The Laboratorium
June 2003

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On Radio Silence

I've been quiet lately. Trust me that it's not because of lack of subject matter. It's because it's so damn hot here.

Okay. It is not actually "so damn hot" here. West Coast people are wusses. It hit something like 85 today, and I swear there were people claiming that it was "definitely" over 100. Back when I was an East Coast person, I lived through summers far worse. Hell, I've lived through worse stretches on this very coast. But it is so damn hot here compared to how hot it normally is, and even compared to how hot it was earlier this week.

So I'm hot and sticky, and my computer is a little furnace. Just about the last thing I want to do is stick it in my lap for an extended spell, especially since the only way I'm comfortable tying involves sitting in a comfy chair with my arms close to my sides (ergo, ergo ergo), which just amplifies the whole concentrated ball of heat effect.

At work, I don't have much choice: I type for an hour or so, then go sit in the conference room (the room with air conditioning) for a spell. But at home, the length of this entry is about the limit of my heat patience.

I'm going back to my book.

Mystery Solved

After going through the music on my computer, album by album, I've identified those damn four notes: Sinead O'Connor's "Black Boys on Mopeds."

If I have anything to say in my defense for not remembering, it's only that the four-note motif occurs only at the end of the song, as a kind of wordless fade-out--and I'm more familiar with the Nields' cover version of the song, which ends differently.

From the ‘Titles That Ought to Be Dept.’

I was crawling through one of the Westlaw searches that have been my life at work for the past week when I came across a law review article entitled "Brief for Appellant Blackacre." It turned out to be just a moot court brief ("Blackacre" was short for "Blackacre Forest Products, Inc."); I was sore disappointed.

After all, "Brief for Appellant Blackacre" would make a great title for an environmental law article. I can almost envision how the article would go: it would be a discussion about the relationship of land and ecosystems to the people who claim to speak for them.

Four Notes

The only thing worse than having a short snippet of music stuck in your head is having a short snippet of music that you can't identify stuck in your head. When that snippet is only four notes long, it's especially maddening.

Since I don't have perfect pitch, I can't even tell you which notes are involved. Let's arbitrarily call the first one C. It's held for a long time: at least six or eight counts. Then there's a B-flat for two counts and an A for one; from there it goes back to another long C.

The phrase repeats, I'm pretty sure, which would make it technically a repeated three-note snippet, but I hear it as four, with the fourth note in common with the first note of the repeat.

Possible identifications highly welcome.

Hell of a Way to Save a Buck

First, some background.

The city of San Francisco has not one, but two light rail mass transit systems. Making matters even more silly, downtown, they're not just parallel, but literally one atop the other. From street level, you go into an underground station with separate turnstiles for BART and for MUNI. For MUNI, you take an escalator down one floor. For BART, you take an escalator down two floors.

They also use different, and entirely incompatible, payment systems. BART is on prepaid magnetic farecards: put it through the turnstile at the start and at the end; the end turnstile deducts an amount based on the distance you've travelled. Attendants on duty watch for turnstile jumpers.

MUNI, on the other hand, uses an honor system: pay a dollar as you board. Aboveground, this means giving a buck to the streetcar driver. Downtown, they have unattended turnstiles that take bills and coins. Either way, you get a receipt (which also works as a bus transfer). Every so often, ticket inspectors come around; people without receipts get slapped with a $76 fine.

Now for the actual story.

I was on my way into the BART today when I saw a guy on the up escalator scramble up onto the handrail. Afgter a quick glance all around, he vaulted over the side, dropping about six or eight feet to the floor -- in this case, the MUNI platform. It's quite a sight to see someone just jump the side of an escalator and drop out of sight; I felt like an extra in Minority Report.

It took me a while to figure out the logic. At first, I thought he was trying to cheat on the MUNI fare. But he could have just jumped the unattended MUNI turnstile if that was his goal: he'd still have to deal with the risk of being caught by the inspector. No, our clever protagonist had figured out a way to cheat on the BART fare. I'm willing to bet that he'd just finished a BART trip, and the next thing he did was take the MUNI escalator back up and walk out through the unattended MUNI exit gate.

Computer scientists, take note: this is why malloc/free and garbage collection don't play nice together.

Ages of Blog

It's been three years since the last Harry Potter book came out. I was there for the midnight release, and I blogged the event--it was one of my early posts, and I remember it fondly. It was a good book, and it's been a good three years for the Lab.

Well, the next one comes out tonight at midnight. I'll be there, and once again I'm glad to have friends who understand the paramount importance of the event.

Update (Saturday mid-afternoon): It's great. Of course. It's not quite an escalation in the way that the fourth one was, but it's every bit as good a book. Incredible sense of rising dread, and some of the series's most vivid character growth yet.

I am so not in a mood to wait another three years for number six.

Plug Comma Shameless

Dahlia Lithwick's book, Me v. Everybody: Absurd Contracts for an Absurd World, is out, and it's (no surprise) v. funny. There are in-jokes for the lawyers, out-jokes for everyone else, and quite a few sly twists on familiar situations.

Buy, buy, buy!

Entropy Always Wins

People do bad things to each other: they kill, steal from, and deprive others of liberty. Although we have an elaborate criminal justice system to prevent such things, there's a fundamental irony behind such a system. After all, what do we do to criminals? We execute, fine, or imprison them--in other words, we kill, steal from, and deprive them of liberty.

In the presence of distorting concentrations of power markets undergo systematic, predictable failures. In the face of such failures, there is a place for well-chosen governmental interventions to improve overall efficiencies. But very concentration of power a government needs to intervene successfully in markets is itself a distorting factor and a potential source of economic inefficiency.

Employees of the federal bureacracy are only human: they make mistakes in judgment and face constant temptation to cut legal corners to simplify their jobs. For this reason, we allow appeals of agency action to be heard by courts outside of those agencies. But the judges of those courts are only human: they make mistakes in judgment and face constant temptation to cut legal corners.

The overall entropy of a thermodynamically closed system can never decrease. It is possible to do work to remove entropy from a system and bring it to a state of greater order. But the energy to carry out that work had to come from somewhere. The overall entropy of the thermodynamically closed system containing also that energy source can only increase.

Shadow of His Former Self

Among my faults as a reader of sci-fi and fantasy is my excessive indulgence for authors engaged in long, slow declines. These are the writers who had one great book, or several, or just one really rip-roaring yarn entertaining enough to compensate for its literary flaws. So I keep buying their books, and buying and buying, long after they should have been put out to pasture.

If we weren't indulging them on name only, maybe they'd take the hint and retire, reputation relatively intact. David Eddings (and his wife) could have quit after five books and been remembered as the author of the Belgariad. Instead, he's still going at something like twenty, and he will always also be the author of the Tamuliad. (In case you're not familiar with the Eddings canon, which is, by now, a fortunate state to be in, being the author of the Tamuliad is not something you'd want to admit in public, were you he.) If we the readers would only stop buying, the publishers might take the hint and stop renewing the contracts that oughtn't be renewed. But nooo, we keep buying, like the suckers we are, and we get the books we deserve.

Which brings me to Orson Scott Card, living proof that writing a masterpiece acknowledged as such in your own lifetime either goes to your head or indicates that something has already gotten there. Ender's Game was a great book; it's already on middle-school assigned reading lists and I expect it to stay there indefinitely.

It worked because it had two things in spades. On the one hand, was a profoundly empathetic book: Card took his pint-size protagonist's fragility seriously. On the other hand, it was a deeply tough-minded book: Card didn't shy away at all from the harsh realities of the necessary dirty work of a wartime military with its back up against the wall. The combination of the two meant placing Ender in a genuinely insoluble moral conundrum while also giving voice to Ender's deeply human reaction. The book was rightly hailed, and it with Card's hard-headedness and warm-heartedness.

(Digression: readers who noticed one of these qualities but not the other have been in for some unfortunate shocks. I still remember a particularly awful Salon story by a pacifist who somehow forgot that the whole novel takes place in a military training camp and that the novel's hero stands out because he is the most thoughtful, most creative, and in some ways, most ruthless of his classmates.)

Since then, all evidence is that Card has come to believe that he alone of all humanity has the clarity of thought to understand grand geopolitical necessities and the compassion needed to write about tolerance in the face of the threatening. It hasn't been a pretty sight.

The usual metaphor for a slowly unfolding disaster is the train wreck. But that's not really right, because the train wreck has a definite end, whereas the Ender series just keeps on unfolding and unfolding, the magnitude of the wreckage increasing with every entry. (The current count is at seven books: twice now, an afterword has explained that what started off as one book turned into two at some point during the writing process. It shows.) I'm reminded of the stateroom scene from A Night at the Opera, perhaps, or the business with Mustafa from Austin Powers. A man who started off as a reasonably healthy supporting character is now a mangled offscreen voice, begging desparately to be put out of his misery while the audience laughs nervously, wondering how much longer the suffering can continue.

The first two sequels, though by no means comparable to Ender's Game, were probably still above the zero line; the world is better off for their existence. Children of the Mind was where things went off the cliff: from the ridiculous Polynesian interlude to the ham-fisted romance, it should never have been allowed to be. I recognize that this would leave us at the cliff-hanger that ended Xenocide. But that was a pretty preposterous cliff-hanger, anyway. We could either imagine a better-written ending (which would be no less a deus ex machina than the actual one), or congratulate Card on a brilliant open-form ending that resists closure, or just chuck Xenocide too, as a necessary sacrifice to rid the world of Children of the Mind.

But at least the first three sequels were the ones in which Card was following out his empathetic impulses. Some of the character studies--especially in Speaker for the Dead--are well-observed, and the basic plots satisfy a fundamental sci-fi urge: use the power of what-if to invent difficult ethical quandaries and reflect on deep moral issues. At the time, I chalked up their increasing flaws as novels to Card's abandonment of his toughness: how else to explain the oozing sentimentality and the formulaic conclusion.

Maybe Card noticed something of the trend, because in the next three sequels, it's the tough-guy posturing that's predominated. And. Oh. My. God. Calling them "plot-driven" is too much of a compliment. If you stop to notice the dialogue, you laugh; if you stop to notice the didactic morals, you gag. The latest mistake in the series, Shadow Puppets, is where even the plot became worse than no plot at all would have been. Things just kind of happen. Then some other stuff happens. And you just don't want to hear about the kinds of stupid things supposedly hyper-brilliant characters do.

And, oh, the supposed toughness. I've seen the case for pre-emptive war put with some subtlety and flair. Card just kind of drops it on the table, like a dead jellyfish, and asserts that either you're tough enough to accept his (well, actually, one of his puppets', I mean characters') reasoning, or you're a girly-man and wouldn't have lasted ten seconds at Battle School. Last year, Card wrote an essay "proving" that anyone who criticized Bush's North Korea policy was either an idiot or treasonous, and much of Shadow Puppets' geopolitics run in the same vein: all sufficiently smart people will reach the correct conclusion, anyone who disagrees is stupid. Not all of these conclusions are belligerent, to be fair, but this is a book about war.

Same deal with abortion: at one point, the hero muses, with no apparent irony, that there's no difference between getting rid of three fertilized embryos (still single-cell, mind you), and killing twenty year-old children. The key factor here is the unique genetic information, I kid you not. And, mind you, this thought occurs to the smartest, toughest, human ever (genetically engineerd to be so, of course). Nor he is the only character in the novel to recreate Catholic morality without Catholic theology: another does it out of sheer stubbornness, one of the highest moral qualities in the Cardiverse.

The stubborness of human reproduction and survival is just about the only real virtue there, come to think of it. There are plenty of passages criticizing soft-minded government bureacrats, flaccid (that is, non Battle-School-trained) soldiers, and distant intellectuals; but compare the plebs, who just want to survive, and the natural leaders, who must forge the future in the fires of their own intellect. The contradictions are just astounding. Brilliant strategy is to be admired, but not the love of knowledge (even the love of knowledge that inspired the thinkers whose works the strategists adopt and adapt). It's great to admire architecture and beautiful cities, but there's no place for artists in Card's world, or at least none that he remembers to mention. Family is everything to Card. Most of us normal people would agree that it's the most important thing. But everything?

All of this incessant harping on how gloriously tough his gloriously smart characters are wouldn't be so grating if it didn't ring so false, in light of the book's plot. James Clavell wrote himself into a similar corner with Gai-jin, which featured a secret society of elite super-ninjas who couldn't pull off a single strike successfully in the course of the novel, out of about a half-dozen attempts. There seemed to be no conscious irony: everyone else in the novel fears them no end, and it's never superior Western technology or the tide of history that dooms them. No, it's always some stupid coincidence or a minor mistake in timing. The overall effect is comic in the worst way: the part of the novel that's supposed to inspire dread conjures forth only giggles.

And something similar happens when you have a whole novel in which essentially every named character is a super-genious. They have to outwit each other, and that's not going to happen unless one or another makes a mistake. Ender's Shadow and Shadow of the Hegemon were laughable in places because of this issue: more passages than I can remember offhand in those novels were given over to explaining which crucial detail Super-genius Joe overlooked. The rough-and-ready solution Card fell back on there was usually to create a hierarchy of geniusosity: those higher up would be able to think through the entire thought process of those lower down, and then go one step further.

This particular trick only works so many times. Recognizing, perhaps, that it's outlived its usefulness, Card drops it in Shadow Puppets: here, he just lets the characters act like outright idiots much of the time, good ones and bad ones alike. They don't suspect traps obvious even to the reader, they forget to carry weapons when you or I would be demanding whole arsenals' worth, they use perhaps the stupidest, most insecure computer system I have seen described in recent fiction. There's nothing wrong with such a literary strategy, in general: it works in conventional spy novels, Rashomonic thrillers, and other fun genre novels. It's just that blatant idiocy doesn't sit well with constant insistence that these obvious idiots are super-geniuses: it makes you suspect that the author has an inflated sense of his own intelligence, too.

It was only near the end that I realized I was reading a Piers Anthony novel in disguise. There were the incredibly weak jokes that passed for dialogue; there was the wink-wink sexuality (all the even marginally dirty bits are edited out, the characters pair off in terribly convenient fashion, and the sexual energy hovers naughtily around procreation); there were the adolescent and pre-adolescent protagonists; there was the retread plot; there was the constant contrast between the magical few and the mundane many. And, above all else, there was the horrible lingering half-guilt of a novelist who didn't know enough to quit while ahead.

Hail to _Hail to the Thief_

When they're on their game, Radiohead does exactly one thing better than any other band working today. They understand perfectly how to set increase musical beauty by surrounding it with harshness. When the emotional payoff of a top-tier Radiohead song comes, it's overwhelming, because it feels earned.

The first two albums show off this talent only sporadically; the space-age moans and squeals that accompany the plaintive meolody of "Bullet Proof" is probably the best example. The storm of guitar noise that fills "Blow Out" contains hints of what was (then) still to come. "Sulk" has a killer chorus, but it doesn't entirely stand out; the song as a whole is still conventional.

OK Computer, although as a whole a work mostly of beauty, was when Radiohead really started working the contrasts. The sudden turn in "Paranoid Android" from guitar rage to multi-part vocal harmony (and back) makes for an unlikely single, but there is no denying the impact. "Exit Music (For a Film)" sets a relatively straightforward song against an increasingly frentic fuzzed-out wail.

But even more effective is the song sequencing: after the climactic let's-throw-everything-in conclusion of "Climbing up the Walls," the soothing tones of "No Surprises" are all the more striking. In some ways, the entire album is just build-up to "The Tourist," one of the most well-chosen last songs ever . . . and the entire song is just a lead-up to the single triangle ding with which it ends.

Kid A took these tricks and did them a million times better. It's not just that the songs are standard pop songs decked out with noise and odd instrumentation. They're not. They are, to a one, songs that contain a single, rendingly beautiful element. Everything else is just context, setting--a way of bringing out the hidden richness of the core element.

"Everything in its Right Place" is about that opening organ chord and the circling progression it introduces; "How to Disappear Completely" is about the moment, five minutes in, when the descending minor third that has haunted the song finally resolves. "Idioteque" and "Morning Bell" are studies in rhythm; "Motion Picture Sountrack" is about the moment silence after the chorus and before the harp enters. The album is full of seeming hostile soundscapes that work, precisely because they are so carefully shaped around an ephemeral core.

Amnesiac was more of the same, only not so coherent as an album and with some glum failures in the mix. The "Morning Bell" remix and "Pull/Pulk Revolving Doors" were just un-called for. Other songs on the album mix foul and fair to better effect: The opening of "I Might Be Wrong" and the ending of "Dollars and Cents" are fine examples of Radiohead's fragile flowers. And, to be fair, "Pyramid Song" and "You and Whose Army" more or less defined a a new musical genre. The Radiohead ballad is a haunting slow song, digitally-pinched voice over circling chords, driting through the outer reaches of some bleak galaxy.

Which brings us to Hail to the Thief. First, the bad news for rock critics: it's no OK Computer. And second, the bad news for me: it's no Kid A, either. But third, the good news for everyone is that although it's squarely in the Amnesiac mold: a collection of songs (as opposed to a through-composed album) with some deliberately "tough" elements, it's much, much, better than Amnesiac.

Part of it is that Hail to the Thief has one of everything good from Amnesiac. "I Will" is "You and Whose Army"'s healthier cousin; "Sail to the Moon" is "Pyramid Song" with an even spookier melody. "There There" has the driving energy of "I Might Be Wrong," and more. And "2+2=5," "Sit Down, Stand Up," and "Scatterbrain," though they echo "Dollars and Cents," also reach back to "OK Computer" and "Kid A:" taken together they are a kind of compressed version of those albums, as filtered through Radiohead's more recent esthetic.

But thre real prize here is that, more than once, they completely nail that diamond-in-the-rough groove they do better than anyone else out there. "Where I End and You Begin" is as terrifying as a rock song can be: the music swallows the vocal line, until all that is left is a murmured "I will eat you alive." "A Punch-Up at a Wedding" never settles down harmonically, but has an infectious, shuffling, gait.

And then there's "A Wolf at the Door," which starts off unpromising as Thom Yorke chants, I-am-the-modern-day-Walrus fashion, gets more and more intense, until it breaks out with the most incredibly perfect chorus, one that completely justifies everything that's come before. Suddenly you understand why Thom has been chanting and you sit there nervously during the bridge, scared of the verse that waits on the other side. For this one song alone, I would forgive them almost anything.

All the same, it's good that they don't have anything to apologize for with this album.

The Music Industry Is Doomed

Overheard today in a record store:

Girl One: Come on, let's go.

Girl Two: I like this song.

Girl One: Then download it. You don't want them to profit, do you?

Now Them’s Good Stories

Please ignore anything you may have read in the critical press about McSweeney's issue #10, a.k.a. McSweeney's Mammoth Treasury of Thilling Tales. Most of the criticism has been, well, critical, and most of the critical criticism has been off the mark. Most of the stories are at least good, but a few are brilliant.

Certain themes dance through the whole volume: alternate history, George Armstrong Custer, post-9/11 fears of terrorism, rebellion, mountain-climbing, and the traces of themselves that parents give their children. I doubt very much that the authors consulted with each other, so I suppose you could treat the Treasury as a kind of finger on the pulse of the American imagination.

Of special note is Rick Moody's "The Albertine Notes." It's a story about post-apocalyptic drug addiction, and yet it's so much more than that--because the drug in question, Albertine, affects the memory. The possibilities for Memento-esque manipulation of the reader's knowledge are many, and Moody runs with them. By the end, my jaw was more or less on the floor.

The story also confirms my belief that Moody is an incredible prose stylist. The writing in "The Albertine Notes" is sometimes clipped and sometimes glossolalic, but it's always closely matched to the plot. And, as usual, Moody throws off perfect phrases as though without effort:

What's memory? Memory's the groove. It's the all-stars laying down their groove, and it's you dancing, chasing the desperations of the heart, chasing something that's so gone, so ephemeral you know it only by its traces, how a certain plucked guitar string summons the thundering centuries, how a taste of fresh cherries calls up the indolent romancers on antebellum porches, all these stories rolling. Memory is the groove, the lie, the story you never get right, the better place. Memory is the bitch, the shame factory, the curse and the consolation.

Also of note:

  • Michael Chabon's "The Martian Agent," although wonderfully clever, turns out to be only the first installment of what is clearly a much longer work. I appreciate that the adventure serial is a genre story, but I'd rather have seen it as a standalone novel.
  • Dave Eggers' "Up the Mountain Coming Down Slowly" is subtle, beautifully paced, and not at all twee. Remarkably enough, it puts Harlan Ellison's mountain-climbing story to shame.
  • Kelly Link has a disturbed imagination. "Catskin" will warp your mind but good.
  • Neil Gaiman, Nick Hornby, and Elmore Leonard are all writers with good ears for the style and the slang of their favored genres; they provide stories that are marvelously written.

And while I'm praising McSweeney's, let me also say I'm looking forward to Unused DVD Audio Commentaries, by Jeff Alexander and Tom Bissell. I hope the rest of the commentaries are as sly as the one of Howard Zinn and Noam Chomsky discussing The Fellowship of the Ring.

Books About the Law

But one type of book that practically nobody likes to read is a book about the law. Books about the law are notorious for being very long, very dull, and very difficult read. This is one reason many lawyers make heaps of money. The money is an incentive--the word "incentive" here means "an offered reward to persuade you to do something you don't want to do"--to read long, dull, and difficult books.

-- Lemony Snicket

Now That’s Good Music

The folks who live above me are watching Fellowship of the Ring. I can tell this because I can hear the music (and nothing else).

Oh, cool--they've just reached Balin's Tomb.

See What’s Become of Me

Okay. So my workplace of choice runs on the rhythms of the technology industry. This means you shouldn't even think of showing up before 9 in the morning, because there ain't gonna be nobody there, and the real crowd only comes in sometime between 10 and 11. I'm part of the real crowd.

On the other hand, perhaps because I just came over from the East Coast, I'm not really in the mood to be staying up late. So I've been in bed by 11 every night, sometimes by 10. My alarm I've been setting for 7:30, but that feels a little late, so I may dial it back to 7.

These two facts are kind of incongruous when juxtaposed. I've never done this before and it feels very strange indeed.

Signs of the Neighborhood

Shortly after seeing a "Free Kevin" bumper sticker, I passed a house with a hand-lettered sign in one window reading:

George W. Bush is a servant of Sauron. We hatessss him.

I'm not quite sure why the locals would cast themselves as Gollum, but I think I'll enjoy my time here.

Scenes from Two Weddings

Me: Hey, Will!
Will: Grimm. What's up?
Me: Sorry to bother you again, but do you have Keith's phone number? He was supposed to meet me for lunch before the wedding. But that was an hour ago and I don't know where he is.
Will: Ummm, sure. Let me look it up for you. Oh, can you hold on for a moment?
Me: Sure.

Keith: Will! How are you doing?
Will: What a coincidence! I'm on the other line with Grimm and--
Keith: Oh, no! I was supposed to meet him and I totally forgot!
Will: Yeah, he was--
Keith: I'll talk to you later. I need to go call him right away.

Me: Will. Hi, sorry about dropping out like that. My phone said "signal faded."
Will: No problem. Actually it was Keith on the other line--
Me: Where was he? Is he okay? Did he say where he was?
Will: Ummm, no. He said--
Me: Never mind. I'll talk to him. Got his number?
Will: Yeah. It's [actual number redacted].
Me: Let me check: [actual number redacted], is that right?
Will: Yes.
Me: Okay, talk to you soon.

Keith: Will.
Will: Yeah? You okay? Grimm sounded worried.
Keith: Mostly. I forgot that I don't have his number.
Will: sigh. Okay. It's [different actual number redacted].
Keith: Okay. Thanks.

Me: Will?
Will: Yeah?
Me: Were you just on the phone with Keith?
Will: He didn't have your number, so he called me back to ask for it.
Me: Aha. I just called him and got his voice mail. If you talk to him, tell him to stay off the phone and wait for me to call!
Will: Ok . . . .

Keith: Hey, Will!
Will: loud gibbering noises. Grimm says to stay off the phone. He just--
Keith: I called that number you gave me, but it went over to his voice mail immediately like he didn't have his phone on.
Will: even louder gibbering noises. He just called you and got your voice mail!
Keith: That's weird. My phone didn't say anything. I must have been talking to you at the time.
Will: He wants you to stay put and not call anyone! That way he can get through to you!
Keith: Actually, he's standing right here next to me.
Me: Hey, Will!
Will: groans

Sometimes a Cigar Ad

Cigarette (and pipe, and cigar) advertising right now is basically the result of the strange deal the government has been cutting with the tobacco companies. The companies can advertise their wares, provided they resort to increasingly comical indirection and slap on a health warning. Meanwhile, anti-smoking groups use fairly hard-hitting imagery to revile the companies who fund them. The whole system is highly ambivalent; it seems designed to let the United States maintain a credible public face of discouraging smoking without actually kicking the habit.

What would happen if a well-funded non-profit group started taking out ads promoting smoking? I'm thinking of glossy pictures of attractive people actively smoking, together with catchy Madison-Avenue tag lines. "Boogie Down and Light Up." "Sometimes a Cigar Is Just What You Need." Or, maybe just the straightforward "Smoking is Sexy." Or perhaps an Apple-style campaign with iconic black-and-white images of Winston Churchill, Audrey Hepburn, James Dean, and Sherlock Holmes.

The question, of course, is could they get away with it?

It's not clear to me that these restrictions rest on a particularly firm legal foundation. They work because the tobacco companies play ball as a matter of pragmatic calculation (and, to a lesser extent, because major media outlets simply refuse to accept cigarette ads at all). I'm no First Amendment expert, but I don't see how an outright ban on cigarette advertising could be upheld. Just to be safe, my proposed campaign incorporates a number of specific tricks designed to protect it against legal challenge:

  • It doesn't go anywhere near anything that could be considered a claim about the health effects of smoking. It sticks to vague statements that are hard to consider true or false.
  • It doesn't try to sell a particular brand of tobacco products. You could even say that it doesn't try to sell tobacco at all. This is a campaign that is hard to paint as "advertising." (In fact, you could go even further in this direction: add a tag line saying "Tell your elected officials to repeal discriminatory anti-smoking laws," and paint the campaign as political advocacy.)
  • It can be made to appear arbitrarily close to speech that is clearly okay: just delete the tag lines from the iconic-images campaign. If you can prohibit these ads, will you go ahead and prohibit the sale of old movie posters?

That leaves practical restrictions. It's true that the TV stations still won't carry tobacco ads. But there are other media outlets, and even if many magazines flinch at the cynically manipulative nature of my suggested campaign, they'll find a way. Posters, flyers, billboards, skywriting: someone will swallow their values and play along if the price is right.

In practice, I think we haven't seen something of this sort only because no one really wants to spend money on it. The tobacco companies won't do it, unless they have nothing left to lose, because the public-relations fallout would be horrendous. But as smoking ordinances spread and smokers get more and more resentful, they're going to look for ways of reaching a mass audience to try and preserve their public image and stop further restrictions. Perhaps they'll think of something like this one.

The brouhaha that will follow shortly thereafter should be a lot of fun to watch.