Equal Protection in Virginia

When the Attorney General of Virginia, Kenneth Cuccinelli, declared recently that state colleges and universities had no legal right to ban employment discrimination of the basis of sexual orientation, we were reminded once again of the fragility of our basic civil and human rights. Enshrined in national scripture may be the words “all men are created equal” but we have known since the very moment those words were written how simultaneously world-changing and meaningless they are. One election, one decision by a B-list politician, and poof…gone.

After much outcry across the state, including by many staff, faculty, and students at the University of Virginia (my employer), Gov. Bob McDonnell issued a surprisingly robust rebuke to his attorney general. In a publicly released statement, the governor overruled his AG, and asserted, “Employment discrimination of any kind will not be tolerated by this Administration.” In one passage, he even declared:

The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution.

When this arrived in my inbox I was flabbergasted. Did this graduate of Pat Roberston’s Regent University just state that discrimination on the basis of sexual orientation violates the 14th Amendment to the US Constitution? Though Virginia continues to maintain one of the most hostile legal environments for gays and lesbians in the country, this strikes me as a hugely significant development, and the basis for much potential good with sweeping implications for all sorts of matters, including marriage equality. But it’s not yet law. This was just a public statement from the governor, and the state legislature has still refused to enact anti-discrimination protection on the basis of sexual orientation into law. Our rights are precious, fragile things.

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Meet the New Laws, Same as the Old Laws

Hours before Sunday’s broadcast of the Oscars, whole swaths of the New York viewing audience were cut out because ABC pulled its affiliate stations. In the wake of this event, a coalition of broadcast providers submitted a petition to the FCC, asking that the current rules that govern broadcasting and redistribution are ripe for reassessment.

The current rules were formulated in 1992, and it should be obvious that lots of things have changed with respect to telecommunications and broadcasting since 1992.

The lag between older legal structures and emerging technologies and practices is nothing new. In this realm the law doesn’t and has never governed retroactively, but it always operates from the wake of history. Laws about new or emerging communications technologies are built on older frameworks, and therefore have always lagged a few decades behind the actual communications practices and technologies that the laws are written to govern.

As telephony and telegraphy spread, the laws that governed them were laws that were originally written to regulate interstate commerce. The only imaginable structure that could compare with telephony was trucking. When the radio act was written in 1927, it was modeled on the wireless laws that that controlled ship-to-ship communications because that was the only format for understanding wireless communication.

The laws governing television followed the laws of radio and the network model, and the laws about cable were written with television in mind, and so on. To be sure, there have been changes in the law — both innovative and some deeply troubling. But as new laws are imagined and formulated, they are done so as if new communications models will look just like older models; that telephony would be similar to trucking or that television would be like radio.

This is less a failure of law than a success of particular interests that were shaped from the very beginning by the desires of commercial interests. Here’s the punchline: because the commercial interests (AT&T during the radio era, DirectTV now) are deeply invested in maintaining the status quo. There is lots of money to be made (or lost) in controlling what communications look like. There is little impetus for innovation as such, so why not build the new laws to look like the old ones?

Certainly, the internet is radically reshaping habits and practices of the consumption of popular culture, and the 17 year-old laws are deeply in need of an overhaul. But is this round of law going to preserve the past or usher in the future?

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Avatar and the Gluttony of Technology

Anyone who buys a ticket to see Avatar is going to see technology on display. That’s what all the press has been about, that’s why the film has won awards, that’s why it sold out my local IMAX ™ theater on Friday night (some two months after its original release). Despite its pseudo new-age lust for the natural, the film is a gluttonous celebration of technology.

Couched as a struggle between a money-hungry and heartless corporation and a peaceful tribe wholly in tune with nature, the film sells viewers the latter but delivers the former with more technological firepower than the mercenary (ex-)marines it features as bad guys. The thin script and the cast’s paltry performances are literally no match for the fantastical animations and imaginary worlds brought to life by director James Cameron and his animation army. Any shred of humanity or trace of emotion, connection or affect is churned under the unrelenting barrage of computer-generated images (in 3D!) that seem to pile up, one after another, each trying to out-do the last without any sense of fun or excitement (indeed, rather than exploratory or curious, the film takes a rather triumphant, and, dare I say militaristic approach to showing just what technology can do).

That might be the film’s act of hubris, but here’s what I find even more troubling about my two-and-a-half hour journey on Pandora: Once you can do anything with computers and computer animation, I find it harder to be impressed. Once the door to imagination is thrown completely wide open, and computers are capable of rendering anything imaginable on screen, then what’s the big deal of having 8-foot-tall blue characters or fiddle ferns the side of SUV’s? Once you can make computers do anything, what’s the big deal when they do anything, at all? Once anything is possible, who cares what happens? It’s the cinematic equivalent of eternal life (lord knows, the film felt about that long) — it may last a long time, but why does it matter?

Avatar at once captures the gluttonous revelry of technology and its absolute failures. Cameron’s attempt to critique technology in the film ultimately collapses beneath the film’s bloated, burdensome reliance on technology to tell this story. Yet, at the same time, the film’s meta-emphasis on its own story-telling technology so radically opened up the possibilities of animation that it diminished its own ability to highlight those very possibilities. In this way, the film fails twice and twice as hard.

But ultimately, for all its technophilia and bloated self-promotion, and notwithstanding the awards it has won and will win, the film’s greatest failure seems to be not technological, but human. For all its armament and animation, the film’s greatest failure was its absence of any real, human imagination at all. There is still no technology powerful enough to hide hackneyed plot points, recycled dialogue, and flat acting. By letting technology tell the story, Avatar obliterates its desire to tell a human story, leaving only a trail of computer-generated fantasy worlds in its wake.

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