Solicitor General and A-G

'The Evolution of a Public Sentinel: Australia's Solicitor General' by Gabrielle Appleby in 63(3) Northern Ireland Legal Quarterly (2012) 397-467 comments that

 In the state and federal jurisdictions of Australia the historic 'law officer' role of chief legal adviser and advocate for the Crown is now performed by the second law officer, the Solicitor General. In Australia, the Attorney General now performs an almost exclusively political function as one of the ministers of the Crown. The Attorney is concerned with day-to-day political pressures and has little or no time, often not the expertise, and increasingly lacks the necessary independence and detachment to fulfil the traditional legal functions of the role. The progression in the first law officer’s role has been marked by the devolution of many of the traditional legal functions of the law officers to the Solicitor General. It is now the Solicitor General who provides the final constitutional and legal foundation for government action and legislative policy. In many respects, the Solicitor General has become the first law officer in all but name.

 Appleby concludes

The developments of the second-half of the twentieth century are a clear embodiment of the growing importance of the Solicitor General across the Australian jurisdictions. It is now the government’s highest-level legal officer in matters of constitutional and public law. Since its enshrinement in statute, the role has been a stable and important part of government. It complements (together with the DPP in relation to the criminal law) the position of the Attorney General, who has all but shed the title of first law officer. This is in recognition not simply of the reality that the Attorney General very rarely possesses the legal aptitude and experience required for these legal roles, but it operates to create distance between the exercise of the law officers’ legal services functions and the day-to-day politics and administration in which an Australian Attorney General is immersed.

The Australian Attorney General has been, almost since inception, at the core of government as a member of the Executive Council and later Cabinet, heading a large administrative department. This is in direct contrast with England, where ‘a conscious policy . . . to divorce the Attorney General from day-to-day political issues’ has been pursued. The Australian position, many argue, brings advantages. The Attorney General gains intimate awareness of the ‘battles and the arguments and the stresses and strains that eventually result in policy’, better equipping the officer to find (if possible) a lawful and proper way to achieve the policy objective. It has also been argued that the Attorney General in the Cabinet gives greater weight to the office’s authority among Cabinet colleagues, ensuring compliance and adherence to legal advice. The Australian system secures these benefits but, as this article has shown, acknowledges the increased danger of political and administrative pressures in this environment through the development of independent statutory officers to assist the Attorney General. The current paradigm of the Solicitor General has addressed this danger through a number of developments. Tensions between political allegiances and the independent discharge of the Solicitor General’s functions have been removed by the creation of an office outside of politics that has statutory guarantees of tenure, remuneration and pension.

Further, the focus on the legal nature of the position has meant the office’s independence is largely protected by the professional training and obligations of appointees. Finally, no longer is the office plagued with the politically charged prosecutorial discretion, this having been hived off to the statutorily independent office of the DPP.

ECPA

'Reforming Surveillance Law: The Swiss Model' by Susan Freiwald and Sylvain Métille in Berkeley Technology Law Journal comments that

As implemented over the past twenty-six years, the Electronic Communications Privacy Act (ECPA), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law (CrimPC) regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, the Swiss CrimPC law presents a model for more fundamental reform of U.S. law.

This article is the first to analyze the Swiss law and demonstrate its advantages over the U.S. approach. The comparison sheds light on the inadequacy of U.S. surveillance law, including its recurrent failure to require substantial judicial review, notify targets of surveillance, and provide meaningful remedies to victims of unlawful practices. Notably, through judicial oversight, the Swiss significantly restrict several law enforcement surveillance practices that U.S. law leaves to the discretion of the police. The article explains the differences in approach as stemming from the greater influence of international human rights law in Switzerland and the Swiss people’s willingness to engage in a wholesale revision of their law.

In the United States, the courts and Congress have struggled to establish appropriate surveillance rules, as evidenced by recent controversial judgments in the Supreme and appellate courts and congressional hearings on ECPA reform. Citizens have grown increasingly concerned about law enforcement agents’ excessive use of new surveillance technologies to gather information about their private communications and daily activities. This article analyzes an alternative approach that, if adopted here, would significantly improve our electronic surveillance laws.

The authors conclude -

In the United States, traditional wiretapping (of wire, oral and electronic communications) and some video surveillance is subject to most of the restrictions imposed by CrimPC in Switzerland: notice, a remedy, subsidiarity and proportionality. The rest of what CrimPC treats as surveillance is subject to significantly less protection. Law enforcement agents in the United States may use undercover agents, collect stored communications contents and attributes, intercept communication attributes in real time, track location data, and use of other modern surveillance techniques subject either to no regulation at all or to the anemic protections afforded by ECPA and a few related statutes.

CrimPC, which brought unity and comprehensive treatment to Swiss surveillance law, dramatically contrasts with the laws that regulate surveillance in the United States, which are an incomplete, confusing, and ineffective set of rules. It seems clear that the substantive requirements in both the European Convention on Human Rights and the Swiss constitution have yielded the significantly stronger restrictions on law enforcement surveillance that Swiss law provides. The limited coverage of the Fourth Amendment, and the fact that it exerts no real influence until a court finds it to apply, shifts the default rule in the United States in favor of using new surveillance methods that the legislature has not yet regulated. The opposite rule applies in Switzerland, where techniques that CrimPC does not cover, either explicitly or by analogy, cannot be used. It would represent a significant and likely unattainable, shift in our jurisprudence to prohibit law enforcement agents from using new surveillance techniques until Congress explicitly authorizes those techniques. It should be possible, however, for Congress to design a set of surveillance rules that abandon arbitrary distinctions, provide sufficient procedural hurdles and oversight to constrain invasive practices, furnish meaningful remedies to deter abuse, and provide notice and transparency to ensure that the system works as designed. In drafting such an overhaul, American legislators should look to CrimPC for guidance.

Guardianship

'LGBT Issues and Adult Guardianship: A Comparative Perspective' by Nancy J. Knauer comments that

[US] Guardianship reform has largely overlooked issues related to sexual orientation and gender identity. Lesbian, gay, bisexual, and transgender (LGBT) individuals, however, present a distinct set of needs and concerns due to certain unique demographic characteristics, the evolving nature of LGBT civil rights, and the stubborn persistence of anti-LGBT bias and prejudice. This chapter explores these LGBT-specific concerns from a comparative perspective and identifies the various ways that seemingly neutral guardianship laws can work to silence LGBT identities and place LGBT families at risk. It concludes that guardianship systems should incorporate safeguards that expressly acknowledge the importance of sexual orientation and gender identity. Respect for a ward’s sexual orientation and gender identity is essential to the concepts of dignity and self-determination that have served as the guiding principles of guardianship reform. In the absence of appropriate safeguards, even guardianship reform driven by a “person-centered philosophy” will ultimately fall short and fail to protect the interests of LGBT individuals and LGBT families.

Kable

'A New Coat of Paint: Law and Order and the Refurbishment of Kable' by Gabrielle Appleby n John Williams in 40 Federal Law Review (2012) argues that

The Kable doctrine is, and has always been, a difficult legal principle to define. For over a decade, and despite much academic attention, it had little consequence for state power. Until recently, the High Court deftly avoided its application by employing a number of techniques. As the politics of law and order in the states have increased, state Parliaments have felt emboldened by these cases to test the outer limits of their legislative power. In such an environment, federal anti-terrorism measures, introduced as extraordinary responses necessary for the exceptional nature of terrorism, have crept into general state policing and expanded. It is in this arena that the Kable doctrine has emerged once again. The principle is now vital to understanding the very real limits of state power, particularly in the law and order arena. This article traces the Court's approach to the principle in three recent cases involving the states' antiorganised crime measures (International Finance Trust Co. v. New South Wales Crime Commission, South Australia v. Totani, and Wainohu v. New South Wales) before offering some conclusions about where the current jurisprudence leaves the states and their perpetual campaign to achieve law and order.

The authors conclude

The High Court, in International Finance Trust, Totani and Wainohu, has reinvigorated the Kable doctrine. This has manifested itself in three ways. First, with the exception of Heydon J, there is a discernible shift away from the trends of the Court in the initial post-Kable period, which saw a focus on narrow application of principle and construction of statutes to avoid its application altogether. Secondly, the Court seems to be embracing, once again, the necessity of protecting the judicial process. Finally, with the extension of Kable to the conferral of functions on individual judges, Wainohu has also demonstrated the majority will focus upon maintaining the institutional integrity of the Court against any intrusion, regardless of its form. The reinvigoration of Kable has left all the decisions of the post-Kable period intact; so the Court has had to navigate around its precedent (for example, those cases that focus upon the retention of discretion or the giving of reasons). We have argued that this has been done, at times, with little persuasiveness.

The cases have done little to settle the debates as to its basis or scope. Reasons for the doctrine's continued lack of clarity can be posited. First, the stricter, more rigid doctrine of separation of powers at the federal level is itself plagued with uncertainty; a fortiori the Kable principle with its lack of bright lines and tests revolving around the needs of 'institutional integrity', 'independence and impartiality', 'judicial process' and 'public confidence'. Despite the Court's attempts to redefine the basis for the doctrine, these issues around its scope have remained. This must be because the changing basis for the doctrine has led to little change in the focus of its scope. Secondly, the Kable doctrine is now a legal principle that protects the institutional integrity of the state courts from any number of incursions: from the bestowal of functions that undermine their integrity to measures that change their structure and constitution, changes in the process by which they exercise their curial functions, or, as in Wainohu, persona designata conferrals on individual judges. On one view, the protection of the Supreme Court's supervisory jurisdiction as a 'defining characteristic' may also fall within the scope of the principle. If it is to be used as such a large umbrella, it must be capable of adapting to any type of measure that can be concocted by the states that makes incursions into the institutional integrity of the Court.

What are the reasons behind the reinvigoration? There have certainly been significant changes to the composition of the High Court bench and the new appointees have largely moved away from the pragmatism that was often evident in Gleeson CJ's judgments and remains a core of Heydon J's jurisprudence. The state regimes have also changed. The cues from the Court in the post-Kable period undoubtedly encouraged the states to push at the limits of the Kable principle. While the state control order regimes were loosely modelled on the preventative detention and federal anti-terrorism control order schemes, in many respects the states took the measures further. There is definitely a sense in French CJ's Totani judgment that the States had stopped approaching the Kable principle with the 'prudence' that it deserves.

Where does this reinvigoration leave state law and order policies? In Wainohu, the High Court left the way open for the states to redesign the control order schemes within a more palatable framework. However, the approach has recreated a great deal of uncertainty — akin to that following the Kable decision itself. This uncertainty was particularly manifest in the application of the Kable principle in the most recent High Court decision in Momcilovic v The Queen. On one view, such ambiguity plays to the detriment of government and citizen alike, making legislating with constitutional certainty difficult.194 One the other hand, two advantages can be identified. The first is the move away from the uncertainty engendered by the Court's previous approach to statutory construction: the strained constructions that the High Court took of the criminal intelligence provisions in Gypsy Jokers and K-Generation led to anything but certainty. The second is that the demarcation of the Kable principle has been given a new coat of paint (albeit without any clear edges). Kable itself originally set these boundaries, and the subsequent state law and order schemes carefully worked within them. There is no doubt that while the Dangerous Prisoners (Sexual Offenders) Act remained unpalatable to some, it was distinctly more palatable because of the Kable decision. It does not look like the states will be abandoning control orders in the fight against organised crime anytime soon, and the High Court has not indicated the need to; but they may look distinctly more palatable after the Totani and Wainohu decisions.

A counter argument to this position is, of course, if pushed back too far by the Court, states may always choose to vest the power in the executive without any safeguards in the courts.195 This is not, however, constitutionally certain; at least one judge (Gummow J) has indicated that, where executive detention is involved, this raises potential constitutional difficulties. Further, as a matter of practice, this fear has simply not been realised, as the latest versions of the control order regimes in New South Wales, South Australia and Western Australia demonstrate. There is a strong policy drive to use the courts in these types of schemes. And provided the High Court leaves the ground open to the states, there seems to be no reason to believe it will not be occupied.

Doctrine

'The Bible as Law Book: Thomas Aquinas on the Juridical Uses of Scripture' by William S. Brewbaker in 12 Rutgers Journal of Law and Religion (2010) 76 argues that

Thomas Aquinas’s Treatise on Law is enjoying a resurgence of interest among legal scholars. It is excerpted in leading legal philosophy texts, assigned in jurisprudence courses and cited in law journal articles and legal monographs on a wide range of subjects. Although the Treatise consists of nineteen chapters (“questions”), the average student of legal philosophy is likely to have been exposed only to portions of the first eight and little, if any, of the last eleven.

The Treatise is not a short work, and most of the editorial decisions are both practically necessary and pedagogically understandable. Nevertheless, omitting the “rest” of the Treatise has had some unfortunate consequences. The omitted questions include the bulk of Thomas’s account of the relationship of theological revelation to human law, a subject of increasing importance in contemporary debates about religion and politics. The omissions also tend to reinforce the impression that Thomas’s natural law system can be hived off from his religious and cultural context. To be sure, Thomas does make the familiar natural law claim that there are moral truths that all human beings must know merely by virtue of being human. However, the deeper one goes into the Treatise, the clearer it becomes that Thomas’s treatment of natural law is part of a complex and theologically-informed understanding of nature, reason, revelation and the unfolding story of God’s action in the world.

This article expounds and analyzes the role of Scripture in Thomas’s account of legislation and judging, arguing that Thomas leaves only modest room for the Bible to influence human law directly. After explaining some key theological presuppositions that underpin Thomas’s account of law generally, the article shows how Thomas divides the laws found in Scripture into several overlapping categories, only one of which (the “moral law” found in the Old Testament) has any direct continuing relevance for the Thomistic jurist. Even here, Scripture serves mostly to confirm the moral truths that human beings (at least the “wise” ones) already know.

Nevertheless, it would be an overstatement to conclude that the Bible is completely irrelevant to the Thomistic jurist. The Scriptures bear witness to the grace of Christ, which, in Thomas’s account, is critical to the jurist’s proper exercise of his or her vocation. Moreover, the Thomistic jurist’s understanding of law is shaped by Scripture’s account of nature, the human person and ethics. While these theological starting points may not always make much difference in legal details, they do lead Thomas (and presumably his followers) to a vision of law that is famously at odds with many modern accounts.

Jury Blacklists

''Bad Juror' Lists and the Prosecutor's Duty to Disclose' by Ira Robbins in 22(1) Cornell Journal of Law and Public Policy (2012) 1-52 deals with blacklisting.

Robbins comments that

Prosecutors sometimes use what are known as “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts.

This Article addresses the prosecutor’s duty to disclose bad-juror lists. It reviews the federal Freedom of Information Act, a variety of state open-records acts and their exemptions, the work-product doctrine, the fundamental-fairness doctrine, and the discriminatory use of peremptory challenges (particularly in death-penalty cases). The Article concludes by advancing recommendations for overcoming disclosure exemptions and preserving the integrity of jury selection in the face of the continued use of bad-juror lists.

The judicial system in the United States is adversarial. Particularly in criminal cases, when prosecutors, who already hold enormous power, are permitted to put their thumbs on the scale of justice during jury selection, the entire system suffers — the rights of potential jurors, the rights of the defendant, the reliability of the outcome of the proceedings, and the appearance of justice.

 Robbins concludes -

Prosecutors sometimes use “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists themselves?

The ambiguity of states’ open-records laws, coupled with the judicial discretion regarding the level of injustice a defendant must establish to overcome the work-product doctrine, has led to inconsistency in the disclosure of prosecutors’ bad-juror lists. Although the legislative intent behind most state open-records acts follows that of the federal Freedom of Information Act in promoting government transparency, the discretion used by some states to enact numerous exemptions to disclosure and interpret those exemptions broadly contravenes this purpose and thus dilutes public access to information. Texas’s deviation from the narrow construction that other states — such as Georgia, Alabama, and Colorado — have given to exemptions clearly disfavors disclosure of information in prosecutorial matters and conflicts with this purpose of public openness. While this disparity can partially be explained by the selective interpretation of available precedent in Texas, the statute’s ambiguity lends itself to this manipulation. A better approach is for states to model their open-records acts on FOIA to maintain consistency and to preserve the public interest in the freedom of information.

Moreover, states are often too strict in their adherence to the workproduct doctrine to shield bad-juror lists from defense counsel. Courts have held that prosecutors’ jury dossiers should be disclosed to defense counsel when the defendant has made a sufficient showing of necessity or injustice. The magnitude of discretion invested with the trial judge, however, makes it difficult to find reversible error solely on the basis of the judge’s failure to accept a defendant’s fundamental-fairness argument to disclose the bad-juror list. In addition, courts have typically mandated disclosure of these records only when the police department compiled the records or when the prosecutor used the records to refresh his or her memory in relation to a Batson v. Kentucky hearing. Defendants deserve the same treatment when the prosecution compiles its own badjuror list and subsequently uses the list during the voir dire process. Further, courts should rule that there is a presumption in favor of public disclosure of prosecutors’ bad-juror lists when the prosecutor uses these lists to aid in exercising peremptory challenges during the voir dire process. It is fundamentally unfair for defense counsel to be denied access to this information where the defendant lacks the resources to obtain the same information. To disclose these lists to defense counsel would allow the defendant the same opportunity as the prosecutor to exercise peremptory challenges intelligently. Requiring disclosure of these lists to the defense would also enable the defendant to more appropriately assert Batson challenges when it appears that the prosecutor is striking jurors for unconstitutional reasons.

The judicial system in the United States is adversarial. Particularly in criminal cases, when prosecutors, who already hold enormous power,  are permitted to put their thumbs on the scale of justice during jury selection, the entire system suffers - the rights of potential jurors, the rights of the defendant, the integrity of the outcome of the proceedings, and the appearance of justice.

Untergang

'YouTubers as satirists: Humour and remix in online video' [PDF] by Patrícia Dias da Silva and José Luís Garcia in 4(1) eJournal of eDemocracy and Open Government (2012) 89-114 discusses

the role humour plays in politics, particularly in a media environment overflowing with user-generated video. We start with a genealogy of political satire, from classical to Internet times, followed by a general description of “the Hitler meme,” a series of videos on YouTube featuring footage from the film Der Untergang and nonsensical subtitles. Amid video-games, celebrities, and the Internet itself, politicians and politics are the target of twenty-first century caricatures. By analysing these videos we hope to elucidate how the manipulation of images is embedded in everyday practices and may be of political consequence, namely by deflating politicians' constructed media image. The realm of image, at the centre of the Internet's technological culture, is connected with decisive aspects of today's social structure of knowledge and play. It is timely to understand which part of “playing” is in fact an expressive practice with political significance. .... In online remix, popular culture allows creative production beyond consumption, entailing a process of selection, transformation and redistribution. These online everyday practices hence gain a political dimension, whose importance as grassroots participation is directly tied to their interference in the mediascape.

As citizens seem to drift apart from forms of political participation once predominant making many fear the failure of democracy, other forms – referred to as non-conventional – appear to have been gaining visibility and relevance. Pippa Norris (2007) acknowledges a rise of alternative organizational forms of activism related to the growth of cause-oriented politics, as opposed to citizen-oriented politics, linked to elections and parties. The process of globalization as well as privatization, marketization and deregulation have reinforced “the need for alternative repertoires for political expression and mobilization” (Norris, 2007, p. 641). Looking at approaches that rethink the public sphere as a theoretical construct and as a reality, one may find a positive perspective on the segmentation of the public sphere – of which the Internet is strongly blamed – regarding it as a strength and not a sign of demise. Nancy Fraser's (1990) conceptualisation of “counterpublics,” in which distinct publics instil the democratic debate with vitality as opposed to a monolithic and exclusivist public sphere, offers a theoretical framework which provides heuristic possibilities to the study of online citizen participation.

In YouTube, amateur videos constitute “a new form of vernacular speech – speech through the production of original and appropriated images and words” (Strangelove, 2010, p. 156). Talking online means to manipulate images, meme-making and sharing these video creations. “Citizenship is, in part, a question of learning by doing” (Dahlgren, 2006, p. 273), including the experiences in seemingly non-political contexts, and talking is a significant practice in the political experience of citizens, beyond political discussion carried out in formal settings. Exposing dominant political discourse through critical comment is one of the political activities of online amateurs, and humour plays a part in leading that process to the next step: playfulness contributes to mobilisation and to grabbing the attention of the media (Flichy, 2010, pp. 58–9). Developing what Edwards and Tryon (2009) call “critical digital intertextuality,” YouTubers do not restrict their actions to decoding or opposing content that is presented to them; rather, they enhance their media literacy by contesting the transparency of such texts.

Remixing or appropriation, characteristic of culture jamming and other forms of intervention in media culture, is the focus of our analysis. A key element of situationism, subversion was considered “an all-embracing re-entry into play” (Vaneigem, 1974, p. 150). The realm of image is perhaps at the centre of the Internet's technological culture and is connected with decisive aspects of today's social structure of knowledge and play. It is timely to understand which part of “playing” is in fact an expressive practice with political significance.

In this article, a brief genealogy of political satire, from classical to Internet times, is followed by a general description of the Downfall meme, a series of videos on YouTube featuring footage from the film Der Untergang and altered subtitles. Amid video-games, celebrities, and the Internet itself, politicians and politics are also the target of such twenty-first century caricatures. The analysis of these videos enabled us to identify the relation between politics and the media as a strong subject of parody and to understand how the character of Hitler was chosen to deflate politicians' constructed media image. This is but one example of how the manipulation of images is now embedded in everyday practices and may be of political consequence.

 The authors conclude that

Humour is part of humanity's History, and satire in particular seems to thrive when it is demanded as a form of expression by both society and individuals. In the twenty-first century, this need seems to be present, as newspapers, television, films and the Internet display more and more instances of pictorial satire. One can hardly deny “satiric media texts have become a part of (and a preoccupation of) mainstream political coverage,” but has this made “satirists legitimate players in serious political dialogue” as Amber Day (2011, p. 1) claims?

A closer examination of the sample of Untergang remixes here discussed shows us YouTubers employ remixing and humour as methods of exposing the weaknesses of politicians and the political system, following the long-standing tradition of satirists, countering messages created in the context of institutional political communication. Remixing implies that not only the strategies of political actors are exposed, but also the inner workings of the media and the relation between the two. Through image manipulation, politicians and media actors are turned into their own discrediting representatives, participating in their own mockery. Humour therefore plays a role in twenty-first century political discussion, rather than merely diverting the attention of citizens from such matters. In this sense, satirical remixing may be regarded as a new form of participation, especially as cause-oriented political action, and contribute to the formation of counterpublics, bringing new vitality to democratic debate. Yes, these videos can hardly be compared to the work of masters of literature like Swift or Orwell, whose social critique remains thought-provoking to the day. However, websites like YouTube allow vernacular instances of satire to be registered and easily accessible beyond their iteration – both in geographical and temporal terms. They may not be as enduring or remarkable, but they are part of what is to talk online, including talking politics.

Regarding online satirical remixes' value in the promotion of online political discussion, we note that emotions weigh in political engagement. They may play an important role in both grabbing the attention of viewers and thus contribute to raising awareness on specific issues, and galvanising them to take part in political discussion. Moreover, satirical remixing appeals not only to the emotional side of citizens, but also to the intellect. By breaking down official messages, satirical remixing becomes a lesson in media literacy and rhetoric: it exposes how political images – in the broad sense of the word – are produced, are arranged and can be manipulated. Moreover, the intertextual character of both satire and remix imposes high demands on video watchers, as to fully understand the references that are invoked.

Notwithstanding its role in denouncing the flaws in the media, politicians, political institutions and political systems or triggering political discussion, there are limitations to satirical remix as a tactic for affecting the balance of power. Hess (2009) notes in this regard the production of two illusions: firstly, a perception that there is freedom of speech on this medium, while inducing a belief that this form of participation replaces forms of political expression such as petitioning or protests; secondly, a feeling of satisfaction for being able to speak one's mind through online video, even if there is no audience. For Hess, YouTube may allow the dissemination of messages, but is not successful in creating an organized community. Participation in political debate may be restricted to finger-pointing instead of looking for consensus building or offering proposals of the citizens' own making. Political satirical remix's contribution to discussion is hence grounded on a negative stance, in which an agreement may be reached on what is undesirable, but it seldom offers alternatives and may even heighten divergence.

Highly derisive or nonsensical videos perform above all a safety-valve function, and have reduced transformative consequences. Their focus of attention is only held until a new target of mockery comes along, making parody seem trivial and a generator of white noise. Satirical remixes that appeal to knowledge of affairs, or even contribute to extending it, aim for a more permanent impact that causes change in some way, even if only in terms of awareness. Like culture jamming in general, in order to be subversive political remixes must have a goal beyond the appropriation of images, which itself constricts criticism: images may be able to carry over some of the dominant meanings embedded in them. The circulation of satirical remixes enables them be reframed and co-opted and, on YouTube, they can turn from critique to generating profit, sometimes even for the benefit of the object of commentary. Uploading to YouTube leaves remixers and all participants in the resulting online discussion subject to the company's policies, with the lack of control this implies.

At a time of revival of Read/Write creativity (Lessig, 2008), inherently intertextual, a product of juxtaposition and bricolage, satire seems to have found fertile ground to flourish. Faced with a world of politics detached from their own world – “politics as usual” – parody became a rhetorical practice at the disposal of citizens to express their views, and engage in dialogue with others. Offering an alternative language for discussing political issues, the parodic satires are in stark contrast with the “politically correct” forms of debates previously privileged. Uploaded to a worldwide repository, the videos are accessible to (almost) anyone with an Internet connection. These images hence become part of communication, not in the sense of broadcasting, or even narrowcasting, but of the creation of an imagetic commons, allowing them to be reused, remixed, reinterpreted. Even so, co-opting and astroturfing – false grassroots movements – are also taking place, and slacktivism is only the pushing of a button away, as Morozov (2011) cautions. The answer to the long standing question of the role humour plays in politics continues open, and as this article is being written, the horizon of citizen empowerment remains cloudy. Nevertheless, if in Juvenal's time it may have been difficult not to write satire, in today's world, it is also hard not to sing, paint, film or remix it.