Civil Disobedience Revisited
Essay Posted April 10, 2007 by James E. Nelson
In last week’s essay I made the case for civil disobedience against the copy protection scheme called Digital Rights Management (DRM), a system of copy protections whose intent contravenes the spirit of American copyright law as it has been understood since the founding of the country. It has become clear since writing that essay that two more things that have to do with civil disobedience theory need to be said about my proposal.
First, if you’re willing to do the civil disobedience you need to be willing to do the time or pay the fine if the authorities come after you. Much civil disobedience is, by nature, against laws on the books. If you break laws for a higher cause you have to be willing to suffer the consequences. In the 60s many upstanding citizens considered Martin Luther King a low-life criminal—little more than a well dressed thug—because he was willing to break the law. Society at large has rehabilitated his image, but it doesn’t change the fact that he was a criminal in the eyes of the state. That’s the price of civil disobedience; it has consequences, sometimes severe, and the perpetrator must have their eyes set firmly on the greater good if they are to be effective.
Second, subverting DRM merely so you don’t have to pay for the music is not civil disobedience, it’s being a social parasite. One can’t download the music without, in turn, finding a way to support the artists who created the music. Whether it’s pushing the PayPal™ button on their home page or buying the t-shirt, civil disobedience is about transferring a fair portion of the profit from the music companies who have pirated nearly all that money to the creator of the art.
Civil Disobedience is not a blunt object but a fine instrument in a free people’s arsenal of “political speech” (if you will allow me to use that term in an overly broad manner as our Supreme Court chooses to do). It is a subtle means of encouraging people in power, who have no interest in talking, to talk. It’s a way for people who are generally out of the loop to convince people in the loop to reconsider laws and customs which are fundamentally unfair or unjust. The theorists and practitioners of civil disobedience therefore observe that the one leading the charge cannot be angry, vindictive, or out for blood. Authentic civil disobedience requires a deft hand that can only come from the calculating eye. It is not a hot-blooded and rash act, but a coldly calculated risk.
In contrast to that, consider Cindy Sheehan, who turned her motherly sorrow for the loss of her son, the heroic and honorable Casey Sheehan, into an evil and vicious hatred for the system. At the very beginning her goal appeared to be noble: force the administration to the table to talk (which would be a classic civil disobedience goal). But getting a taste of the media spot light, her sorrow was transmogrified into a lust for simply embarrassing the administration and putting her bitter anger into the spotlight. The movement was transformed from civil disobedience into an angry and destructive force that will seemingly support any issue that might conceivably undermine the current administration.
It also must be said that civil disobedience is a tool of the people and not meant for those in power. It is an act that must come from outside of the halls of power, not from within. My brother-in-law and/or sister (ah, the confusion created when spouses share email addresses) forwarded an op ed piece from the April 6 Wall Street Journal by Robert F. Turner entitled “Illegal Diplomacy; Did Nancy Pelosi Commit a Felony When She Went to Syria?” Although Turner never considers Pelosi’s actions in terms of civil disobedience, his article raises the issue by inference. There is an old, but still important law called the Logan Act (passed at the turn of the 19th century). Quoting Turner, “The Logan Act makes it a felony and provides for a prison sentence of up to three years for any American, ‘without authority of the United States,’ to communicate with a foreign government in an effort to influence that government's behavior on any ‘disputes or controversies with the United States.’ Some background on this statute helps us to understand why Ms. Pelosi may be in serious trouble.” The Logan Act is not merely a bit of obscure legislation; it has been used, and sometimes aggressively, in our history. What is crystal clear is that the legislative branch is specifically excluded from “having the proper authority” required by the Logan Act, and so Nancy Pelosi’s junket would be an infraction of the act.
Certain Libertarians have praised Pelosi’s little plane ride as an ingenious bit of civil disobedience that, while accomplishing little but spending money (which Pelosi is quite good at), did no real harm. According to them it shines the spotlight on the Administration’s foreign policy deficits. But civil disobedience theorists, such as Alinski, point out that when people who have real power (such as the Speaker of the House) use tactics that could be classified as civil disobedience, they undercut the real power they have. It is counterproductive both in terms of power analysis and political process. While civil disobedience can give voice to disenfranchised citizens who have no other recourse, similar actions carried out by duly elected public officials tends to undermine the system of democracy itself and can push us in the direction of a most frightening sort of anarchy where might “getting away with it” makes right.
Civil disobedience has always, and will always be, on the fringe of good citizenship. Typically, if the perpetrators effect real change, history praises them as forward thinking leaders; if their cause fails, the perpetrators are viewed as criminals. Were the “sons of liberty” who tossed tea into Boston Harbor patriots or criminals? Both, depending upon which side of the pond one considers the question. Similarly, if two centuries of copyright law gets turned on its head and DRM becomes the new norm in the thinking of the people as well as the tradition of jurisprudence, those who fought current DRM standards by downloading illegal, DRM-free music, will be viewed by history as petty thieves. On the other hand, if this over-reaching strangle hold is ultimately rejected in America’s courts, the civil disobedience minded music down-loaders will be viewed as protectors of our freedoms.
America regularly goes through periods of time when outside forces threaten our internal stability. Historically, each time that has happened, the Federal Government has clamped down on internal freedom and there has been a wee bit of a constitutional crisis related to the liberties guaranteed by the Founding Fathers. The FBI, CIA, and most recently, Homeland Security were founded during one of those difficult periods. Ultimately, the freedoms that we do have were protected, not so much by the courts pushing back on the Administration, but by the people pushing back on the government and its overextended laws. In each of those time periods, the hand of government control stretched beyond the specific threat presenting itself into other areas of citizen life. Only because citizens were willing to stand up to an overextended government, did the government finally back off. We are once again in one of those periods of time. For the sake of the liberty of our grandchildren and great-grandchildren, we have a responsibility to push back, and often that requires a wee bit of civil disobedience.
Copyright © 2007 James E. Nelson (Just Another Jim). All Rights Reserved.
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