selling off the public square, culture, education, our democracy, and everything else
One ofmy favorite modern day parables involves a Wisconsin
performance-art troupe named, fittingly enough, Nu Parable.
During the 1980s this group was notable for enacting what they called “Dances of Death,” which dramatized the carnage of nuclear war by using dozens of writhing, choreographed bodies. Nu Parable could freely dance in areas that were designated as public spaces, such as downtowns. However, when they ventured into the private property of a shopping mall and other such spaces, they were arrested for trespassing. The funniest and saddest part of the story is that some Nu Parable members were successfully prosecuted for passing out copies of the First Amendment. The problem was that they distributed this founding document of American free speech against the mall management’s wishes, sending them straight from the food court to state court.
The shopping mall works as an apt metaphor for what has hap-
pened to cultural and economic life in America, a symptom and a cause of the erosion of our freedom of expression®. We’ve all heard 225
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of these things called “downtowns.” They still exist in more than a few cities and towns throughout the United States, but they have increasingly become anomalies in a landscape cluttered with suburban shopping and strip malls. Downtown was where people
used to mix with other community members for economic and so-
cial reasons, and occasionally participate in societal change by exercising their First Amendment rights of free assembly and free speech.
The deterioration of the American downtown began after World
War II, and its slow, choking death wasn’t natural. It had more to do with certain local and federal government policies, including those that undermined public transportation in favor of the automobile and an elaborate interstate system. It also didn’t help that General Motors bought up public-transportation companies in most American cities and systematically dismantled the streetcar system. In doing so, they replaced it with a fleet of GM buses, ripping up trol-ley tracks, and making way for the post–WWII flood of auto-
mobiles. The streetcars were the arteries that made downtowns accessible to large numbers of people, but by 1950 the number of streetcars in the United States fell to eighteen thousand, down from seventy-three thousand in 1936—despite an explosion in the nation’s population.
In 1949 the federal government found GM (and its partners in
crime, Firestone and Standard Oil) guilty of “conspiracy to monopolize the local transportation field,” and seven high-ranking executives at those companies were individually found guilty. However, the companies were fined only five thousand dollars each and the execs were slapped on the wrist with a one-dollar fine. Investigative journalist Jonathan Kwitny argues that the case was “a fine example of what can happen when important matters of public policy are abandoned by government to the self-interest of corporations.”
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These are the first of many instances to come in this chapter that show how the privatization of public resources—whether cultural or physical—can be socially damaging when the controlling private interests are subject to little oversight.
FREEDOM OF EXPRESSION® GOES TO THE MALL
The displacement of the downtown as the center of social and economic life in America brought many significant changes. The downtown belonged to everyone—in theory, at least, and sometimes in practice; but most state courts and legislatures have claimed that the free-speech rights we are guaranteed in public places do not extend equally to private property. This makes it possible for someone in a mall to be arrested for wearing an “objectionable” T-shirt. During the buildup to Gulf War 2.0, on March 3, 2003, a lawyer named Steve Downs was arrested for trespassing at the Crossgates Mall in Albany, New York, because he refused to remove a T-shirt that declared “Peace on Earth” and “Give Peace a Chance.” (The most absurd detail: the offending shirt had been purchased at the mall. ) Officials claimed that it violated a mall policy that banned clothing that is “disruptive,” stating that the mall’s management “is committed to maintaining the mall as a family-friendly facility that provides a secure and enjoyable experience.” The press release reminded us, “While Crossgates Mall is perceived by some to be a public place, it is privately owned.” After it had made its chilling point, the mall quietly dropped the charges. This outrageous incident induced in me a bout of self-righteous indignation. I sped to the Coral Ridge Mall in Coralville, Iowa—a strip-mauled town that doesn’t seem to believe in zoning laws—armed with a stack of First Amendment fliers, and nothing else. It took less than five minutes before a mall-security officer informed me of the establishment’s McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 228
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solicitation policy. With a friendly Iowan smile I explained that I wasn’t selling anything. I deadpanned that I was passing out copies of the First Amendment because I worried that these shoppers
weren’t aware that it existed.
Regardless, the security man told me, I was not allowed to distribute unauthorized literature on the mall’s property—not just inside, but outside in the parking lot as well. I handed him a copy of the First Amendment, which he refused to accept. “Our Constitution guarantees me the right to do exactly what I’m doing,” I argued earnestly. With a matching Midwestern smile, he informed me that he would call the police if I didn’t obey his instructions. I called his bluff, only it wasn’t a bluff, because I soon found myself talking to two of Coralville’s finest, who sized me up and checked my ID (this is post-9/11, after all). They politely, though condescendingly, told me that if I did not leave I would be arrested for trespassing. (Also, the Coralville cops confiscated my copies of the First Amendment.
Where are the irony police when you need them?) Realizing that I should choose my battles carefully, I vacated the premises as directed.
In the urban downtowns, retail superstores such as the Virgin Megastore, Barnes & Noble, and Borders have replaced public squares much like suburban shopping malls have. Even the things that traditionally have been regarded as public squares are being branded and privatized, Naomi Klein points out. In 1997 anti-tobacco protesters were forcibly removed from Nathan Phillips Square in front of Toronto’s city hall during a jazz festival. The festival was sponsored by a tobacco company, and during the week of the festival this public space essentially became the private property of the company, which exercised its policing power by kicking dis-senters out. That same year, anti-tobacco protesters were removed from their own campus in Toronto during the du Maurier Tennis McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 229
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Open because the students objected to the fact that it was sponsored by a tobacco giant. Throughout North America, business dis-tricts are being turned into little more than outdoor malls with real cops, rather than rent-a-cops, policing the area.
When it hosted the 2002 Winter Olympics, Salt Lake City set up
“free-speech zones” (George Orwell, please phone home) placed away from the heavy pedestrian traffic flow. This procedure severely limited the impact of so-called free speech. In Seattle, during the 1999 World Trade Organization meetings, protest was approved for certain regions, but police fiercely protected other areas, provoking riots. Similarly, the Secret Service, charged with protecting the U.S.
president, has also set up free-speech zones to keep protesters away from Bush 2.0. For instance, on Labor Day of 2002, sixty-five-year-old retired steelworker Bill Neel was arrested for holding a sign critical of Bush. When he refused to move to a distant baseball field surrounded by a chain-link fence, Neel was charged with “disorderly conduct” and his sign was confiscated.
“As far as I’m concerned,” said Neel, “the whole country is a free-speech zone.” He was later acquitted, as was Brett Bursey, who was charged with trespassing when he held a No War for Oil sign.
Bursey refused to move to a designated area roughly a half mile from the location where Bush was to speak. He got off because South Carolina law prohibits trespassing arrests on public property—another example of how public land, a kind of commons,
helps enable freedom of expression®. However, John Ashcroft’s Justice Department took over the case and charged Bursey with violating an obscure federal law regarding “entering a restricted area around the president of the United States.”1 If citizens can only legally express themselves in certain free-speech zones it begs the question, what is the rest of the city called? I’m reminded of an old Guerrilla Girls’ poster, the one that asks:
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q : If February is Black History Month and March is Women’s History Month, what happens the rest of the year?
a : Discrimination.
Intellectual property and physical property also intersect when a number of companies go to extreme lengths to control visual reproductions of their buildings. The director of publishing at FPG
International, one of the largest stock-photo agencies, claims this kind of representation has increasingly affected the firm’s business.
If someone wants to use an existing photograph of a building in FPG’s stock-photo library, FPG often informs the customer that certain property owners require special releases or, in some cases,
“licensing fees” (imagine having to pay to “sample” a building).
“What’s happened,” says Rebecca Taylor, “is we’ve had to establish certain business practices based on the harassment factor. It’s become part of doing business—it’s just one more thing we have to worry about.” Because of this harassment factor, FPG tells photographers who are currently shooting images that certain buildings aren’t worth the trouble.
“Whether these property owners really have these trademark
rights is questionable,” says Taylor, “but we’ve decided it’s an issue that’s not worth fighting over.” Among the Manhattan property owners who aggressively protect their trademarks are the New York Stock Exchange, the Chrysler Building, Rockefeller Center, and even the New York Public Library. “It’s sort of a pain for us,” says Taylor, speaking of the impact of these licensing arrangements on freedom of expression®. “But,” she explains, “it’s far riskier for small companies that don’t have the legal resources we have.” Nancy Wolff, an intellectual property–law attorney in New York City, agrees. “Photographers and designers don’t have the budgets to get releases for everything,” she says. “And even though there is very lit-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 231
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tle legal basis for preventing artists from using these images, they are often too small to fight because the cost of litigation is so great.”2
Not everyone in the United States and abroad is allowing our
public and cultural space to be colonized without a fight. Citizens were up in arms when, in 2003 Vienna’s Karlsplatz—a public square of historical importance—displayed the “Nike Infobox.” It was a slick walk-in container with two floors that sported a sign that declared to passersby: “This square will soon be called Nikeplatz.
Come inside to find out more.” During its monthlong residency, which ended on October 28, 2003, thousands of brochures were
also distributed throughout the city that laid out plans for the
“Nike Ground” campaign. “Nike is introducing its legendary brand into squares, streets, parks and boulevards,” declared the propaganda found inside the Nike Infobox. “Nikesquare, Nike Street, Piazzanike, Plazanike or Nikestrasse will appear in major world capitals over the coming years!”
If that wasn’t enough to rile up the average Viennese resident, the Infobox went on to promise that a 36 × 18 meter monument in the shape of Nike’s “Swoosh” logo would be placed in the center of “Nikeplatz.” People freaked out, and soon thousands of e-mails and handwritten letters descended on Austrian newspapers and
city governments. The incident turned out to be a clever prank engineered by a band of media artists collectively known as
0100101110101101.ORG. Its intent was to create a mass hallucination in which Vienna itself was the theater; as Shakespeare famously observed, all the world is a stage.
In a press release, the collective stated, “It is our duty to directly intervene into urban and media space, to bring up the issues of symbolic domination in public space by private interests. We see Nike Ground as a statement for the artistic freedom to manipulate McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 232
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the symbols of everyday life.” Their intent was to provoke conversation and debate, and judging by the intense negative feedback generated, they succeeded. The artists also provoked a lawsuit from Nike, which objected to their satirical use of its trademarked name and logo. “These actions have gone beyond a joke,” Nike stated.
“This is not just a prank, it’s a breach of our copyright and therefore Nike will take legal action against the instigators of this phony campaign.”
Nike lost the first round on a technicality (it filed in the wrong jurisdiction), which meant that the Nike Ground display was allowed to remain for the planned monthlong period—before Nike
could file for another injunction. After a torrent of bad publicity, first brought on by the activists and then by its own lawsuit, Nike declined to pursue the matter. The nikeground.com Web site,
hosted by the Austrian media activists at Public Netbase, stayed online, and freedom of expression® remained untrammeled. “We
won!” declared 0100101110101101.ORG spokesman Franco Birkut.
“Our victory is proof of at least one thing: the famous ‘Swoosh’ logo belongs to the people who actually wear it every day. These commercial giants think they can beat anyone who annoys them, and they’re unable to distinguish an artistic or critical project from unfair competition or commercial fraud.”
Public Netbase director Konrad Becker said, “It was worth the risk in order to insist on the right to free artistic expression in urban spaces.” Like other antiglobalization and anti-sweatshop activists, 0100101110101101.ORG uses the lumbering cultural weight of the Swoosh against Nike like a Derridaian judo master who trips up her philosophical opponent. They tacitly acknowledged this tactic when the group’s spokesperson Ted Pikul stated, “Nike is a perfect subject for a work of art. The Swoosh is probably the most viewable brand on earth, more than any political or religious sym-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 233
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bol. Now these giants are losing control over their own brands, which in the hands of pop culture are turning into boomerangs.”3
PRIVATIZING NATURE
At the inauguration of Everglades National Park in 1948, President Harry S Truman said, “We have to remain constantly vigilant to prevent raids by those who would selfishly exploit our common heritage for their private gain. Such raids on our natural resources are not examples of enterprise and initiative. They are attempts to take from all the people for the benefit of a few.” These words of wisdom—a strong argument for maintaining the commons—are
being drowned out by the loud, well-funded voices who cheer on the cause of privatization. “We in Western society are going through a period of intensifying belief in private ownership, to the detriment of the public good,” lamented John Sulston, who won the Nobel Prize for spearheading the British effort to map the human genome.4
Private corporations argue that they can better manage the common wealth—national parks, the radio spectrum, and water sup-
plies, for instance—that is supposed to belong to all. They say
“corporate management is obviously more ideal because market
norms are the grease that lubricate the wheels of efficiency and innovation.” Put that way, it’s hard to imagine another system ever working, but one did, for decades. Some things were purchased, some things were freely traded, and not everything was nailed down with a price tag and managed by private interests. The existence of a commons is an essential part of what some economists and social scientists refer to as the gift economy. Today’s successful open-source software movement, and the rise of the Internet itself, is proof that a gift economy still exists and thrives.
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The collection and free distribution of weather data, untethered to any intellectual-property rights, is a kind of U.S. government–
sponsored gift economy. It’s an informational commons that both directly and indirectly benefits Americans by bolstering public safety and protecting the nation’s economic assets. Also, because the U.S. government freely distributes this data, it produces raw material for a booming meteorology and risk-management industry valued in the billions. Conversely, some E.U. governments actually enforce restrictive data policies regarding national meteo-rological services, which has stunted the growth of these sectors in Europe.5 “There’s no such thing as a free lunch,” the old adage goes, but there are many cases where gift-giving can generate many rich returns—both economically and socially.
“Gift economies are potent systems for eliciting and developing behaviors that the market cannot—sharing, collaboration, honor, trust, sociability, loyalty,” writes David Bollier, the cofounder of Public Knowledge, an advocacy group dedicated to defending the commons of the Internet, science, and culture. “In this capacity,”
Bollier continues, “gift economies are an important force in creating wealth—both the material kind prized by the market as well as the social and spiritual kind needed by any happy, integrated human being.”6 We should remember that market norms, which are
often taken to their extreme by private industry, run counter to social norms such as ethics.
A notorious example of this conflict of values is Ford Motor
Company’s decision to not replace potentially explosive gas tanks in Pinto cars in the 1970s. The company’s cost-benefit analysis demonstrated that it was cheaper to pay settlements on the 180 or so annual burn-related deaths than to spend eleven dollars more per vehicle for a safer gas tank. This is a decision guided by market norms, not the kind of social norms that benefit humanity. In Philip Morris’s attempt to squash proposed cigarette taxes in the McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 235
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Czech Republic, the tobacco company sponsored a study that
claimed that the government would actually save $147.1 million from the premature deaths of smokers. “The truth is,” argues John Sulston, “that companies don’t have to behave ethically: they can if they want to, but there’s no social constraint on their pushing ac-quisitiveness to the legal limit; or indeed beyond.”7
It is true that privatization sometimes succeeds in improving service and efficiency, but the privatizations that go badly can be catastrophic. We see this time and time again with the privatization schemes insisted upon by the World Bank and International Monetary Fund (IMF). These organizations require developing countries to agree to unfavorable terms if money is to be loaned. An unsettling case is Bolivia, which felt the impact of these policies when it borrowed heavily from the World Bank and the IMF in the 1980s.
In return, it agreed to open its borders to trade and privatize its industries. Seventeen years later, Bolivia remains the poorest country in South America, with its labor unions smashed and hundreds of thousands of workers tossed into the “informal sector” of sweatshops and street peddling.
The country’s railroad, which was turned over to a consortium led by the private Chilean multinational Cruz Blanca, cut service on routes it considered unprofitable. This meant that numerous freight and passenger lines were closed, including one that connected Bolivia’s capital with its third largest city—a move that helped cripple the country’s infrastructure. This decision was guided by market norms that didn’t take into consideration the economic and social impact of shutting down those “inefficient”
routes. Nobel Prize–winning economist Joseph E. Stiglitz said that during his time at the World Bank, “I saw decisions were often made because of ideology and politics. As a result many wrong-headed actions were taken, ones that did not solve the problem at hand but that fit with the interests or beliefs of people in power.”
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The issue of water-resource management is one of the many
areas that undermine the arguments about the benefits of privatization. Developing countries are pressured to liberalize and open up their markets to outside investors, which buy up existing water infrastructures and control the cost of water. Once this public resource becomes private property, its distribution is overseen by “the market.” That’s a fancy way of saying that water is redirected to those who can pay for it. Coca-Cola, for instance, owns a bottling plant in Planchimara, India, that consumes six hundred thousand liters of fresh water daily; the residents of the village, on the other hand, suffer from water shortages.8
Some say that in times of scarcity, unregulated markets work
more efficiently. But who do you think can decide how to better handle resources more efficiently: the foreign company that uses thousands of cubic tons of water to irrigate crops to feed cattle that will be slaughtered and shipped off to the First World—or the local community that would use only one percent of that water for crops to feed itself ? Applying the ideology of the free market, the first choice is economically profitable, albeit socially destructive, and the second choice is not.
Warfare is another unfortunate area of modern life that has been transformed by privatization. For instance, during the first Gulf War in 1991, the government employed one private contractor for every hundred soldiers, but by the second Gulf War, that ratio had changed to roughly one in ten. As much as one-third of the steadily growing cost of occupying Iraq fills the coffers of private U.S. firms that profit handsomely from the carnage of war.9 Not only did American taxpayers pay Halliburton to import oil into Iraq, the company charged us nearly three times the going rate until this fact was made public.10 This is what I mean by “inefficient and costly”
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to human life, the environment, and domestic social programs at home.
INTELLECTUAL PROPERTY V. FREE SPEECH AND DEMOCRACY
If you saw the headline “File-Trading Students Out to Save Democracy,” you’d think it might be a spoof. But it’s literally true. These students weren’t trading MP3 files on peer-to-peer networks and on the Web. Rather, in late 2003 college students received cease-and-desist letters from a company named Diebold, which makes
voting machines. This unlikely scenario unfolded when a handful of student voting activists posted fifteen thousand copyrighted documents on their Web sites, which prompted a familiar sequence of events: the company sent colleges threatening letters, which in turn removed the content from their networks, which made the students really, really mad.
What were the documents? They were thousands of internal
memos, e-mails, and discussion-list postings that were leaked and then posted on an electronic-voting activist’s Web site. After that, they multiplied like bionic bunnies. The contents painted a behind-the-scenes picture of Diebold that wasn’t flattering, to say the least.
In these documents are a myriad of statements that suggest the company’s electronic voting machines contain many security problems and bugs in the software, as well as last-minute changes that are illegal after election authorities certify software for an election.
Among the most disturbing was the following frantic missive concerning the reliability of the company’s machines during the 2000
presidential election:
I need some answers! Our department is being audited by the
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was uploaded. Will someone please explain this so that I have the information to give the auditor instead of standing here “looking dumb.” I would appreciate an explanation on why the memory
cards start giving check sum messages. We had this happen in
several precincts and one of these precincts managed to get her memory card out of election mode and then back in it, continued to read ballots, not realizing that the 300+ ballots she had read earlier were no longer stored in her memory card. Needless to say when we did our hand count this was discovered.
Any explantations [sic] you all can give me will be greatly appreciated.
Thanks bunches,
Lana [Hires]
Diebold claimed that it owned the copyright to these memos,
which was true. But these vote- and boat-rocking students argued that their postings were a fair use of the company’s materials because it was in the context of news reporting and criticism. What was most obvious was that Diebold used copyright law as a tool to attempt to censor embarrassing revelations, and nothing more.
This is yet another disturbing way that the Digital Millennium Copyright Act gives copyright owners more power to erase dissent, merely by sending a “take down” notice to ISPs or Web hosting companies. “The DMCA issues do muddy the water,” said John Palfrey, executive director of the Berkman Center for Internet and Society at Harvard Law School. “I don’t think this is a slam dunk on either side.” Although some students continued to keep the documents on their own servers, others felt the chilling effect of cease-and-desist letters. “I’m starting to worry about the ramifications for my entire family if I end up in some sort of legal action,” said Zac Elliott, a student at Indiana University.11
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However, Diebold’s attempt to put out this digital fire only
fanned the flames. The documents exponentially multiplied as
computer-savvy voting activists linked to other Web sites and distributed them across peer-to-peer file-sharing networks. Within weeks the memos spread to dozens of colleges, including Duke University, Harvard University, Massachusetts Institute of Technology, and Grinnell College, down the road from me in a neighboring
Iowa town. If Dr. Dre, Metallica, and the entire music industry couldn’t stop music downloading, what made this company think it could stop these committed students? In the midst of the controversy, a Diebold spokesman said with a straight face, “We reserve the right to protect that which we feel is proprietary.” A Swarthmore College sophomore astutely countered, “If I were Diebold I wouldn’t claim copyright protection; I’d claim I hadn’t written the memos.”12
Another Swarthmore student, Nelson Pavlosky, one of the co-
organizers of FreeCulture.org’s “Barbie in a Blender Day,?