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Telecom Immunity and "Lex est Rex"

The most recent Electronic Frontier Foundation newsletter contains a couple of links on telecom immunity which allude to an argument against telecom immunity that I want to expand upon.

Many people think that the basic principle of democracy or of a free society more generally is "majority rule" or some such. However, this is not historically how the matter has been viewed, and history in fact furnishes plenty of cases in which majority rule has not been particularly consistent with freedom. Classic liberals - the early modern thinkers who gave us the foundations of western democracy - had a different view that comes out of the classical tradition. The fundamental principle of a free society, according to this tradition, is summed up in the Greek slogan isonomia or the related Latin slogan "lex est rex." The former is traditionally translated "equal justice under law" and in this form it is inscribed on the US Supreme Court building. It might be better translated by the more generic phrase "legal equality." The latter is translated "the law is king." Although this slogan is usually given in Latin, it too originates in the Greek tradition, in the following famous passage from Herodotus, in which the deposed Spartan king Demaratus tells King Xerxes of Persia why the Spartans fight so fiercely:

[The Spartans] are the equal of any men when they fight alone; fighting together they surpass all other men. For they are free, but not entirely free: They obey a master called Law, and they fear this master much more than your men fear you. They do whatever it commands them to do, and its commands are always the same: Not to retreat from the battlefield even when badly outnumbered; to stay in formation and either conquer or die. (Histories 7.104; from Samuel Shirley, tr., Herodotus: On the War For Greek Freedom)

Sparta had the most oppressive government in Greece in terms of the rights violated and the freedoms its citizens lacked, but the Spartans are still considered by Herodotus to be free Greeks as opposed to the citizens of Persia whom he portrays as slaves of the king. The reason is that in Sparta, unlike in Persia, the law is king. This is the most fundamental principle of freedom. You are more free if you know for certain that if you speak out against the government you will be killed than if your life is every moment at the whim of some capricious dictator: lex est rex is a more fundamental principle of freedom and democracy than even free speech. The principle is imperfect in the United States for many reasons, but it is nevertheless intact. At the very least, you can read the law for yourself for free and might or might not get the interpretation right on your own, or if you've got money you can hire a lawyer who can predict with a high degree of accuracy how a court will read most of the law. The difficult and disputed cases are the exception rather than the rule.

So what is the problem with telecom immunity? The moment "Michael Mukasey said it was ok" becomes a valid defense in a civil lawsuit or criminal prosecution, the law is no longer king: Michael Mukasey is. None of us want that.

Posted by Kenny at March 12, 2008 8:33 PM