Postman, Gitlin and Baudrillard

The Silk Market is one of Beijing’s most popular tourist sites. A gleaming, six-story structure in the city’s “Old Embassy” district, the Silk Market annually hosts more than 15 million visitors -- or, as the market's web site puts it, 15 million pairs of eyeballs (http://www.silkstreet.cc/). Browsers, mostly foreigners, must run a virtual gauntlet of young women in red sleeveless smocks pushing a vast variety of merchandise—clothes, jewelry, electronics, toys, souvenirs. Many of the items bear the labels of well-known designer brands. Almost all of them are pirated. The Silk Market, you see, is 300,000 square feet of fakery.

Or maybe I should say 300,000 square feet of spoof.

Neil Postman and Todd Gitlin seem to see the technology of the Information Age in the same way that I see the Silk Market: a cornucopia of counterfeit. Although they might recognize its vitality and its reach, even its entertainment value, in the end they don’t trust what it has to offer.

Both Postman and Gitlin take care to deny that they are opposed to information per se. Gitlin (p. 5) anticipates that very criticism and tries to launch a pre-emptive attack by acknowledging the positive connotations of the word “information” and then claiming that his denunciation of the “torrent” of data is based not on the mere fact of dissemination—after all, “Who in his right mind could be against information or want to be without it?”—but, rather, what he sees as a nefarious attempt (p. 6) to establish an orthodoxy of feeling.

At the same time, both Gitlin and Postman acknowledge the impact of the sheer volume of information that is available now. Postman (p. 69) observes that society is “awash in information.” Gitlin (p. 17) claims that the “media flow into the home . . . has swelled into a torrent of immense force and constancy.” Postman (p. 54) rues that “the success of twentieth-century technology . . . was so obvious and promising that there seemed no reason to look for any other sources of fulfillment or creativity or purpose.” Still, the paramount issue for these two critics seems not to be the exponential growth in the flow of information, but the character of the information itself. Postman (p. 69) refers to it as “garbage.” Gitlin (p. 17) complains abouty a "glut" that once was “an accompaniment to life that has become a central experience of life.”

Just as I believe the Silk Market undermines respect for intellectual property and the rule of law by promoting piracy, even though it can also provide some measure of entertainment for tourists who might enjoy the haggling and negotiating, so do Postman and Gitlin see communications technology as undermining respect for time-honored values, despite its potentially entertaining features. (Gitlin (p. 65) refers to the modern “arcade of amusements” and Postman (p. 202) cites the potential for “amusing ourselves to death”).

They find little amusement in what they see as potentially disastrous consequences. Gitlin (p. 39) says “the modern preference for ‘stimulation’ as such in impressions, relation and information” follows from “the increasingly blasé attitude through which natural excitement increasingly disappears.” Postman (p. xii) puts the argument even more dramatically, saying “the accusation can be made that the uncontrolled growth of technology destroys the vital sources of our humanity.”

In their denunciations of the negative impact of technology on modern human society, both Postman and Gitlin echo the French avant-garde intellectual, Jean Baudrillard, of whom Kellner (2006) says: "Likewise, in a digital era, Baudrillard claims that history has come to an end and reality has been killed by virtualization, as the human species prepares itself for a virtual existence." To my mind, both Postman and Gitlin are less Luddite than Baudrillardian. Both of them, although Postman to a greater degree, find the amount of information being conveyed of secondary importance to its lack of authenticity and its concomitant threat to society.

Baudrillard (1929-2007) gained international acclaim as a controversial, avant-garde French intellectual; his work is widely thought to be the inspiration for the movie, The Matrix. Kellner (2006) notes that Baudrillard not only theorized that the current era is defined by “simulation in which social reproduction (information processing, communication, and knowledge industries, and so on) replaces production as the organizing form of society,” but extended his argument to claim that globalization and technology were “erasing individuality, social struggle, critique and reality itself as more and more people became absorbed in the hyper and virtual realities of media and cyberspace.”

Despite the similarities in their analysis of technology's impact, Postman omits any reference to Baudrillard in Technopoly and Gitlin (p. 23) makes only a passing reference to him in Media Unlimited, citing the concept of a simulacrum, “a copy of something whose original does not exist.” Gitlin attributes the term “hyper-real” to Umberto Eco (p. 23), even though other sources, without identifying a single originator of the term, give at least partial credit to Baudrillard. Oberly (2003) specifically refers to Baudrillard’s singular contribution to the meaning of the word: “The concept most fundamental to hyperreality is the simulation and the simulacrum . . . The simulation is characterized by a blending of ‘reality’ and representation, where there is no clear indication of where the former stops and the latter begins.” (Baudrillard authored Simulacra and Simulation in 1981.)

Gitlin (p. 23) specifically prefers Eco’s identification of the “frantic desire for the almost real” as a description of the cultural zeitgeist in the United States. However, Baudrillard’s hyper-reality, which is described by Kellner (2006) as a realm “in which entertainment, information, and communication technologies provide experiences more intense and involving than the scenes of banal everyday life,” would seem to be more accurate with each passing day.

Possibly a dose of American optimism, or at least the American “distrust of constraints” that Postman (p. 53) identified as one of the three factors creating a favorable climate for the emergence of a technopoly, serves to constrain the two American critics and distinguish their analysis from Baudrillard's. Perhaps not so constrained was their French counterpart, who scandalously suggested that the Perfect Crime had been committed: in Kellner’s words “the murder of reality,” which Baudrillard regarded as “the most important event in human history.” Baudrillard held that the object had defeated the subject and that the simulacrum had replaced reality. “There is no need to enter the virtual double of reality—we’re already there,” said Baudrillard (2005).

With their jeremiads, Postman and Gitlin apparently hope to raise awareness of the threat posed by technology to the human experience. Baudrillard believed it was no use, that the whole world was already fake.

References

Baudrillard, J. (2005). The conspiracy of art. New York: Semiotext(e).

Gitlin, T. (2002). Media unlimited: How the torrent of images and sounds overwhelms our lives. New York: Henry Holt and Company.

Kellner, D. (2006). Jean Baudrillard after modernity: provocations on a provocateur and challenger. International Journal of Baudrillard Studies. Retrieved Feb. 18, 2009, from http://www.ubishops.ca/baudrillardstudies/vol3_1/kellnerpf.htm

Oberly, N. (2003). Reality, hyperreality (1). Theories of media: keywords glossary. Retrieved Feb. 19, 2009, from http://csmt.uchicago.edu/glossary2004/realityhyperreality.htm

Postman, N. (1993). Technopoly: The surrender of culture to technology. New York: Vintage.

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Even the Silk Market’s own web site acknowledges that the emporium was “once famous for selling fake goods.” http://www.silkstreet.cc/templet/en/ShowArticle.jsp?id=6418

For a video on the high-pressure sales tactics in the Silk Market: http://www.youtube.com/watch?v=54C24hGCZL8&feature=related

For a photograph of a sign in the main entrance to the Silk Market listing "Recommended Words" and "Forbidden Words"--truly helpful information for all aspiring salespeople:
http://www.flickr.com/photos/bdeitte/153043981/

Valuing the Oral Tradition

An analysis of the prevalence of the written tradition of communication over the oral tradition naturally invites a comparison of the strengths and weaknesses of each. The ineluctable conclusion is that the written tradition seems more suited to the demands of the technical or scientific era. Carey (1967) argued that the oral tradition emphasizes “knowledge grounded in moral order” whereas the written tradition “emphasizes the technical order and favors the growth of science and technical knowledge.”

Does the dominance of the written tradition mean that it is somehow superior to the oral tradition? After all, we know which tradition won out. The written tradition rose while the oral tradition, for all its charms, declined. And the winners, it is said, write the history. The written tradition appears to have proven itself to be stronger and more resilient; it has thrived, until now, while the oral tradition has struggled to survive.

I believe we should conclude from this result that the written tradition is different or complementary rather than superior. What’s more, we should affirmatively guard against any notion of triumphalism that might attend to the “victory” of the written tradition lest it take on destructive cultural and political overtones. The decline of the oral tradition need not diminish its inherent value.

Rather than assuming that the ascendant written tradition ranks as superior to the declining oral tradition, we should cultivate an appreciation of both for their unique qualities. To regard either tradition as superior—or even, for that matter, to view their relationship as a competition—serves to undermine the tenable conclusion that the optimal state of affairs is likely some type of balance between the two.

Before I started this program, I had no special regard for the oral tradition. I was dimly aware of the mnemonic devices of the Greek orators, including the technique of structuring their thoughts as items of furniture in a room, or rooms in a house, as a memory aid. Those days are gone forever. Now I appreciate “memory as art,” as outlined by Father Walter Ong (1971), who noted that “(s)ome paragons of mnemonic sprezzatura are said to have carried tens of thousands of these places … in their heads as a regular part of their thinking equipment.” (emphasis added).

Note that Ong wrote that the great memorizers “are said to have carried” these great storehouses of mnemonic aids in their minds. (The very awareness of these awesome feats of recall has been passed down orally through the corridors of time, while Ong used text to communicate that information.)

Likewise, Marshall (2004) noted that the agonistic stories told about the great warrior, Crazy Horse, by Lakota elders, who unlike their grandparents had never actually seen him, “were always preceded by the Lakota word ske, meaning ‘it was said.’ ”

Chinua Achebe, the renowned Nigerian writer, told Bill Moyers (1988) in a television interview that “the danger, the predicament we (are) going through (is) not telling our children stories … (O)nce writing came, we more or less forgot that responsibility to tell children stories.” The danger is the destruction of a culture.

Last weekend, I read for the first time Achebe’s Things Fall Apart (1959), which is considered the greatest novel in African literature. Achebe relies heavily on the oral tradition to craft a story about one Igbo man’s struggle in his own society and the entire tribal culture’s vulnerability in a tragic collision with Christian colonizers.

Like most 21st Century Americans, I have difficulty appreciating the qualities of an oral culture, or the power of what Abraham Lincoln once termed “the mystic chords of memory.” At the same time, I recognize the importance in our global society of affirmatively making the effort to better understand different cultures—especially those that are not far removed from primary orality.

The Lakota culture “still uses the oral tradition and our sole use of it is only three generations past,” Marshall wrote. “It is still a viable mechanism for us.” Ong (1982) cites Achebe as an author whose characters “move in … oral, mnemonically tooled grooves … with high intelligence and sophistication.”

To regard the written tradition with an air of triumphalism as superior to the oral tradition risks cutting off a supply line to an important source of knowledge. The Igbo and Lakota cultures, both of which suffered enormously due to contact with European colonizing cultures, still have much to offer. Marshall, however, said much historical and cultural information “has not been made available to non-Indians” due to a suspicion that it would not be treated with respect as a credible source. He said he suspects this “political and ethnocentric debate … will continue indefinitely, and as long as it is not resolved we all lose.”

Carey observed that communication theorist Harold Innis had recognized the “hostility” that developed between the oral tradition and the written tradition. He described Innis’ concern as follows: “Only knowledge that conformed to the … cultural predispositions of the dominant medium would persist. In a written tradition, knowledge must be technical, secular, and future-oriented for it to be defined as legitimate or recognized as valid.”

To develop appreciation, respect and even admiration for orality is to reject the dangerous tendency that Innis recognized of granting a monopoly of legitimacy to the dominant tradition.

References

Achebe, C. (1994). Things Fall Apart. New York: Anchor Books. (Original work published 1959)

Carey, J. (1967, Spring). Harold Adams Innis and Marshall McLuhan. Antioch Review, 27, 4.

Marshall, J. (2004). The Journey of Crazy Horse. New York: Penguin.

Ong, W. J. (1971). Rhetoric, Romance, and Technology: Studies in the Interaction of Expression and Culture. Ithaca, N.Y.: Cornell University Press.

Ong, W.J. (1982). Orality and literacy: The technologizing. London: Routledge.

Pellett, G (Producer). (1988, September 29). Bill Moyers’ World of Ideas. [Television broadcast]. New York and Chicago: Public Affairs Television, Inc. (Also retrieved on February 8, 2009: www.youtube.com/watch?v=fl9lE5yN1qY).

The Virtual Right to Confrontation Under the Sixth Amendment to the Constitution

Steven D. Fought
Gonzaga University

Abstract

Although the revolution in technology initially made slow inroads into the legal field—perhaps not surprising due to the law’s penchant for tradition and precedent—the adoption of computer-mediated-communication has accelerated to the point where “virtual trials” are widely anticipated in coming years in civil cases. In criminal cases, however, the Confrontation Clause of the Sixth Amendment to the U.S. Constitution, which guarantees a defendant the right to confront his or her accusers, presents what might be an insurmountable obstacle to “virtual” trials—at least for the foreseeable future. Nonetheless, even that venerable protection, enshrined in the Bill of Rights, might one day be transformed by enhanced technology that meets the test of what constitutes “confrontation.”

Discussion

The legal field has been notoriously slow to embrace technology. Electronic filings were a rarity as recently as five years ago. Although the first “virtual trial” arguably was conducted entirely by videotape in a civil case in Sandusky, Ohio in 1971 (Clark 1975), it remains a stark exception to the rule.

Nonetheless, particularly for civil trials, the day when the virtual courtroom is commonplace might not be close at hand, but it is no longer unimaginable. As Lederer (1996) stated, “The courtroom is … the center of a complex system of information exchange and management” and “significant portions of evidence, including remote witness testimony” already are transmitted electronically. Miller et. al. (1975) found “no evidence to indicate the introduction of videotape presentations has any drastic or deleterious effect on courtroom communication between trial participants and jurors,” and in fact cited some evidence that jurors who viewed evidence on videotape retained more information than jurors who saw the same testimony presented live.

Criminal cases, however, pose an altogether different challenge. The Sixth Amendment to the U.S. Constitution states: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …” The presumption has long been that the defendant was entitled to a “face to face” confrontation.

The right is often traced to the Founders’ awareness of injustices in the English criminal courts that were exemplified by the conviction and execution of Sir Walter Raleigh on charges that were made ex parte and without his ability even to confront his accusers and cross-examine them.

To be fair, U.S. jurisprudence has not regarded the guarantee of confrontation for a criminal defendant to be an absolute right. In Craig v. Maryland (1990), the Supreme Court held in a 5-4 decision that a child witness in a child abuse case could testify via one-way closed-circuit television. The defendant and those in the courtroom could see the witness, but she could not see the defendant and others in the courtroom. Despite the absence of a two-way face-to-face confrontation, the Court said, the benefit of the child’s testimony by sparing her the emotional hazard of a confrontation with the accused outweighed the cost of possible abridgement of the defendant’s rights under the Sixth Amendment.

The four dissenters in Craig, an unlikely coalition consisting of Justice Antonin Scalia and the Court’s three most liberal members, including William Brennan, were outraged at what they regarded as a blatant traducement of the Confrontation Clause. Scalia wrote: “The Court … gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I [dissent].”

In a subsequent case, Crawford v. Washington (2004), Justice Scalia wrote a forceful unanimous decision that upheld the right of confrontation as the sine qua non of the reliability of testimonial evidence. Friedman (2009), author of the “Confrontation Blog,” characterized the Crawford opinion as having “transformed the doctrine of the Confrontation Clause.”

Analysis

The purpose of the Confrontation Clause is to guarantee the defendant in a criminal trial the right to confront the witnesses against him or her so that the witnesses are less likely to lie--either because they are under oath, because they face cross examination, or because of the confrontation itself. Tribe (1991) argued that "virtual confrontation" is insufficient because two-way confrontation, "in which your accuser is supposed to be made uncomfortable, and thus less likely to lie, really is the core value of the Confrontation Clause."

Tribe, however, characterized “virtual confrontation” only as one-way communication such as the situation in the Craig case involving closed-circuit televised testimony. Such one-way testimony, which Tribe rightfully attacked, clearly lacks the richness of, say, state-of-the-art videoconferencing in which the witness not only sees the defendant, but the judge, jury and entire courtroom.

In a not-too-distant future, the defendant and a hostile witness might appear to each other in a virtual courtroom as holograms, projected right into each other’s presence, right into their comfort zones, precisely as close as the witness stand is to the defense table in the actual courtroom. Just as in a traditional trial, the witness will have taken the oath under threat of perjury and will face the prospect of rigorous cross examination from defendant’s counsel. And, just as in a traditional courtroom, the defendant will be able to look the witness in the eye. The only difference will be that the witness and defendant will not be physically present in the same room.

Will this “virtual” confrontation thus satisfy the requirements of the Sixth Amendment’s Confrontation Clause? Or will the courts continue to require actual “face to face” confrontation, with its attendant richness?

Admittedly, the “virtual” confrontation that I have just described might lack an ineffable quality that is unique to traditional “face to face” interaction. The witness might not feel the same level of discomfort, knowing that the defendant is not present in flesh and bones, but only in an electronic representation. Will that awareness on the part of the witness necessarily increase the possibility that he or she will lie? Ultimately, does it mean the hostile witness has not been confronted by the criminal defendant? Justice Scalia might never accept anything less than traditional “face to face” confrontation, but it seems to me that advanced technology will eventually make much more difficult the determination of whether or not a defendant’s rights under the Confrontation Clause have been satisfied.

References

Clark, T. (1975). Introduction: Symposium: The Use of Videotape in the Courtroom. Brigham Young University Law Review, 1975, No. 2, 329.

Crawford v. Washington, 541 U.S. 36 (2004).

Friedman, R. (2009, Jan. 27). The Confrontation Blog. Message posted to http://confrontationright.blogspot.com .

Lederer, F. (2002, December). The Road to the Virtual Courtroom? A Consideration of Today’s—and Tomorrow’s—High-Tech Courtrooms. Sixteenth International Conference on Technology and Its Effects on Criminal Responsibility, Security, and Criminal Justice. International Society for the Reform of Criminal Law. Retrieved January 25, 2009 from http://www.isrcl.org/Papers/Lederer.pdf .

Maryland v. Craig, 497 U.S. 836 (1990).

Miller, G., Bender, D., Boster, F., Florence, B., Fontes, N., Hocking, J., et. al. The Effects of Videotape Testimony in Jury Trials: Studies on Juror Decision Making, Information, Retention and Emotional Arousal. Brigham Young University Law Review, 1975, 371-372.

Tribe, L. (1991). The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier. Retrieved January 27, 2009 from http://epic.org/free_speech/tribe.html .

U. S. Const. amendment VI.