Infopost | 2023.12.02

Baldurs Gate 3 brewery conversation mug elf
There isn't a lot of visually-compelling content in this one so I grabbed a BG3 scene that vaguely aligns with this post.

What happened this week?
"Tell that to Earth"

Elon Musk book summit go fuck yourself Disney Bob Iger

"Elon says 'Go fuck yourself'". That was the headline at most tech/finance news sites. It's not a bad quote, but it leans too heavily on profanity and confrontation. And it's not original.

I much prefer another quote from that interview, "Tell that to Earth". *Chef's kiss*. It's fresh, it's dumb, it's Elonny. I'll heap more praise on it in a minute, but let me begin by saying I don't aspire to post about every bit of Elon drama. Nor do I think his outburst was remarkable or underreported. But this story had a couple of gems so I will retell it and point at the cool bits.

Once again, from the top

If you don't F5 Ars all day or are reading this sometime after next week when everyone has stopped caring, Elon Musk made a media splash when he told Bob Disney to 'go fuck himself' for pausing Twitter ads. Iger's reasoning was that the X CEO posted the following:

Elon Musk Twitter breakingbaht tweet replacement theory

Initially, there was some debate about whether the @breakingbaht tweet was overt replacement theory or an extremely narrow statement directed and specific examples of xenophobia. It would appear that this rationalization was entirely disingenuous; it quickly disappeared when people began looking into @breakingbaht himself and Elon apologized for calling the post 'truth'.

Musk fortified his remorse with an 'apology tour' to visit Israeli leaders and the ADL. He then deployed his tried and true tactic of creating a more favorable controversy to crowd out the less favorable headlines, saying basically that he believes Pizzagate.

He could have chosen worse, I suppose. Pizzagate is controversial enough to eclipse the earlier conspiracypost while not targeting any specific group because, well, to paraphrase the actual Pizzagate gunman, "Oh, Comet pizza doesn't have a basement, I've made a terrible mistake." Elon deleted that tweet after the headlines were inked.

It probably worked on media consumers, but prestige X advertisers didn't announce their return. And so Elon had his gfy moment.

Musk may have been authentically frustrated that Apple, Disney, and NBC would look unkindly on racism. The lack of ad revenue may mean he's looking at another apology tour, this time to Riyadh. I don't know, if I was reading this in a novel I'd consider it weak writing. It's been only a year since Elon unbanned everyone Twitter and then re-banned Kanye for... *checks notes*... antisemitism.

WallStreetBets Reddit Elon gfy go fuck yourself news flood
WSB shouldn't be considered a proxy for mainstream chatter but in this case it certainly was.

Perhaps Elon's Disney feud is entirely contrived, either as a third-stage headline blitz or to broadcast some other point.

I reckon there's more

The commentary I read from Elon fanboys and Texas voters was, "Yeah Elon! Tell that woke left to fuck off!" Because of course the "woke Disney" thing wasn't a momentary Florida beef, the label has stuck and The Mouse is now woke like Bud Light, the NFL, and Carhartt. If he does nothing else with in his political career, Ron DeSantis managed to successfully brand a ancap-curious megacorp as 'woke' simply because it was maximizing its consumer base.

Returning to the gfy interview:

MUSK: Absolutely, totally, look. Actually, what this advertising boycott is going to do is it's going to kill the company. And the whole world will know that those advertisers killed the company and we will document it in great detail.

SORKIN: But those advertisers, I imagine, they're going to say, we didn't kill the company.

MUSK: Oh, yeah. Tell it to Earth.

SORKIN: But they're going to say -- they're going to say, Elon, that you killed the company, because you said these things and they were inappropriate things and they didn't feel comfortable on the platform, right? That's what they're doing to say.

MUSK: Let's see how Earth responds to that.

Elon's $40B Twitter offer in 2022 confused a lot of people, including the Twitter board. The traditional explanation of wanting to avoid a $1B judgment seems reasonable enough, but maybe this is it. He thinks so highly of the microblog service that he's willing to massively overpay for it and, when facing an existential crisis, thinks that all of Earth will harshly judge companies for not propping it up with advertising revenue.

It's probably not that but would be hilarious if it was. Maybe Elon has become unstuck in time and is remembering the year 2042 when X (the everything app) is the world's town square, rideshare service, and banking/payment app. And so when Xer existence is threatened, all of Earth unifies and calls upon large companies to give it advertising money.

It's probably not that either, but maybe more plausible? Most plausible of all: Elon is just conditioned to fall back on 'Earth' as an argument of last resort when talking about electric cars, space colonies, and brain implants (effective altruism, you wouldn't understand). He didn't realize that Earth already has a bunch of competing services and nobody's going to blink when the eXit happens.

Elon Musk Texas selfie border cowboy hat

Great replacement, pizzagate, "my pronouns are prosecute/Fauci", purchasing a social media platform - it's pretty clear that Elon's running for Texas governor in 2026. He telegraphed it rather overtly with his visit to their border to "express concerns about immigration" and has courted all degrees of conservative ideology. Meanwhile Greg Abbott has alienated the center-right and people who like utilities in winter. So the time is right to plant the seeds of a campaign. And he stands to gain quite a lot from holding the office: Musk and his businesses operate heavily out of Texas, as does Mohammed bin Salman.

Rage Against the Machine video Elon Musk for president
In time.

So "tell that to Earth" and "Governor Musk" are reasons #1 and #2 for mentioning gfygate.

#3: "Please take a moment to bask in this profound thought leadership"

CNBC In the memo sent Thursday, [X CEO Linda] Yaccarino told employees that the X owner "shared an unmatched and completely unvarnished perspective and vision for the future."

She urged employees who did not watch the interview to "please take the time to absorb the magnitude and importance of what we're all a part of. Because that's exactly what I wanted to focus on with you today."

Amazing. "The de facto CEO told our income sources to fuck off for not supporting antisemitism*, this just proves how important the work we do here is." Like, I'm used to getting negligently-positive messages like, "here's why partnering with China is a huge business win" and "Workday is an amazing platform used by such prestigious companies as Walmart". But this one is a masterpiece of the C-suite trying to make lemonade out of cancer.

*And not just casual antisemitism. Claiming that there is a global effort to eliminate all white people is a special brand of antisemitism that stands shoulder to shoulder with white supremacy and tinfoil-tier conspiracy theory.
AI in (non-)journalism

Sports Illustrated Reviews AI generated article Drew Ortiz volleyballs

In October I posted about a product review site affiliated with traditional news media that was caught using AI to generate reviews. The takeaways:
Kevin sent a recent article about Sports Illustrated being caught doing the same thing with the same AdVon vendor.

Futurism Regardless, the AI content marks a staggering fall from grace for Sports Illustrated, which in past decades won numerous National Magazine Awards for its sports journalism and published work by literary giants ranging from William Faulkner to John Updike."

Like a lot of journalism in the post-subscription era, the article describes the incident in the most dire of terms. Sports Illustrated (the magazine) doesn't have AI writers. "Sports Illustrated Reviewed" with its conspicuous banner reading "we get money when you click our product links" used AI-generated content. I didn't look into it, but I suspect William Faulkner and John Updike didn't write product reviews for an online publication under the SI brand.

I'm an extremely sophisticated reader, so I know when a link from Sports Illustrated proper has taken me to their product reviews section. The graphic at the top changes. The content moves from college football minutiae to articles about off-brand sports equipment. Similarly, I know when a front page CNBC link about "the five best new credit cards" has taken me to their "Making it" section. I daresay I even have a good idea about the nature of the content simply from the link title (about signing up for a new credit card).

I don't like that news media mixes fake articles with their real content but I realize that they (probably) have to do it to keep the lights on. So Futurism isn't wrong to take issue with AI-generated product reviews, we're just not yet on the cusp of seeing the NYT and BBC and WaPo's news desks being staffed by HAL and Bender and TayTweets.

The Arena Group and AdVon going by truck stop rules

Sports Illustrated Reviews AI author Sora Tanaka comparison generated photos site

The Futurism article tracks down the AI-generated headshots used for the AI-generated writer profiles creating the AI-generated product reviews. All they need is AI readers to purchase the advertised products.

Futurism It sounds like [SI parent company] The Arena Group's investigation pretty much just involved asking AdVon whether the content was AI-generated, and taking them at their word when they said it wasn't. Our sources familiar with the creation of the content disagree.

It's the same story as Reviewed dot com and its parent, Gannett. The review site has some semblance of journalistic integrity, the affiliate content vendor has none, so AdVon absorbs the blame and continues dumping generated, SEOed content on the web.
SCOTUS and the SEC and administrative law

Snoo-27151 Snoo-27151 The case that could destroy the US government and have disastrous consequences on the SEC

The SEC enforces the basic rules that make stock markets work. Without it, stock issuers and dealers would lie-with disastrous results. One needs only to examine the rampant fraud, contagion, and meltdown in crypto markets last year to see what an unregulated securities market looks like. More generally, if Congress cannot delegate to agencies, it cannot govern. Congress could never and has never written rules specific enough to anticipate all eventualities. This is why Congress delegated power to the SEC in the first place. Finally, and most dangerous, ending independence for internal agency adjudicators would undermine the rule of law. Without independence, adjudicators would be beholden to the politicians who oversee agencies. Unscrupulous presidents would use agencies to punish their opponents and reward their allies. This would do more than turn regulators into political handmaidens; it would destabilize markets, stifle growth, and inevitably lead to financial crises.

- The Atlantic

I could have quoted The Atlantic directly or chosen a more succinct summary but the top comment was interesting:

IndependenceNo2060
/u/IndependenceNo2060
Yeah, the SEC plays a crucial role in maintaining market integrity. Without it, we'd have a Wild West situation where the rich and powerful could exploit the system for their own gain. We need a regulator to keep things in check and protect the average investor.
Retatedape
/u/Retatedape
[Thinking emoji]
notahoppybeerfan
/u/notahoppybeerfan
ChatGPT: write a reply to this post in the style of visualmod
Razor1834
/u/Razor1834
Honestly thought this was VisualMod. [Ed: who has been providing GPT responses since before ChatGPT]

AI creeping into my scotusposting

Let's come back to the SCOTUS thing but pause enjoy this overlap of AI-generated content, investing, and the Reddit/WSB brain drain phenomenon. The top comment was/is a meaningless GPT creation, people immediately called it out, and it has remained the top comment to this day. The fact that it wasn't downvoted to oblivion perhaps says something about the state of the site/sub.

I was surprised to find that /u/Independence2060 is active and not banned. Its recent comments don't show a hint of humanness, its posts are all bad AI art. It checks for content removal and shadowbans. I guess this is a Reddit tip-farmer.

What was Merriam-Webster's word of the year again? Oh yeah, 'authentic'.

Im_A_MechanicalMan Im_A_MechanicalMan > The Atlantic

Well there's your problem! But CNN, that you actually linked, isn't much better. These are biased opeds trying to sway your view one way or the other.

On the other hand, maybe authentic commentary isn't so great.

SEC v. Jarkesy

Fraudster George Jarkesy radio show

Let's get back on track. George Jarkesy is a conservative talk show host and (small time?) hedge fund manager who will soon have his name attached to the death of administrative law. Back in the Obama years he established a fund through his firm 'Patriot28' wherefrom he illegally extracted more than half a million dollars of investor money. Jarkesy accomplished this by overvaluing the assets under management and thereby raking larger-than-appropriate management fees.

The SEC solved the problem; they investigated Jarkesy, tried him in an administrative proceeding, and meted out justice. Jarkesy was fined for being a douchebag and required to return the ill-gotten gains so that his investors could go buy MyPillows and contribute to Steve Bannon's border wall. The system worked. The theoretical problem with the debacle (other than the fraud) is that the administration of justice was handled by the SEC (an executive entity) and not an Article III (judicial branch) court.

CNN The federal appeals court ruled in favor of Jarkesy on three separate constitutional claims. It held that certain of the SEC's proceedings deprive individuals of their Seventh Amendment right to a civil jury. In addition, the court said that Congress had improperly delegated legislative power to the SEC which gave the agency unconstrained authority at times to choose the in-house administrative proceeding rather than filing suit in district court. The court emphasized that under precedent, Congress can only grant regulatory power to another entity if it provides an "intelligible principle" to guide the proceedings.

"The Constitution," the court held, "provides strict rules to ensure that Congress exercises the legislative power in a way that comports with the People's will."

And so we have both a civil rights issue and a nondelegation issue, the latter of which you may recall from this SCOTUS season's CFPB case. The USG response is twofold:
  1. SEC penalties aren't what the seventh amendment addresses.
  2. Congress afforded enforcement discretion to the SEC and other agencies with administrative courts, this undermines their will.
I should caveat that here I am going off of reporting, I haven't dug into oral arguments. Though I won't pretend to understand "suits at common law" to which the seventh amendment applies, in a general sense the judicial system seems like it should be a an appeal path afforded to any administrative law decision.

I find myself conflicted since I've long been cautious of nigh-unavoidable mandatory binding arbitration agreements. Vox saw the same thing:

Vox Few figures in American history, however, have less credibility to speak about the importance of the right to a jury trial, as Gorsuch's very first major Supreme Court opinion was a direct attack on that right. In Epic Systems v. Lewis (2018), Gorsuch wrote for the Court's Republican majority that employers have a right to force their employees to sign away their right to sue them in any court at all - including courts that protect the right to a jury trial - and to shunt those cases into private arbitration.

Indeed, the Court's GOP-appointed majority has long been vocal advocates of forced arbitration, dismissing arguments that these privatized forums violate the Seventh Amendment, and often mangling the text of federal statutes to maximize employers' power to avoid jury trials.

I'm not sure the framers intended for the Bill of Rights to be something you had to surrender in order to gain employment, but it's as much the responsibility of Congress to protect against that situation as it is the responsibility of SCOTUS.

Impact

The consensus seems to be that administrative law greatly increases the SEC's capacity to protect Americans from theft of the kind that Mr. Jarkesy perpetrated (for other examples, check my watch list).

fastinserter fastinserter Suddenly pushing all administrative justice on to the courts so everyone gets a trial for when they break every federal statute would be chaotic... at best.

Moving the SEC adjudication process to the courts could be chaotic and/or grind justice to a near-halt.

Vox The federal government employs nearly 2,000 administrative law judges, in addition to about 650 non-Article III judges who hear immigration cases. Meanwhile, there are fewer than 900 Article III judges authorized by law. So, if the United States suddenly loses its ability to bring cases in administrative forums, the entire federal system will lose the overwhelming majority of its capacity to adjudicate cases - forcing litigants to wait years before an Article III judge has the time to take up their case.

... both Gorsuch and Justice Brett Kavanaugh suggested drawing a line between cases where the government seeks to impose a "penalty" on a defendant, and cases about whether a particular individual is entitled to a federal benefit. That would require most SEC enforcement actions to be heard by an Article III court that can conduct a jury trial, but would also allow the Social Security Administration's more than 1,600 administrative law judges to continue to determine who is entitled to federal benefits.

The litigants "forced to wait years before an Article III judge is available" means the SEC couldn't win repayment for Jarkesy's defrauded investors quickly or at all. Putting on the cynic's hat for a moment, this seems completely in line with what Justice Thomas's benefactors might want.

I haven't seen it in any articles so this probably isn't on the table, but wouldn't a ruling against the SEC reverse all of their judgments since the beginning of administrative courts?

Further listening

There was a great interview on NPR about how closely the current Supreme Court resembles its founding-era self (ahem, originalism) and how the so-called 'shadow docket' operates.



Comments
Me

Apparently John Oliver was similarly amused by "Tell that to Earth", it was highlighted in his Deember 17 show.



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