Category Archives: Law & Legal Philosophy

Against Busybody Moves to Limit Liberty


I grew up in a fairly densely populated but suburban area, primarily with single family homes and duplexes. Each home had a yard, perhaps 30 feet by 75, mostly fenced in. We knew all of our neighbors on the block—say a dozen homes on each side—and a few on surrounding blocks. Many moved there from more crowded, mostly urban areas. Some people had vegetable gardens in their back yards, most did not. (Almost) no one had farm animals. I am not sure if there were any laws prohibiting such. A neighbor on the next block over (but only 4 houses away from us), had chickens in their yard. Chickens! For some, this was scandalous. The idea that someone might keep live chickens in their yard in our neighborhood was just appalling to them. And they did their best to rid the neighborhood of this apparently appalling pox on mankind. I no longer recall if they succeeded—I don’t think they did, but I may be wrong.

To be honest, back then I didn’t think much about those chickens—or those adults seeking to get them out of the neighborhood. Lately, I find myself thinking a lot about such people and the immense variety of things they would prohibit. Of course, some things should be banned—involuntary slavery, for example. Unfortunately, though, the list of things for which there are advocates of prohibition is extremely lengthy. That list includes:

large sodas; alcohol; cigarettes; marijuana, cocaine, other currently illicit drugs; certain books and magazines; curse words and profanity; hateful speech; guns; chickens, pigs, and rabbits (in suburban or urban areas); tall grass; parking on an unpaved space, even on one’s own property; crossing the street against the light, even when no cars anywhere around; non-standard building structures; non-standard colors for homes; homes built less than 30 feet apart; homosexuality; non-monogamous intimate relationships; intimate relationships with more than 2 partners; picking up prescription medications for one’s spouse; working for a wage below some minimum (perhaps a legally enforced minimum, perhaps someone’s idea of a “liveable wage”); grants from corporate donors; and far more.

As noted, some things should be prohibited. Involuntary slavery, murder, and rape are obvious examples. None of the items on the list above are like those three. All three necessarily make use of unconsented-to force against another. (In language I use elsewhere, all necessarily involve the wrongful setting back of one or more person’s interests by another.) None of the other things I’ve named above do that. And yet, there people have proposed banning each. The arguments for banning them usually involve one or more of four rationales. There are, of course, sophisticated arguments for and against each of these; here I just point out a simple problem with each. The four rationales and a simple objection to each are:

(1) The items in question or their uses are bad for the user, reducing their level of well-being. BUT: It’s interesting that those making these claims—for example, that accepting a job for less than a “liveable” or legally minimum wage is bad for you and you thus shouldn’t be allowed to accept it–don’t seem to consider the possibility that they themselves likely do things that might be bad for them. For example, proponents of such bans might work long hours, drink too much alcohol, care too much about the prevailing zeitgeist, etc. Perhaps those things should be banned. More time with family, relaxing, communing with nature, etc, is likely better for you than working long hours after all. It’s not clear why it’s less reasonable to ban comparatively long hours than it is to ban comparatively low wages. Some people, after all, may be quite happy being productive at some task without making alot of money. Proponents of bans for paternalist based reasons seem generally incapable of imagining that other people might think something they like is bad for them. (I am not denying that there are objective standards of what is good or bad for someone; I am denying such claims justify limiting liberty, whether they are objective or not.)

(2) The items in question or their uses are somehow offensive to others. BUT: Again, it’s interesting that those making these claims—for example, that pornography is offensive and should thus be banned–don’t seem to consider the possibility that others might find something they like or do offensive. Indeed, some of us might find the attempt to ban pornography offensive. It’s not clear why it’s less reasonable to think banning pornography is offensive than permitting it. A ban, after all, might make people mistakenly think there is something wrong with nudity or sexuality, essential aspects of being a human person. Proponents of bans for offense based reasons seem generally incapable of imagining that other people might find something they like offensive. (Again, I am not denying that there are objective standards of offensiveness; I am denying such claims justify limiting liberty, whether they are objective or not.)

(3) Banning the items or their use is good for others not using them (even if the items or their use do not offend or harm those others). Robby’s carrying a gun puts others at risk; Jill’s doing meth in the house next door might lower their property value. BUT: It’s not clear how much risk is usually present in these sorts of cases or why someone else’s benefit justifies interference with Robby or Jill. Of course, if the risk of gun carrying is sufficiently high, banning it would really be about protecting others from harm, not merely benefitting them–and that, I agree, would be a good reason to prohibit something. But while reducing the risk of a harm is a benefit, the claim here is only about benefiting someone, not reducing the risk of a harm. If I gift you $1000, I benefit you, but not gifting you the $1000 is not harming you. Banning meth in my neighborhood may well benefit me in terms of raising my property values—something I am very happy to see happen. But does my preference for increased property values justify interfering with Jill’s use of meth? Would it justify punishing Sally for keeping her yard messy? Banning Sheila’s use of an old, falling apart car? All of those things—visible meth use, messy yards, and junker cars— would reduce property values in a neighborhood. And again, proponents of interference with some to benefit others don’t seem to recognize that there are lots of ways to interfere with them–the proponents of interference--to help others. Perhaps they could be forced to teach at a local school, pay higher taxes, clean up messy yards, help out at addiction clinics, fix up cars. (And again, I am not denying that there are objective standards of benefit; I am denying such claims justify limiting liberty, whether they are objective or not.)

(4) The items in question (or their uses) are themselves immoral. (I’ve written about this here before; e.g., see this, this, and this.) BUT: Arguments for such immorality are usually not forthcoming and of course, proponents of these claims of immorality never consider the possibility that their interference with the way other people choose to live their lives is itself immoral. It’s precisely, of course, the sort of problem solved in Loving v Virginia and Obergefell v. Hodges. Thankfully, we no longer abide by the wishes of those who would ban interracial or same sex marriage. The busybodies that wanted to interfere with such were defeated. If only we could defeat the rest of the busybodies wishing to interfere in the lives of their neighbors. Again, proponents of bans for morality based reasons seem generally incapable of imagining that other people might find something they like immoral. While some think a marriage of 3 or more people is immoral, others think that heteronormative marriage is immoral. While some think cocaine and meth use are immoral, some think alcohol use is immoral. Some of us think banning any of these is immoral. (And again, I am not denying that there are objective standards of morality; I am denying such claims are usually accompanied with good arguments about such, or that they would justify limiting liberty, whether they are objective or not.)

As suggested, I think the only good reason to ban something is that it is itself harmful or used to cause harm. But it’s not enough merely to assert that something (guns, alcohol, what have you) causes harm. We need—and often don’t get—clear evidence of the harms discussed and why/how they are necessarily connected to the items for which a ban is sought.

So why are attempts to prohibit things so frequent (and too often successful)? It seems clear enough that the proponents of bans that get attention are simply good at working other people into a frenzy to join their crusade, whether the crusade be for good or bad (though it’s always claimed to be for good). Such people, it seems to me, rather enjoy imposing their desires on others–either because they are not satisfied with the degree of control they have over their own life (perhaps it is not enough) or because they are not satisfied with having control only over their own life (perhaps its too much!). It is a desire for power over others rather than a desire for power to live ones life as one wishes that seems to drive these people. We might do well to figure out how to decrease the occurrence of such a desire. (Even if not prohibiting it!)

Moralism and Busybodies: From Community to Police State

In previous posts (for example, here), I have discussed what seems to me an extremely worrisome form of legal moralism wherein people essentially invoke “community” as a moral good in order to instantiate what they want regardless of what others in their supposed communities prefer.  Put differently, they think interference with your activities is warranted simply to maintain or promote the existence of a community they value, whether or not you or anyone else values the sort of community they do.  They might want a neighborhood community where all of the houses are painted the same color or that have the same flowers in front, for examples.  Should you want a different color paint or different type of flower, it’s too bad for you.  These are examples you might hear of in a Homeowners or Condo Association, and are fairly insignificant.  Indeed, in an HOA or a COA, where the rules are in the legal documents, I’d suggest there is no problem at all—because living in an HOA or a COA entails voluntary agreement to the terms of those documents.

These sorts of rules, though, might exist in neighborhoods lacking such an agreement.  Sometimes neighbors simply pressure each other to not use some paint colors, for example, in order to prevent reductions in property values.  While annoying, even these aren’t the sorts of problems I really worry about—perhaps because the claims involved aren’t—and aren’t meant to be—moral claims.  When the same dynamics involve moral claims, the intensity of demands and thus disagreements are often worse.

The general problem is what we euphemistically call “busy bodies.”*  These are people who think they should not only pay attention to your life, but also think they should tell you what to do.  Often, such people mean well.  They are simply trying to help.  Some busybodies cross a line, however, by not merely offering advise but demanding your compliance.  They might demand you not paint your house a certain way, for example, explaining that it will hurt property values and then adding that if you did it anyway, you would be failing in your obligations to your neighbors (see this for a related amusing story).  In what such obligations are grounded, though, they don’t say. 

This is still a minor issue—it’s just painting your house.  But busybodies might also come and tell you how to discipline your child—and again, while this can be done in a friendly “here’s some advice, take it or leave it” way, it can also be done as a demand based in some unstated moral view.  They might insist, for example, that your child not be allowed to play in the woods, be left alone, climb a wall, or ride a specific type of bike.  They might say “if you do allow those things, you are a bad parent; good parents don’t behave that way.”  (Of course, about some things they may well be right.)

Make no mistake, some people have no problem interfering with the lives of others; some are naturally interventionist. They think they know how other people should live. They think they know how you and I should live. And, very importantly, they believe the government should make us do what they think we should do and disallow us doing what they think we should not.  Here’s where we get the biggest problems—problems that arise from further steps along a path to authoritarianism.  From encouraging people to maintain their homes for simple practical reasons or offering (even undesired) parenting advise, to claiming we have duties to follow such advice, to seeking governmental power to force compliance, we have a spectrum of activities that are worrisome. 

To make the point clear, consider that some people believe smoking tobacco cigarettes—perhaps especially menthol flavored—is not only bad for you, but also (perhaps for that reason) immoral.  And that some people (President Biden) are perfectly happy to use government power to enforce your compliance—all for your own good.  The U.S. FDA’s stance on this is clear:

Banning menthol—the last allowable flavor—in cigarettes and banning all flavors in cigars will help save lives … With these actions, the FDA will help … address health disparities experienced by communities of color, low-income populations, and LGBTQ+ individuals, all of whom are far more likely to use these tobacco products,” said Acting FDA Commissioner J. Woodcock, M.D.

Should any of us, including people in communities of color, low-income populations, or amongst LGBTQ+ individuals, think the benefits of smoking outweigh the costs for us, its too bad for us.  The busybodies are perfectly willing to use their power to bully the rest of us.  Such people do not mind sending police to arrest you should you try to sell single cigarettes, sell any without a license you’ve paid them for, or even for smoking one in your own home.  They will also not mind putting you in prison for failing to comply—or killing you on a street corner. (See this, if the story does not sound familiar.)

We should not think, though, that this is just about government.  Busybodies are often willing to use any sort of organization to make others comply with their desires. They are more than willing to vote to limit your ability to do what you want, of course.  But they are also quite willing to work to impose such restrictions in the workplace or neighborhood. They have no compunction against encouraging the boss to set policies that limit your ability to do what you want. They don’t mind petitioning a business to stop performing a service you enjoy or to stop selling a product you like.  They certainly don’t mind having the government make activities you enjoy illegal or limited.  What they seek is a society they like, regardless of what you or anyone else likes.  If some people must be imprisoned or killed for the cause, they seem to think that is simply a cost of attaining a good community or society. 

*See Antony Davies and James Harrigan’s Cooperation and Coercion: How Busybodies Became Busybullies and What that Means for Economics and Politics for more on the general problem.

Personal Responsibility, Moralism, and The American Right

Consider the idea that individuals ought to try to be self-reliant, willing and able to take responsibility for themselves and their loved ones.  This used to be thought of as a reason to oppose state assistance (welfare, food stamps, etc.), and so a reason to oppose “liberals” of the sort in the US Democratic party.  Those liberals, the story goes, pushed the view that the government was there to ensure your well-being, enabling you to reject personal responsibility. 

Notice, though, that a central tenet of the new American right—common to former President Trump’s followers and many of those who rejected him—is a hostility toward and skepticism of immigrants. Those with this skeptical stance seem to believe immigrants are somehow likely to be criminals, simply too different from us to be allowed to join our society, likely to try to replace Christianity as the main religion, or likely to take “our” jobs.

This anti-immigrant stance, it seems to me, is quite opposed to an ideal of self-reliance. Instead of relying on themselves for their well-being, these opponents of immigration allow themselves to be upset about immigrants and happily rely on the federal government to keep out foreigners—as a way of (supposedly) protecting their (or what they see as “our”) well-being, which it seems, is too fragile to deal with immigrants.

While protection from genuine (harmful) criminal activity is always a reasonable concern, there is little reason to believe immigrants are more likely to engage in such behavior than are than non-immigrants. (See this and this, for some discussion.) But leave that aside; it’s clearly not the only concern and its not an invocation of a nanny state (nor of moralism).

Many of those who oppose immigrants seem to think they are simply too different from “us” or are likely to be committed to a religion that would compete with Christianity in some problematic way. They think that their (or “our”) way of life must be protected; they may think our Christian (or, they might say, “Judeo-Christian”) values must be protected.

Finally, these opponents of immigration may think immigrants will take their jobs (or the jobs of other compatriots)—and thus want the government to keep out immigrants as a way of protecting “American jobs” (and salaries), and thus, their well-being and that of their fellow “real” Americans. Such people seem to fear they cannot compete with immigrants in the picture—either for the jobs they currently have but fear immigrants will take, or for other jobs they might apply for.

My point here is that those on the right adopting an anti-immigrant stance seem happy to rely on the federal government to guarantee or at least promote their welfare. They worry about the erosion of “the American way” and want the federal government to assist them in fending off that erosion. This is not being self-reliant. Self-reliance in this picture would be to think something like “well, things change; I will change along with them as needed.”

One possible response to what I’ve said would be something: “Look, one happy side-effect of keeping out immigrants is (we think) that we do better, but that isn’t why we want them kept out (or ‘limited to legal immigration’—but when the laws are made more and more constraining, there is no real difference). We don’t want them kept out to protect us as individuals, but to protect (as you said) the American way and Christian values. So it’s not about rejecting personal responsibility at all.”

If the response works, it shows that the criticism of rejecting self-reliance and welcoming the nanny state (that the right has traditionally criticized) is not a fair criticism of the anti-immigrant right. It would, though, leave the anti-immigrant right wholeheartedly endorsing a moralism of the sort that I have discussed in previous posts (for example, here). It leaves them committed to a goal of getting other people to do, believe, or live as they want, without any concern for those others as individuals or the rights they supposedly believe we all have. The goal is just to impose their preferred way of life on others. The desire some of us might have to marry or hire someone from another country is simply deemed unworthy.

In a nutshell, the anti-immigrant stance by those on the right commits them to either preferring a particular sort of nanny state that protects them from cultural changes, challenges to their religious beliefs, and competition for jobs OR its a disturbing moralism that demands legal assistance to protect the “moral fabric of society” where that “fabric” is really just their preferred way of life without those cultural changes, challenges to their religious beliefs, and increased competition for jobs. Stated that way, the two options seem not very different. The moralism is, after all, an insistence that the their desired way of life be imposed because they like it and the way of life it provides them–so the nanny state ought to protect it. It might be pitched in terms of what is good for society overall rather than what is good for some group of individuals, but that pitch is exceedingly weak. None of this should be acceptable to those advocating personal responsibility, self-reliance, and individualism.

*Note: Thanks to A.I. Cohen and J.P. Messina for comments on a draft of this post.

For more on immigration, see Bryan Caplan’s book and, very soon, Chandran Kukathas’s. (RCL earns commissions if you buy from these links; commissions support this site; we make no profit from them.)

Is it Useless or Wrong for Libertarians to Vote For Pro-Liberty Candidates?

Some libertarians believe that voting is wrong because it makes you complicit in the state’s oppression. This argument goes back to 19th century abolitionists, most notably William Garrison and Wendell Phillips, who argued that even voting for an abolitionist, anti-war candidate makes you complicit in the oppression of the state. This is because all government officials have to take an oath to uphold the pro-slavery Constitution, and judges have to enforce its pro-slavery provisions, such as the one that “required states to return runaway slaves to their master (Art. 4, sec. 2)”. An oath, according to Phillips,  is a “contract between him [the official] and the whole nation.” Even if the official’s aim in seeking office is to ultimately bring about a Constitutional amendment to end slavery, he has to support the Constitution till he succeeds (Garrison). So if you vote for a candidate, you will be partly responsible for his pro-slavery oath and actions. “What one does by his agent he does himself” (Phillips).

Garrison’s and Phillips’ arguments work, if they do, only if they are right that the Constitution is pro-slavery. But if it is anti-slavery, as Lysander Spooner and Frederick Douglass argued, and your candidate shares their belief, your vote for him does not make him – or you – complicit in supporting oppression.

However, even if the Constitution is pro-slavery, and your candidate believes that it is, he also knows that the Constitution allows speech critical of slavery, and thus of the Constitution. The Constitution also provides a process for amending it, and allows people to run for office in order to amend it. In other words, even if the Constitution is pro-slavery, it contains within itself the seeds of its own reform. So fidelity to the Constitution by someone committed to doing his part in ending slavery does not entail support for its pro-slavery provisions. Rather, it entails a rejection of these provisions. Hence, if this is why an anti-slavery candidate runs for office, he is not complicit in the oppression of the state, and neither is the voter.

We don’t have slavery any longer, but Garrison’s and Phillips’ rejection of electoral politics is still influential. Contemporary libertarians who reject electoral politics sometimes argue that to vote for a candidate, even a pro-liberty candidate, is to participate in the oppression of the state because no candidate is consistently libertarian. So if you vote for such a candidate, you are partly responsible for her oppressive actions. However, if your reason for voting for an imperfectly libertarian candidate is to defeat the anti-liberty candidate and reduce oppression, how can it make you complicit in the former’s oppressive actions? And even if it does, how can allowing the far more anti-liberty candidate to win not make you even more complicit in the perpetuation of oppression?

No doubt the anti-voting libertarian would reply (and I would agree) that there Is a difference between doing x and letting x happen. Letting someone drown when you can easily save her is not morally equivalent to throwing her into a river tied to a rock. But it is, nonetheless, wrong to sit on your hands instead of trying to save her. Likewise, under analogous circumstances, that is, when voting is easy and the pro-liberty candidate has a good chance of winning, I believe not voting for her is mistaken. And if  there’s nothing else you are doing to further your pro-liberty values, your not voting for her is wrong.

My brief in favor of voting might seem naive, since one vote makes no difference to a candidate’s chances of winning in a Presidential election. But not all elections are Presidential and not all “one votes” are truly one. If the race is a local one (county or municipal), and influential libertarians vote and defend voting for a local libertarian candidate, many others will also vote, and the candidate could win. This might also be possible in a state election. In any case, there’s a ‘performative’ contradiction in influential libertarian bloggers telling a readership of hundreds or even thousands that one vote doesn’t make a difference, as though every person’s “one vote” stays in its own corner instead of getting added up to every other person’s “one vote” to make hundreds or thousands of votes for the pro-liberty candidate. If the “one vote” argument were sound, it would apply as well to arguing for libertarian principles in books, blogs, or articles, since no one book, blog, or article makes a difference to people’s understanding of or support for libertarian principles (just think of how many have argued for these principles over the last 350 years, and how few they have persuaded).

In any case, victory at the polls is not the only goal of voting. Strong electoral support for a libertarian candidate even in a Presidential election can bring libertarianism to people’s attention the way blogs, articles, or books do not.

Libertarians are right that most people should not vote because they are ignorant of the issues, or because their views are mistaken, or because they can do more good by using their time for other ends. But they are not right to discourage libertarians from voting for pro-liberty candidates. Insofar as they do this, they play a significant role in the victory of the anti-liberty candidate, and become complicit in his oppression. They are like the non-rescuer who urges other people not to rescue the drowning victim. Libertarians are also wrong to discount the possibility of positive results from an electoral victory. Slavery was ended not by the intellectual and moral groundwork laid by abolitionists alone, but also by the electoral victory and actions of an imperfectly anti-slavery President, Abraham Lincoln.

Private “censorship”

Here’s a thought experiment about what some people call censorship.

Let’s imagine we all live in a community called Mayberry. This is a pre-internet time, and imagine too that very few of us have a TV or a radio. The main media outlet in our town is the Mayberry Gazette.

Some community leaders worry our town is getting a bit overweight. They want to pass a law that enacts a 10 cent tax on the sale of any ice cream cone in Mayberry. They plan to use the revenue to fund free community tai chi classes in the Mayberry Community Center each morning.

I draft an op-ed to argue against the proposed tax. I make economic arguments about how this will impact the ice-cream marketplace (“it’ll encourage bigger cones!”). I warn of the adverse effects on our beloved local ice-cream parlor. I also make moral appeals. I say that people should be free to choose their treats and decide which if any exercise they will pursue. And so on.

I submit that to the Mayberry Gazette, which refuses to publish it. I spot the editor coming out of Floyd’s Barbershop. I ask why the paper declined my op-ed. The editor tells me that the proposed tax is a great idea and so the paper has no room for my views.

I say to the editor, “Shouldn’t we have open discussion?”

“Of course,” the editor replies. “We should have open discussion of sensible views. But, Andrew, your views threaten to undermine public health and morals.”

I then appeal to fairness. “Your refusal to publish my views is not right. You have the only newspaper and the only printing press in our town! You’re making it nearly impossible to get my views to the community. You’re censoring me!”

The editor then says: “If you don’t like that, go get your own newspaper.”

There are several issues here. Bracket whether the proposed law has merit. If you think it does, substitute another one that does not. Consider instead three issues about what the newspaper may, should, or should not do. First, there is a conceptual issue about whether to call the newspaper’s conduct “censorship.” Second, there is the issue of whether the newspaper has a right to do (or not do) what they do. Third there is the question about whether the newspaper is doing the right thing.

I am uneasy calling it censorship when the Mayberry Gazette refuses to publish my op-ed. My unease revolves around using the same term for what private people do as compared to what people who wield political power do.

Suppose I say you may remain in my home only if you make no mention of a certain politician’s name. That does not seem to be censorship. I offer you terms of our association, which you are free to decline by not entering my home. If you come in my home and speak that person’s name anyway, I am within my rights to demand that you leave. If you complain of censorship, I might reply, “whatever you want to call it, if you don’t like it, go speak your views elsewhere.”

I take the notion of censorship to include some notion of impermissibility. Whether something is permissible turns significantly on whether one has a right to do it. As a private party, the newspaper can do what it wants with its resources, just as you may decide what speech is permissible in your home.

Suppose instead the Mayberry Police tells the Gazette that if it publishes my op-ed, they will shut down the newspaper. That would surely be censorship. What seems to make it censorship is the legal prohibition, supported by the force of the state, against the dissemination of certain ideas. (This formulation is incomplete, since some legal prohibitions on speech and writing seem justifiable but don’t easily seem to be censorship.)

I do not want to press too hard on the conceptual point. It might come down to a battle of intuitions. Many people think of censorship more capaciously than I do. (See Andrew Jason Cohen’s recent post.) Let us bracket the conceptual point and move forward. Consider what private parties do when they withhold their own property as vehicles for disseminating certain ideas. Call that “schmensorship.” When if ever may someone schmensor?

The US Supreme Court restricts some private parties’ rights to schmensor. In Pruneyard Shopping Center v. Robins (1980), the Court said the state of California may require owners of shopping malls to allow people to petition on their premises. The Court said a state may require this of malls provided it does not clash with other constitutional protections. Suppose there is a compelling argument that shows it is not a restriction (or not a worrisome restriction) on private parties’ rights of free speech, free association, and property, when the state forces them to open their property to views they reject. Maybe we can argue shopping malls are (well, perhaps they were) the modern “town square” to which everyone must have access. I doubt the public’s access to a shopping center implies the owner’s diminished private authority over what happens in and through the private resource.

Back to Mayberry. I’m the local llama farmer (a seldom-mentioned business in the episodes). I am too busy with my llamas to have the time, the resources, or the know-how to “go get my own newspaper.” Nothing beats the Gazette for publicly airing views. When the paper schmensors me, the economic barriers to getting my views out are formidable. I can still print up my ideas and spread my brilliant prose. Doing so might be hard. It might be expensive. It might be time-consuming. But I could do that without jeopardizing my freedom.

In contrast, when the Mayberry Police censors me by threatening to shut down newspapers or imprison people who speak my ideas, the barriers they put up against my views seem importantly different. I may not then “go get my own newspaper” to publish my views. The barriers on disseminating ideas under censorship seem different in kind, and not just degree, compared to those of schmensorship. The prohibitions track different moral stakes. Schmensors leave me free to speak my mind if I can find the resources. Censors deny me the freedom to speak my mind no matter what resources I have.

Here’s a wrinkle to my little thought experiment. For fans of the show: who was the editor of the Mayberry Gazette?

That was none other than Sheriff Andy Taylor, who was also the local justice of the peace. That… complicates things. Even then, his schmensorship regime is not necessarily a censorship one. Will Andy lock me up for handing out my essay to willing passersby on property where I have permission to stand? If not, then he’s merely a schmensor. When I’m merely schmensored, I still have a shot at speaking my mind.

(Thanks to Andrew Jason Cohen for feedback on an earlier draft, and also for neither schmensoring nor censoring me.)

Censorship, Free Speech, Social Media, and The First Amendment

According to the state action doctrine, only government entities can violate the First Amendment. Twitter, Facebook, etc, are not government entities. They don’t violate anyone’s constitutional rights when they take down posts or remove their accounts. That does not mean that Twitter, FB, etc, aren’t censoring speech.

Some worry that Twitter, Facebook, etc are monopolies, violating anti-trust laws and that they thus ought to be regulated as common carriers. This strikes me as pretty obviously mistaken. Not only are they competitors, but others have sought to compete with them (MeWe, Parler, etc) and nothing rules out others trying to do so in the future. Some also worry that Twitter, Facebook, etc might act in ways meant to curry favor with the Federal government and that if that is true, since its plausible that federal regulators know this and might thus signal their desires to these firms, really Twitter, Facebook, etc are agents of the state and so they can, after all, violate individual constitutional rights. This also strikes me as pretty implausible, both legally and morally. Whatever control would be present would be pretty tenuous. If it weren’t, it seems unlikely that Twitter would have closed President Trump’s account.

When Twitter bans President Trump from its platform, it prevents him from speaking to a certain audience, limiting his speech. It does not thereby successfully prevent him from speaking to everyone; he has other avenues of communication. Of course, if the government censors someone, they also will typically have other avenues of speech. Consider the Comstock Act of 1873; it made it illegal to send certain “lascivious” material through the mail. Those wishing to share (speak about) those materials with others, could still do so—for example, by walking to others and talking to them directly. More generally, any governmental act meant to silence someone will close some avenues of communication while leaving others open. The fact that a social media company only closes some avenues of communication to (i.e, only partially silences) someone it bans from its platform is no different than what government does. If the latter is censorship, so is the former. Or so it seems to me.

If I am right, “government censorship” is a specification of “censorship,” as is “parental censorship,” “school censorship,” etc. “Social media censorship” would simply be censorship by a social media company. If this is wrong, we need another term for what the other agents just named do when they limit speech. That’s fine, of course. It’s a mere conceptual matter, one we needn’t worry too much about—what we are really interested in, I think, is whether social media companies or other private agents should seek to silence anyone. Still, if this is not censorship because only speech limitation by government is censorship, then “government censorship” is redundant—and I do not think it is.

That I think social media companies sometimes engage in what is properly called “censorship” does not mean those companies do anything wrong. Free speech is valuable—and so, I think, the first amendment leaves the US more or less absolutist in forbidding government intervention in speech. But that doesn’t mean private agents can never morally limit speech. Of course they can. Of course we can. For example, I stop my son from using certain words that are not appropriate for polite society. I censor him. There are also certain speech acts I would forbid in my classroom if I had to, but thankfully don’t—they don’t ever seem to come up; that is, my students don’t use them (in the classroom, anyway). Similarly, book burning (in some circumstances) by private individuals and book banning in private schools are likely forms of censorship. They’re both legal, even if disturbing.

Some censorship is not only permissible, but expected and probably morally good—disrespectful speech in the classroom, for example, is something we do well to make unacceptable (through non-legal, social means). Is censorship by Twitter, Facebook, etc, of President Trump and his followers good? I don’t honestly know. I am conflicted. On the one hand, I generally agree that more speech is the way to counter bad speech and that airing all views is likely to leave the bad (morally and epistemically) views with fewer believers. And (on the same hand), I worry that people are too often attracted to beliefs they are told they shouldn’t have (the “taboo effect”). Certainly, letting people discuss racist and anti-Semitic views hasn’t (yet) stopped them from spreading and letting people discuss conspiracy theories about fraudulent elections—for which there is no evidence—hasn’t stopped them from spreading. On the other hand, I don’t have any significant doubt that President Trump lies and that his followers are mistaken about a number of important factors, including the supposed fraudulence of the election, and preventing the spread of those false beliefs seems worthwhile. And, I admit, I simply love that in our society government officials face limits imposed by private entities. Corporate CEOs can tell the President of the United States that he can’t use their service; this is not something one can say in Russia or China.

Conclusion: like it or not (and I am conflicted), Twitter and Facebook do not violate any constitutional rights by censoring the President and his followers. As I said previously, this is a matter of property rights. Twitter and Facebook own their platforms just as I own my home. Just as I can forbid someone from entering my home to tell me why Nazi’s were right—or anything at all that I don’t want to hear—Twitter and Facebook can forbid people from using their platforms to say thinks Twitter and Facebook do not like. Twitter and Facebook have the right to censor those using their platforms. Whether they should or not, I cannot presently say.

Moralism, Community, and Civil Discourse

I’ve begun to think that one of the largest problems facing society is moralism, in a variety of forms. I want to try out this claim here. For the moment, take moralism to be a commitment to the view that some acts must be forbidden, socially or legally, because they are (a) judged wrong by the general populace, (b) in some way opposed to the continued survival of the general populace, or (c) simply immoral even if no one is hurt by them. I expect to return to this in future posts, but here want to discuss a possible relationship between moralism and our problems with civil discourse.

There are at least three ways to get someone else to believe or act as you. First, one can use force or coercion on the other, perhaps yelling at or bullying them. Second, one can appeal to the other’s emotions, perhaps getting them to feel bad if they don’t accept your view or do what you want. Third, one can use reason, trying to explain why what you want them to believe or do is what they actually should believe or do. All of these are ways that people “argue,” though only the last is “argument” in the philosopher’s sense. I take it as obvious that we should reject the first (as it treats persons as non-agents) and prefer the third (it alone treats persons as what they are, rational agents). Philosophers would prefer only the third be used; we sometimes find it hard to accept how much more prevalent and successful the second is. Advertising, public relations, and politics all rely on emotional appeals far more than reason. In doing so—in relying on appeals to emotions—they treat persons as agents, but not rational agents. This is better than coercion, but not as good as reason.

One sort of appeal to emotions I see a good bit of is an appeal to community. If we care about our community, we’re told, we’ll do this. If we care about each other, we’ll do that. This can be turned into a rational argument, of course: community is important, so we should do X which is necessary for community. Even then, we are rarely told why community is important or how X is necessary for it. Still less are we likely to be told how the particular community in question actually has the qualities of community that give it value. (Community can be a real value even if this particular community is not.). In most cases, the appeal is a form of the second type of moralism, where we are supposed to believe that the community requires what the appealer says—that absent our acquiescence the community will be endangered.

Generally, when one appeals to community, the goal is simply to get other people to do, believe, or live as one wants. It’s community as the appealer conceives it. If the appealer wants help with child care, the conception of community will be one where child care duties are shared, including by those who did not wish to have children. If the appealer believes women are or should be subordinate to men, the sought after community will be chauvinist. If the appealer is egalitarian, the sought after community will be egalitarian. If the appealer thinks people currently in the community are of more value than those elsewhere, the sought after community will be anti-immigrant. If the appealer thinks allopathic medicine, western education in STEM fields, or the like are necessary for decent or good lives, the sought after community will be one where those things are provided or even required of all.

Here’s the thing: if one is willing to appeal to emotions in this way to convince others to do, believe, or live as one wants, one does not value the other as a person. While appealing to emotions may be better than coercion, it still treats the other as less than oneself. It is manipulation with an assumption that the other is no more than a being to be manipulated to get what one wants. It excludes belief that the other should be reasoned with, that their reason matters. It thereby excludes, in the instance, belief in rational discourse with the other.

I expect to be discussing moralism further in future posts, but here hope only to have shown how continued reliance on moralism of one form prevents use of rational dialogue. This should be obvious: if we are genuinely committed to rational dialogue with our fellow citizens, we don’t coerce them and we don’t try to suade them with appeals to emotions, even if designed to protect our community as we see it.

The Saga of David Friedman

In my latest YouTube video, I chat with economist and legal scholar David Friedman on free-market anarchism; the Society for Creative Anachronism; tectonic geology; the quasi-anarchic legal systems of medieval Iceland and 18th-century England; being converted to anarchism by Robert Heinlein; how getting a Ph.D. in physics led to being an economist at a law school; the joys of fomenting war and exploiting one’s students; how he repeatedly achieved promotion through violence against his predecessors; how to make medieval armor both for humans and for turnips; how innovations in fireplace design facilitated adultery; and the perils of central planning for wizards.

Section 230: Platforms and Publishers

There has been a lot said lately about Section 230 of the Communications Decency Act. President Trump had threatened to veto the defense budget unless it were repealed. Trump and others are upset with internet platforms Facebook and Twitter because of their censoring users—users that might propagate false claims about widespread voter fraud or foreign governments somehow hacking our voting system and users promoting false claims about COVID-19 being a hoax, for obvious examples. So what is the issue here?

Here’s the heart of the matter in §230: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  This does not mean the provider (the platform) can’t be sued; it means they can’t be sued for information (good or bad) someone posts on their site from another source.  In short, they aren’t publishers.  That all seems good to me.  It would also seem like a simple extension of everyday thinking about private property. 

Consider: if I install a bulletin board on my property (outside my house, near where people walk), I can post what I like on that board and I can allow others to put up posts as well. Intuitively, we wouldn’t think I should be held responsible for what other people post there.  One simple reason for this is that it would be too much to expect me to monitor everything. If someone posts something on my bulletin board—which, assume, I offer my community as a way to increase communication—and I can be sued for false claims they post, I am very unlikely to install such a board in the first place. I don’t have the time or inclination to check the truth of everything posted by others. Section 230 essentially treats internet platforms just like that, though obviously much larger, with millions of posts on their “boards.” If we want them to offer their means of public communication, we shouldn’t hold them responsible for the truth (or fairness) of everything posted on their service. This is why §230 treats platforms as good Samaritans rather than as publishers.

What seems to upset people, I should note, is the removal of posts rather than the leaving of posts that are false or unfair in some way. Consider my bulletin board again. While I am not to be held responsible for things others post, I can take things down as I please. What §230 makes clear, as I read it, is that since its my bulletin board, I can remove stuff you hang even if what I remove would be constitutionally protected if on some state owned medium. I can help you post stuff I like and I can remove stuff I do not. I’m not required to do either, but (because it is my property), I can do either.  Facebook, Twitter, etc, can do the same—remove your posts or help you post—as they wish. And just as my helping you post on my board does not mean I am responsible for your posts, Facebook, Twitter, etc are not responsible for what you post there.

In short, §230 treats firms offering platforms as providing a valuable service on their property that thus should not be overly burdened. Nothing in §230, so far as I can tell, gives platforms any special privileges such that they can reasonably be seen as an extension of the state (which would mean that posts would be constitutionally protected).

The only thing I might find worrisome is if a platform knowingly lied (or knowingly forbid true posts). In knowingly forbidding true information, a platform might cause actual harm. If that can be demonstrated, I might agree that there should be legal interference. Given, though, that users are voluntary participants, this seems unlikely—you can’t claim to be harmed if you are a voluntary participant. To explain: If you come into my house after I tell you I might lie to you when inside, on my view, there should be no legal interference. Of course, in such a situation, you shouldn’t visit me. Indeed, you’d be well advised to unfriend me. Similarly, if you think the internet platform is being dishonest in the way it censors posts, you should probably leave it. At least this is a reasonable response if you’ve given it serious thought and conclude that the benefit to staying is minimal. I would suggest that staying has a clear benefit: exposure to views one doesn’t know or agree with. That can help one improve if one is open to it. But though I think we should all be open to hearing rational discourse, I don’t know that anyone is obligated to do so.