stated in the Calvin and Hobbes Tenth Anniversary Book, licensing comics cheapens the original creation, does not respect the uniqueness of the comic strip and requires the author to delegate the work, rather than doing it all himself. He further writes:

    Beyond all this, however, lies a deeper issue: the corruption of a strip's integrity. All strips are supposed to be entertaining, but some strips have a point of view and a serious purpose behind the jokes. When the cartoonist is trying to talk honestly and seriously about life, then I believe he has a responsibility to think beyond satisfying the market's every whim and desire. Cartoonists who think they can be taken seriously as artists while using the strip's protagonists to sell boxer shorts are deluding themselves.

    The world of a comic strip is much more fragile than most people realize or will admit. Believable characters are hard to develop and easy to destroy. When a cartoonist licenses his characters, his voice is co-opted by the business concerns of toy makers, television producers, and advertisers. The cartoonist's job is no longer to be an original thinker; his job is to keep his characters profitable. The characters become "celebrities", endorsing companies and products, avoiding controversy, and saying whatever someone will pay the to say. At that point, the strip has no soul. With its integrity gone, a strip loses its deeper significance.

    My strip is about private realities, the magic of imagination, and the specialness of certain friendships. Who would believe in the innocence of a little kid and his tiger if they cashed in on their popularity to sell overpriced knickknacks that nobody needs? Who would trust the honesty of the strip's observations when the characters are hired out as advertising hucksters? If I were to undermine my own characters like this, I would have taken the rare privilege of being paid to express my own ideas and given it up to be an ordinary salesman and a hired illustrator. I would have sold out my own creation. I have no use for that kind of cartooning.

Gibson laments that the works of A.A. Milne, Rudyard Kipling and Dr. Seuss have been tarnished by the subsequent adaptation of their literary genius. In the end, however, authors have no one to blame but themselves if their true message is lost or they feel their work is not treated fairly by those who adapt it. While the pressures to cross-market are great and the monetary incentives perhaps too enticing to turn down, at least one creator has resisted the urge, and in so doing, preserved the message and integrity of the comic strip loved by so many.

Gay Marriage and Official Response: In contrast with the approach taken by San Francisco mayor Gavin Newsom, I believe the response of New York Attorney General Eliot Spitzer to the gay marriage debate is appropriate for a government official. At a press conference on Wednesday, Spitzer said they while he personally supports gay marriage, he could find no justification for it under state law. As a result, he said, the power is either in the legislature to change the law or the courts to find it unconstitutional. At least one New York mayor, Jason West of New Paltz, faces charges for issuing illegal marriage licenses.

This is absolutely the proper course of action. Civil disobedience can play a valuable role in society for highlighting societal injustices and promoting change. These officials, however, have a duty to enforce the laws as voted on by the legislatures and upheld by the courts. I can only imagine the public outrage if Newsom or West went out to the steps of city hall and began snorting cocaine, saying they believed drug laws to be improper and unconstitutional. If mayors can begin selectively enforcing laws, the democratic process has no meaning whatsoever.

Personally, I have no problem with same-sex marriage. I do not think it harms society and I see no reason why homosexual couples cannot share the same bonds as heterosexual ones. But, I am but one person, and this is not my decision to make. As of now, forty-nine states prohibit gay marriage and the one that does not is considering a constitutional amendment to outlaw or limit it. In order for gay marriage to be accepted by society, people must be educated and convinced, not dictated to and labeled as bigots. This education can, and should, include acts of protest and civil disobedience, but these acts should be limited to private parties, not those trusted to uphold the law.

Wednesday, March 03, 2004
Edwards Out; Republicans Relieved: That big sigh of relief you heard last night came from 1600 Pennsylvania Avenue, when the more moderate John Edwards was defeated once and for all, and the Democratic Party all but gave its nomination to John Kerry. Enough has been written on this that I don't need to go into great detail, but I just don't understand what the Democrats are thinking. Actually, I know what the hard-liners are thinking ("Beat Bush") but I do not understand how they think nominating Kerry will get them there. Yes, Kerry has tremendous support from liberal Democrats. But liberal Democrats would vote for the Big Bird (who made a nice cameo on tonight's West Wing), so long as the Bird was up against the Bush. The key vote, as it was in the last election, will be the moderates, and the fact remains that Edwards polled better than Kerry among these voters.

I consider myself to be a moderate- I lean slightly left on issues such as abortion and tax policy, and I am slightly more conservative on foreign policy and the military. Overall, I believe in the Constitution and the system-- whoever gets elected still has to play by the rules and those rules have kept this country the smoothest-running and most powerful in the world for over a century. As someone who does not affiliate himself with either party, I look for the best candidate in each race, Republican or Democrat. And while I like John Edwards and probably would have voted for him, I just do not trust John Kerry.

While Edwards ran on a positive platform -- this is what I am going to do for America, Kerry followed many others in running on an "anti-Bush" platform. Kerry's continual flip-flopping on issues only serves to intensify my misgivings about him. One day, he is lambasting Bush for going into Iraq without UN support. The next, he is criticizing the President for waiting to go into Haiti, when the delay was to gather an international coalition. He supported the war in Iraq, then voted against funding. He wrote two letters, one opposing the first Gulf War and one supporting it, within a nine day period in 1991. He voted for the Patriot Act, and then criticized it when that became popular. I may not agree with all of Bush's policies, but at least I know where he stands and that he believes in the stances he takes.

Moreover, a moderate like myself is not likely to vote for the man recently judged the most liberal senator by the National Journal, which is as close to a non-partisan publication as you can get. I want a President that agrees with a majority of the country, and I cannot believe that you can do this and be the most liberal senator. Kerry will dispute this label, and it may not be correct, but the fact that he was even in the running is very telling.

Thus, while Kerry may be the best candidate for the Democrats who vote in primaries and participate in caucuses, is he the best candidate for America? For at least one moderate, the answer is no, and I have to believe that I am not alone.

Tuesday, March 02, 2004
If This Isn't Ironic... Dick Clark Productions Sued for Age Discrimination

The Odd One Out: One of my favorite Seinfeld quotes is, "Every group has someone that they all make fun of..." (view the episode here). I think when the states get together, they must snicker behind Vermont's back. Now, I have a very good friend from Vermont, but some of the happenings in that state leave me wondering. First, there is a movement from the residents of Killington to secede and join New Hampshire. I do not know the relevant laws behind this, but I would have to imagine it will be difficult to get both state legislatures to agree to that one.

And tonight, the voters have defied convention and good sense and overwhelmingly supported a candidate for the Democratic nomination that is no longer in the race. Oh well, at least they have good maple syrup.

Monday, March 01, 2004
College Football Play-off?: In the wake of BCS reforms, I have a proposal for a college football play-off system over on the Sports Law Blog that I think would work very well. I would be interested to hear any thoughts on it.

Acting Outside the Law?: Glenn Reynolds links to a good post about the portrayal of the military in movies.

I recommend reading down to the comments.

First, if you've never read 10 U.S.C. 771 and 18 U.S.C. 702 , prohibiting civilians from wearing uniforms, or parts thereof, it's worth a look.

Barry Jacobs suggests that this statute can't be enforced with regard to Hollywood; interestingly, there's a case that's more-or-less on point. Schacht v. United States concerned a stage actor's use of a uniform in an antiwar performance during the 1960s. In dicta, Schacht stated that ยง702, the general prohibition on uniform-wearing without authority, is constitutional. The Court then focused on an old version of 10 USC 772, which imposed a content-based speech restriction allowing service members to wear uniforms in artistic productions "if the portrayal does not tend to discredit that armed force." The Court found that clause unconstitutional, overturning his conviction.

Today, the Court would recognize the portrayal of the military by Hollywood as part of a traditionally protected genre, and apply the expressive conduct test developed in Texas v. Johnson, Clark v. CCNV, and O'Brien.

It seems to me that the uniform statute is content-neutral, as it clearly applies whether or not the conduct is expressive and whether or not the portrayal is favorable to the military or unfavorable. I suspect there isn't even an illicit purpose in this statute. So then the question is whether the statute serves a significant government interest, and doesn't burden a substantial amount of conduct that doesn't implicate the interest.

I'm not sure what interest the government would assert here. If the interest is only to prevent impersonators from infiltrating military bases, then I'm not sure it's sufficiently narrowly drawn (although Clark permitted a statute that was not particularly narrowly drawn). And could the government come up with a more creative interest, something analogous to Buckley like "protecting public confidence in the Posse Comitatus Act?" Maybe that's not the best example, without a prohibition on members of the military wearing their uniforms in public. Hmm.

With fake uniforms sold in costume shops for Halloween parties, any attempt to enforce this law probably won't pass the smell test.

But given Hollywood's silliness, if this restriction cannot be constitutionally enforced, maybe we should include a uniform-wearing clause in the flag-burning amendment.

Pacifica and Indecency: In a few minutes, Greg and I will be heading off the our Communications Law class. On today's syllabus is FCC v. Pacifica, the famous free-speech case about the George Carlin monologue.

Skimming through today's Wall Street Journal highlights the continued importance of indecency restraints in broadcasting (the link is to a syndicated version of the article, for those without access).

According to Andy Pasztor of the Journal, the recent crackdown on oft-indecent broadcasters such as Howard Stern and the "Love Sponge" has energized satellite-radio broadcasters' efforts to distinguish themselves from traditional radio providers.

Just another example of the oft-cited weaknesses of Pacifica. This actually highlights my favorite: the opinion itself in footnote 28 suggests that adults should seek out other means of accessing the indecent material that broadcast restrictions keep off the airwaves. But the way that people are most likely to do this is to subcribe to cable TV or, now, satellite radio: alternative channels that are accessed exactly the same way as the "free media" they replace. With 67.5 million cable TV customers (and 21 million DBS customers), broadcast TV restrictions aren't keeping anyone safe from indecency.

But that isn't why I sat down to write this posting, anyway.

XM may offer "Playboy Radio," and Sirius may have its "Raw Dog," but that isn't what should be drawing people to their services. What makes them worth the investment is their unparalleled selection of excellent music programming -- music that puts the bland, repetitive junk offered by Clear Channel and Infinity stations to shame. I recommend XM 10 (country, with plenty of the Bakersfield sound) XM 101 (reggae), and XM 75 (Latin Jazz). At least give it a listen at Best Buy, or in your next Avis rental car. It's a great way to expand your musical selection. I just wish I was being paid for this promo, or that I at least owned stock in the company!

Sunday, February 29, 2004
I'm likely going to be limited to "quick-hit" posts this first week, as I complete a paper for Volokh himself (Eugene, not Sasha, and not my fellow Oingo-Boingo fan, Juan.

But I thought I'd follow up Greg's post with a quick answer.

No. People did not waste less time before the invention of blogs, or the Internet. Back when I was a working stiff (as a management consultant), I spent many long days working at client sites. This was in the days when wireless hot-spots were almost unheard-of, and many of our clients had digital phone systems that prevented the use of our modems.

I was wondering about this same question. (Full disclosure: I was also considering law school and curious about whether the time-reporting requirements of law firms would drive me insane). So I kept a detailed time log for several weeks to compare my efficiency on-site, in my hotel room, on airplane flights, and in my office. Surprisingly, I discovered that I was no more productive at the client site than back in my Internet-friendly office in Lexington.

As those who took the Harvard Law Review competition with me know, I also discovered that I was significantly more productive on airplanes than anywhere else (I'll tell that story at another time, as my brief break is rapidly drawing to a close).

My theory is that when we're engaged in activities that require the application of mental focus, as opposed to physical labor, we require periodic mental diversions. Cf. people who claim to get their best ideas while driving to work, or standing in the shower. As a result, before there was the Internet, people behaved much like our consultants did on site. Coffee breaks and water-cooler conversation filled the time. People brought the morning newspaper into the office, and turned to the box scores for a five-minute diversion. Others dropped in to socialize in other people's offices. The three-martini lunch was not uncommon.

In discussing my results with one of the partners, he pointed out another example. The days before the Internet were also the days before cubicles. Back then, when people needed to take a mental break, they could gaze outside, beyond their window. Today, we gaze out beyond our LAN when we need a mental break.

Productivity and the Internet: In starting out a new blog, is there a better place to start than the issue of wasting time on surfing the expanses of the web? I have pondered this question many times over the years, and I think now I will actually take the time to write down some thoughts. In short, did people waste less time before the introduction of the Internet?

The first counter-point to this inquiry is, of course, the great amount of time that the Internet saves. In the ten years since the world wide web entered the mainstream, it has evolved from a tool of diversion to a one-stop shop for almost anything in the world. Users can plan entire vacations, pay bills, buy a car, go to the grocery store and order dinner all without leaving the front of their computer screens. A question that once took an afternoon in the library to answer can now be solved by a fifteen-second Google search. The increased use of blogs and Internet news services means that more people around the world have instant access to breaking stories and the writings of some of the greatest minds of this generation. Can you imagine if Mark Twain or Martin Luther King could have had blogs?

At the same time, though, does the time spent reading blogs, scanning headlines and searching for entertaining, yet off-topic websites offset any resulting gains in productivity? I often ask myself, "How did people waste time at work before the Internet?" Now, there are Internet games, blogs,, chat rooms, fan websites and literally thousands of other possibilities, all at the bored click of a button. Tired of doing that legal research? Read Volokh. Can't get anywhere on that financial statement? Check out Slate. Just can't wait to settle that argument on who won the 1963 World Series? Google, Yahoo and a host of other search engines await.

How many work-hours a year are spent on non-work, Internet-related activities? As a student, I often find myself hard at work reading when I think- "Wonder what's on Drudge? I'll just take a quick peek." And, of course, that peek turns into a thirty-minute link-fest as I travel the information superhighway from story to story. Am I learning a great deal? Yes. But am I wasting time? Most definitely. Now, perhaps this simply represents a lack of self-control, but somehow I doubt that I am the only person affected with such an addiction. The rapid rise of blogging, complete with the feature on Blogger detailing "How Not to Get Fired Because of Your Blog," lead me to believe that I would have many friends at a self-help session. And if this is the case, how many total work hours does our country lose each year to surfing the world wide web?

This are definitely not questions that I am qualified to answer, but I would be fascinated to learn whether the time saved by the Internet is outweighed by the time it costs in aimless searching. Would employers be bettered served by eliminating Internet access at workstations? Could the work-week be shortened to 35 hours if we all stopped pointing and clicking? Perhaps, as society, we just need to accept the fact that in order for individuals to take advantage of the knowledge provided free-of-charge by the Mark Twains and Martin Luther Kings of this day, knowledge that can only serve to make us all better people, every hour of work must be accompanied by a little bit of web exploration.

Other transplants to Boston may not know that there was a time when Red Sox fans went to Fenway Park and rooted for the Yanks... the Boston Yanks, that is. The Yanks were an NFL team in the 1940s, before the NFL and the All-America Football Conference (where the Browns and the original Baltimore Colts formed) merged.

Of course, the Yanks did exactly what you would expect: in 1950, they moved to New York.

The Boston Globe has given the Yanks two February mentions, here, and here. Given that the Pats won the Super Bowl just last month, you wouldn't think they'd be spending so much time looking at past football ignominies. Just more evidence that Bostonians are obsessed with the Yanks.