Occam’s razor cuts deep in North Carolina: Persuasion and Amendment One

Contrary to popular belief, lawyers don’t always get out of jury duty. Last fall, after spending three days on a criminal trial, I finally figured out why the Assistant District Attorney didn’t even consider excusing me. His closing argument included a legal theory that he wanted the jury to apply to our case. This theory allowed us to make assumptions based on circumstantial evidence rather than requiring the usual proof beyond a reasonable doubt. Having me (and another attorney) on the panel ensured that there were at least two people among those deliberating who accepted – and would apply – the idea as needed.

Even so, as I sat in the jury room, I had a hard time grappling with the fact that someone’s fate depended on a shortcut.

Life doesn't take place in a jury room. Having weathered the campaigns for and against Amendment One, North Carolinians need no reminding that most of life’s deliberations do not take place behind closed doors – nor amid people with a range of backgrounds and worldviews, with cell phones and social media turned off, until we reach unanimity.

As busy citizens, we don’t have time for that. Nor does it sound like a very pleasant way to make tough decisions. (If it did, we would line up for jury duty rather than being summoned.) And so we struggle alone with unfamiliar and complex ideas.  We absorb information on the fly. We look for shortcuts.

When arguments challenge our beliefs, we find it easier to ignore, eliminate, or subconsciously devalue the opposition. We seek comfort in those who share our existing attitudes. (By the way, it took Leon Festinger two decades to develop Cognitive Dissonance Theory, a complex psychological premise that I just attempted to simplify into two dozen words.)

In the debate about the constitutional amendment on Tuesday’s ballot, we were aided in this process by campaign slogans and games of semantics. On the one side, "Holy Matrimony" and VoteforMarriageNC.com. On the other, "Amendment One Harms Children" and ProtectNCFamilies.org. These make for better bumper stickers, yard signs, t-shirts and URLs than “I support/oppose marriage between one man and one woman being the only valid and recognized domestic legal union in this State.”

But campaigns – political, ideological and otherwise – don’t deal in complexity. People who design them understand that every word they say / publish / post must pass through myriad filters of personal experience. Therefore, the fewer words the better. Instead of giving audiences all the information (even though that is what we claim to want), campaigns establish associations in the audience’s minds that are short-cut dependent, e.g., "Marriage is under attack" or "Domestic violence protections will disappear." Then as they develop, they build on that association, inviting the audience to participate – in material or virtual ways – by tying identity to outcome.

The goal of a campaign is to make us feel as if we are no longer struggling alone.

And we, as audience members with sensitive psyches averse to conflict, join willingly, closing ourselves off to the other side. In the end, we persuade ourselves as much as we are persuaded.

This process also transforms the world into us vs. them. Those on our side, or those attempting to defeat us. FOR the Marriage Amendment, or AGAINST Amendment One. Victorious, or devastated.

And that’s a problem, because as one Queens colleague tells first-year students in her Modern Citizenship class, “We do not live in an either-or world. We live in an and-also world.” No matter what the Republican and Democratic National Committees would have us believe, there are more than two sides to every debate.

But we have to look for the third, fourth, fifth point of view. It isn’t handed to us, and it’s never simple.

Reporter and media critic Brooke Gladstone recommends that audiences look beyond just conservative and liberal when identifying predisposition or prejudice. She writes this of what she calls status quo bias: “Human beings tend to oppose change unless the benefits are guaranteed to be huge – and the risks miniscule.”

The campaign that led to the passing of Amendment One on May 8 demonstrated how difficult it is to guarantee the unknown. The appeal of an unfamiliar and complex future pales in comparison to that of the effortless sound bite. We aren’t programmed to accept anything more without a struggle.

In communication – as in the courtroom – the side with the simplest story always has the advantage.

And now, North Carolinians must grapple with the fact that 222,000 families' fates are dependent on this legal shortcut.  As interconnected citizens, we can no longer afford to avoid the time and effort required for jury-like deliberations – amid people with a range of backgrounds and world views, with cell phones and social media turned off, until we reach a place of compromise, overcoming differences, recognizing both the risks and the benefits of change.

The Scoop on SOPA*

This piece was also published as Reflections on the SOPA Opera by Queens University of Charlotte (1/30/12).

Wikipedia was dark.  Google redacted its iconic homepage doodle.  And I was watching for rain.  Well, I was listening to “Watching for Rain,” my friend Anne Trenning’s 2009 album.  It seemed the proper background music as I pondered Anne's latest Facebook status on Wednesday, January 18, 2012:

‎"Illegally downloading music is no different than going to Starbucks and buying a coffee, and then stealing a CD when you leave."

Anne was making a point about intellectual property rights.  As a composer and pianist, she wants to receive some type of payment whenever people download, buy, sell, or otherwise enjoy her work.

Other parties much larger and wealthier than Anne, such as the Recording Industry Association of America (RIAA) and the Motion Pictures Association of America (MPAA) want the same thing.  Within the United States, these artists and producers have the Digital Millennium Copyright Act to protect their interests.  But they are concerned about rogue international websites, virtual pirates outside the reach of U.S. copyright law whose actions “are harmful to consumers and threaten American jobs.”

So these parties asked Congress for help.  And by asked, I mean gave money to those in a position to legislate for their cause, such as House Judiciary Committee Chair Lamar Smith (R-TX), who received more campaign contributions from television/movies/music industries over the last two years than any other interest group.

Help came in the form of H.R. 3261, otherwise known as the Stop Online Piracy Act, or SOPA.  Originally introduced on October 26, 2011, by Representative Smith and twelve co-sponsors, SOPA went through a hearing and a “mark-up period” late last year.  It’s partner legislation in the Senate, the Protect Intellectual Property Act (S. 968 or PIPA – pronounced like Kate Middleton’s paparazzily challenged sister), was scheduled for a vote on January 24.

SOPA is now best known as the bill that sparked a World Wide Wail.  On that Wednesday, Wikipedia shuttered their English language site – a move that the Wall Street Journal reported could block 10 million viewers. Google, BoingBoing, Reddit, Mozilla, Wordpress, and Twitpic also participated in the digital protest, which brings me back to my friend’s Facebook status.

SOPA’s creators say they designed the act to stop illegal activity – the shoplifting of CDs in Anne’s analogy.  The protestors, on the other hand, argue that the bill goes too far.  It allows music labels to demand that Starbucks barricade the door, suppliers cease deliveries (no more Cranberry Bliss^® bars!), and others remove the coffee shop from the white pages, the Yellow Pages, Yelp, Foursquare, and Google maps.  All of this without proof of any actual thievery.

Unlike PIPA, which focuses on advertisers and financial conduits like PayPal that support rogue sites, SOPA goes after Internet service providers.  ISPs that receive a court order must take action to prevent access to a targeted site within five days. The goal is to make the infringer vanish altogether.  However, tech companies argue, this can only occur at great cost to established companies and perhaps prohibitive cost to smaller ones.

Aside from cost, the main questions that anti-SOPA protestors want pro-SOPA lawmakers to address are those of collateral damage:  law-abiding websites, privacy, security, and free expression may all be at risk with this Act.

Under SOPA, ISPs may cut off websites believed to violate copyright without a court order – online blacklisting.  SOPA could also demand Internet service providers block specific URLs suspected of piracy, which experts say requires them “to intercept and analyze customers' Web traffic.”  And, since SOPA targets any Website that offers goods or services to users within the U.S., there is a good chance that it will sweep up expression beyond just “incidental speech” (which, as MPAA’s attorney, the venerated Floyd Abrams, points out, is OK to block).  For example, a whistleblower site that posts internal corporate documents could easily land on the blacklist.  Chilling.

Anne was in the minority among my Facebook friends on Wednesday.  Far more posted a link to Google’s anti-SOPA petition. But this debate is more than just musicians vs. techies.  It isn’t Los Angeles vs. Silicon Valley or even lobbyists vs. the 99%.  After all computer/Internet companies rank fifth among interest groups that donate to Lamar Smith.

The SOPA protests are instead highlight the difference between those holding onto the past vs. those embracing the present, if I may be so abstract.  The MPAA is reacting in the same way they did in 1982 when threatened by “a thing called the video cassette recorder and its necessary companion called the blank tape.”  When lawmakers make the mistake of trying to protect a minority that uses outdated distribution models – particularly one that is desperate to protect itself – at the expense of a more technologically progressive and democratically motivated community – and the Internet is a community – the result is 4.5 million signatures on Google’s petition and 300,000 citizens emailing or calling their representatives in one day.

The protest worked.  On Friday, January 20, 2012, Representative Smith tabled the bill with this statement:

“I have heard from the critics and I take seriously their concerns regarding proposed legislation to address the problem of online piracy. It is clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products.”

The protestors won... for that week anyway.

And now the wired, world-is-flat, click-here community must prove it has an attention span that lasts beyond the present moment and into tomorrow.  If citizens value the open Web, as well as privacy, security, and freedom of expression, and if they determine that Congress is threatening those values, then the community must continue to care, and take action, even now that Wikipedia is live once again.

It’s something to think about every time you walk through the door of a Starbucks.

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*with apologies to the Society of Publishers in Asia, who made page 1 of the Google search before 1/18/12