On Breaking Unjust Laws and Responding to Aaron Swartz’s Killing

Hi Larry,

I don’t have a history of writing letters to people I haven’t met. I write to you in a spirit of dialogue, of the eternal process of figuring out together what makes sense, asking questions, and sharing perspectives.

When you wrote a year and a half ago about Aaron Swartz’s alleged actions being ethically wrong, you expressed a belief that I think is ineffective for realizing the changes we both want and maybe out of sync with your own thinking, and now I think that you’re in the midst of tragic sorrow and outrage, and therefore in a period of re-evaluating your beliefs. So I write now as we respond to Aaron’s death and to the broader situation of our society.

You wrote in July 2011:

As my repeated injunctions against illegal file sharing attest, however, I am not a believer in breaking bad laws. I am not even convinced that laws that protect entities like JSTOR are bad. And even if sometimes civil disobedience is appropriate, even then the disobedient disobeys the law and accepts the punishment.

Regarding the “appropriateness” of civil disobedience, of breaking bad laws, I think that some history can offer other perspectives. Let’s look at “Letter from a Birmingham Jail” by Martin Luther King, Jr., starting with the Wikipedia article about the letter:

King’s letter was a response to a statement made by eight white Alabama clergymen on April 12, 1963, titled “A Call for Unity”. The clergymen agreed that social injustices existed but argued that the battle against racial segregation should be fought solely in the courts, not in the streets.

Responding to those clergymen, King wrote:

I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner,‏ ‎but the white moderate,‭ ‬who is more devoted to‭ “‬order‭” ‬than to justice‭; ‬who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice‭; ‬who constantly says:‭ “‬I agree with you in the goal you seek,‭ ‬but I cannot agree with your methods of direct action‭”; ‬who paternalistically believes he can set the timetable for another man’s freedom‭; ‬who lives by a mythical concept of time and who constantly advises the Negro to wait for a‭ “‬more convenient season.‭” ‬Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will.‭ Lukewarm acceptance is much more bewildering than outright rejection.‭

To see that paragraph in context, see King’s full letter, which has much relevant to the question of nonviolent direct action as a tactic for social change.

Regarding your words “… the disobedient disobeys the law and accepts the punishment.” What about war or slavery? I realize that the case of Aaron and the JSTOR articles is a far cry from a slave in the antebellum USA or the Nazi holocaust of Jewish people, though two involved property law and, as we’ve seen, all involved bullying by a State and killing.

I think that the people breaking the fugitive slave laws had no interest in accepting the punishment they would receive if caught. They wanted to escape and live free and never accept the injustice of returning to slavery.

Violent uprising is also a tactic used in various struggles. In “A Language Older Than Words” Derrick Jensen wrote, “The percentage of people who survived the clearing of the Warsaw Ghetto was higher for those who took up arms in resistance than it was for those who, reasonably, went along.” King also mentions Nazi Germany:

We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers.

You wrote this week:

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

There are many tactics to effect change. Perhaps Aaron considered the option of becoming — in the eyes of the US government — a fugitive, living in hiding in the US or in exile in an amenable country that would offer him political asylum. Perhaps that seemed too drastic, too high profile — sometimes it happens that a person thinks they aren’t important enough for such a big fuss. I don’t know what stopped him from raising money to pay for his upcoming court costs — did the judge prohibit him from public fund raising? As Cory Doctorow wrote, any of Aaron’s friends would have answered a call from him. I imagine that some of his friends would have helped him seek asylum if they knew that he had no intention of accepting the punishment.

I think your words this week bear repeating:

Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time.

Considering what you, I, and the groups Aaron participated in do next, we get to choose in each moment what tactics to use and what relationships to build. I am not active in any of those groups, and I’m not proposing violent insurrection. I do encourage you to think in terms of “what action makes sense now” instead of “I have a moral objection to breaking laws.” I think that looking to restorative justice makes sense now, and a next step would be figuring out how restorative justice applies in this specific situation. That task seems to belong most to those closest to Aaron, though I haven’t thought before about how restorative justice applies to the suicide/killing of a person with wide public impact such as Aaron had and continues to have.

You proposed shaming. Relative to most people, you have a high public profile, and therefore have more power for shaming in national and international media the prosecutors/bullies and anyone behind them. Shaming is a tactic that, upon brief pondering, I think is only accessible or effective in situations when the media is already paying attention (to the shamer and the situation) and people with some sort of power already care (about the situation). I don’t currently know enough about the situation to know who precisely would be the target of the shame — I wonder if Anonymous will publish the names, as they seem to have a role in public shaming these days. Those of us with lower profiles might choose other avenues for shaming, or other tactics to exercise our power, hopefully in synergy with what you choose.

I realize that your beliefs may have changed in the year and a half since your post about ethics and breaking bad laws. And I’m open to my perspective changing as I sleep on this and read more tomorrow and beyond.

respectfully,

Patrick Gibbs

[update Sunday afternoon]: As I reflect on Aaron, and what we do now, I see that much of our strength lies in how we relate to each other and to our ourselves, and I wonder who in the free culture community in each city might implement the practices that are strengthening the climate justice movement, the people in it, and people returning from war, described by the National Institute for Peer Support on their front page and overview of the model they use.

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2 Responses to On Breaking Unjust Laws and Responding to Aaron Swartz’s Killing

  1. Hope Sanford says:

    This is beautiful, Patrick. It is impassioned and deeply considered, and shows a love for Aaron Swartz and for REAL justice. The Goliath-DOJ bullying method used against so many is profoundly destructive to individuals and to society, based as it is on fear and shaming. The MLK quotes succinctly illustrate that “illegal” (the epithet most often used on immigrants today) has little to do with what is just or unjust.

  2. Thank very much you for your thoughtful post Patrick.

    Few weeks before the tragic event I was on a call listening to a group of people trying to support Aaron.
    I wasn’t a close friend of Aaron, but other people near him were trying to help.

    After that call I started my search and stumbled on the same blog where I saw Lessig initial post. I asked him the same clarification “why he considered it unethical?” without ever receiving an answer.
    At that moment in time I didn’t gave to those event to much importance, I didn’t felt a strong drive to get involved directly and the answer to that ethical dilemma was not so clear to me.

    This blog post describes very well the moral dilemma that I went through… unfortunately too late after his death.

    “Aaron’s death should radicalize us” was one of the statements of her partner, Taren, during his memorial.

    Now that we’re approaching the one year anniversary of his death I was still thinking about his tragedy and found your answer in the comments.
    I’m sorry I and we learned this too late.

    Ilias

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