The Laboratorium
January 2014

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Speech Engines Goes Gold

Speech Engines, my article on Google, search bias, and the First Amendment, has just been published in the Minnesota Law Review. As you may recall from last year, my argument is that we should think about search engines not so much as conduits for others’ speech or editorial speakers in their own right but more as advisors for users. This unabashedly listener-centric view of the speech in search inverts many of the usual arguments about Google, and it gives what I think is a genuinely satisfying theory of search bias. I claim that disagreement over the right search results is not a proper basis for search regulation, but that regulation to prevent dishonesty is permissible. The key is whether the search engine is deliberately underplaying its hand and returning results that it itself thinks are less relevant to users than others it knows of.

Even if you’ve read a previous draft, I hope you’ll look at this version. It takes a village to write a law review article, and I had excellent neighbors. My editors were perceptive and thoughtful, and a number of colleagues were characteristically generous with their suggestions. I substantially reworked key parts of the article during the editing process, including a much more precise discussion of falsity and the First Amendment. The article is 85 pages now, but trust me, it feels shorter.

A Conspiracy of Paper

The Volokh Conspiracy is a group blog of more-or-less libertarian law professors. It is a senior statesman of the legal academic blogging world: brothers Eugene and Sasha Volokh started blogging together in 2002. As with any group blog, the topics can be eclectic. So while predictable themes like federalism, economic liberty, and gun rights dominate, there are also Eugene Volokh’s love of puzzles and Orin Kerr’s love of jazz.

And now all of it—the federalism and the jazz—live at the Washington Post. The Volokh Conspiracy’s bloggers retain sole editorial control, but the blog will live behind the Post’s “rather permeable” paywall after a six-month transition period and the bloggers will share in the advertising revenue.

The move strikes me as regrettable for all concerned. Blogging and journalism are different enterprises with different goals and different values. They can be married, but this particular combination is less love match than joint venture; the Volokh Conspiracy, content otherwise unchanged, now appears on the Post’s website, with a Post URL and with the Post’s branding. I fear that rather than sporting the best features of blogging and journalism, the combination will sacrifice both.

For the Post, the move blurs an important line about journalistic accountability. The Volokh Conspiracy bloggers join the Post as Wonkblog editor Ezra Klein is leaving for a mysterious new venture. But there is a crucial difference: the Wonkbloggers are Washington Post employees; they are responsible for maintaining the Post’s standards. The Volokh Conspiracy bloggers are independent contractors and have complete control over their blog’s contents.

To be clear, I am glad that the Volokh Conspiracy’s authors will continue to decide what to write; their distinctive voices make the blog what it is. But I do not see this going well for the Post. In trademark law terms, the Post is engaged in naked licensing: putting its brand on a product over which it exercises no quality control.

Take accuracy. The Post is a newspaper and proud of it; it has a detailed corrections policy that includes sections on blogs and social media. But the Volokh Conspiracy’s editorial independence means that the Post’s writ does not run to the /news/volokh-conspiracy/ directory on (Note: it’s in the “news” directory, not the “blogs” directory.) This is a blog with twenty-three authors, some of whom court controversy. If one of them gets a story wrong, the Post’s reputational custodians could rightly ask who gave the car keys to the new kid.

Then there is the matter of journalistic neutrality. When Timothy Lee joined the Post, he sold his Bitcoins “to comply with WaPo’s strict conflict of interest policies.” (Those policies are available here.) It seems unlikely, however, that Todd Zywicki will give up his consulting work (already a matter of public controversy). Nor does it seem likely that Randy Barnett will give up the tireless public advocacy that nearly brought down Obamacare. Indeed, the Volokh Conspiracy’s “we’re joining the Post” post emphasizes that the bloggers will keep their day jobs.

The Post will “pass along” Volokh Conspiracy posts to its readers. Those readers are entitled to know whether a given item on the website is subject to its editorial and conflict-of-interest policies or not. I am reminded, and not in a good way, of AOL’s similarly arms-length relationship with Matt Drudge. Editorially, the Volokh Conspiracy bloggers are in every way outsiders to the Post, but it also seeks the cachet and page views of being associated with them. The issue is not unique to the Volokh Conspiracy, or to the Post. Such questions also arise in relation to Post’s The Monkey Cage, as they arise in relation to outside contributors to blogs at other publications.

Again, my point is not that there is something wrong with using the Volokh Conspiracy as a soapbox for personal and professional views. Soapboxing makes for memorable blogging. My point is that the Post’s norms as a newspaper are much stricter about when and how writers can use its pages as a soapbox, and that this tension has not been squarely addressed. Unless I am mistaken, David Bernstein doesn’t call Human Rights Watch for a comment every time he criticizes it; as a polemical blogger, he is not expected to. But journalists do call for comment, and the Post has done little to explain when, how, and why its usual rules are suspended here.

The move to the Post is also, I think, bad for the Volokh Conspiracy. It has an integrity of its own, one that comes from authenticity and clarity of vision. Its authors have been generous in their engagement with the blogosphere. Even at their rantiest (which by Internet standards is usually quite civil), they are generally quite good at linking to and responding seriously to opposing points of view. They have shared, freely and openly, enormous amounts of insight with the world over the years.

Moving the blog behind a paywall is antithetical to these values. There will still be ways for dedicated readers to get past the paywall: it’s free to those with .edu and .gov addresses, and the blog’s RSS feed will still be full-text. But the message is clear: the front door is being closed, even if the back door will remain unlocked for now to those who know the secret knock. I know as a blogger that linking to articles behind paywalls frustrates my readers. Sometimes I have to, but it always feels like putting weight on a twisted ankle.

The goal is a “broader reach for our ideas” but I suspect the result will be just the opposite. Volokh Conspiracy posts will be less often linked, less often debated, less often significant. Fewer people will ponder Orin Kerr’s thoughtful breakdowns of Fourth Amendment developments; fewer people will read Dale Carpenter’s play-by-play coverage of same-sex-marriage cases; fewer people will watch Will Baude make federal courts actually seem interesting. The platform that helped Randy Barnett lead the charge against Obamacare may fade away. I may not agree with all or even much of what is said there, but I for one would regret the loss.

In Memoriam Gary Host

At dinner last month, the topic turned to heroes, who were ours, and whether our age is still possible of producing them. The friend who put the question had worshipped Mickey Mantle. That did not end well.

I couldn’t come up with anyone on the spot, but at home, I realized that I did known someone with great and abundant talents, who used them in the service of his fellow man, and who accomplished superhuman feats. Aaron Swartz was a hero for me, and for many others. This too did not end well.

Aaron killed himself a year ago today, and I still mourn him bitterly.

Don’t Try This At School

A high-school teacher in New York set two of her students on fire on Thursday. One of them is in critical condition after “a snakelike flame tore through the air … searing and melting the skin on his face and body.”

It was an experiment gone, horribly, tragically wrong, and this particular experiment—a methanol flame test—goes horribly, tragically wrong with unsettling regularity. A New York Times story on Thursday’s accident includes a paragraph that starts with the never reassuring phrase “Other cases when the demonstration caused an explosion and fire …” Three weeks ago, a government safety panel, the Chemical Safety Board, released a video and warning message about the same experiment. The CSB’s video features yet another student who was severely burned when a methanol flame test set her on fire.

A school official in New York said of Thursday’s accident, “We’re determined to get to the bottom of this so that it never happens again.” But the mechanism of injury in all of these cases is not hard to understand. A flame test analyzes an unknown substance by determining what color flame it produces when it burns. Flame tests make for vivid demonstrations because of the different colors different substances produce, and because of the human (and adolescent) fascination with fire. There are many kinds of flame tests; a common demonstration setup—and the one that exploded on Thursday—uses methanol as an accelerant. Methanol is highly flammable, making for bigger flames; it also burns invisibly, allowing the different colors emitted by the minerals being burnt to stand out.

Unsurprisingly, the properties that make methanol attractive for flame tests also make it dangerous. Large and invisible flames are not to be trifled with. Methanol also has other propensities that make it especially hazardous in a classroom setting. Although it is a liquid at room temperature, it has a high enough vapor pressure that it spreads easily into the air—and a low enough flash point that it ignites easily once it is there.

The dangers of methanol flame tests are well-enough understood that there are extensive safety instructions for anyone trying to carry one out. Flinn Scientific’s demonstration videos on YouTube are hair-raising, and so is the page-long “Safety Precautions” section of its instructions for the flame test. And yet, the injuries keep on happening: an investigator with the CSB said, “What we need to look at is why is this accident keeps happening across the country. … I can’t imagine a teacher would do this demonstration if they knew the potential risk they were putting students in.”

One reason may be that methanol flame test—sometimes called the “rainbow”—has a long history in classroom demonstrations. It seems to be part of the folklore of high school chemistry teachers. Even one of the Flinn Scientific videos leads off with a wistful note about the demonstration’s historical significance—a little like the Onion’s Fun Toy Banned Because Of Three Stupid Dead Kids. That history, and with it the assumption that something so familiar could not also be so perilous, may be one reason the CSB’s message is not getting through.

Consider what the CSB is up against. High school chemistry teachers don’t just wake up one day and say, “Hey! Why don’t I spritz some methanol on burning metallic salts to demonstrate emission spectra?” They get the idea—and and the laboratory procedures—from somewhere. And not all of these sources are careful about the safety side. Here are a few of the horrifying things I found on the Internet yesterday:

  • YouTube videos of flame tests brazenly violating multiple basic safety precautions. (The dishes aren’t well separated, there are no lids by the dishes, and the teacher is wearing neither gloves nor an apron.)
  • A lab report template for students to carry out methanol flame tests, and lab reports from students who had done so. Again, the directions violate crucial safety directives. (The first instruction in Flinn’s guide says not to use watch glasses, as “the methyl alcohol can easily spill out and spread the fire.”)
  • Demonstration instructions that omit almost all of the safety precautions.

These are not random blog posts by home chemists (although there are plenty of those, too). These are science educators reporting on their own unsafe practices, and encouraging others to do as they do. These are professional chemists. They know what methanol is and does: that’s why they’re using it. But none of them seem to have any sense of how easily methanol flame tests can go wrong, or how badly someone could be hurt.

Where might this cavalier classroom culture come from? Here are two of several alarming articles from the Journal of Chemical Education I also found yesterday. Both were published as “Tested Demonstrations” in “the world’s premier chemical education journal,” the flagship journal of the education section of the country’s professional society for chemists.

Maynard, J.H., J. Chem. Educ., 2008, 85 (4), p 519 (“Using Hydrogen Balloons To Display Metal Ion Spectra”)

Abstract: We have optimized a procedure for igniting hydrogen-filled balloons containing metal salts to obtain the brightest possible flash while minimizing the quantity of airborne combustion products. …

Johnson, K.A.; Schreiner, R., J. Chem. Educ., 2001, 78 (5), p 640 (“A Dramatic Flame Test Demonstration”)

Abstract: A dramatic ball of colored fire appears when a salt/methanol mixture is sprayed into the flame of a Meker burner. The colored fireball is highly visible, even in large lecture halls. Although the fireball has a short duration, it can easily be recreated by repeated spraying of the salt/methanol mixture into the burner. The equipment for these striking flame tests is easy to prepare and store.

There is more in this vein, much more. I would like to think that these articles are reaching an audience capable of recognizing the remarkable danger of such demonstrations, and taking appropriate precautions. The frequency with which students and teachers are burnt in methanol flame tests suggests otherwise.

When I started researching the methanol flame test, I expected to find a story of changing safety standards, or of an influential but outdated book still in the teachers’ section of school libraries, or of a few teachers deliberately cultivating a devil-may-care attitude. I found none of these things. Instead, a few hours after asking, “Why would a teacher give such a dangerous demonstration?” I had an answer that left me even more worried than before. No one told her not to.

I will give the last word to lab safety consultant David J. Leggett, as quoted by the New York Times:

I would frankly question the use of methanol in an experiment that is simply going to say look kids, look at the colors.