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Some Misgivings about the End of Section 206

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2023 could see the end of Section 206, the New York LLC publication requirement. I have supported its repeal ever since I first came up against it, and I still support it, despite some misgivings. The legislation currently on the table does little to quell them.

Currently, New York Limited Liability Company law requires newly formed LLCs and LLPs to publish a notice for six successive weeks in two newspapers designated by the county clerk, “one newspaper to be printed weekly and one newspaper to be printed daily.” At the end of that period, founders have 120 days to file an affidavit of publication (and pay a $50 filing fee). Costs can run into the thousands of dollars, since local newspapers where the notices are printed — and they must be printed — effectively have a monopoly.

This part of the 1994 LLC law reads like an artifact from a bygone, pre-internet era, and it no doubt helped prop up struggling local newspapers financially even as the internet hastened their demise. It has also given rise to a professional services cottage industry.

Legislation to repeal Section 206 has been making its way at a slow crawl through the New York Senate and the Assembly since 2008. It was last referred to the Committee on Corporations, Authorities, and Commissions in January, 2022. In March of this year, the New York Bar Association came out in support of repeal. In November, the bill’s sponsors, Liz Kreuger in the Senate and Rebecca Seawright in the Assembly, both won re-election. So prospects for a repeal in the next legislative session look favorable.

The proposed amendments would not only repeal the publication requirement, but also establish something called the Department of State modernization fund. Notices would be published in an online database maintained by the Department of State; associated filing fees would go toward “the modernization and security of the Department of State’s public-facing website, and for developing alternatives to physical publication of documents.” The bill’s sponsors say it will “remove onerous and unnecessary requirements on LLCs and partnerships forming in New York state” and that online filings “will improve a citizen’s access to this information.”

The Bar Association rightly observes that LLC and LLP filing notices running in local newspapers are generally ignored. Publication costs are high; the current requirement “serves no legitimate business or economic purpose,” they write; and it creates an unjustifiable disparity, since New York corporations are not subject to the same requirement as LLCs. These are all good points, as almost anyone who has contended with the publication requirement will tell you, and 97 percent of the lawyers surveyed by the Bar Association agree.

In addition, eliminating the publication requirement will benefit the State of New York in several ways. It will likely increase business activity in New York, which will benefit the Department of State’s revenues. More companies forming and locating within the State would similarly benefit New York’s economy. As a result, this bill will likely lead to higher employment and greater tax revenue in New York. More companies with offices in New York will employ more New Yorkers, resulting in increased tax revenue to the State.

Here is where my misgivings start to kick in. It’s hard to say how “likely” any of this really is. The publication requirement is an inconvenience and a burden, but how many companies have really been deterred from forming and locating in New York because of it? When it comes to choosing between New York and Delaware, how much does Section 206 factor into the decision? Delaware LLCs and LLPs that do business in New York still have to register to do business here, pay an annual filing fee, and comply with New York tax laws. Could the repeal make New York the new Delaware? Unlikely: Delaware will still enjoy institutional advantages (namely, the Court of Chancery) and a reputation, deserved or not, as the best place to form a business and raise capital.

Maybe Delaware sets the bar too high. Will the repeal significantly increase business activity and contribute to higher employment and greater tax revenues? Look at the trend line on this US Census Bureau graph. Is the repeal of Section 206 the thing to keep it moving north? Will the upward trend accelerate once the legislation passes?

Time will tell, and some measure of skepticism seems warranted. What’s more, the repeal could have adverse consequences as well as benefits. What happens to the small, local print publications that have been practically subsidized since 1994 by LLC listings? Those local newspapers may not matter so much in New York City, where we have several daily newspapers (but I’m not sure that argument can stand much scrutiny), and protecting New York City publishers’ Section 206 interests may be outweighed by the economic benefits anticipated from the repeal. But what about in more rural counties?

Do printed daily and weekly newspapers still serve rural, or, for that matter, urban communities in other ways? Let me overdramatize just to drive the point home:

No surprise that local print publications failed to catch this brazen fraud.* It’s the rare local newspaper that can support investigative journalism or take on a newly elected member of Congress; and a Section 206 zombie newspaper probably isn’t going to be up to the job anyway. Subsidizing publishers on the back of new businesses, which is essentially what 206 does, is not the same thing as supporting local journalism. Still, it would be good to know or at least see some public discussion of what these print publications contribute to their communities before they try to set up entirely online or just fail; it would be even better to see some legislative efforts to keep local journalism alive. The LLC publication requirement cottage industry will likely disappear, too. I have more trouble shedding a tear for its demise.

Another set of questions concerns the modernization fund, its reach and its governance.

The legislation places the fund under the custody of the State Comptroller and specifies that “on the warrant of the State Comptroller” the moneys in the fund will be paid to cover modernization and security upgrades to the DOS website and development of digital alternatives to the current publication system. Moneys in this fund are “to be kept separately and not to be commingled with other moneys” in the Comptroller’s custody.

But what falls under the fuzzy heading of “modernization”? What does the firewall between modernization and other Department of State projects look like, and how will it be maintained by successive Comptrollers? Is modernization a project without end, lasting as long as the filing fees keep adding to the coffers? At bottom, my concern is that the modernization fund could, over time, turn into a consulting industry slush fund.

If it becomes law in the next legislative session, the repeal of Section 206 could do all that it promises to do: relieve founders and partnerships of a costly, bothersome requirement, improve public access to corporate records, and even deliver some limited economic benefits. It could also undermine or fail to serve the public interest in other, unanticipated ways.

*Update, 23 December: It turns out a local newspaper, The North Shore Leader, was wise to Santos’ fraud months ago. And the Leader is among the newspapers designated for publication of legal notices by the Nassau County Clerk.

This Twitter thread is also worth reading:

Another Note on the Boundary Waters Reversal

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Jorjani Calendar

A 25 July 2017 entry from Daniel Jorjani’s calendar shows a meeting with Antofagasta Plc on the Twin Metals project.

One point I hoped to get across in Monday’s post about the Boundary Waters reversal has to do with journalism, or, more broadly, with storytelling. Just to highlight: scandal-mongering that generates clicks doesn’t necessarily get at the more prosaic and more complex truth of the story, and may end up doing a disservice. In the case of the Boundary Waters reversal, it is tempting to focus on the story of Chilean billionaire Andronico Luksic Craig and his Washington, D.C. tenants, Ivanka Trump and Jared Kushner. Was Luksic Craig’s purchase of the mansion where Jared and Ivanka now live an opening bid? Was the reversal connected to the rental?

This story of the rich and famous still merits investigating, but it carries with it a whole set of ideas — exaggerated and somewhat cartoonish ideas — of what corruption looks like: foreign billionaires, mansions, nepotism, winks and nods (remember what Luksic Craig said about meeting Trump at the Patriots’ game: “lo saludé.” “I said ‘hi’”).  All of those elements are certainly in play here, and they are part of what makes this administration appear so unabashedly corrupt and downright villainous.

At the same time, the story of Luksic Craig and his D.C. tenants could turn out to be a red herring, or what nowadays people call a nothingburger or fake news. Besides, there’s another, more immediately credible story that’s just there for the telling. What it lacks in tabloid glamour it makes up for with evidence. It unfolds among the banalities of meeting rooms, conference calls, memos, and after work events. This is the story Jimmy Tobias pursues in an excellent piece in the Pacific Standard, which I had not read before writing my post (and which, after reading, I linked to in a postscript).

Tobias beat me to the punch on the FOIA request, and obtained Principal Deputy Solicitor Daniel Jorjani’s calendar from May through December of 2017. He identifies two meetings about the Twin Metals project. The first is on June 14, 2017, with Raya Treiser and Andy Spielman of WilmerHale, the law and lobbying firm, on behalf of Antofagasta Plc.

Spielman is the Chair of WilmerHale’s Energy, Environment and Natural Resources Practice, and his name appears on the calendar heading, so we know that this is a high priority matter for the lobbying firm and presumably for the Department of Interior. And Treiser comes directly from the Department of the Interior, where she served under President Obama. She helped to “streamline” permitting on large infrastructure projects, and worked on the reform of offshore drilling regulations and energy development in Alaska. Now, as her biography on the WilmerHale site informs us, she has “successfully leveraged her substantive knowledge and insight into government processes.”

The second meeting is directly with Antofagasta Plc: the Chilean mining company comes to the Department of Interior to discuss its Minnesota claim, and it appears the Department rolls out the red carpet. WilmerHale had done its work. In addition to Principal Deputy Solicitor Jorjani, thirteen administration officials are in attendance, representing the highest reaches of the Department of Interior, the Bureau of Land Management, and the Environmental and Natural Resources Division of the Department of Justice. As Tobias notes, no conservation groups were invited to discuss the reversal with the Department of Interior. This was a conversation for insiders only.

At the center of this story is not a mansion, but a revolving door (and if you are not familiar with Bill Moyers’ short video essay on the subject, you should be). This feature of the story becomes even more apparent when we look at a couple of other meetings on Deputy Solicitor Jorjani’s calendar that Tobias didn’t flag but are connected with the Boundary Waters reversal. One is a Friday, May 26 call with Rachel Jacobson of WilmerHale, regarding a “DC Bar Event”; this call or this event might well have provided an opportunity to tee up the Twin Metals issue. It is the first contact WilmerHale makes with Principal Deputy Solicitor Jorjani— and who should they choose for that task but Jacobson, who held Jorjani’s job of Principal Deputy Solicitor under the Obama administration.

Then on Thursday, September 7th, when work on the reversal memo is presumably well underway, there is an internal meeting on Twin Metals: Jorjani with Jack Haugrud, who was Acting Secretary of the Interior until Zinke’s appointment, and Joshua Campbell, an Advisor to the Office of the Solicitor. Campbell is profiled here, on Western Values Project “Department of Influence” site, documenting the revolving door between special interests and the Department of Interior.

In these meetings, the public interest does not even come into play.

Postscript: Today, as I was writing this post, the Washington Post reported that the Forest Service will cancel a planned environmental impact study and instead conduct an abbreviated review of the Obama-era proposal to withdraw the Superior National Forest lands near the Boundary Waters from minerals exploration for up to 20 years. The story also appears in the Star Tribune. Things are moving fast now, and pressure is mounting.

Mine? What Mine?

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Haul road construction for Eagle Mine has already polluted the Salmon Trout River, but unless you’ve been following the Eagle Mine story closely you wouldn’t know that after reading in the local paper about this minor disaster: a road crew’s accidental “exposure” — or rupture — of a perched groundwater seep. “Dirty Roadside Runoff,” by John Pepin, a Marquette Mining Journal staff writer, never once mentions Eagle Mine or Eagle’s parent company, Lundin Mining. Pepin is scrupulous at least in this regard: he keeps the mining company clean.

(The Mining Journal is available online to subscribers only, but you can read it on a phone or tablet if you download the paper’s free app).

The front page item sidesteps any mention of Eagle, laying the “unlawful discharge of sediment and turbid water to a wetland ravine” — which violates the Natural Resources and Environmental Protection Act — at the feet of the Marquette County Road Commission. The Michigan DEQ sent a violation notice directly to the Road Commission on August 4th; to date, so far as I can tell, Lundin Mining and Eagle Mine were not put on notice either by the DEQ or the EPA. Nor, it seems, will the local press hold the mining company accountable. Instead, the Journal seems to have taken pains to keep the company’s name out of the dirt, and keep the reading public in denial. (Those looking for a more honest and more informative account will find it here, on the Yellow Dog Watershed Preserve’s site).

Yellow Dog Watershed Preserve's site features this photo -- data August 6th -- and other photos of the perched seep's destruction.

Yellow Dog Watershed Preserve’s site features this photo — dated August 6th — and other photos of the perched seep’s destruction.

Let’s be clear. The Road Commission has undertaken this “upgrade” of County Road AAA for the mining company; there is no other reason for the work, and no other reason to advertise the work as an upgrade except to pretend that the Eagle Mine haul route will benefit the public in some way. The truth could have been stated in a single sentence: Lundin will be the primary if not the sole beneficiary of the road work on the AAA.

Pepin’s article never comes close to stating that one simple fact, and never even hints at the controversy over the haul route that led to this disaster. But this is about more than shoddy journalism or what might even be a case of corporate capture at the editorial offices of the Mining Journal.

As Lundin prepares to bring Eagle online, and as the mining boom proceeds all around Lake Superior, clear lines of accountability are critical — and need to be carefully drawn. Big miners continue to “de-diversify” and juniors are trying to scale up: in the turmoil, we’ve seen mine properties around Lake Superior flipped (e.g., Copperwood, or Eagle itself); others, like Twin Metals, thrown into limbo; and who can tell what effects Lundin’s big South American acquisition of Freeport’s Candelaria (in partnership with Franco-Nevada) will have in this northern district?

In a situation like this, where ownership stakes are changing hands and companies are exerting undue influence over public officials, accountability can get blurry and responsibilities neglected. The last thing we need — when the future of Lake Superior itself is at stake — is a compliant and servile press adding to the confusion.

A Mining Renaissance?

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On the Almanac program I discussed in yesterday’s post, Kathryn Hoffman cited “42 exceedances of water quality standards” at Eagle Mine to make the point that reverse-osmosis technology isn’t as effective as mining proponents in Minnesota make it out to be. I was expecting some rundown of those exceedances in Codi Kozacek’s January 8th article about Eagle Mine on Circle of Blue; but Kozacek focuses, instead, on the Eagle Mine water-monitoring agreement Rio Tinto struck with Superior Watershed Partnership and Land Trust two years ago.

It’s not hard to see why. Kozacek seems to have traveled from Hawaii (where she’s based) to the UP to do some interviews and take some photographs: it appears she was there in summertime. But so far as I can tell she’s based her article on a “case study” jointly commissioned by Rio Tinto and the Superior Watershed Partnership, a piece of bespoke research entitled Unity of Place: Giving Birth to Community Environmental Monitoring.

In fact, the opening of Kozacek’s article documenting – or should I say celebrating? — this “unprecedented” water-monitoring agreement seems to be nothing more than a loose paraphrase of that publication, which tells the story of how the community around Eagle Mine gained “a measure of power over the mine. And it was Rio Tinto that gave it to them.”

Leave aside for the moment the preposterous idea that that power was Rio Tinto’s to give in the first place: the Unity of Place case study simply asks us to accept that business can and will decide the power society has over it, and Kozacek seems untroubled by the notion. That Rio Tinto sold Eagle Mine to Lundin Mining after descending from the heights to strike this unprecedented power-sharing agreement with the little people living around the mine does not give her pause, or raise questions about the mining giant’s good faith or much-touted commitment to the community around Eagle; and Kozacek only gets around to mentioning the sale to Lundin 28 paragraphs into her 34-paragraph story.

For the sake of balance, she includes a couple of interviews with “skeptics,” people who remain, to this day, distrustful of the water monitoring agreement but express the hope that it will have some good effect. She mentions the uranium leakage discovered at Eagle last year, which she offers as proof of the success of the program in alerting “the public to potential water quality threats,” quoting the Superior Watershed Partnership’s Jerry Maynard (who is also featured prominently in Unity of Place): the monitoring program, he says, “is gaining the trust and respect of the community….We want this to get out there—we want other mining communities to say ‘we want this too.’” But she fails to mention any other exceedances or violations – I guess she missed that episode of Almanac before filing her story — and apparently didn’t bother looking into the new water story now unfolding around Eagle Mine: the renewal of the mine’s groundwater discharge permit. (Michele Bourdieu has that story over at Keweenaw Now.)

My guess is that Kozacek is unfazed by any of these questions and complications, because the real story she wants to tell here is the story of a mining “renaissance”: she uses the word a few times in her article, once as a header and then twice in the body:

The Eagle Mine is viewed as either on the leading edge or the troubling future of a mining renaissance in Michigan’s Upper Peninsula, a region that has seen more mining bust than boom in the past 50 years. Just as in the oil and gas industry, improvements in mining technology are making previously overlooked ore bodies economically attractive. Rapidly developing countries, particularly China and Brazil, are driving demand for iron, copper, nickel, silver, and gold.

But many of the once booming mine communities in the U.P. and northern Wisconsin, operating with a fraction of their historical populations and downtowns darkened by empty storefronts, are eager for a mining renaissance.

Not a return of mining. Not a re-opening of the mines. Not a new mineral leasing, exploration and mining boom (which would have to be followed by yet another bust). A mining renaissance. It’s an odd word for someone writing about water issues to choose. I wonder if the ungainly use of the word “birth” in the subtitle of the Rio Tinto-Superior Watershed case study inspired Kozacek here: with the “Birth” of “Community Environmental Monitoring” advertised on the cover and on every recto page of that pamphlet, why not imagine a rebirth – and wouldn’t the word “renaissance” be so much more elegant? – of mining?

MinersAtVillanders

Renaissance miners, in the early 16th-century stained glass window of the Villanders parish church.

It’s at best an ugly parody of historical discourse, but I take it that it’s intended to give the new mining around Lake Superior a historical stature that it would otherwise seem to lack. In the second of the two paragraphs I’ve quoted here, Kozacek even imagines the area longing to emerge from a kind of Dark Age, or at least “darkened” downtowns, into renewed prosperity.

But in the first of those paragraphs, I must admit, she does a pretty good job of spelling things out. New extractive technologies have made it not only possible but “economically attractive” (read: highly profitable) for large multinational players to mine previously neglected or abandoned ore deposits, extract oil from tar sands and drill for natural gas by fracking. Chinese urbanization and rapid development in the BRIC countries continue to drive and raise demand for minerals and fossil fuels, as economic power shifts away from developed, Western economies.

Communities in the Upper Peninsula and all around Lake Superior are now feeling the pressures of these bigger changes. Whether they will bring renewal — or more boom and bust, or just catastrophic demise – is another question altogether.

Wikileaks, Democracy, and Diamonds in Zimbabwe

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Christopher R. Albon has published a provocative piece on theatlantic.com, arguing that democracy in Zimbabwe has suffered “a major setback” due to WikiLeaks’ activity, and that one of the leaked cables may have placed Zimbabwe’s Prime Minister Morgan Tsvangirai in serious political, if not legal jeopardy.

Without recourse to the silly fear-mongering we’ve heard from other quarters, Albon’s account serves to remind us just how disruptive WikiLeaks really is and will continue to be to the current world order and, perhaps more importantly, how disruptive it can be to a democracy movement like the one in Zimbabwe, where Robert Mugabe still runs the show, despite a 2008 power-sharing agreement between him and Tsvangirai.

Albon documents the immediate political fallout from a leaked cable reporting that in 2008 Tsvangirai privately urged the United States and other western nations to continue stiff economic sanctions against his country. Publicly, Tsvangirai had denounced them. First imposed in 2003, the sanctions had been — and still are — crippling. But according to the diplomatic report, Tsvangirai thought they were the best way to force Mugabe’s hand and bring much-needed political reforms.

Mugabe’s Attorney General Johannes Tomana has labeled Tsvangirai’s double-dealing on the sanctions “treason” and is preparing a case against him. “The WikiLeaks,” Tomana says, “appear to show a treasonous collusion between local Zimbabweans and the aggressive international world, particularly the United States.” The charge probably won’t stick. But now Mugabe can paint the democratic reformer Tsvangirai as a Western stooge, and, in Albon’s view, “Zimbabwe’s fragile coalition government could collapse completely. Whatever happens, democratic reforms in Zimbabwe are far less likely now than before the leak.”

This is indeed a grim outlook. Albon clearly sees Tsvangirai as Zimbabwe’s last best hope, its only hope, for democracy — not just the lesser of two evils.

But then others distrust Tsvangirai’s commitment to true democratic reform, or see him as a mere proxy for Western interests.

It’s also worth noting that the leaked cables are having other disruptive effects in Zimbabwe as well, and it strikes me as odd – or telling — that Albon fails to give them even the slightest nod in his piece.

There is, after all, another big Wikileaks story about Zimbabwe. This one came out just about a week before the Tsvangirai story broke.

The Prime Minister and his party, the Movement for Democratic Change, seized on another leaked cable and urged that “the government should investigate charges arising from WikiLeaks documents that senior officials close to Mugabe, including his wife Grace, have benefited from illicit diamond trading from the Chiadzwa Mine in the eastern part of the country”. In fact, Grace Mugabe has filed suit against The Weekly Standard for publishing diplomatic cables in which a British mining executive is quoted as saying Grace Mugabe and central bank governor Gideon Gono “have been extracting tremendous profits” – hundreds of thousands of dollars a month — from Chiadzwa’s blood diamonds.

You can imagine how this story, true or false, might play in a country with widespread poverty, 90 percent unemployment and cholera epidemic that kills young and old alike. Mrs. Mugabe and her lawyers understand this better than anyone. Grace Mugabe denounced the report in the Standard as “an imputation of criminality and association with violations of human rights. Whatever it prints,” she continued, “is regarded as gospel truth by those people in Zimbabwe and abroad.”

I suppose, then, that not everybody in Zimbabwe knows that U.S. diplomatic cables are full of imperialist lies and cannot be trusted.

Frost/Assange: An Exchange on Anarchy

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Most Americans are probably tired by now of hearing about Julian Assange, but those still paying attention to his story could do worse than his interview with David Frost on Al Jazeera.

Now in his early 70s, Frost is one of the most capable interviewers on television today.

Frost gives Assange ample opportunity to answer his thoughtful questions (without badgering or interruption); he makes no effort to moralize or demand apologies; and he is certainly no tabloid schmuck. Instead of prurience, he offers intelligence, wit and — this is the thing that strikes the American viewer most — seriousness. For 24 full minutes. An interview of this length, on these subjects, would probably never make its way into American living rooms; and if it did, who would be watching?

The conversation even turns, at one point, to the question whether Assange is an “anarchist,” a question I explored in a previous post. Their exchange, which starts around 11 minutes in, runs as follows:

Frost: Do you think of yourself- when you see references to yourself as anarchic, or an anarchist, is that an accurate description of what you are?
Assange: No, it’s not at all an accurate description.
Frost: Why not?
Assange: That’s not what we do. We’re an organization that goes about and has a long record all over the world of exposing abuses, by exposing concrete documentation, proof of bad behavior. That’s not anarchy. That’s what people do when they’re civil, is that they engage in organized activity that promotes justice.
Frost: So therefore it’s — in that sense you’re not anarchic because you’re actually, you’re in favor of authority if it’s doing the right thing.
Assange: Correct. Correct.
Frost: You’re not automatically opposed to authority.
Assange: You know, having run an organization I understand the difficulties in building institutions, having a good institution. Institutions are very important. I mean anyone who’s worked in Africa, as I have, knows that successful civil institutions don’t just come from nowhere. It’s a — you’ll find a difference going between particular African countries or European and African countries well, clean roads and so on don’t just come from nowhere. There is an institutional infrastructure behind this. But secret institutions start to become corrupted in their purpose. They’re able to engage in secret plans which would be opposed by the population and carry them out for their own internal purposes. So they’re not performing the function that people demand that they perform.

The conversation moves on from there to the question who Assange considers his real enemies, but to my mind this exchange is the heart of the entire interview. It all turns on Assange’s distinction of anarchy from civility — and the positioning of Wikileaks as organized activity that promotes justice. He is eager to put himself and Wikileaks on the side of good government and the “people,” on the side of civil “institutions” and good “clean roads and so on.” He’s even on the side of “authority,” he assures Frost, if it’s “doing the right thing.”

You can easily imagine how this line of argument — which positions Assange as a member of the fourth estate, and Wikileaks as a watchdog — might play into the defense at a trial for espionage or subversion. Whether these arguments will ever be heard over the shouting and fear-mongering of the politicians, pundits and Palins is another question altogether.

Assange’s Got Everybody Agitated About Anarchy

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Anarchists are back in the news again. I haven’t tracked down the first newspaper columnist to use the A-word with reference to Julian Assange, or liken him to “the anarchists of the early 20th century,” as Chas Freeman did in his New York Times editorial this past weekend. But the word has suddenly gained new currency. An old specter is once again haunting the world’s ruling powers.

One of the happier, unintended consequences of Cablegate may turn out to be a public history lesson about anarchists and the role they played in American (and European) political life before the First World War. But right now that outcome seems much less likely than another — that all the hysteria over the new anarchist threat may lead to severe restrictions on the flow of information: Palmer Raids for the twenty-first century, with the Security State raiding and policing its own Cyber-State.

This is the view L. Gordon Crovitz takes in a Wall Street Journal editorial today, labeling Assange an “Information Anarchist”:

The irony is that WikiLeaks’ use of technology to post confidential U.S. government documents will certainly result in a less free flow of information. … The Obama administration now plans to tighten information flows, which could limit leaks but would be a step back to the pre-9/11 period.
Mr. Assange is misunderstood in the media and among digirati as an advocate of transparency. Instead, this battening down of the information hatches by the U.S. is precisely his goal. The reason he launched WikiLeaks is not that he’s a whistleblower—there’s no wrongdoing inherent in diplomatic cables—but because he hopes to hobble the U.S., which according to his underreported philosophy can best be done if officials lose access to a free flow of information.

Crovitz goes on to liken Assange to “Ted Kaczynski, another math-obsessed anarchist,” and connects the “philosophy” of Assange’s writings on authoritarian conspiracy to the Unabomber Manifesto. He has to admit that Assange hasn’t mailed any bombs or killed anyone; but Kaczynski is “serving a life sentence for murder.” Ergo – nothing, really; but it sure sounds alarming, doesn’t it?

(The best Crovitz can do along these lines is to argue that Assange has put lives at risk. This is something everyone likes to say; it adds to the drama and stirs people. To his credit, Crovitz offers the example of Dr. Hossein Vahedi, an American citizen who now fears that his relatives in Iran will be targeted as a result of a leaked cable.)

In this view the state would seem justified in concealing its secrets in order to protect lives. The idea here seems to be that the American state is, mutatis mutandis, benevolent, and those who criticize the state or even seek to thwart the power of the state are likely sinister, violent or evil.

Over at the New York Times, David Brooks does not go that far, but he sees Assange as “an old-fashioned anarchist who believes that all ruling institutions are corrupt and public pronouncements are lies.” I doubt Brooks would really want to defend the counter-proposition, namely, that all ruling institutions are not corrupt and public pronouncements are true. But that’s really beside his point, and not what has him and all his fellow columnists so agitated about anarchists.

It’s really very simple. In Assange and in those who revel in the confusion and embarrassment of Cablegate, these self-appointed guardians of the public welfare see someone who wants to “disrupt the established order,” to quote Freeman. Here you may be forgiven for asking whether it is the job of the fourth estate to defend the established order. An “anarchist” like Assange forces them to declare allegiance; and their allegiance is to the power of the American super-state: these are the champions of the Pax Americana.

Still, that doesn’t keep them from reveling in the confusion and embarrassment of Cablegate. Maybe all the antidisestablishmentarianism is merely a hedge.

Be that as it may, there’s nothing terribly wrong with defending the Pax Americana: in many cases, our lies and corruption are certainly preferable to those of others. The trouble comes when those who have been entrusted with keeping the state honest by investigating its secrets and reporting on its activities turn out to be the State’s most ardent defenders, and present us only with a stark choice between raison d’etatand anarchy.