My name is danah boyd and I'm a Principal Researcher at Microsoft Research and the founder/president of Data & Society. Buzzwords in my world include: privacy, context, youth culture, social media, big data. I use this blog to express random thoughts about whatever I'm thinking.

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judicial theatre

I went to court to support a friend. I’ve been to court before, but only for easy things like changing my name, dealing with parking tickets, etc. In this case, there were two sides with adamantly opposing views about the world. And i was on one side.

The entire event was high drama, but not in that made-for-TV style. It was far more painful than that. For starters, everyone mumbled, stumbled, etc. It wasn’t scripted. People didn’t know how to project their voices and the inane repetitive questions were clearly for a forgetting mind, not to drive the witnesses bonkers. While the federal lawyer signaled to the witness using baseball codes (1-2-3 on his chest), few other body motions were scripted and the sides played out their cultural training. As an ethnographer, it was brutally painful to watch the body performance of each side show their values more deeply than anything that came out of their mouths.

The judge gave me that warm and fuzzy feeling. He clearly sympathized with Barlow, but he was also dealing with conflicted feelings about the recent laws that have come down – his sarcastic tone signaled that he felt very burdened by what was happening, but his judicial manner also made it clear that he felt it was his responsibility to follow the letter of the law, even those to which he was opposed.

The attorneys were caricatures of themselves. The federal attorneys had a hard-edged, no-smile Yale/Harvard rigidity that was stunningly performed. Kafka would have been proud. Milgram at its best. Barlow’s attorney was most distinctly an ACLU type with long hair, funky glasses, curved shoulders and a revolutionary demeanor that signaled that he believed in the cause. The Cause. It was about The Cause. And The Cause was to be fought out in jargon in front of the press by two sides with opposing views. Was God on both their sides? But believing in The Cause was not enough… it was clearly a battle of performances.

The judge was clearly rattled by the situation at hand. He walked in, talked about having received phone calls from CNN, got the papers about the case two hours prior and was like what the hell is going on in my courtroom today. He was clearly not prepared to be dealing with The Cause.

The federal folks were good, really really good. Their snotty-nosed attitude made the much more laid-back judge resent them, but they played the rules to perfection, fought it out like they had been taught on debate team. It was a hard thing to watch, but they were good really good. The defense attorney annoyed the judge – not through arrogance but though a clear lack of sculpted performance. The judge pitied the defense attorney, but he still grated on him.

One question comes to mind: are the master’s tools needed to tear down the master’s house? Or is the fantasy of a destroyed house purely impossible? Because clearly, the moral highground is not the appropriate approach. This is a battle that values performance, wit, speed and memory… and performance is more key than anything.

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14 comments to judicial theatre

  • Julia

    I have been following since I first read Barlow’s post. What was the outcome?

  • stef

    I think they threw the case to take it to a higher court.

    I really think they are aiming at the supreme court…

    this post is kind of trippy…ketamine, who uses ketamine of all things…maybe for severe pain.

  • You know, wandering through a security checkpoint with forbidden substances on your person or in your bags is just *not* bright. I can’t say that I feel much sympathy for Barlow – he did something colossally *silly*, and should expect “the masters” to pay him back in kind.

    Using the rhetorical snark about “tearing down the Master’s house with the Master’s tools” to defend such idiotic behavior does a real disservice to other areas in which such an analogy is more appropriate.

  • Honestly, Elijah, this court case is not about the substance part at all – it is about the right to search for anything at any time. My concern and the concern of the people fighting this case has to do with when breaches of privacy are allowed, for what purposes and to what extent.

  • Bravo for your assistance to JPB. This is an important case that will only be decided by the Supremes… and I will stop short of punning on those gratefully dead… oh darn… sort of slipped out.

    Seriously, it is only constitutional tests of egregious laws, and even more egregious actions that may be (probably are) beyond the law, that will protect your country from falling even more deeply into becoming a de facto police state. Despite the fact that I am here in the great (soon to be snowy-) white north, and aiding and abetting some would-be soon-to-be-former Americans who are choosing to take up residence in our relatively socialist but civil society, I cannot gloat. Some of our parliamentarians are being sucked into the vortex of “security concerns” and moving towards creating an environment that only Kafka’s mother could love. Only 3 years, 11 months to go…

  • My concern and the concern of the people fighting this case has to do with when breaches of privacy are allowed, for what purposes and to what extent.

    While this sounds like a commendable position at first, on deeper consideration it strikes me as dishonest in some ways.

    I should say that I respect Barlow a great deal, both for his work with the Dead and the EFF, and would love to live in a country where people are able to exercise their right to use psychadelics as they please. Further, the 4th Amendment protections at the heart of the case are spot on and worthy of spirited defense.

    The issue that I see here was alluded to by Seth Schoen when he mentioned the class issues that he sees in the case. Regardless of the outcome of this case, if I were arrested under similar circumstances I wouldn’t have the money necessary to take advantage of a favorable precedent, let alone the time and connections needed to mount a similar defense. Like millions of other Americans, most of whom are far less affluent than I am, I would probably be forced to take a plea bargain regardless of guilt or the circumstances of my arrest.

    Because of this, I’m more inclined to see this case as a spirited defense not of the 4th Amendment, but of the privilege of the affluent and well-connected people at the center of the case. I certainly hope I am wrong, and would welcome any feedback on this point, but without addressing the broader inequalities of the criminal justice system I don’t think it will have a substantive impact on the lives of most Americans, regardless of the outcome.

  • The thing is, danah, your post doesn’t say anything about search and seizure, or about breaches of privacy. It makes a bunch of emotive claims about the rightness or wrongness of JPB having to go to court.

    If you don’t want people to react to pathetic appeals, the best course is to not use those appeals at all. Pathos is dangerous and the antithesis of common sense.

  • Pete – Barlow is doing this precisely because he does have the privilege to fight it, not simply for himself, but for everyone who is at the whim of the TSA.

    Elijah – my post is of the observations i had in the courtroom, not a full explanation of my feelings about the case. I didn’t feel the need to explain those feelings.

  • Barlow 4th Amendment fight update

    Barlow blogs about his day in court trying to defend his 4th Amendment rights. The judge ruled against him, but it’s just the first step in a much longer process. Good luck Barlow. EFF’s staff technologist Seth David Schoen, danah…

  • Barlow’s round 1

    JP Barlow recounts his day in court, on trial for threatening to blow up an airliner with a few grams of pot smuggled in an Ibuprofen bottle. danah weighs in with her own account of the drama….

  • first timer here….great blog and absorbing reads.shall come back

  • Bucky

    “wandering through a security checkpoint with forbidden substances on your person or in your bags is just *not* bright”
    Nor was it bright for a black man not to step out onto the street when a white woman came the other way down the sidewalk. In the 20th century, in America.
    Nor was it bright for a woman to demand the right to vote in the 19th century, in America.
    It’s about being searched without just cause, and it’s about the right to drug yourself, and it’s about the right of smarmy cowards to regulate the world to their exclusive benefit. There were signs in Montana, on the entrances to stores and bars, that said “No Dogs, No Indians”. People died because of those attitudes. Lots of people.
    If a single individual had done those things, while the rest of society looked on appalled, do you think they’d get any respect for anything else they said or did? Without guns and dogs to back them up?
    After decades of concerted effort in schools the dark absurdities of racism no longer get defended publicly, but that’s very recent.
    People under 50 have a hard time understanding that that same attitude of “got what he had coming” used to be applied to those who asserted themselves, who forgot their “place”.
    It’s about rights of all kinds, not just searches – most fundamentally it’s about the rights of lunatics to enforce their idiocies on the rest of the human race.
    Saying something isn’t bright and at the same time objecting to the pathetic appeal puts the whole argument firmly into the logical hands of the legal system. Which probably doesn’t seem absurd to most people. Now.
    Except that the law has been profaned by misuse and is no longer worthy of automatic respect.
    It’s the sanctification of reason, but only as tool and weapon, and there’s madness at its heart, vicious snarling dominance that has nothing to do with reason. Just winning.
    The case itself will be fought on points of law but the battle, and the war, will be won by emotion.

  • Brad

    I have been at the mercy of the judicial system before… I will tell you my story. My girlfriend picked me up from work at Midnight on a Friday night. We headed out and drove directly to our friend’s house a few miles away… there was an SUV behind us, but only from about 5 minutes after we left my place of employment. We arrived at my friend’s house, and the plan was to drop my girlfriend off and go pick another friend of ours up… as my girl and I discussed the best route for me to take (outside the vehicle, and about 3 full minutes after we got out of the car). A few seconds later I saw a police SUV drive by with a spotlight shined up the alley we were parked in. Within a couple seconds, the local cops had turned around, turned on their lights, and pulled in behind us… they were followed by state police, and a man in an unmarked SUV. I told my girl to be calm… there is nothing to worry about, we didn’t do anything. The policeman asked my girlfriend if it was her vehicle… she told them yes. They asked her who was in the vehicle with her… she told them that I was. We asked what was going on. “You’ll find out soon enough.”
    Then the cops gathered together and whispered to each other. One of them approached us and asked my girl what she was doing on Church Street? She replied, “what are you talking about, I haven’t been on Church Street lately.” The officer informed her that the gentleman in the SUV was a local Drug Task Force Officer who was returning home from duty when he noticed a vehicle of the same description as my girlfriend’s driving slowly up and down Church Street… they justified following us, claiming that there had been a wave of theft in the area, and they thought her car was scoping out future robberies. What they neglected to mention was that they never followed her to my place of employment (which should have given me a clear alibi, considering I was still punched in at the time of the alleged suspicious activity. The really ridiculous thing… they claim that I was driving the vehicle when they saw it… I WAS STILL AT WORK! So, they ask my girlfriend if they can search the car, which she refused… so they all began circling the car looking for anything in plain sight. It didn’t take them too long to spot a 40-oz. bottle of beer in the back that we were bringing to the party… unfortunately, even though the bottle was completely full, the seal had cracked, and they used an open container to justify a search and impounding of her car. They arrested her immediately, and I almost flipped out… it took all of my willpower not to knock them out and get her away from it all, but before I could even think, they were searching my pockets, and slapped cuffs on me as well. We were hauled in, booked, and released. I knew that it was all bullshit… after all, by the time the cops arrived on the scene, we weren’t even in our car, which is where they searched to find evidence to arrest us… in addition, it became very apparent what they were searching for immediately, and I can assure you it was not stolen property… perhaps it was the Grateful Dead stickers, or the fact that we are younger adults… whatever it was, it was definitely over-stepping the bounds of a police officer. My girl and I are of limited means, but we were not about to rollover for this one… we contacted a lawyer who took our case… charged us a nice chunk of change as well. When our trial came, I could see the fear in the arresting officer’s eyes… he never thought we would try to defend against it. He figured that since we were young, we wouldn’t have the money or ambition to fight a court case. When he saw our attorney, he quickly lessened the charges from possession of illegal substances, paraphanalia, and open container to a summary offense disorderly conduct. Equivalent to a speeding ticket. We cut our losses and plead guilty… it would have cost more than the fine to continue the case at the next level. This is how they get you… they nail you with some huge offense so that you will be faced with a decision… either take the punishment and don’t get a lawyer, or get a lawyer, and they will drop the charges to something that is less expensive to plead guilty to than to fight. That way they get their money from you either way, whether you are guilty or innocent. I think that what it all comes down to is that 97% of law enforcement officers were dorks in high school… they were picked on, they were excluded, they were mocked, and now they are pissed off. They want to make sure that anyone who is having fun, is popular, is not a total deuschebag, ends up paying for their wasted and pathetic childhood. These are comparably the ones who continue to take High School Football seriously well into their midlife crisises. In layman’s terms, they are losers who want revenge.
    Another factor of law enforcement and government that pisses me off is the fact that they all want to take the easy way out. They would rather bust an underage kid for drinking than actually go out to the site of a robbery and doing some detective work. They would rather take a kids herb than get the guns off the street. They would rather concern themselves with good kids having fun instead of evil people causing serious harm… the reason… it is easy. It is not so easy to risk your life dealing with dangerous people, but it will pay the bills if you bring in enough 18 year old kids with a bag of reefer. The law enforcement agencies in this country are pathetic. Did you ever notice how America’s Most Wanted are usually on the lam for ages… that is because no one has the balls to actually track someone that could kill you… but if you don’t pay a parking ticket, they will knock at your door within a few weeks. I am thoroughly disgusted with the state of our country. We are a disgrace. I say we because it is apparent that the majority of people in this back-ass-wards nation are in favor of these things… they think that Mary Jane is a lot easier to catch than Osama. My advice… quit smoking pot and do something atrocious… no one will hunt you down then.

    With that said, I agree that Barlow was a little bit dumb to bring anything on a plane in this day and age, however… that opinion doesn’t change the fact that I think law enforcement officials from all over the country over step their bounds all the time lately… trust me, I know… I work in the field. I am no cop, but I am a guard for a huge corporation, and I see the shady techniques and approaches that these people are trained on… it is pathetic.