Polarization, Hyperbole and Post-Eristic Political Communication

Remember when they handed out buttons?

A lifetime ago, in a state far far away, I was a Democratic Party committeeperson, and as a member of DeSoc (the Democratic Socialist committee – remember the rose in the black fist?) and the Young Democrats, I was privileged to attend a number of campaign management and speech writing workshops.

The themes of those lessons all bore a positive message:  Don’t mention your opponent, as every time you do, you give him or her greater name recognition and thus boost their election potential.  Don’t dwell on what your opponent or the opposition party is doing wrong; always be positive, provide a message of hope and your vision for the better future. Present plans for resolution of conflicts, answers to problems, and options for emerging issues. This was how we were told to win: By persuading the other side to believe in you and the infallible logic of your ability to successfully lead or, at least, to make them feel good about themselves and the direction of their community or nation.

This is about 180 degrees from the current state of political communication theory today.

Polar Opposites

I’ve spent the last two decades trying to figure out why political candidate campaigns did an about face to become almost exclusively an exercise in opponent-bashing. Why would you say your opponent’s name once or twice per sentence in a very expensive television ad, in your website materials, in your press releases, in community or televised debates? Why would you waste every opportunity to talk about an issue by doing nothing but slamming your opponent candidate or party’s approach, without offering any hope or vision for the future? Obviously the dominant logic had changed dramatically, but I could not figure out why.

Over time, the opponent-bashing approach flooded into broader fields. With the advent of social media, the public jumped on the band wagon and whole-heartedly embraced the tactic of lobbing highly divisive negative memes and quotes into the blogosphere.

Liberals particularly have adopted this theory. In addition to candidate election campaigns, they have applied it to such wide-ranging subject matter as immunizations, firearms), and evolution.  They place the blame for everything from traffic snarls to global warming squarely on the Republicans.

Republicans are, of course, not averse to using similar tactics, though in past years they’ve combined this with sophisticated media techniques designed to maximize mass social persuasion, particularly in the use of theme language running through all campaigns from the local to the national level.  Their ability to tightly control these language themes has loosened somewhat with the advent of the Tea Party structure, as the national Republican Party hierarchy is not the well-oiled, close-tolerance machine it used to be. In my Democratic Party days, the problem with the left is that it was always fighting amongst itself while the right presented a single Borg-like structure. Today those positions have probably inverted.

Why Don’t You Get It, You Idiot?

Like Winnie the Pooh with hand on chin, I pondered and pondered the prevalence of these increasingly negative messages bombarding us daily with directives to get angry at the Other.  I spent long hours wondering whether they are contributing to the epidemic of depression, anxiety and suicide that surrounds us. I wondered whether they contributed to Congressional stalemates and the inability to move our country forward in many different realms.  All we hear, even from our most liberal, progressive Vermont Congressional delegates, is how it (whatever the topic of the day may be – global warming, health care costs, international violence) is the Republican’s fault and how they are a bunch of obstructionist uneducated embodiments of evil.  We do not hear the plan, the solution, the way forward, the message of hope.

When I spout my own message in that vein – which is, “Fund NASA” – I am greeted with jeers: Yeah, right, like that will happen and who needs it anyway. I’d say the biggest economic mistake our country has made in recent decades is pulling out of the Supercollider project in Texas. The point of these things is not necessarily that the Higgs Bosun could have been found in America instead of Switzerland, or that we need better freeze-dried ice cream. The point is that projects like landing a man on the moon pull the nation together with a unified positive goal, give us hope and a sense of excitement for the future, and bring that empowering sense that American ingenuity can accomplish anything. Funding pothole repair or yet another war may create a couple jobs, but nothing would shape the next generation of Americans like being woken up at 2 a.m. by their parents to watch a moon—or a Mars –shot launch.

It irked me that I couldn’t parse out the logic.

Then, I got it.

No wonder I had missed it – it’s a math thing.

Circle the Subarus

Here in Vermont, when faced with an assault on our local independent culture, my friends and I jestingly exhort, ‘Circle the Subarus!’. The reference is to circling the Conestoga wagons when a wagon train westward was under attack by – well, anything. (I’m old enough to remember when we used to say Circle the Volvos, but the Volvos have pretty well disappeared from around these parts.)

The rationale behind the old-school method of Positive Politickin’ that I was taught years ago was that you could already count on your Own Team to vote for you; that if you presented a compelling positive image, you could likely induce a good portion of the Uncommitted Middle to voting for you; and if you were really, really compelling, you might just convert a few members of the Other Team to vote for you. Thus, if there were 1000 registered voters in your district – 250 Republicans, 250 Democrats, and 500 Independents – as a Democratic candidate the logic would be that you already had 250 Democratic votes, and you needed to get 251 Independents to be your new best friends in order to win the election. You won them by being nice. (Decades ago my mother voted for, and has voted in every election since for, a Congressman who, in his first campaign, helped her move her loaded grocery cart over a curb and load the groceries into the trunk while he urged her to vote for him. She votes for him Because He Was Nice. That’s old-school Positive Politickin’.)

The polarizing, enemy-bashing approach to political campaigns and public issues is not remotely intended to make a single convert from the other side – or even to convert much of the uncommitted middle. The New Negative campaign theory is intended solely to solidify your Own Team, and to get it so riled up that every single member of it comes out to vote.

This New Negative logic arises out of a fatal mathematical flaw in the old Positive Politickin’ model: Most people don’t come out to vote. The old-school assumption that if you have 250 registered Democrats out of 1000 registered voters, you don’t have to worry about getting 250 votes, is a false one. 

In mid-term Congressional election years, about 40% of eligible voters vote in the federal elections. In Presidential election years, about 60% of eligible voters vote for the President. In either of those types of elections, far fewer people vote in the state elections, even though they took the trouble to go stand in line and walk into a voting booth. In off-year and primary elections, and in many state elections, voter turnout is often more like 25% of eligible voters.

That means out of those 1000 registered voters, you might only get 250 to show up to the polls at a state or local election, and only 400 to show up to the polls in a mid-term Congressional race. In the first instance, if you get your 250 Democrats to show up – you’ve won by a landslide. In the second, if you get your 250 Democrats to show up – you’ve won by a very comfortable margin.

In other words, the heart of politicking today is not to charm the middle and persuade a few swaying souls on the other side – it’s to light a compelling fire under your Own Team, getting them into such a cohesive, angry, roiling mass that they can’t help but show up at the polls, early and often, possibly dragging along some friends, family or co-workers in the process.

Preaching to the Converted

No one was every persuaded of the wisdom of a different position by being called an evil, uneducated idiot. But the goal of these vitriolic, polarizing, hyperbolic approaches is not to persuade the opposition – it’s to crystallize the proponents. It’s preaching to the converted.  It’s about making sure that the committed Democrat or Republican never even considers voting for an independent or progressive or other candidate because it would obviously be an act of treason; it’s about sulfur and brimstone and God being on the side of the winner.

Eristic argument is argument designed to win at all costs—argument that flays and eviscerates the opposition and leaves them a disemboweled smoldering mass on the sidewalk. Every now and then, in extreme circumstances involving justice or putting a stop to a horrific loss of life, that technique to conflict resolution may be warranted. In most situations – deciding where to go to dinner with your spouse, or trying to encourage a neighbor or patient to immunize their child – eristic effectiveness brings pyrrhic victory.

Whipping your own team into a frenzy is a post-eristic communication strategy—and ultimately, in the long run, as fruitless and self-destructive as beating up your spouse in public. It might get your vote out in the short run, but it also adds to the Other Team’s sense of cohesion by showing how nasty and horrible you and your team are. It reduces issue and candidate campaigns from meaningful dialogue and sharing of positions, to a mere war of numbers. It removes authority and control from the voters, who no longer are presented with two different visions of the future from which to choose between.

In this case, not only do you beat the other side to a pulp, but you polarize the sides of any political issue so extremely that any ability to work together, find common solutions, or build a better future is erased, because no one side can afford to loosen their grip on their core hyperbole-based voting block. It is, as William Ury calls it in the Harvard Negotiation Project’s ‘bible’ of conflict resolution, position-based bargaining – and no one can ever back down from a publicly stated position without losing significant face, and when you are preaching to the converted, face  (and faith) is your stock in trade.

A Way Out

The general public, including those affiliated with any of these political teams, holds the keys to the way out of this spiral-into-ineffectiveness which blackens our political landscape.  It involves two simple steps that are entirely within your power.

First, you can stop participating in it. Stop posting, reposting and repeating stories, social media memes, and slogans that are not aimed at promoting genuine understanding, betterment, and resolution to political issues. Is it phrased in such a way that you’d say it to try to convince your grandmother or best friend to agree with you on the subject? If not, don’t repeat it. Are the facts true? Don’t pass along inflammatory statements without vetting them, and knowing exactly what your purpose is in doing so. The dialogue will become meaningful and civil if you insist on engaging in civil, meaningful dialogue. Don’t buy into tactics of fear, anger, and accusation—especially accusation. Does what you are about to post encourage a solution to a problem – or just generically condemn people you don’t agree with, and who you probably haven’t even met?

Second, you can vote. When substantially greater than 50% of the eligible voters show up for elections, the preaching-to-the-converted method is no longer certain to win the day. You’ll notice that Presidential candidates rely on their parties, Congressional and state candidates to engage in the bulk of this post-eristic communication, thus cementing and motivating the party faithful, while they themselves engage in enough baby-kissing, grandma-hugging and flowerly feel-good language to entice just enough previously uncommitted voters to win the day.

Barack Obama was highly effective at this kind of old-fashioned political persuasion in his campaign appearances – a persuasive edge which, as Dan Rather recently pointed out in an interview on CNN, he lost once he was in office, as he’s been highly ineffective at persuading Congress to do most things. This is a good example of the backlash of post-eristic argumentation strategies. Obama won the people’s confidence through his heuristic, hope-based campaigning, but the polarizing approaches of his party and Congressional candidates made coalition building all but impossible.

If sizeably more than 50% of us also showed up at Congressional and local elections, the mass-media strategies of parties and candidates would change significantly. The math would no longer favor the post-eristic approach. Candidates could go back to saying, Vote for me because I have a better plan.

And some of the just might. Then we’d all win.

Oh – and fund NASA.

Science and Fallacies: False Dichotomies Are a Weak Foundation for Law and Policy

Fallacies, like false dichotomies regarding who believes in 'real science', 

are shaping a number of our most important law and policy debates. 

         Several of today’s most vehement public policy debates are predicated on a chaotic combination of false dichotomy and a claws-out catfight for control of the dominant cultural and media narrative.  The arguments proffered over these vital public issues – immunizations and GMOs chief among them, although the disagreements over climate change, teaching evolution in schools, and abortion all bear similar elements –are ill-structured, fallacy-based, logically-inconsistent, and hyperbolically divisive.   And on such foundations are our laws written and enforced.

The dominant narrative regarding immunizations goes like this:

 “Government and pharmaceutical industry scientists say immunizations are not harmful and are for the common good, and anyone who does not believe this is an ignorant, uneducated, anti-science, superstitious, obstructionist, probably Christian-southern-Republican, idiot and should be punished by being forced to immunize their children.”

The dominant narrative regarding GMOs goes like this:

“Government and agricultural industry scientists say GMOs are not harmful and are for the common good, but anyone who believes this is an ignorant, uneducated, unreasonable, gullible, obstructionist, probably Christian-southern-Republican, idiot, and the agriculture industry should be punished by being forced to label and disclose to the public any molecule of GMO material included in any food product.”

Individuals who question vaccination policies (as well as climate change data or any other official reports bearing numbers and lab studies) are scathingly branded ‘anti-science’ and marginalized by those controlling the media narrative. Yet individuals who question GMO data are deemed cultural heroes who are battling ‘junk science’ and preposterous industry-funded studies.

These two false dichotomies – if you value science over superstition, you won’t question vaccines; and if you believe those industry shills and their junk studies about GMOs, you’re an idiot—are logical fallacies that serve only to divide the public into ever more distant and angry diametrically opposed camps.  Being called a superstitious idiot never changed anyone’s mind, ever.  

This means that as laws are adopted and enforced on these subjects—as parents are threatened with jail for not immunizing their kids, and huge lawsuits loom over GMO bans and labeling—Americans will be splintered into warring camps.  True, there are winners and losers in every policy debate. But where the process is fair and civil, where the arguments are based on reason and rationality rather than philosophically inconsistent (a.k.a. arbitrary) rhetorical fallacies, most losers can find a way to live with the results, content that they were heard and respected in the process.

Much of this rhetoric has recently focused on the question of whether or not you ‘believe in science’ as well as whether or not the data at issue is ‘real science.’ The arguments which result in marginalizing some people as being ‘anti-science’ assume that ‘science’ is immutable, absolute, not subject to question—and apparently something performed or funded only by entities some group of people decides they like, such as Merck rather than Monsanto.

I run into logical, emotional and philosophical problems with this initial premise. To me, science IS inquiry; science IS an ever-changing understanding; science IS something performed by and participated in by every one of us every day, and not purely the realm of experts in any camp. Science is of course informed by our cultural precepts, including our language, our faith, our emotions – it always has been.  

Following this alternative premise about science, then, I come down squarely in the camp of questioning the various industry-sponsored GMO studies – questioning, mind you, not outright rejecting on account of their source. I’m perfectly willing to accept the industry- and government-science supported notion that eating an ear of GMO corn is not likely to kill you, at least not directly or in the short term. Besides, killing off their customer base too quickly would be bad for business – heck, any virus knows that killing off the host too fast is bad strategy.

My concern in the GMO debate is that this attempt to vilify and discount all studies indicating that GMOs are not, in themselves, harmful, diverts the public policy arena from addressing the bigger-picture issues. For example, many GMO crops are manipulated to be pesticide and herbicide resistant, allowing—encouraging—far greater use of these chemicals which disrupt our ecosystems and quite possibly human health.  Most GMO crops are also gene-patented, which I—a dedicated open-pollination seed saver—find most troubling of all.

I personally find this heated public argument over GMO labeling and the question of whether eating GMOs is bad for you to be doing more harm than good.  It strikes me as the same structuring of public policy and law that led Americans to argue over whether the Government could look at your kid’s library records via the Patriot Act – while not raising one complaint over the complete and total surrender of your internet and telephonic communications privacy by warrantless and sealed-warrant FISA court investigations. They robbed the whole store, and we felt good because we got to keep the candy bars.  

By getting enraptured by the passion of proving that GMO science is junk science, we’ve lost sight of the real issues. Allowing companies to patent indigenously developed seed strains, allowing a tiny handful of companies to come into possession of an ownership interest of the world’s seed – and thus food –supply is a terrifying evil.  Having been duped by our vanity over science-based arguments into plunging down this side-show path about labeling and the safety of GMO produce items, we are missing the opportunity to have meaningful, substantive impact on this issue which may well shape the future of humanity.  The GMO industry will make a great show of fighting us all over labeling, then concede, leaving us once again standing in an empty store holding the candy bars with a dumb smile on our face.

My assertion that this labeling debate is a side show does not sit well with my liberal friends, to say the least—but that is nothing compared to what happens when I apply the same premises and logical inquiry to immunizations. If I should not believe the agricultural industry studies on GMOs, why should I believe the pharmaceutical industry studies on immunizations? This pronouncement is met at dinner parties with the most disdainful astonishment. The response, usually, is ‘Well, that’s different,’ followed by, ‘But it’s science.’

Well, there’s a logical argument for ya.

I know, there is a significant body of data and studies from a wide variety of sources indicating that most vaccines in use today have very low risks of direct harm to the recipient, and that the public in general benefits relative to particular diseases when a significant portion of the population is immunized. I did immunize my child – but not on the standard schedule, in fact, she did not receive some of the required child immunizations until well into her teens, when she talked through the issues with her doctor and made her own choices on them.  This failure to comply utterly with what ‘science’ tells us has resulted in my being called the most extraordinary names. It’s also led to significant bafflement, since I’m not uneducated, ignorant,  Christian, southern or Republican or any of those  other horrible false-dichotomy labels heaped on the people labeled as ‘anti-vaxxers.’ 

I have seen all the studies, is my response, and science thrives and develops by being challenged. That’s the whole reason we have peer-review journals – so that studies apparently performed along accepted standards of scientific inquiry can be challenged, duplicated, and debated.  I never was particularly concerned about the correlation between vaccines and autism myself, but I’m delighted that enough people raised that challenge that long-term detailed studies were undertaken on the subject. I tend to believe that knowledge about both immunizations and autism was substantively advanced by these studies—and that is  a very good thing indeed for all of us.

What most concerns me is the absolutist, hyperbolical position of the ‘pro-science’ camp, which asserts a downright tyrannical proposition: No one has any right to question the ‘science’ on this subject.  This position ignores, indeed attempts to stomp out, the notion that people have very, very good reason to question Government and industry findings regarding human health.

Unethical government-sponsored medical practices and public health scandals abound in living memory of many Americans.  The Tuskegee experiments lasted until the 1980s; the eugenics programs into the 1930s.  Forced lobotomies and forced sterilizations continued well beyond the eugenics program, and state law still allows court-ordered sterilization of individuals with developmental disabilities.  From 2001 to 2004 Washington DC and federal agencies covered up the fact that harmful levels of lead were in the public drinking water. Americans have good reason to start with the presumption that the Government is not telling the truth regarding health-related information.

Even removed from Government and industry influence, scientists frequently determine that what they declared with absolutely certainty at one point in time is actually absolutely wrong. For example, for a dozen years or more, ‘science’ in the form of respectable entities from the Mayo Clinic and National Institutes of Health on down have touted niacin supplements – vitamin B3 – as a natural means of cholesterol control. Niacin is cheap, available over the counter (unlike prescription statins), and in fact is highly effective at raising HDL (“good cholesterol”) and lowering LDL (“bad cholesterol”).

Last week, a prominent peer-reviewed medical journal published a report indicating that despite the fact that it raises good cholesterol and lowers bad cholesterol, niacin does nothing to stop heart disease. In fact, the study concluded, taking niacin supplements increases your odds of dying prematurely.  ‘Science’ said for years, with no reservations, this stuff is fabulous; now science says oops, actually it’s killing you.   This is hardly a one-off – remember DES? It was administered liberally to pregnant women from the 1940s to the 1970s to reduce pregnancy complications, and created a generation of DES sons and daughters with significant debilitating medical problems. 

So how does logic dictate that anyone who questions immunizations – particularly immunizations that have not been around for 50 years so that we can see the long-term impacts and unexpected generational consequences –is ignorant, uneducated, or an idiot?  The more you are educated about the American medical and pharmaceutical industry and its studies and programs, the more you have reason to question. ‘Science’ changes its mind every week about something affecting our health. Coffee has gone from being good for you to being bad for you so many times that I don’t bother to look anymore. Margarine was better for you than butter; now butter is better for you than margarine. Yet somehow, we are told, all immunizations are absolutely good all the time without fail or change in thinking, and if we don’t believe that, then we are idiots.

Increasingly, the law says we are more than idiots. If we doubt, if we question, if we hesitate to immunize our children on the mandated schedule out of concern for the risks (and there are genuine risks – you can check out the data at the U.S. Department of Health and Human Services Vaccine Compensation program, which has paid out compensation for over 3500 claims of death and serious bodily injury since the program’s inception in 1988, and they only pay for a very narrow range of claims for a small number of vaccines that do not, for example, include flu shots) we can be legally punished. Our kids can be precluded from attending public schools; in some states we might even be thrown in jail, which has long been the political response of tyrants to people who do not agree with them.

The Americans who dominate our present cultural narrative waive the flag of righteous, patriotic Science and wield it as a banner to vilify and marginalize those with alternate points of view. Fallacies, like the false dichotomy that anyone not with ‘real science’ is an idiot not worthy of discourse, have always been the scurrilous weapon of eristic argument – argument aimed at defeating, squashing and humiliating an enemy rather than engaging in heuristic inquiry and persuasive techniques designed to work together towards a common goal.  

Is a nation of those who sign on to the dominant narrative lined up to legally bulldoze those who bring a different perspective to the table really where we want to be going?

Or worse – is it where we have already arrived?

Citizen's United: It Doesn't Say What You Think It Says

Citizens United. 

To paraphrase the character Iago Montoya in The Princess Bride, you keep using these words, but I do not think they mean what you think they mean.

The present cultural mythology is as follows: In the Citizen's United case, the U.S. Supreme Court declared corporations to be people, declared the expenditure of money to be free speech, and allowed corporations to donate unlimited amounts to political campaigns and thus buy elections.

That myth is incorrect on all three points. Since many of the individuals now advocating for a Constitutional Amendment to 'overturn' Citizens United are also railing about the teaching of the myth of creation in public schools, and advocating fact-based scientific education, I strongly urge you to use the same approach here. Read the actual decision and base your arguments on the accurate facts and not the emotionally and politically manipulative spin which has been created and marketed by vested interest machines.

A few journalists and bloggers -- including Dan Abrams, son of the attorney who argued the case for Mitch McConnell, The Media's Shameful, Inexcusable Distortion of the Supreme Court's Citizen United Decision -- have pointed out just how drastically the media (and the Democratic party) have mis-reported Citizens United, but those voices seem to be whistling into the wind. Now that the Dems are strongly advocating a Constitutional Amendment, it is time to exercise the duties of citizenship and read these criticisms as well as the decision itself, and the history of campaign reform legislation and First Amendment cases in the US, and make a knowledgeable decision regarding our country's course of action on campaign financing.

There is also this brilliant analysis in TruthOut that I urge everyone to read and share, specifically about the proposed Constitutional Amendment: The Problem with Citizen United is Not Corporate Personhood.

Read It.

You need to read the decision, and read it several times over, carefully. It is not long and it is in accessible English.  Here are two links to it, the first from the Cornell Law School library Legal Information Institute, the second from Bloomberg Law:

http://www.law.cornell.edu/supct/html/08-205.ZS.html

http://www2.bloomberglaw.com/public/desktop/document/Citizens_United_v_Federal_Election_Commission_130_S_Ct_876_175_L_

Corporations Treated as People at Law.

The Citizens United case did NOT establish the proposition that corporations are treated as persons at law. That has been the case internationally since the inception of corporations, and in the United States since at least 1819, when the U.S. Supreme Court recognized in The Trustees of Dartmouth College v. Woodward that corporations are, at law, the same as persons for purposes of entering and enforcing contracts; in 1888 when in Santa Clara County v. Southern Pacific Railroad they stated that equal protection of the laws for all persons includes corporations; and in Pembina Consolidated Silver Mining Co. v. Pennsylvania in 188 they held that "Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution."

The purpose of corporations is to create a legal entity -- effectively, a person for legal purposes -- separate from the individuals who found it; an entity which can engage in contracts, sue and be sued, be subject to regulation and penalty, and most critically to raise money for ventures while limiting or eliminating the risk of the personal assets of the founders and directors. That corporations are considered people at law is a well-established traditional legal principle that was in no way affected by the Citizens United decision. 

Corporations are the creations of law, and there is good reason to engage in serious and sober reflection as to whether our corporate laws are serving the best interests of the public, or whether they ought to be changed. Perhaps there should be regular review of corporate actions with far more discretion left to state governments to deny requests to renew corporate charters based on a list of publicly important factors like pollution, job creation, social justice and so on.  Perhaps we should look to a Rhenish system of capitalism, requiring labor, environmental interests, community and social justice interests to have voting representatives on all corporate boards.  A Constitutional Amendment to 'overturn' Citizens United could re-direct the way that business corporations buy elections -- but it won't do anything to affect fundamental corporate structure or corporate responsiveness to public needs from jobs to a clean environment to progress in the creation of services and invention and manufacture of goods. 

Money is Speech; Corporate Political Speech is Protected.

The U.S. Supreme Court held clearly in 1976 in the case of Buckley v. Valleo that spending money to influence elections is First Amendment protected free speech. Advertising --the expenditure of money to promote goods and services -- has been considered First Amendment protected free speech since the 1940s, though a string of cases has been differentiating between 'commercial speech' which can be more strictly regulated, and 'political speech' which is entitled to the highest protection and deference.  For example, the First Amendment protects outright lies in political speech and, subject to private civil action for defamation, in journalism. But commercial speech that falsely markets a product through deception can be punished by the government. 

Despite the limits of advertising regulation, the expenditure of money to promote a product, idea, service or position has been considered an exercise of Free Speech since the 1940s.  You -- whether you are a person or entity -- have the right to shout your political opinion from the rooftops with the upmost First Amendment protection, and if the rooftop you can afford happens to be a half-hour infomercial on a Fox channel, that's political free speech.  

All free speech can be regulated to some extent. 'Time, place and manner' restrictions are the most common and, if uniformly applied, most frequently upheld. This would include requiring protest marches to obtain permits or preventing protestors from blocking an alley which provides fire truck and ambulance access. But restrictions which attempt to restrict some speech based on the content of the message, or the identity of the speaker, are highly suspect under First Amendment law. "Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.  The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers." Citizens United.

The Citizens United decision did NOT establish the proposition that spending money is a form of First Amendment protected expression; nor did it establish the proposition that the First Amendment applies to corporations (held by the U.S. Supreme Court in the 1970s in First Nat'l Bank of Boston v. Bellotti) and specifically to corporate free speech (NAACP v. Button).  

Direct and Indirect Spending; Non-profits and Unions.

Citizens United did not in any way alter the present restrictions on corporate (including non-profit), union or individual direct contributions to political campaigns. I'll repeat that because it's important. Citizens United did not in any way alter the present restrictions on corporate (including non-profit), union or individual direct contributions to political campaigns.  Corporations are prohibited from making direct campaign contributions from their own treasuries; they must establish specially designated and disclosed PACs for doing so. Citizens United did not change this. 'Overturning' Citizens United with a Constitutional Amendment would not in any way alter the ability of PACs -- or any wealthy individuals, like those 400+ billionaires we keep hearing about -- to 'buy elections.'

Citizens United only addressed indirect political expression, that is practices also commonly called electioneering.  Indirect political expression would involve me, or you, or a union, or a corporation, standing in the town square (or broadcasting on a paid ad on CNN, or taking out a page in the N.Y.Times) saying, "I don't work for the Ralph Nader for President Campaign, but by God, I've voted for this guy for decades and you should too. Get those dangerous Corvairs off our streets now!".

The Bipartisan Political Campaign Reform Act of 2002 had banned electioneering type communications within 60 days of a general election, and had banned such communications if paid for by corporate -- including non-profit -- or union general funds. In other words, I as an individual could still buy my half-hour Pro-Ralph-Nader infomercial to air on late-night tv up to 60 days before the election, but my nonprofit organization which advocates freeing the road from the dangers of old Corsairs could not do so despite the message content and timing being identical.

Much hay is being made over Teddy Roosevelt's 1907 Tillman Act which prohibited corporate contributions to campaign. This act was followed by several amendments in an anti-corruption vein. Although it was a lovely sentiment designed to assuage the public's concerns about corporate involvement in politics, there was no FEC, no enforcement, no public disclosure of campaign finance, and such prohibitions are super easy to dodge. A common tactic then, as now, is for corporate directors or trustees to write maximum-contribution checks in their own names, then draw bonuses from the corporate treasury for reimbursement.

In 1947, Congress passed the Taft-Hartley Act which again banned corporate and union campaign expenditures -- this time because the public and Congress were afraid that labor unions were getting to strong and engaging in corrupting influence in politics. Like the Tillman Act this prohibition had little practical effect -- though it marks the beginning of the erosion of legal protection for trade unions.

You could perceive of Citizens United as overturning parts of the Tillman Act and Taft-Hartley, but these were really non-existent from their inception. Enforceable campaign finance law really did not start until the Federal Election Campaign Act of 1971, and that statute did not prohibit these independent expenditures.  The Bipartisan Political Campaign Reform Act of 2002 was the first modern direct attempt to prohibit corporate, non-profit, association and union independent expenditures. Citizens United overturned the ban put in place by the Bipartisan Political Campaign Reform Act of 2002 on electioneering communications by corporations, non-profits (the case particularly involved a non-profit), associations and labor unions.

Foreign Corporations.

Pundits and politicians including President Obama are saying that Citizens United opens the door for elections to be bought by foreign corporations. The Citizens United decision only addressed 2 USC 441b, and did not even look at 2 USC 441e, which explicitly prohibits foreign nationals from participating in political campaigns and electioneering.  FEC regulations at 11 CRF 110.20(i) state:

A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person's Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.

This absolute, broad prohibition was not in any way altered or affected or even considered by the U.S. Supreme Court in Citizens United.

Anonymity

Another popular myth is that Citizens United overturned the Bipartisan Political Campaign Reform Act of 2002's requirement of disclosure of the sources of funds for political ads. Citizens United UPHELD, by an 8-1 vote, the requirement of disclosure of donors to political advertisements.

Anonymity in politics, and in public issues advocacy generally, is an interesting subject. I was railing against anonymity in letters-to-the-editor and commentaries in online news journals in a Communications Ethics course that I teach at Champlain College one day, when one of my students reminded me that most of the most critical advocacy at the time of the American revolution, including the Anti-Federalist Papers, were published anonymously.  Seeing a friend wearing a button for a political candidate, or seeing a lawn sign in the front yard of a local business advocating for a vote on an issue referendum, can carry a lot of positive weight -- if my friend is voting for Ralph Nader, maybe I will have to look into the guy and see what he's about.  But there is no denying that identifying yourself in a public statement about politics can spark profound negative and even violent backlash. Our First Amendment protections and the realm of political speech in America has long protected anonymous speech, and leaves it to the listener to decide whether to embrace or reject a message that comes from an unidentified source.

Be that as it may, Citizens United upheld the requirements of disclosure -- and the public should be extremely cautious that any attempt to 'overturn' Citizens United by Constitutional Amendment does not throw that baby out with the bathwater.

Effects You Might Not Have Considered.

At its core, the Citizens United decision overturned the prior Supreme Court in 1990 in the case of Austin v. Michigan Chamber of Commerce, which had upheld the state of Michigan's ban on independent corporate electioneering expenditures. In that case a Chamber of Commerce had sought to run an ad expressing its favorable sentiments towards a pro-small-business candidate for state assembly.  Under Citizens United, it is true that Exxon or Monsanto could buy electioneering communications indicating that they favor a candidate that is pro-oil-industry or pro-GMO, but local chambers of commerce could also run infomercials about which candidate has a better track record for small business support, and environmental organizations can promote the candidates who have committed to cleaning up air and water and developing alternative energy.

I notice that in the rush towards a Constitutional Amendment to 'overturn' Citizens United, no one is talking about the fact that it places non-profits and unions on equal footing with commercial business corporations. Business corporations with multi-million-dollar coffers will always find a backdoor way to fund political elections. Unless voters stop voting for candidates with deep pocket support, this trend will not stop. But labor unions and non-profits have had a harder time moving funds into advocacy arenas due to stricter limitations and monitoring of their funds and activities. Overturning Citizens United won't daunt billionaires -- and individual billionaires were never affected by the decision anyway -- but it will extinguish an avenue of political participation and communication for non-profits and unions.

The Deputy Solicitor General for the FEC, Malcolm Stewart, argued passionately that allowing the case of Austin v. Michigan Chamber of Commerce to stand would give the government the power to ban books published by corporations or unions if somewhere within that book they advocated or opposed the election of any given candidate or elected official. Electronic distribution of political books could be prohibited; unions and non-profits could be fined or face criminal charges for hiring a writer to write a book critical of a union-busting candidate or a candidate who had worked for a polluting company.

There are many potential fixes of the problem of big-money influence in politics -- the main one being a knowledgeable electorate who demands that candidates not take big money, and who does not elect such candidates. There is nothing whatsoever stopping political parties from declaring their own policies against taking corporate donations, or indeed from taking any donations over a certain dollar figure, say $1000.  It is ironic to hear that the Constitution must be changed to stop people from buying elections, from the very public officials who are apparently offering up elections for sale. It's not much different from the inspector in Casa Blanca stating he is shocked, shocked to find there is gambling at Rick's while being handed his winnings.

A Constitutional amendment overturning Citizens United will not get money out of politics, will not reduce monied influence -- corporate or not -- in elections, will not make corporations more responsive to the needs of the public, and will curtail unions, associations, non-profits and small businesses right along with the Exxons and Monsantos and Cargills of the world. It could wind up banning books and magazine and newspaper articles and radio interviews right along with prime-time television advertisements.

I do not think it means what you think it means. It is time for thoughtful, meaningful dialogue on the future of our democracy -- not profound gestures like a Constitutional amendment undertaken in knee-jerk fashion without thinking through all the factors, reasoning and consequences.

Firearms Law CLE Friday October 25th

I will be giving a 4-hour CLE (continuing legal education course) for the Vermont Bar Association next Friday, October 25th at the Waterbury/Stowe Best Western -- but it is open to anyone and handy for every firearms owner or person interested in Constitutional law.  Hope to see some of you there! Click the link below for more info and to register.

Firearms Law CLE

What Do You Get When You Buy a Book, Painting or CD?

Visual artists --in this case, Thomas Seddon --forever maintain rights of integrity of their work.

When you buy a book, CD, or painting, you own the physical object, but you do not own the intellectual property of the author, composer, performer or artist who created that object. Your property rights in that object are limited by the continued rights of the creator, who is called the 'author' in copyright law even if the object is a scupture or painting or song. Those limits depend on exactly what the object is and how it relates to the author's intellectual property rights.

If you own a physical book, you can sell that book, burn it, or throw it away, because the creative intellectual property within it is intangible. The words of the story reside in the author's head, and the physical book itself is a fungible object. If you burn the book, you do no harm to the author's intellectual property rights in their story. What you can't do is lift the words out of the book and use them elsewhere during the time period that copyright still applies to those words -- usually the life of the author plus 70 years, but there are many variations on this. So you can't quote those words or incorporate them into your own story, song or movie; you can't put those words on a t-shirt or coffee mug and sell it. But the physical book itself -- go ahead and start the woodstove with it if you want, there's no harm done to the writer's rights.

The physical book--that is, the paper, ink, glue and bindings--were the physical property of the publisher or distributor, and those rights were relinquished when you bought the book. Digital books are another story. Purchasing an eBook on your Kindle, iPhone or computer comprises buying a right to access and read digital files containing intellectual property. There is nothing physical to own. You can't resell an electronic book as there is no physical property -- you've just paid for the right to look at the intellectual property with no physical object being involved. The costs of producing an electronic book are much lower than a print book, so you usually get to read the material at a lower cost, and the author usually gets a far higher royalty payment since the publisher doesn't have to buy paper and ink and glue and pay to ship the physical tomes. However, you do give up that rights of physical ownership of an object that comes along with a print-on-paper book, such as resale or starting fires.

CDs are much like books, and digital music downloads much like eBooks. You can spraypaint your CDs to use as Christmas ornaments if you like, because you are not damaging the intellectual property of the composer or performer. A digital download is the right to listen to the music, and you can not legally transfer those digital music files. The difference between eBooks and digital music files isn't the law -- it's just custom and practice. People transfer digital music files all the time, because the music industry did a piss-poor job of developing means of restricting those transfers. Electronic books came along a little bit later than digital music files (probably because writers are not quite as tech-savvy as musicians) and the publishing industry giants devised a way to introduce eBooks though methods designed to limit subsequent transfers, like proprietary eReader software.

Posters and tshirts and coffee mugs with pictures of paintings on them -- say, Starry Night, or Guernica, or one of Miro's brightly colored lines -- are the functional equivalent of a print book. You can smash them, sell them, tear them up -- because you own the physical property, and the artwork on them is in fungible, commercially mass produced form. Not so with an original artwork.

When you buy an original painting or sculpture, your rights in that physical object are limited quite differently than with a book or CD. While the intellectual property of the book or CD resides in the author's head, the intellectual property of the visual arts resides in the physical expression of the artist's ideas. The manuscript for a painting, in other words, is not in the artist's head but on the canvas. You have purchased a piece of the artist's brain, and you do not have the right to destroy that piece of the artist's brain, because it's not yours.

In addition to the usual copyrights (if you own a painting, you can't sell posters and notecards with pictures of it), visual artists have 'droit morale' or continuing moral rights to the integrity of their works. These include the right of attribution and the right of physical integrity. You can't paint over the painter's name, attribute a painting or sculpture to another artist or yourself, and you can't hang it upside down, paint over it, burn it, or cut the arms off the sculpture. The artist can sue you to stop you from doing so, or seek damages if it's already done. Public agencies in recent years have been successfully sued by artists for, example, repainting a mobile to match the renovated decor of an airport, or cutting the toy gun off a sculpture of kids playing and replacing it with a more politically correct hose nozzle. The physical artwork is done, finished, complete, and you can't change it. You can stuff it in a storage room if you no longer like its looks, but you can't change it.

Original art is usually far more expensive than books or CDs for exactly this reason, you are buying physical custody of the actual intellectual property work, and it is not a fungible item. If you destroy it, the intellectual property creation is gone, as opposed to burning the book but the story remains intact. Buying artwork is then an awesome responsibility -- you are the caretaker or custodian of the piece, and are forever legally entwined with the artist.

SOLD!! Auction Law: What Every Bidder Ought to Know

Artwork is a common auction purchase -- but are you really getting the original you bid on?

Are you attending any auctions this summer? 

An auction, according to Black’s Law Dictionary, is “a public sale of property to the highest bidder by one licensed and authorized for that purpose,” but for all of us who have purchased art, antiques, horses, cars, or who-knows-what-all at an auction, the event is clearly much more than that.  Auctions represent opportunity, a combination of chance from random stumbling across an object of interest, coupled with strategy and skill based on our own knowledge of the area we’ve developed a personal interest in.  Sure, it’s great to stumble on a fantastic sale at the local department store, but to find the perfect addition to your collection at an auction and then secure the winning bid on it is somehow much more satisfying.  The item has greater meaning because you won it. 

For many enthusiastic auction-goers, however, once we are traveling down that road of goal-oriented excitement, headed towards our prize (be it a painting, a baseball card, or any number of random wacky things some of us are known to bid on at auctions), we sometimes lose sight of the legal and logistical details of what we are engaged in. Whether you are a first-time auction-goer or a cool, experienced pro with your own bidding paddle, it is wise to take a deep breath and understand the legal implications of your auction participation.

While you may go your whole life without running into a problem with an auction purchase, if you are an avid auction-goer the odds are that eventually you’ll engage in a transaction that goes awry: the bidding process does not seem above-board, or the item you purchased doesn’t look like the one you inspected, or the payment terms were not as you anticipated and you can’t make the payments as requested.  Understanding the legal context of an auction ahead of time will help you be in the best position to deal with any such eventuality that arises. The legal environment surrounding auctions has evolved to protect consumers from scurrilous and unscrupulous auction practices–and admittedly, such practices do still exist to varying degrees in ordinary auctions, but at least there are rules to be followed, and legal recourse for the purchaser when those rules are broken.

SALES AND CONTRACTS: 

WHAT IT IS, AND WHEN IT HAPPENS

An auction is a means of conducting a specifically defined legal sales transaction, regulated by the terms of the Uniform Commercial Code, as well as each state’s consumer protection, sales, and auctioneer licensing laws. Many municipal regulations that shape the timing, location, and terms of an auction event, either through zoning or by requiring event permits for specific auctions.

What constitutes a “sale of property” is clarified by the terms of the Uniform Commercial Code(UCC) and other state laws pertaining to sales. In its most basic form, a “sale” is the transfer of an ownership interest in something for consideration, meaning money. The UCC is the most common legal code that governs the sale of “goods.”  The UCC uses the term “goods” instead of “property” to distinguish the sale of items, which are within the umbrella of the UCC, and the sale of real estate, which is not regulated under the UCC. Chapter 2 of the UCC pertains to sales, and Section 328 of Chapter 2 specifically pertains to the sale of goods by auction.

Under the UCC Section 2-328. Sale by Auction, a “sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. If a bid is made during the process of completing the sale but before a prior bid is accepted, the auctioneer has discretion to reopen the bidding or to declare the goods sold under the prior bid.”  That is, when the hammer falls, you, the winning bidder, have ownership title to the item.  The auction is actually a series of separate sales, each concluding with the fall of a hammer, and transferring the ownership title to each item or, when goods are put up in “lots,” to all the items within that lot.

In addition to the UCC terms, the terms and conditions of a sale at auction are determined by the contract entered into between the bidder and the auction house and the seller, or item’s owner.  You don’t remember entering into a contract with them?  You did, whether you are aware of it or not. Courts hold that the terms and conditions of sale listed in an auction house catalog or separate terms and conditions handed out to bidders comprises the contract – a contract you accept when you tender a bid in that auction.  When you bid on an item at auction, you are accepting the sales terms as stated by that auctioneer, so be sure you read them over carefully and understand them thoroughly so you can make an informed decision as to whether to participate in that auction or not.

GOODS, AND WHO OWNS THEM

Within the meaning of the UCC, an auction is a legally authorized process for the sale of goods. Under the terms of the UCC, the “goods” sold at an auction are those items right there present to be transferred at the auction, and the “sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner.” UCC Section 2-238(2).

This UCC definition of “goods” seems intuitive to most auction-goers: Obviously, you go to an auction early to view the actual items you are going to be bidding on, and when you win your bid, you put that actual item in your trunk and drive off with it.  Unfortunately, with the rise in internet “auctions” as well as other questionable auction practices like the cruise-ship art auctions, the question of what goods you are actually bidding on is one consumers must now be attentive to.  Be sure you know BEFORE you bid: is the item listed in the lot the actual item you are purchasing?  Or will you be subjected to a “bait and switch,” being sent “substitute” goods rather than taking home the item in front of you? 

The sale by auction process of something other than the item actually there in front of you (or pictured in the photographs in an internet auction) flies in the face of the UCC auction procedure, which anticipates the sale of “goods” rather than “fungible goods,” which would be “goods of which any unit, by nature or usage of trade, is the equivalent of any other unit, or... goods which by agreement are treated as equivalent.”  A legal, UCC sales-regulated auction is not a process of bidding on fungible goods but rather on a real item in front of the purchaser, with a sale that concludes on the spot.

The UCC definition section states that “Goods must be both existing and identified before any interest in them may pass. Goods that are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein operates as a contract to sell.”  The term “existing” is fairly obvious; in order to be presently sold, such as happens at the fall of a hammer at an auction, an item must really exist in the real world. If you “purchase” an item, such as for example an art poster that hasn’t been printed yet, you have not actually made a purchase, you have entered into a contract for a purchase of future goods; it only becomes a completed sale after the item is created and passes into your possession.

In addition to existing, an item must be “identified” before the legal ownership interest in it can pass to the purchaser and complete the sale. At a UCC-type legal auction, the sale is complete when the hammer falls, and an actual good passes legal ownership to the purchaser.

Part of the reason that auctions are regulated by law is precisely that finality: when the hammer falls, the sale is over and done with, without time to reconsider the purchase or return it as one might do with a fungible good you bring home from a store, like a toaster that you decide is not the right color for your kitchen. But if in fact what you’ve done is not finalized a sale, but rather entered into a contract for a future sale of goods yet to be identified, in theory the purchaser should still have all the protections at law regarding the execution and completion of a contract.

Another point which purchasers ought to consider before bidding on goods at an auction is the question of who presently owns those goods.  In most auctions conducted by auction houses or licensed auctioneers, the goods are owned by some other person or many people, but have all been “consigned” to the auction house.  A consignment contract is a legal form of temporarily turning over ownership title to an agent for the specific purpose of selling that item.  When you buy an item at auction, you are typically buying that item from the auctioneer, who has been authorized to sell it by the full owner.  Some auction houses reveal who the owner is that they are acting as agent for; others do not.  And under most states laws, individuals are allowed to auction their own personal property without engaging a licensed auctioneer – the usual case with all those eBay auctions. 

As an auction bidder, consider who you are doing business with.  Are you purchasing an item from a reputable auction house which has a reputation to protect – and business insurance to seek recourse from if there’s a problem?  Or are you buying directly from an owner?  And if so, is that owner someone you wish to engage in business with at the dollar levels you are anticipating bidding?  Many of us consider the source when making large purchase decisions around our home: we might buy our appliances from, say, Sears, because of their warranties and staff repair people, or we might choose to buy a computer from a local dealer rather than a mail-order discount place because we know and trust their reputation and like having a local tech person available to answer our questions.  When investing in art or antiques at auction, you should ask yourself the same kinds of questions about whether you are content doing business with the actual owner and seller of the goods you are considering buying.

WHAT IS SOLD: 

CATALOG DESCRIPTIONS, INSPECTION, and GUARANTEES

We’ve already discussed the need to make sure that the item you are bidding on is actually the item you will be buying.  But there are more questions you should ask about that item – like what exactly is it? 

In addition to the terms and conditions of sale, art auction catalogs typically include a specific list of each “lot” or item (or sometimes groups of items) to be sold.  These catalogs are not as common in estate and farm auctions, which sometimes provide lists of the major items being sold, but towards the end of the day it usually collapses into ad-hoc lots comprised of whatever the auctioneer can throw into the remaining buckets, trunks, and suitcases (meaning you wind up buying eight hand-planes along with that theorem painting you were eyeing).  But art auction catalogs ordinarily contain detailed descriptions of the items being offered in numbered lots.

Although these descriptions contain a lot of information regarding the pieces offered, a careful reading of the warranty or guaranty being offered by the auction house usually indicates that very little of that information is being presented as legally supportable fact.  Typically, however, reputable auction houses will provide a limited warranty as to the authenticity of works which can be reasonably attributed to a particular artist.  Read these warranties very, very carefully, and understand what exactly is being stated and warranted. 

Courts look askance at auction goers who do not personally physically inspect the item they are purchasing before bidding on it.  The catalog description, outside the specific language (usually the bold-type or capital-letter heading identifying the item only) being guaranteed, is legally no more than advertising hype.  Auction items are sold on an As-Is basis: what you see is what you get, regardless of what flowery language the catalog uses to describe the beastly, rusted, tattered thing. You are fairly assured of getting no quarter from the courts if you bought a hunk of junk (or poster instead of an original painting) on the basis of the catalog description without giving it a close personal inspection first.  If you are bidding via telephone or on line, your risk increases greatly.  Ask for additional photos of the item and carefully research the seller’s reputation before dropping large sums of money on an item sight unseen.

BIDDING PROCESS: RESERVES AND WITHOUT RESERVES

Bidding processes are referred to as being with or without reserve, which reflects a provision in the UCC regarding whether or not the seller can withdraw the item, or set a “reserve” price, meaning if bids don’t go over that price the item is automatically withdrawn.  If there is no mention of whether or not the auction is with reserve, then by law the seller retains the right to withdraw the items.

UCC Section 2-238 states:

(3) A sale by auction is subject to the seller's right to withdraw the goods unless at the time the goods are put up or during the course of the auction it is announced in express terms that the right to withdraw the goods is not reserved. In an auction in which the right to withdraw the goods is reserved, the auctioneer may withdraw the goods at any time until completion of the sale is announced by the auctioneer. In an auction in which the right to withdraw the goods is not reserved, after the auctioneer calls for bids on an article or lot, the article or lot may not be withdrawn unless no bid is made within a reasonable time. In either case a bidder may retract a bid until the auctioneer's announcement of completion of the sale, but a bidder's retraction does not revive any previous bid.

(4) If the auctioneer knowingly receives a bid on the seller's behalf or the seller makes or procures such a bid, and notice has not been given that liberty for such bidding is reserved, the buyer may at the buyer's option avoid the sale or take the goods at the price of the last good faith bid prior to the completion of the sale. This subsection shall not apply to any bid at an auction required by law.

Check carefully before you bid: sometimes the auction catalog or terms and conditions of sales will reflect whether or not the auction as a whole is with or without reserve; other times this will be announced on a lot-by-lot basis. 

AUCTIONEERS LICENSES

According to Black’s Law Dictionary, an auctioneer is “a person authorized or licensed by law to sell lands or goods of other persons at public auction. One who sells goods at public auction for another on commission, or for a recompense.”

The reason that auctioneers are required to be licensed and regulated is that auctioneers play an unusual legal role. In most sales situations, the sales person is clearly the agent of the seller; in real estate purchases and some other large commercial transactions, there may well be a sellers’ agent and a buyers’ agent. The near-universal rule of law is that a person can not be an agent of both parties to a transaction.  But auctioneers are the exception to this rule. Again, according to Black’s Law Dictionary, “The auctioneer is employed by the seller and is primarily his agent. However, when the property is struck off he is also the agent of the buyer to the extent of binding the parties by his memorandum of sale, the satisfying the statute of frauds.”

Because of this unique legal position, and because state legislatures wish to protect consumers against unscrupulous auctioneering practices, states license auctioneers as they do other professionals from lawyers and architects to cosmetologists and dentists. Each state has a statute and regulations regarding auctioneer conduct, which auctioneers must learn and be tested on before receiving a license. And if an auctioneer – on land – engages in unlawful auction practices, then the consumer can file a complaint with the state licensing board, which may result in the auctioneer having his or her license removed, effectively putting them out of business.

Although auctioneers are engaged under contract by the seller of goods, the auctioneer is an independent professional business. Auction houses develop their own business reputation, and a reputable auction house will work hard to maintain their good standing in the business community and resolve any disputes or allegations of misconduct swiftly and professionally in accordance with law. Auctioneer who specialize in particular areas, be it art, antiques, or the sale of business inventories, develop an expertise in the market which can be extremely helpful to both sellers looking to maximize the return for their goods as well as purchasers seeking accurate information about the item being purchased. Of course, there are still slick-talking wily auctioneers as there are slick-talking wily used car salesmen, lawyers, and time-share brokers; but the licensing laws and professional regulations at least provide the consumer with reasonable recourse, and an auctioneer’s reputation helps guide consumers in their decision as to whether or not to attend and bid at any given auction.

LEGAL RECOURSE, AND SUCCESS AT AUCTION

What happens if your purchase goes awry?  The terms and conditions of sale listed in the auction catalog typically specify which court has jurisdiction over any disputes that arise regarding the sale. This is another factor you may want to consider in deciding whether or not to participate in any particular auction – do you want to bid many tens of thousands of dollars in New York if you live in Texas and will have to travel to New York courts for the next four years if there’s a problem?  Perhaps you do, perhaps you don’t, but as long as you are aware of the terms, you can make that decision on a knowledgeable basis. 

The auction catalog terms – the terms of the binding contract you have entered into by bidding – will also likely state the recourse for some of the most typical disputes which might arise at art auction.  For example, most art auction catalogs set out a process for reviewing disputes over authenticity of the work sold, which typically involves having two independent experts examine the work, and if it’s proven to be a fraud, the sale will be rescinded.  However, these terms vary and are set by contract in each individual auction, so be sure you understand what they are before you bid.

Buying art, antiques, and other interesting items at auction is fun, exciting, and rewarding, and can yield fine purchases that prove to be wise investments over time. Just be sure before you bid that you have a clear, knowledgeable understanding of what you are bidding on, who you are buying from, and the terms of the sale that will occur when the hammer falls on your winning bid.  Success at auction is that great feeling when you travel home with a highly desirable item gained at an appropriate, or bargain, price – not that sinking feeling in the pit of your stomach as you wonder, why on earth did I buy THAT?  Take the time to learn the legal framework of an auction sale, and carefully study the terms, conditions, and warrantees offered at the auction you are attending before you get overwhelmed with the bidding excitement.  Then get in there and bid!