Tag Archives: Eugene Volokh

What Part of “Free Speech” Did You Not Understand?

27 Thursday Apr 2017

Posted by in Censorship, Free Speech

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The left has adopted an absurdly expansive definition of “hate speech”, and they’d like you to believe that “hate speech” is unconstitutional. Their objective is to establish a platform from which they can ostracize and ultimately censor political opponents on a variety of policy issues, mixed with the pretense of a moral high ground. The constitutional claim is legal nonsense, of course. To be fair, the moral claim may depend on the issue.

John Daniel Davidson writes in The Federalist of the distinction between protected and unprotected speech in constitutional law. The primary exception to protected speech has to do with the use of “fighting words”. Davidson describes one Supreme Court interpretation of fighting words as “a face-to-face insult directed at a specific person for the purpose of provoking a fight.” Obviously threats would fall into the same category, but only to the extent that they imply “imminent lawless action”, according to a major precedent. As such, there is a distinction between fighting words versus speech that is critical, discriminatory, or even hateful, all of which are protected.

Hate speech, on the other hand, has no accepted legal definition. In law, it has not been specifically linked to speech offensive to protected groups under employment, fair housing, hate crime or any other legislation. If we are to accept the parlance of the left, it seems to cover almost anything over which one might take offense. However, unless it qualifies as fighting words, it is protected speech.

The amorphous character of hate speech, as a concept, makes it an ideal vehicle for censoring political opponents, and that makes it extremely dangerous to the workings of a free society. Any issue of public concern has more than one side, and any policy solution will usually create winners and losers. Sometimes the alleged winners and losers are merely ostensible winners and losers, as dynamic policy effects or “unexpected consequences” often change the outcomes. Advocacy for one solution or another seldom qualifies as hate toward those presumed to be losers by one side in a debate, let alone a threat of violence. Yet we often hear that harm is done by the mere expression of opinion. Here is Davidson:

“By hate speech, they mean ideas and opinions that run afoul of progressive pieties. Do you believe abortion is the taking of human life? That’s hate speech. Think transgenderism is a form of mental illness? Hate speech. Concerned about illegal immigration? Believe in the right to bear arms? Support President Donald Trump? All hate speech.“

Do you support the minimum wage? Do you oppose national reparation payments to African Americans? Do you support health care reform? Welfare reform? Rollbacks in certain environmental regulations? Smaller government? You just might be a hater, according to this way of thinking!

The following statement appears in a recent proposal on free speech. The proposal was recommended as policy by an ad hoc committee created by the administration of a state university:

“… Nor does freedom of expression create a privilege to engage in discrimination involving unwelcome verbal, written, or physical conduct directed at a particular individual or group of individuals on the basis of actual or perceived status, or affiliation within a protected status, and so severe or pervasive that it creates an intimidating or hostile environment that interferes with an individual’s employment, education, academic environment, or participation in the University’s programs or activities.“

This is an obvious departure from the constitutional meaning of free expression or any legal precedent.

And here is Ulrich Baer, who is New York University‘s vice provost for faculty, arts, humanities, and diversity (and professor of comparative literature), in an opinion piece this week in the New York Times:

“The recent student demonstrations [against certain visiting speakers] should be understood as an attempt to ensure the conditions of free speech for a greater group of people, rather than censorship. … Universities invite speakers not chiefly to present otherwise unavailable discoveries, but to present to the public views they have presented elsewhere. When those views invalidate the humanity of some people, they restrict speech as a public good.  …

The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community.“

How’s that for logical contortion? Silencing speakers is an effort to protect free speech! As noted by Robby Soave in on Reason.com, “... free speech is not a public good. It is an individual right.” This cannot be compromised by the left’s endlessly flexible conceptualization of “hate speech”, which can mean almost any opinion with which they disagree. Likewise, to “invalidate the humanity of some people” is a dangerously subjective standard. Mr. Baer is incorrect in his assertion that speakers must balance the “inherent” value of their views with an obligation to be “inclusive”. The only obligation is not to threaten or incite “imminent lawless action”. Otherwise, freedom of speech is a natural and constitutionally unfettered right to express oneself. Nothing could be more empowering!

Note that the constitution specifically prohibits the government from interfering with free speech. That includes any public institution such as state universities. Private parties, however, are free to restrict speech on their own property or platform. For example, a private college can legally restrict speech on its property and within its facilities. The owner of a social media platform can legally restrict the speech used there as well.

Howard Dean, a prominent if somewhat hapless member of the democrat establishment, recently tweeted this bit of misinformation: “Hate speech is not protected by the first amendment.” To this, Dean later added some mischaracterizations of Supreme Court decisions, prompting legal scholar Eugene Volokh to explain the facts. Volokh cites a number of decisions upholding a liberal view of free speech rights (and I do not use the word liberal lightly). Volokh also cites the “prior restraint doctrine”:

“The government generally may not exclude speakers — even in government-owned ‘limited public forums’ — because of a concern that the speakers might violate the rules if they spoke.“

If a speaker violates the law by engaging in threats or inciting violence, it is up to law enforcement to step in, ex post, just as they should when antifa protestors show their fascist colors through violent efforts to silence speakers. Volokh quotes from an opinion written by Supreme Court Justice Harry A. Backmun:

“… a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.”

Anti-Gun Babes Up In Arms

17 Friday Jun 2016

Posted by in Gun Control, Gun Rights

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Passion for various forms of gun control was inflamed by the tragic murder of 49 patrons (with 53 injured) at the Pulse nightclub in Orlando, Florida in the early hours of last Sunday morning. A man with ties to radical Islam was the perpetrator, but that’s not convenient to the left’s narrative, so scapegoats for the massacre run the gamut from guns to transgender bathroom laws to Christian “intolerance”, as opposed to the intolerance of a bat-shit crazy Islamic extremist. The Soopermexican notes the following:

“It’s really amazing how liberals [sic] are finding a way to blame Christians for the actions of the Orlando terrorist, who was, 1) gay, 2) Muslim, 3) Democrat, and 4) racist. … But then that’s what they did that time when a crazed liberal gay activist tried to shoot up the Family Research Council. Remember that? He literally said he wanted to kill everyone and then ‘smear Chick-Fil-A in the victim’s faces.’“

In case there’s any misunderstanding, I include that quote NOT to denigrate gays, Muslims, or Democrats, but to emphasize the absurdity of blaming Christians for the Orlando shootings. To get a sense of the infectious silliness going around in leftist circles over the slaughter, read this account of a vigil for the Pulse victims held in Columbia, MO by several student organizations near the main campus of the University of Missouri, at which Latino activists scolded the gay activist crowd for being “too white” and for paying insufficient attention to racial issues. Of course, it’s true that many of the Orlando victims were Latino, but after all, the vigil was for them, too, not just the white victims.

The left despises private gun ownership, or perhaps private anything except for their own privileges. Gun-blame feels so compassionate to them, and in this case, it conveniently avoids any mention of the killer’s ethnicity and radical ideology. Agitators say that “assault weapons” must be banned, but they are generally unable to articulate a precise definition. More thorough background checks are another favorite “solution”, but that’s based on an article of faith that such checks would be effective. Without proof that background checks actually work, and there is none, it still seems like a good idea to the “do something” crowd. Then, there are those whose real agenda is to ban guns outright, despite the fact that gun bans are counterproductive and infringe on the rights of law-abiding citizens.

Most of those who wish to ban assault weapons think they are referring to guns that fire repeatedly when the trigger is pulled. In other words, they believe that assault weapons are fully automatic weapons. But fully automatic weapons have been banned in the U.S. since 1934! Semi-automatic weapons require the trigger to be pulled to fire each bullet but load the next bullet automatically. James B. Jacobs of the NYU School of Law gives a fairly detailed description of the distinction between so-called assault weapons and other firearms, which essentially comes down to appearance:

“‘Assault weapons’ are semiautomatic firearms designed to look like military rifles. They are not military rifles—sometimes called assault rifles24—such as the U.S. Army’s M-16 … that can be fired in automatic or semiautomatic mode, or Russia’s AK-47, Germany’s HK G36 assault rifle, and Belgium’s FN Fal assault rifle. In contrast to assault rifles, these semiautomatic look-alikes do not fire automatically. Functionally, they are identical to most other semiautomatics. … Practically all modern rifles, pistols, and shotguns are semiautomatics; non-semiautomatic long guns include bolt action, slide action, and breach loaders; non-semiautomatic pistols are called revolvers.“

Jacobs discusses the futility of a ban on assault weapons and offers accounts of some historical assault weapon bans that were ineffective. Those outcomes were due in part to the flimsy distinction between assault weapons and other guns, as well as the fact that assault weapons are used in a relatively small percentage of gun crimes and in few mass shootings (also see here). This is corroborated by a recent paper appearing in the journal Applied Economics in which the authors report:

“… common state and federal gun laws that outlaw assault weapons are unrelated to the likelihood of an assault weapon being used during a public shooting event. Moreover, results show that the use of assault weapons is not related to more victims or fatalities than other types of guns. However, the use of hand guns, shot guns and high-capacity magazines is directly related to the number of victims and fatalities in a public shooting event. Finally, the gunman’s reported mental illness is often associated with an increase in the number of victims and fatalities.“

Another contention made by ill-informed opponents of gun rights is that mass shootings are never stopped by citizens with guns. That is simply not true, but it is good propaganda because foiled shooting attempts tend to receive much less notice than actual mass shootings. This article by Eugene Volokh provides a list of confirmed incidents in which a mass shooting was averted by a citizen carrying a gun. This situation has its counterpart in the left’s denial that defensive gun uses (DGUs) occur more frequently than gun crimes. DGUs are difficult to count because they often go unreported and may not even require the firing of a shot.

Another mistake is the continued advocacy for “gun-free zones” (such as the Pulse nightclub) within which even guards are not allowed to carry firearms. Andrew Napolitano rightly labels these “killing zones”.

More stringent background checks are another favorite solution of gun-rights opponents. However, actual background checks have done nothing to stop the most vicious mass shootings that have occurred over the past few years. This is another testament to the naiveté of relying on government to protect you, in this case, a government information system. Sheldon Richman has explained the futility of background checks thusly:

“… people with criminal intent will find ways to buy guns that do not require a check. Proponents of background checks seem to think that a government decree will dry up the black market. But why would it? Sales will go on beyond the government’s ability to monitor them. Out of sight, out of government control. … Thus the case against mandating ‘universal’ background checks withstands scrutiny. This measure would not keep criminally minded people from acquiring guns, but it would give a false sense of security to the public by promising something they cannot deliver.“

Advocates of assault weapon bans and wider background checks are inclined to characterize gun rights supporters as paranoid. As Volokh explained last year, however, there is strong reason to believe that the pro-gun lobby has correctly assessed the motives among the opposition as more extreme. Volokh notes that an ineffectual ban, like the 1994-2004 assault weapon ban and many other gun bans internationally, cannot outweigh the interests of society in protecting a basic liberty.

And as to basic liberties, Rolling Stone offers a wonderful illustration of the left’s disregard for individual rights and constitutional protections in an angry missive to gun rights supporters: “4 Pro-Gun Arguments We’re Sick of Hearing“. The author not only holds the Second Amendment in distain: vogue left-think has it that the entire Constitution is tainted because the framers were unable to agree on abolition 230 years ago (at a time when slave ownership was commonplace among the aristocracy). The fact that many of the founders were sympathetic to abolition makes little difference to these critics. They say the Constitution is not a legitimate framework for governance, despite its extremely liberal point of view on issues of individual rights. Apparently,  Rolling Stone would be just fine with abrogating the free speech rights of gun advocates.

Over the past 20 years or so, case law has increasingly viewed the Second Amendment as “ordinary constitutional law“, meaning that it protects individuals’ right to bear arms. The “well-regulated militia” limitation written into the Second Amendment is no longer accepted by the courts and most legal scholars as a limitation on individual rights. The militias it references were state militias raised from the civilian population, and the armaments they used were generally owned by the same civilians. In any case, there is no time limitation imposed on gun ownership by the Second via that clause. An earlier discussion of these issues was provided by Eugene Volokh in “The Commonplace Second Amendment“.

All this is quite apart from the Ninth Amendment, which states that nothing in the Constitution should be interpreted as limiting rights that are unenumerated. That would include self-defense, and ownership of a gun for that purpose is well advised. The Wikipedia entry on the Ninth Amendment says:

“One of the arguments the Federalists gave against the addition of a Bill of Rights, during the debates about ratification of the Constitution, was that a listing of rights could problematically enlarge the powers specified in Article One, Section 8 of the new Constitution by implication. For example, in Federalist 84, Alexander Hamilton asked, ‘Why declare that things shall not be done which there is no power to do?’“

In other words, we do not derive our rights from government or the majoritarian passions of the moment.

Finally, the debate in Congress this week has centered on whether individuals on the FBI’s Terrorist Watch List should be denied the right to purchase a gun. That might seem like a no-brainier, but it raises legitimate concerns about civil liberties. There are about 700,000 people on that list (some reports put the number much higher), many of them U.S. citizens; some of them are there by mistake. Individuals on the list have not been convicted of a crime and are therefore entitled to due process under the Fifth and Fourteenth Amendments. Watch Rep. Trey Gowdy’s passionate defense of due process to a DHS official this past week. When the ACLU and congressional republicans agree on the tyrannical nature of a restriction like this, you just can’t dismiss it out-of-hand. Such a change in the law cannot be justified without a fast and effective process giving citizens on the list a right of challenge.

The left is bereft of competence on the matter of guns, gun rights and the Constitution generally. They consistently demonstrate a dismissive view of individual liberties, whether that involves guns, religion, property, speech or due process. The tragedy in Orlando deserves more than ill-informed, knee-jerk conclusions. The most productive approach to terror risks involves individuals able to protect themselves and help watch out for others. That’s consistent with the position of the gay gun-rights group Pink Pistols. More power to them!

 

 

 

Who Brought the Melting Pot To the Pow Wow?

11 Wednesday May 2016

Posted by in Censorship, Free Speech

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Chris Rock

I ran into a Chinese colleague in a break room at work and mentioned that I’d seen her engaged in a “pow wow” with a senior staffer, and she asked, “Pow wow?” I tried to explain the Native American origins of the term for a gathering or meeting, and I think she liked that, but I joked that my use of the term might represent “cultural appropriation” (CA). A second colleague who’d entered the kitchen glanced at me with a raised eyebrow. Knowing them well, I’m not sure either of them knew what I meant. As it happens, describing the pow wow as a celebration is more accurate, so my use of the term to describe a meeting was too narrow. In fact, in modern usage by Native Americans, it is a celebration of culture, but meetings take place at these events as well.

CA occurs when aspects of one culture are used in some way by others. It is criticized for trivializing the traditions or symbols of the source culture or because it robs it’s members of intellectual property (IP) rights. I can think of examples of cultural trivialization, such as the “Ugg-a-Wugg” song from the musical Peter Pan. Such complaints strike me as hyper-sensitive, but perhaps the umbrage taken by Native Americans to this song is understandable. Nevertheless, I stand more strongly behind the right of free expression. This song, which is rarely performed today out of respect for Native Americans, was part of a larger Neverland fantasy that has great appeal. And after all, the Indians were good guys in the story!

Works such as Peter Pan and Huckleberry Finn are historical and reflect the times in which they were created. As such, some argue that they should be left in their original form. And I agree, in general. However, in the case of a musical that is performed publicly again and again by various professional and amateur groups, I am sympathetic to the notion that potentially offensive elements can be excised if the changes do not do great damage to the story. If it is not in the public domain, the owners of the story’s rights have the final say.

The IP argument is flawed to the extent that IP arguments are always flawed: ideas are non-rivalrous and non-exclusive. Moreover, even IP rights recognized under U.S. law are limited to individual “property”; they do not extend to the traditions and symbols of various cultures that coexist in society.

Another area emphasized by critics of CA has to do with historical grievances against a dominant culture, often without regard to current circumstances. Apparently, such grievances place the minority culture off-limits. Under this view, cultural exchange is fundamentally bad, which is fundamentally absurd. It has the faint ring of “separate but equal” — paradoxical given the avowed desire among critics of CA for an end to racial and social division.

While European colonialists certainly exploited the native inhabitants in many lands, today’s liberal order in the West is attractive to members of different cultures around the globe.They adopt similar institutions and practices at home, and some of them bring their cultures to us. We all gain in the exchange.

Strong condemnation of CA has been all the rage on college campuses over the past few years (see several of the links here). It reflects a hyper-sensitivity about the normal mixing of cultures. Cultural exchange tends to elevate appealing aspects of all cultures into the larger society. Should we really condemn any of the following harmless activities?

  • Yoga classes at the Jewish Community Center?
  • Cinco de Mayo celebrations by non-Mexicans?
  • Caucasians celebrating the Chinese New Year or Moon Festival?
  • St. Patrick’s Day celebrations by non-Irish, non-Catholics?
  • Flower Drum Song or The King and I?
  • Caucasians playing Delta Blues?
  • African American Mardi Gras Indians?
  • Caucasians watching Bollywood movies?
  • The Grateful Dead at the Pyramids?
  • Caucasians cooking “ethnic” foods?

I grant that respect dictates avoiding use of another group’s sacred symbols. Beyond that, it is difficult to conceive of any objections to activities like those above. They are all forms of cultural cross-pollination, even if they seem to trivialize in some cases. This sometimes  involves cultural interpretation by “others” that might not be accurate, but that is always the case when cultures mix. People incorporate or adapt features of other cultures that they enjoy, which is hardly a sin.

Curious about pow wow, I found the following qualification in the Wikipedia entry for pow-wow:

“…the term has also been used by non-Natives to describe any gathering of Native Americans, or to refer to any type of meeting among non-Natives (such as military personnel). However, such use may be viewed as cultural appropriation, and disrespectful to Native peoples.“

Well, well, well! Pow wow is used in conversational english to lend an air of informality or lightness to certain proceedings. It may simultaneously convey a serious diplomatic purpose and an opportunity to resove differences. Sometimes, non-Natives might even use the term to sound clever, like using the French term soirée rather than “party”. Or perhaps they are amused by the image of corporate managers seated akimbo around a camp fire, passing a peace pipe. Or any pipe. Trivial? Maybe, but if that possibility outrages Native Americans, it strikes me as an over-reaction. After all, the joke is partly on “the suits”, and there isn’t much the Indians can do about it under the law.

I have always been fascinated by American Indian history and culture. I do not use the term pow-wow in disrespect. I use it because it’s colorful and I like it. The cross-pollination of language and culture is borne out of the utility of a particular word or practice. It can hardly be bad that a few shards of Native American language and culture are incorporated into broader American society.

My sister has a beautiful scarf bearing the profile of an American Indian in full head dress. She has always had an interest in the art and culture of the American southwest, which has benefitted from the heavy influence of Indians who are native to that region. So it was unsurprising to me that she would be drawn to the beauty of the scarf. It is a work of art and she does not wear it out of disrespect for American Indians.

Certain acts of CA are thought to intersect with racism, however. How about the Washington Redskins football team name? The team logo and merchandise use Native American symbols. The same goes for the Atlanta Braves and other teams. However, the term Redskin almost certainly has overtly racist origins as a description of an enemy thought to be savage, much as “Nips” was a derogative used by Allied soldiers in World War II as a term for the Japanese.  Defenders of the team claim that “Redskin” is not meant to trivialize or denigrate Native Americans, but instead to recognize their honor and ferocity in battle. The team owner and many fans insist that the tradition of the team name should continue in tribute to American Indians. Nevertheless, the name is understandably objectionable to Native Americans today as a crude description of their genealogy. My friend John Crawford tells me of a proposal to change the team logo to a red-skinned potato, but apparently the idea was rejected by the U.S. Patent Office.

In all of these matters, free speech outweighs all other considerations. While cultural appropriation is sometimes regarded with hostility, that does not give the aggrieved special rights to prevent it. The same is true of racism, however regrettable it is. Even so-called hate speech is protected under the U.S. Constitution, short of “fighting words”. Critics of cultural appropriation can seek to educate, influence, boycott and to shame those believed to have run afoul of their standards. In most cases, however, I think the best advice is to chill out.

 

Pornography, Respect, and Censorship

03 Sunday Apr 2016

Posted by in Censorship, Equality, Liberty

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A study in The Journal of Sex Research reinforces the libertarian view that pornography “artists”, purveyors and users should be left alone, free to engage in their private activities without censorship or harassment by the state. The study is entitled “Is Pornography Really about ‘Making Hate to Women’? Pornography Users Hold More Gender Egalitarian Attitudes Than Nonusers in a Representative American Sample“. It can be downloaded free-of-charge at the link. Here’s the abstract:

“According to radical feminist theory, pornography serves to further the subordination of women by training its users, males and females alike, to view women as little more than sex objects over whom men should have complete control. Composite variables from the General Social Survey were used to test the hypothesis that pornography users would hold attitudes that were more supportive of gender nonegalitarianism than nonusers of pornography. Results did not support hypotheses derived from radical feminist theory. Pornography users held more egalitarian attitudes—toward women in positions of power, toward women working outside the home, and toward abortion—than nonusers of pornography. Further, pornography users and pornography nonusers did not differ significantly in their attitudes toward the traditional family and in their self-identification as feminist. The results of this study suggest that pornography use may not be associated with gender nonegalitarian attitudes in a manner that is consistent with radical feminist theory.“

The study did not deal with child pornography in any way. The study focused strictly on attitudes toward women among porn users in general, attitudes that are clearly relevant to divergent opinions regarding the need for activist social policy with respect to adult pornography:

“Some clinicians, researchers, and social commentators have adopted the view that pornography can improve sexual functioning by providing frank sexual information, reducing shame and anxiety associated with sex, and invigorating libido (… citations). In contrast, others have cautioned that the use of such materials can be associated with risky sexual behavior, poor mental health and well-being, degraded relationship functioning, and, of course, sexual aggression (… citations).“

The authors, Taylor Kohuta, Jodie L. Baera and Brendan Watts, quote feminist Gail Dines as an example of the rhetoric used by porn prohibitionists:

“Porn is the most succinct and crisp deliverer of a woman-hating ideology. While we have other places that encode such an ideology, nowhere does it quite as well as porn, as this delivers messages to men’s brain via the penis—a very powerful method.“

The paper includes a lengthy review of previous research on pornography, sexual attitudes, and “non-egalitarian” attitudes toward women. Earlier research was generally based on small samples or those confined to limited demographic segments, but support for the radical feminist view was inconsistent at best.

Kohuta, et al, attempt to extend earlier work with a large sample of males and females (porn is viewed by both genders) from the General Social Survey (GSS), described in detail at the link, and a more thorough set of attitudinal measures. The five measures are listed in the abstract quoted above. In none of the five cases did the use of pornography correspond to “less egalitarian views” toward women, and in three cases it corresponded to more egalitarian views, though I’d quibble with the abortion measure, which might not be meaningful in that context.

The findings are robust to gender and run contrary to the assertions of radical feminists and other moralistic busybodies: pornography does not encourage “woman hatred” or attitudes that might lead to aggressive behavior toward women, nor is viewership of porn consistent with a predisposition toward those attitudes:

“Of the five high-powered statistical tests conducted in this study, a total of three tests indicated that individuals who had viewed a pornographic film in the past year held more egalitarian attitudes than those who had not—a pattern of results that directly contradicts the predictions generated from radical feminist theory. Of the remaining two tests, neither was statistically significant. Taken together, the results of this study fail to support the view that pornography is an efficient deliverer of ‘women-hating ideology’.

Instead of demonstrating strong associations between pornography use and support of nonegalitarianism, if anything the current findings actually suggest weak associations in the opposite direction. Compared to nonusers, participants who reported viewing a pornographic film in the previous year also reported more positive attitudes toward women in positions of power, less negative attitudes toward women in the workforce, and less negative attitudes toward abortion…. “

The authors make a strong value judgment by assuming that a favorable attitude toward abortion represents a more egalitarian attitude toward women. They rationalize this treatment by noting that radical feminists consider “reproductive autonomy” to be a critical test of gender equality. However, abortion is not always a decision made solely by the woman. Furthermore, porn viewers of either gender, and participants in recreational sex, are likely to find the idea of a pregnancy something of a buzz kill, so the attitude maybe one of convenience. More fundamentally, abortion involves the rights of a human fetus versus the right of the parent(s) to terminate the pregnancy. If one’s ethical convictions are such that the fetus’ rights are paramount, it may not reflect a non-egalitarian attitude toward women.

I find the other four attitudinal measures used in the study unobjectionable. Identification as a “feminist” might mean different things to different people, but it nearly always means a generally strong support for women’s rights. In any case, those four tests indicate no association between porn use and an attitude favoring an inferior role for women in society.

Pornography use was defined by Kohuta, et al by whether the subject admitted to viewing any X-rated film over the past year. There was no distinction between different types of porn, such as depictions of sadomasochism, violent sex, or nonconsensual sex. Therefore, the study does not address whether a taste for these forms is associated with less egalitarian attitudes toward women. Whether viewership of porn or violent forms of porn is associated with acts of aggression against women is much harder to establish. However, as a general question, the attitudes found to be associated with porn in this study suggest that users are unlikely to be inclined toward nonconsensual sex or aggression toward women.

Porn viewers obviously find the subject matter entertaining; it may appeal to their fantasies and might serve as a prelude to sex. Whether those are “prurient” interests is a subjective matter. Porn viewing is a private activity that shouldn’t matter to anyone else. Whether they admit it or not, most adults have had at least a peak at porn, perhaps unintentionally. It might have offended them, but they know how to avoid it; if they have children they should know how to utilize parental controls. I’m skeptical that it hurts anyone. Those who like it even a little bit should be able to enjoy it privately.

In 2012, Eugene Volokh wrote a practical criticism of an idea in the Republican Party platform that “current laws on all forms of pornography and obscenity need to be vigorously enforced”, as well as an earlier Bush Administration effort to crack down on porn. He concluded that such policies could have three possible outcomes:

“1) The crackdown on porn is doomed to be utterly ineffective at preventing the supposedly harmful effects of porn on its viewers, and on the viewers’ neighbors [because porn is available from many foreign and domestic sources].
2) The crackdown on porn will be made effective — by implementing a comprehensive government-mandated filtering system run by some administrative agency that constantly monitors the Net and requires private service providers to block any sites that the agency says are obscene.
3) The crackdown on porn will turn into a full-fledged War on Smut that will be made effective by prosecuting, imprisoning, and seizing the assets of porn buyers.“

Volokh’s conclusions apply to all forms of porn, not just non-violent porn. He underlines the draconian implications of attempts to censor porn:

“I’m asking: How can the government’s policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that’s far, far beyond what any mainstream political figures are talking about right now?“

While Volokh does not address the question of whether porn users have a constitutional right to do so, the First Amendment should protect it as free expression. The paper discussed here implies that porn is no threat to women based on the attitudes expressed by users in the GSS. This is consistent with the libertarian principle that free people must be unencumbered by any authority in their choice of entertainment.

Rent Seeking For Social Justice At Mizzou

15 Sunday Nov 2015

Posted by in Education

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Mizzou

Pre-blog postscript: In the wake of the tumultuous week discussed below, tonight Mizzou’s football team, which has struggled on the field this year, defeated a very good squad from Brigham Young University. Despite my strong misgivings about the actions of team members last week, tonight I am very proud of Mizzou, white, black and gold. Go Tigers!

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There is weak justification at best for the uproar over supposed racism and social injustice at Mizzou (the University of Missouri’s main campus in Columbia, MO). A protest highlighted by a hunger strike by one graduate student, a boycott by football players, and the threat of a walkout by faculty in nine academic departments led to the resignation last week of the university system’s president and the Mizzou chancellor, who were accused of inadequate sensitivity to the grievances of African-American students. The broader context for the protest is a nationwide assault on free speech, especially on college campuses, with demands for “safe spaces” and “trigger warnings” to protect students from words and acts that they might find offensive. This sensitivity is unbounded, and there is no limit to the censorship and fascism it brings forth in its proponents. From such sentiments are book-burners made.

It is a shame to see a great university like Mizzou reduced to groveling at the feet of petulant children who, ostensibly, have come to be educated, and often with financial support from the school. Full disclosure: Mizzou is my alma mater, so I am especially saddened by these developments. At the end of this post, I provide details on incidents that occurred at Mizzou over nearly three months leading up to the protest. Several of the incidents involved unproven and even false claims by the protestors.

Like it or not, speech outside the classroom by students at public universities has broad protection under the First Amendment. According to Eugene Volokh:

“Most clearly, students generally may not be expelled, suspended, or otherwise disciplined for what they say in student newspapers, at demonstrations, in out-of-class conversations, and the like… even if it’s offensive, wrongheaded, racist, contemptuous, anti-government, or anti-administration. Of course, it’s not protected from university criticism. The university is itself free to publicly speak to condemn student statements that university officials find to be unsound or improper.“

There are exceptions to this protection in the case of “fighting words” and “incitement”, but that kind of offense must be proven before an individual can be punished. It is absurd to demand that a university engage in unconstitutional restrictions on speech. Even if that were legal, it is unreasonable to expect a university to effectively police all speech on campus.

The Mizzou administration did take action this semester in the only case in which an individual engaging in racist speech was identified. The offender was intoxicated and disrupted an organization’s private rehearsal (see below). Whether he used “fighting words” is unknown, but a “conduct process” is still underway in his case. In addition, mandatory diversity training for students and faculty was announced by the chancellor in early October. It appears that the president, responsible for four campuses, may have delegated responsibility for managing the controversies in Columbia to the chancellor, but the failure of the president to respond directly was taken as dismissive. But in fact, Mizzou already had processes in place to address diversity issues, and the chancellor was active in communicating the administration’s concerns and support to minority students via social media. Still, the protestors assert that they were ignored and that no action was taken, among other falsehoods (see below).

In addition to an apology and removal of the University System president for “inaction”, the protestors demanded that the University meet a number of other conditions. These included a “racial awareness and inclusion curriculum throughout all campus departments” to be vetted by “students, staff, and faculty of color.” The protesters also demanded: “an increase the percentage of black faculty and staff campus-wide to 10%“; a 10-year strategic plan to improve retention of “marginalized students“; increased funding “for the purpose of hiring additional mental health professionals — particularly those of color“; and increased “funding and personnel for the social justice centers on campus for the purpose of hiring additional professionals, particularly those of color…”

The demands of the student protestors (and their faculty supporters) represent an exercise in rent seeking. They are attempting to commandeer resources at the cost of academic and educational efforts not explicitly dedicated to the theme of diversity and inclusion. If all of the demands are met, damage will be sustained by nearly all fields of study at Mizzou.

One of my frequent complaints about the Left is their inability to understand that rewards in a market economy are not zero-sum. Instead, they are earned by creating new value to be used in trade and enjoyed by others. The rent-seeking process disrupts that flow of benefits by using the power of government to extract resources from others for one’s private benefit, which then yields a negative-sum outcome for society. However, the resources sought by the Mizzou protestors must come from a public educational system for which funding is scarce. Funds provided to Mizzou by the state of Missouri have fallen significantly over the years, yet state law prohibits tuition increases for undergraduate residents exceeding the growth in the CPI. While the protestors might view their demands as reparation for past and ongoing injustices, many are already subsidized by an institution of higher learning that is strapped, and one that is already at their disposal for purposes of building their human capital. They should avail themselves of that opportunity so they can use that capital later in positive sum activities.

I also think the protests at Mizzou are symptomatic of misplaced priorities on the Left. I highly recommend this excellent essay by Jason Whitlock, an African-American sports journalist who notes that the protests at Mizzou have been given rapt attention by the Left, while the far more serious problem of black-on-black violence receives proportionately little play.

Much like other demands for “social justice”, the Mizzou protestors do not recognize the counterproductive nature of their activities and the measures they advocate. Merit will always be relied upon as as a standard by which people judge others. In a market system, it is a fairly objective standard at that. To a truly neutral observer, diversity is fine, but it is beside the point, and forced diversity often leads to suspicions of unfair play and resentment.

I find the attitude of the protestors appalling on several levels: the lies and the rent-seeking behavior, the damage they will inflict on Mizzou and their fellow students, and their rejection of good-faith efforts to address their concerns. To cap it all off, please read the childish posts shown in this article, in which the Mizzou protestors selfishly complain that the terrorist attacks in Paris have taken attention away from them, going so far as to characterize as “racist” the relative balance of coverage. Simply disgusting!

Sadly, there have been threats of violence on campus in the wake of recent developments. This week, a white teen in Rolla, Missouri, 100 miles from Columbia, was arrested and is being held without bond for making posts on social media that threatened black students at Mizzou. At the same time, hostility and threats toward campus greeks led to a lock-down at fraternities and sororities. As to racism, there is no doubt that it exists, but Mizzou is not exceptional in that regard. On campus, I believe that more racial tension is borne out of agitation from protestors than by any racist sentiments held by others. When the protestors acknowledge examples of apparently neutral, non-racist behavior by others, they insist that the racism they are fighting at Mizzou is systemic. Appeasing these complainants requires a ongoing series of reparations in the form of financial support, control over hiring, quotas and mandatory indoctrination. But here’s a clue: the social justice rap will never win the rewards and respect that arise naturally from hard work.

MIZ – ZOU!

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Here are key events or claims that led up to the present brouhaha at Mizzou, along with my editorial comments:

August 14: The university announced that it would no longer offer direct subsidies to graduate assistants for the purchase of health insurance. The reason? Obamacare prohibits the kind of low-cost, “individual market” policies (per IRS interpretation) offered by many schools. Mizzou, however, promised to provide a one-time fellowship to cover the economic loss suffered by grad students in the fall semester. When students threatened a walk-out, the university reinstated the subsidies, but with the proviso that a later review would be necessary. This incident had nothing to do with racism, but it inflamed passions. An African-Americam grad student named Jonathan Butler was very upset, even though his family is quite affluent and more than capable of affording his coverage.

August – September 2015: Mizzou cancelled contracts with Planned Parenthood (PP) clinics in the wake of the release of videos showing PP officials discussing the sale of fetal “tissue”. There was pressure on the school’s administration to cut ties with PP and revoke the “refer and follow” privileges of an abortion surgeon from St. Louis. These developments were very upsetting to the campus Left, and while gender-equality activists probably thought they had a legitimate gripe, the action should not be conflated with racism. Nevertheless, Jonathan Butler listed this issue as one of his grievances, and it helped to broaden support for his cause among the student Left.

October 3: The President of the Missouri Student Association, Payton Head, claimed that several men riding in the back of a pickup truck screamed racial slurs as he walked across campus. That is awful, but unless he can identify the individuals or the truck, nothing can be done about that particular incident. It was featured in Butler’s grievance letter to the university. Presumably, the school needs to racially-sensitize anyone with access to campus.

October 6: A white student, apparently drunk, interrupts a rehearsal of the Royalty Court of the Legion of Black Collegians with racial epithets. The student was identified the next day and removed from campus by the Office of Student Conduct pending the outcome of an ongoing disciplinary procedure.

October 10: The Homecoming parade is interrupted when University System President Tim Wolfe’s car is surrounded by students from an organization called Concerned Student 1950. (1950 was the first year that black students were admitted to Mizzou.) Wolfe instructs his driver to back away from the students. With more space between the car and the protestors, the driver attempts to proceed slowly to the right around the group. In this video, Jonathan Butler can then be seen rushing toward the moving car and planting his knees into the bumper. He later accused Wolfe and his driver of running into him. As the narrator on the video states, if this were an insurance case, that sort of fraud might get Butler arrested. After a short blank segment on the video, a so-called “townie” and a few other Mizzou football fans step forward to act as a barrier between Wolfe’s car and the protesters. Ultimately, Wolfe asked police to remove the protestors from the parade route. That was characterized as evidence of neglect on Wolfe’s part. Andrew McCarthy notes the following about Jonathon Butler:

“By the way, the racism is apparently so bad at Mizzou that Mr. Butler has chosen to pursue his Master’s degree (in education) there after attending the university as an undergraduate. Now in his eighth year at Mizzou, he hopes, according to NBC News, ‘to become an advocate and ‘social entrepreneur.””

October 24, 2015: Human feces is discovered on the floor of a restroom in a university residence hall; it had been used to smear a swastika on the wall. This is now confirmed by a campus police report, though no photographs of the “poop swastika” have been produced. (Apparently, a one-year-old photo of similar graffiti was circulated by protestors). The “poopetrator” has not been identified. The act could have been inspired by anti-Semitism, white supremism, simple pranksterism (albeit viciously expressed) , or quite possibly fraudulent agitation meant to incite fears on campus. The incident really did incite fears when it was communicated on social media by Residence Halls Association President Billy Donley. The poop swastika was taken as additional evidence of a bad racial climate at Mizzou, though the affair is suspect.

November 3: Butler begins a hunger strike in an impromptu “tent city” on campus. A student boycott of classes is announced the next day. I have strong doubts about Butler’s credibility (see below) and whether the hunger strike was authentic. He did not look or act like a hungry man before he ate his first post-strike sandwich, but I could be wrong.

November 8: Black football players announce their support of Butler by refusing to practice or play until President Wolfe apologizes and resigns. The next day, Coach Gary Pinkel tweets his support for the black players, and the athletic director agrees. Many of the white players also express support for the player boycott by appearing in a group photo, but it has been reported that not all of them agreed. (I personally believe that the whole lot of the boycotters were played by Butler and his organization.) On November 13, Coach Pinkel resigns, effective December 31, but the reason is a recent diagnosis of non-Hodgkins lymphoma (non-fatal). Some things are simply more important than in-fighting at the university. Coach Pinkel’s announcement, as sad as it is, may well help to defuse the immediate tensions.

November 10: President Wolfe and Chancellor R. Bowen Loftin resign. Butler ends his hunger strike with a sandwich as his friends urge him on with the expression “Yay N—–“, an utterance that may strike some as hypocritical. The football player boycott ends the next day.

On the evening of November 10 at about 11 p.m., Payton Head, the student body president, posted the following on Facebook:

“Students please take precaution. Stay away from windows in residence halls. The KKK has been confirmed to be cited on campus. I’m working with the MUPD, the state trooper [sic], and the National Guard.“

The news spread quickly. Head deleted the post by 11:30 and later apologized and accepted blame for spreading false information. Good for his accountability. His advice at that time was to trust only the @MUalert system, which had posted: “There is no immediate threat to campus. Please do not spread rumors…” 19 minutes before Head’s KKK post.

Gun Laws and Homicides: No Correlation, Let Alone Causality

09 Friday Oct 2015

Posted by in Gun Control

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SugarPill

President Obama’s blustery, anti-gun outburst in the immediate aftermath of the recent shootings in Oregon included an assertion that states with the toughest gun laws have the lowest homicide rates. Eugene Volokh rebuts that claim in the Washington Post in “Zero correlation between state homicide rate and state gun laws“. Volokh’s effort prompts this quick follow-up to a post from earlier this week here on SCC: “But They Mean Well: Authoritarian, Anti-Gun Champs of Inefficacy“.

Volokh constructs a small data set for the 50 states and D.C with 2013 “Brady Scores” on gun laws, intentional homicide rates and accidental gun deaths. He discusses various measures that might be used to test the “Obama gun-law hypothesis”. Volokh rejects gun homicides because differences across states can be offset by other kinds of homicides. In addition, gun homicides may be reduced by defensive gun uses (DGUs) or the threat of DGUs. Instead, Volokh uses total homicides in one experiment and total homicides plus accidental gun deaths in another. He finds small positive correlations between tougher gun laws and both measures — a near zero association.

Volokh’s study is “quick and dirty”, so to speak, and it runs counter to the findings of some earlier cross-sectional studies. However, there are many factors that may confound any empirical association between gun laws, gun ownership rates, total guns and outcomes. That’s why other researchers insist that the question of gun-law efficacy must be assessed based on changes in outcome measures occurring after a change in gun law. These comparisons consistently show that imposition of tougher gun restrictions is not associated with declines in homicides.

Is The Patent a Perversion?

28 Tuesday Apr 2015

Posted by in Property Rights

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money-tree-patent-cartoon

No one likes a monopoly except the monopolist, and a monopoly granted by patent is generally no exception. Patents are intended to be temporary, but they are often extended, at high cost to customers, beyond what many consider necessary as an incentive for innovation. There is also doubt about the validity of many “innovations” on which patents are issued. Alex Tabarrok once posted this cute illustration on the excesses of patent law. He has also discussed the existence of “patent thickets”, situations in which “a new product can require the use of hundreds or even thousands of previous patents, giving each patent owner veto-power over innovation“, or at least a way to skim some of the profits. Such thickets serve as a detriment to innovation, contribute to excessive litigation, and ultimately defeat the purpose of rewarding an innovator. Patent “trolls”, who threaten litigation over patent issues but may not own any patents themselves, have become a growing problem. In many ways, intellectual property laws begin to look like a rent-seeker’s playground. James Pethokoukas blogged late last year about a new study by the Congressional Budget Office stating that the U.S. patent system had “weakened the linkage between patenting and innovation“.

There is strong disagreement among libertarians about the validity of intellectual property rights (IP — copyrights, trademarks and patents). My natural sympathies are with the individual who rightfully seeks to benefit from their own creativity and hard work, but whether an innovator should enjoy a state-enforced monopoly on any and all applications of an idea is another matter. If potential competitors, customers and society have an obligation to this individual, some would insist that it is merely an ethical obligation, not one that should be sanctioned by the state.

In what follows, I will mostly refer to generic “ideas”, with the caveat that there are important distinctions between patents, trademarks and copyrights. I do not mean to minimize those distinctions. Rather, my interest lies in the general notion of intellectual property and any fundamental rights that successful “ideation” should confer. I confess that I have a bias in favor of rewarding innovators, but that might be a mere mental remnant of our legacy of IP protection in the U.S.

Suppose that some person, Mr. I, has an idea, and it is the first of its kind. Should Mr. I be granted an exclusive right to the idea and a monopoly on its application? Two qualities of tangible property are thought to be helpful in thinking about this kind of problem: rivalrousness and exclusivity. Rivalrous benefits make sharing difficult and make a thing more suitable as private property. Exclusivity means that others can be restricted from enjoying the benefits. If ideas had these qualities, then possession of an idea would settle the issue of rights without the need for special recognition of IP by government.

Pure public goods like air are non-rivalrous. Ideas themselves are often said to be non-rivalrous, but what is done with them might produce rivalrous benefits. If the benefits of Mr. I’s idea can be enjoyed by one individual without diminishing the benefits to others, then the idea is non-rivalrous.

Exclusivity is a closely-related but separate concept meaning that the benefits can be enjoyed privately, to the exclusion of others. Pure public goods lack both rivalrousness and exclusivity. On the other hand, a painting can be owned and kept in a private home, thus making it exclusive despite the fact that its benefits are largely non-rivalrous; though multiple individuals can enjoy a film simultaneously (non-rivalrous), it can be screened in a private venue charging admission; and while software can be shared, it is possible to achieve a measure of exclusivity by limiting the media (and replicability) through which it is available. However, the idea underlying a productive machine or process may be exclusive only to the extent that it cannot be discovered or reverse-engineered. While a new machine may be purchased from Mr. I and then owned and used exclusively, the idea itself has only limited exclusivity.

To strip the problem down to bare essentials, suppose there are no frictions in the transmission of information and that if Mr. I makes any practical use of his idea, or even mentions it to someone else, then the idea will be immediately known to all others. The idea itself is non-rivalrous and non-exclusive. There could still be gains to marketing applications if there are production costs involved (as that discourages entry), and those gains are rivalrous if the number of potential buyers is limited. To slightly rephrase the original question: Should Mr. I be granted, by the power of the state, an exclusive right and a monopoly on applications of his idea? A brilliant idea may have a rivalrous dimension and its benefits may be exclusive, but any non-exclusivity of the idea itself will diminish its market value. Does that offer sufficient grounds for the existence of IP?

This was essentially Eugene Volokh’s position when he asserted, in 2003, that a non-rivalrous good (water from the water table) has a market value, like any piece of tangible property, as long as it is possible to exclude others from access (to a well). (But that was not Volokh’s main argument in support of IP — see below.) Lawrence Solum at Legal Theory Blog took issue with Volokh’s position on valuation, insisting that it is often impossible to price IP optimally and therefore it is not like tangible property. Here is Volokh’s brief rejoinder, which rests partly on the argument discussed in the next paragraph.

A standard defense for IP is that rewarding invention and creativity enhances incentives for “great works” and technological advance. This was Volokh’s main defense of IP. Many libertarians find this hard to swallow, however. First, they insist that creative action is often driven by non-pecuniary motives. Nevertheless, art and invention are facilitated by funding, so the existence of IP rights may help to secure that support. A second objection is that ideas are frequently not unique; there are many examples of near-simultaneous discoveries. So, as this objection goes, if A hadn’t thought of it, B would have, and the incentive is often unnecessary. That is anything but absolute, however.

A very libertarian argument against property rights for ideas is that defining such a right infringes on the property rights of others. That is, any law restricting the use of an idea by others necessarily prevents them from using their own resources in a particular way. It therefore represents a kind of taking. This post by Stephan Kinsella at the Mises Daily stakes out this position:

“Patents grant rights in ‘inventions’ — useful machines or processes. They are grants by the state that permit the patentee to use the state’s court system to prohibit others from using their own property in certain ways — from reconfiguring their property according to a certain pattern or design described in the patent, or from using their property (including their own bodies) in a certain sequence of steps described in the patent.

In both cases, the state is assigning to A a right to control B’s property: A can tell B not to do certain things with it. Since ownership is the right to control, IP grants to A co-ownership of B’s property.“

Kinsella’s view is that creation, in and of itself, does not imply ownership. It is a transformation of resources, but ultimately the owner of those resources must own the creation. My difficulty with this argument is that an idea, if previously unknown to anyone, has no necessary impact on a prior use of resources owned by others. The ex ante value of those resources is based on their prior use, and that use can be continued. Certainly, if the new idea implies that the prior use is no longer the best use of those resources, then an patent-like restriction on the use of the new idea represents a harm. For example, if the new idea reduces production costs and an established competitor is restricted from using the idea, they will be harmed. Nevertheless, I hesitate to call this a “taking” because there is no restriction on the prior use.

Roderick T. Long makes the same argument as Kinsella in “The Libertarian Case Against Intellectual Property Rights“:

“... information is not a concrete thing an individual can control; it is a universal, existing in other people’s minds and other people’s property, and over these the originator has no legitimate sovereignty. You cannot own information without owning other people.“

Long makes the further claim that ownership of inventions embodying IP is not legitimate because one cannot own a “law of nature”:

“Defenders of patents claim that patent laws protect ownership only of inventions, not of discoveries. (Likewise, defenders of copyright claim that copyright laws protect only implementations of ideas, not the ideas themselves.) But this distinction is an artificial one. Laws of nature come in varying degrees of generality and specificity; if it is a law of nature that copper conducts electricity, it is no less a law of nature that this much copper, arranged in this configuration, with these other materials arranged so, makes a workable battery.“

I find this view preposterous. Nature exists apart from our ability to exploit it. A new piece of knowledge or practical technique is not itself a “law of nature”. It is a discovery about the laws of nature.

Here are Arnold Kling’s thoughts on these and other IP posts, including this short piece from Daniel Drezner, who discusses the importance of credible commitment in protecting rights. A credible commitment does not exist when ex ante assertions of IP protection prove to be malleable ex post, under pressure from critics pointing to the larger gains of rescinding those protections.

I was motivated to write about IP after reading a post by Jeffrey Tucker at the Beautiful Anarchy blog, who wrote about the severe handicaps imposed by government regulation on society. In that post, he briefly disparaged IP. Tucker noted the spooky similarity of the present regulatory environment to Ayn Rand’s novel Anthem. I agree, but there is some irony in this, as Rand herself was a strong supporter of IP rights. Here is what Tucker said about IP:

“Through intellectual property laws, the state literally assigned ownership to ideas that are the source of innovation, thereby restricting them and entangling entrepreneurs in endless litigation and confusion. Products are kept off the market. Firms that would come into existence do not. Profits that would be earned never appear. Intellectual property has institutionalized slow growth and landed the economy in a thicket of absurdity.“

The nation’s founders certainly wished to recognize IP rights, but only within limits. The so-called Copyright Clause in Article I of the U.S. Constitution empowers Congress:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

So, like it or not, IP is recognized in the Constitution. The libertarian arguments against IP are persuasive in some respects, but I am not wholly convinced of their wisdom in terms of promoting innovation and economic growth. However, I am persuaded that shorter patent duration and severe limits on extensions would reward innovators and offer them incentives without the loss of growth implied by a long-term grant of monopoly. And this sort of modification might encourage more efforts to handle IP contractually, a topic that is discussed in detail (and with skepticism) in the post linked above from Long. There may be benefits as well to defining a higher threshold as to patentable ideas. For example, some say that only discoveries, not mere innovations, should be granted patents. “Mere” innovators could still capture gains via first-mover advantage and their own branding efforts, but not via patents.

Suit Me, Or Face a Lawsuit: Adventures In Litigationland

06 Monday Apr 2015

Posted by in Discrimination, Presumptive rights

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Racism-cartoon

Suppose that Jim and Bob, who are life partners, own and operate a company that produces signage. A church group requests a banner to read “Only one man and one woman make a marriage”. Jim and Bob are likely to be offended by the suggestion that they use their art to express such a sentiment, and I think they are entitled to refuse the business. The freedom of expression granted by the First Amendment to the U.S. Constitution protects individuals against compulsion to express things they find objectionable. Will Jim and Bob engage in discrimination if they refuse the business? You bet, but I do not think the government has a “compelling interest” to intervene on behalf of the religious group, especially if there are other businesses capable of producing the banner or if the group can produce it themselves.

Has the exercise of free expression been tested as a defense against charges of illegal discrimination? The example above dealt with discrimination by a private company against a religious group. A similar case involved New Mexico photographers who refused to shoot photos at a same-sex wedding. The plaintiffs alleged discrimination on the basis of sexual orientation, but the photographers claimed that compulsion to accept that work constituted a violation of their freedom of expression. The New Mexico Supreme Court ruled against the photographers. They appealed to the U.S. Supreme Court (SCotUS), which refused to hear the case without additional comment. While this case established a precedent in New Mexico for the compelling interest of government to enforce anti-discrimination law, the refusal of SCotUS to get involved did not create a wider precedent in favor of anti-discrimation law over free speech. There are a number of reasons why the Court might have refused to hear the case, including the fact that the suit was brought under state law, not federal law; simple prioritization across many competing cases for an always full docket; or the lack of any conflict with other court decisions.

At the link above, which was written just after the New Mexico court’s ruling, Eugene Volokh offered his views on the case:

“Is it permissible for the law to require freelance writers, composers, artists, editors, and the like to create speech that they don’t want to create? Might it even be permissible for the law to require other conduits, such as bookstores and movie theaters, to distribute speech that they don’t want to distribute? (I use ‘speech’ here in the standard First Amendment sense, which includes music, pictures, video, and the like.) … It seems to me that having to create speech, using your own creative abilities and judgments as an artist, musician, writer, or what have you, is an even deeper ‘foster[ing]’ of ‘an idea [you might] find morally objectionable’ — an even deeper intrusion on ‘individual freedom of mind’”

We often couch discussions like this in terms of “rights”, which is easily understood. However, there is a strong distinction between this framing and the actual structure of the Constitution. Rather than granting specific rights to individuals, that document presumes the existence of those rights and instead enumerates powers held by the federal government and restrictions on its exercise of those powers. For example, here is the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

And below is a key excerpt from the Fourteenth Amendment, upon which much anti-discrimination law is based. Note that its prohibitions apply only to government action, not private action:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

One right that should be presumptive is that of individuals to form a union in marriage. It is not addressed explicitly in the Constitution, and perhaps that would be less important if the government were not so intricately involved in the marriage business. Property rights, estate law, taxes, and legal benefits to employees and significant others can all be dependent on the legal status of a marriage. Still, it is not obvious why the government should be anything but neutral with respect to who can be married. Even if we concede a government interest in certifying marriages (it is a source of license fee revenue), are there other reasons for government authority in this area? Call me a skeptic. In any case, the legal recognition of marriage has been left up to the states.

Laws against private discrimination are thought to derive their authority from an enumerated power in the commerce clause, in Article 1 of the Constitution. This allows Congress to “regulate commerce among the several states“. This power was traditionally held to relate only to interstate commerce, consistent with the preservation of federalist principles and states’ rights. The courts have interpreted the power more broadly at times, but it is certainly not unlimited. In the traditional context of interstate commerce, and in view of the presumptive nature of individual rights under the Constitution, this seems to be a strikingly thin rationale for regulating many kinds of private behavior, or for compelling certain activities that burden the exercise of other rights.

Returning to the example above, defending Jim and Bob for turning away the church group’s business is similar in most respects to defending the photographer in the New Mexico case, or the baker who refuses, on religious grounds, to decorate a cake with a gay wedding theme. The cases all involve a form of private discrimination and a conflict between anti-discrimination law and forms of free expression. Whether presumptive rights to free speech, religious practice, or even freedom of association can trump statutory prohibitions against discrimination, or vice versa, is unlikely to be resolved once and for all, at least not any time soon. The individual circumstances surrounding a dispute of this nature will always be helpful, if not determinative. But what sort of test can be applied in order to achieve a resolution?

When sufficient tension exists, it is up to the courts to consider the specific nature of the discrimination in question, its rationale under any presumptive rights, and whether the claimant has “protected” status under a relevant anti-discrimination law. In terms of anti-discrimination law, a line is often drawn by insisting on the universal, non-discriminatory provision of “public accommodations”. The exact meaning of this term can differ by jurisdiction, but it generally implies a sales channel for which the “doors are open”. The presence of competition and alternative providers would argue against the state’s contravention of the presumptive rights of individual sellers in order to satisfy a statuary requirement. The competitive landscape and presence of viable alternatives should be an important consideration in balancing interests in these kinds of conflicts.

Choosing to discriminate against a specific group is not costless, even when legally sanctioned. It is obvious to most business people that tolerance is more profitable than intolerance. The acceptance of this disparity was clearly articulated as a “taste” for discrimination by Gary Becker in his 1957 book, “The Economics of Discrimination“. Becker’s analysis of discrimination in the labor market noted that employers with such a “taste” are willing to pay higher wages in order to avoid hiring certain minorities. In the examples above, Bob and Jim are willing to turn away otherwise profitable business, as are the baker and the photographer. However, their tastes for discrimination do not imply economic irrationality. In all three cases, the business people hold the maintenance of certain principles to be of greater value than the foregone profits.

These issues are relevant to the recent controversy surrounding Indiana’s new Religious Freedom Restoration Act (RFRA). The context for RFRAs is narrower, as they relate to religious expression as opposed to expression generally. The first RFRA was a federal law supported by liberals in response to a conservative SCotUS decision in a dispute over the use of peyote for religious purposes. Generally, RFRAs require that the government have a compelling interest in burdening religious exercise and then must do so using the least restrictive means available. A number of individual states have passed their own RFRAs in order to carve out religious exemptions to various rules. In a recent post, Eugene Volokh discusses the history that gave rise to RFRAs, and the irony that many liberals now decry their existence, while conservatives tend to support them. The principles underlying these laws were once championed by prominent liberal members of SCotUS.

The version of the Indiana RFRA originally signed by Governor Pence would have allowed religious expression to be used as a defense in a discrimination lawsuit. Subsequently, the Indiana state legislature amended the bill with a provision stating that the law does not authorize a “provider” to refuse business from a range of protected groups, including gays and lesbians (ministers, churches and non-profits are exempted). Does this nullify the impact of the bill on free exercise of religion? Many believe so. However, the absence of positive “authorization” may not mean the courts will decide that the state of Indiana has a compelling interest in preventing a particular case of discrimination.

[An aside: One interesting approach has been suggested for businesses in the wedding industry whose owners believe that accepting work at same-sex weddings would violate their religious principles. These businesses should continue to accept business through their “public accommodations” except for customized wedding goods and services. According to this approach, they should offer the latter exclusively through binding contracts with specific churches or places of worship, thereby operating  exemptions granted to those institutions.]

Critics of the original Indiana RFRA were generally silent regarding RFRAs in 19 other states, as well as a federal RFRA signed by President Clinton. Moreover, it is clear that there has been some contrived activity from partisans on both sides (see here, here and here). At least the contrived activity demonstrates a greater depth of understanding than some of the hateful speech that I have witnessed on social media. Some would claim my example of Jim and Bob is contrived as well, but it is a plausible scenario and it shows that the tension between rights can cut both ways. A call for the legal supremacy of anti-discrimination law over presumptive rights means that the freedoms of protected groups can be abrogated as well when in conflict with another protected group.

Persecution is well known to both gays and people of faith. Both groups are certainly aware that there will always be others who do not share their views, strictures and practices, and some who may well disapprove. Both groups should be sympathetic to the notion of “live and let live”, and they should have the forbearance to avoid insisting on everyone’s direct participation in their celebrations. Some might even call this good manners. Participation (even for profit) cannot be compelled any more than approval. Regardless of what one might think of the values of outsiders who do not wish to participate, the “discriminatory” actions (or failures to act) in question are not prima facie evidence of hatred.

Jim and Bob, as well as the baker and the photographer, have broad presumptive rights under the constitution, whether they involve free speech or religious exercise. No one should be compelled to engage in expression they find objectionable without the ability to challenge it in court. Protections against discrimination are important, but they certainly do not confer the power to force others to participate in your celebrations. And why bother? Live and let live.

Postscript: Why bother, indeed! And here is Jonathan Turley on the key issue of defining an “expressive act”.