Fox, Dominion and the lessons of the American legal system

 My explanation of the legal system is as follows.  It is a Turing machine.  It is an attempt to approximate, through mechanical rules, the wisdom and justice of Solomon, or pick your icon.  In an ideal world, there would be a wise and true philosopher-king, to whose court you would take your dispute.  The wise and true philosopher-king would listen impartially, and come to the fairest ruling possible.  You know that the history of "court" traces back to the court of the king, right?  In the absence of any such avatar of fairness and impartiality, we have constructed a Turing machine of rules.  Rule, after rule, after rule, and like any coding procedure, the code that has resulted from this ongoing process is a kludge of patches because code is mindless.  Code is stupid.  Code is not merely impartial, but impartial to intent.  Impartial to a fault.  Code has no idea what you meant to write, which is why you never get it right the first time.  So you code, and you code, and you code, and if you are very lucky or good or both, eventually you get code that does something like what you want it to do.  With updates forthcoming to fix the bugs.  Our legal system is that, to approximate Solomon.  It does a terrible job.

Fox News lies.  A lot.  Sanctimonious lefties can spend this week cheering and telling themselves stories about how much more honest their own media bubbles are, but I would recommend that they spend some time with Peter Boghossian's video series, "All Things Re-Considered," excoriating NPR for their gross dishonesty.  Yes, left-wing news sources lie a lot too.  Fox, however, made the critical mistake of lying in a way that created an opening for a defamation suit.  When NPR lies about "dinosaur emojis" (it is roughly as stupid a story as it sounds), nobody can plausibly sue them.  When Fox lies about a product being sold by a firm, and those lies have material consequences for the firm's business, you enter another territory.

Lies are immoral.  Will I state, unequivocally, that a lie is always immoral, or are there circumstances in which a lie can be kinder than the truth, and thus morally defensible?  If you are clever, you can probably trap me, since I am not clever.  I am, however, simple.  Don't lie.  I suppose I have come to terms with deontology over consequentialism.  Yet not everything that is immoral is, or can be a matter of law.  We are constructing a Turing machine, and given the limitations of our Turing machine-- which we should all acknowledge-- we must limit its jurisdiction.  It is not a machine to enforce morality, but merely to establish boundaries, and yes, that means that Turing-Solomon must give a pass to plenty of immorality.  Including lies.  Including lies that lie within the set of indisputably immoral lies.

Would you like Turing-Solomon to have too much power, or too little in this context?  Consider the implications.  An overly powerful Turing-Solomon will make its mechanical errors and unjust punishments will result.  Punishments of speech.  An insufficiently powerful Turing-Solomon will allow lies to proliferate.  That sucks too.

I suppose the answer has something to do with the code, but the code, as always, is a kludge.  Why is it such a kludge?  It is written by lawyers.  Lawyers, being exactly the people who benefit from the complexity of the code increasing over time because that means you need a lawyer to engage with the process.  And in fact, you need more billable hours, over time.  When the code increases in complexity over time, they are giving themselves a pay raise.  They aren't solving a problem, they're giving themselves a pay raise.

Isn't that like the tax code?  Not entirely.  The tax code tends to increase in complexity over time, but each additional provision is usually a tax credit or benefit, and you need an accountant to help you figure out how to get more money out of an exploitable system, so you benefit.  Then, every few decades, there is a tax reform, and the cycle begins anew.

Do you benefit from the complexity of tort law?  No.  Who does?

Well, let's figure that out.

Obviously, lawyers benefit.  The complexity of the tax code creates the need for lawyers who are skilled in the game of law-- the game of exploiting the rules on behalf of their clients.  This is, of course, quite different from reaching a conclusion that is the conclusion that Solomon would have reached, or designing Turing-Solomon.  Rather, lawyers design a set of rules in which the complexity itself turns the whole thing into trial by combat in which your champion is a mercenary trained in the exploitation of rules designed to be complex for the sake of the pay of the mercenaries, who are the very people who designed those rules.  Gee... I wonder why the rules are so Rube Goldberg-ian.

Yet it is worse than that.  Regardless of how skilled your champion may be, the process is intrinsically costly and time-consuming, and designed around money.  Why?  Mercenary-champions.  Not Turing-Solomon, but mercenary-champions.  So it must be designed around the payoff.

A lawsuit is costly.  A injustice may have been done to you.  Can Turing-Solomon help?  Only if a financial cost has been incurred.  We shall consider the implications of this.  Yet even so, what is the cost of the damage, what is the cost of seeking remuneration, and what is the likelihood of success?  All of these must be considered, and they create the following problem.  It is the short-stack problem.  In poker, there may come a point at which you have lost so many chips that you're just toast.  Why?  If you are facing someone with a lot of chips, he can just raise and force you either to call on a bad hand (and probably lose), or keep folding and losing the ante.  Either way, you're fucked.  Tort law works that way.  It is expensive, and the wealthier party can dare you.  You may be right, but right doesn't count for all that much when you have the short stack.  So, there is someone else who benefits from the complexity of the rules.  Whoever has the most chips.

What does all of this mean?  It means that Turing-Solomon doesn't work very well.  Turing-Solomon is biased towards letting assholes get away with it.

Fox didn't get away with it.  Dominion had money on the line, and enough in reserve to pursue the case.  Discovery showed just how brazenly dishonest Fox was.  In this case, Turing-Solomon worked, despite its bias towards the defendant.  Let us consider some of the many qualms about Turing-Solomon.

It took a for-profit company, with money on the line, to challenge Fox.  Well, yes.  Defamation law is quite narrow, and it is so for a reason.  Think through what would happen if Turing-Solomon, with all of the mechanical coding glitches it has, were to get its grubby, oily cogs into the regulation of truth and falsehood more broadly?  Some time back, I implored you to read Ben Winters's Golden State, about a future dystopia in which all lies are illegal.  Do you really want to go there, even presuming Turing-Solomon can do so?  And what about the inevitable errors Turing-Solomon would make?  Yes, Turing-Solomon's jurisdiction in the realm of truth and falsehood is limited to that which has clear monetary implications.  It must be so.  The law cannot be universal morality.  It can only be a set of guardrails.

That means Fox can still tell all sorts of lies.  Yes.  Yes, they can.  Lying is legal.  Lying is constitutional.  It must be so, unless we give Turing-Solomon the power to determine truth.  No, I'm not going postmodern on you.  There is truth, and there is falsehood.  I simply reject the notion that government can be given the power to assert what is true, what is false, and who can be punished for asserting falsehoods.  If you meet yourself a fuckin' liar, my advice to you is as follows.  First, never believe anything that fuckin' liar says.  Don't vote for that fuckin' liar, and to the degree that you can, remove that fuckin' liar from your life.  Depending on the role the fuckin' liar has in your life, that will be more or less possible, but that is my advice.  Do you really want the government involved, though?  What could possibly go wrong?

Yes, Fox will lie.  NPR lies, MSNBC lies, lies abound.  It is, alas, your responsibility to consume information in a responsible manner.  The government cannot make you, nor can I.

It is easy to look at the failures of Turing-Solomon, to look at the Dominion settlement as a depressingly rare victory and ask, why can we not have more victories for truth?  Yet I will leave you this morning with a question.  What is your alternative?  Consider not some idealized, utopian vision you may have, but real alternatives.  Real systems that have been devised by real people.  Real sets of real rules that have been tested in this place called the real world.

Fox told lies, yet the lies were absurd.  I will assert that the underlying problem is basic human credulity, and the desire to believe comforting lies.  You are subject to this problem.  Until you manage your own cognitive processes, make minimal demands of the government.

Here's something a little different.  Chimp Spanner, "Bad Code," from At The Dream's Edge.