William (aka Bill the Godfather)

William (aka Bill the Godfather)

Thursday, April 29, 2010

The Supreme Court and Libertarianism: How far is too far?

To anyone who has been following First Amendment jurisprudence in the past 40 or 50 years, the recent Supreme Court decision (United States v. Stevens, April 20) striking down a statute criminalizing the production and sale of videos depicting animal cruelty in a manner intended to satisfy a particular “sexual fetish” will come as no surprise.

The proverbial ordinary citizen, however, may be surprised to learn that, according to Chief Justice John Roberts’ majority opinion, the First Amendment must be read to allow the production and dissemination of so called “crush videos,” videos (and I quote from Roberts’ opinion) that “feature the intentional torture and killing of helpless animals” often by women wearing high-heeled “spike” shoes who slowly “crush animals to death” while talking to them in “a kind of dominatrix patter” as they scream and squeal “in great pain.” How has it come to this?
Read the rest here.

This is a very powerful and thought provoking essay which forces me to take a half step back and reassess my generally libertarian views in matters appertaining to government and the law. Mr. Fish has made, I think, a compelling argument that perhaps the pendulum has swung too far. Clearly if we are not to descend into utter anarchy or unrestrained moral depravity there must be some limits even on "speech." The question is where and what kind of limits? Even asking that question gives me chills. The restraint of liberty is a very slippery slope...

And yet I cannot grasp how a court could rule as it did in the Stevens case and still rationally conclude that child pornography is beyond the pale.

Thoughts?

10 comments:

The Archer of the Forest said...

I am largely a libertarian, although I grant that the term libertarian is somewhat loaded. There are people who call themselves libertarian, but are basically anarchists that think all things should be legal to all people. I do not really classify that as libertarianism.

What I consider Libertarian has to do with individual liberty. I suppose I am governed in my thinking by social contract theory. To avoid political chaos (i.e. anarchy), we have a social contract where we do give up some of our liberty to have a productive society. For example, we give up our right to blood revenge if someone shoots our granny. We let the courts and police deal with, whereas (in theory) "totally free man" can enact his own justice and do what ever he wants whenever he wants.

I think the governing principle of Liberty is that people should be free to the point where their freedom transgresses on the freedom of others. If in my act of my particular liberty takes away the particularly liberty of someone else, then that is when the social contract kicks in, and laws exist to give everyone a fair shake, as it were.

As such, I think I can disagree with the Supreme Court and still with integrity claim to be a libertarian for two reasons. First, while animals don't have inherent rights, per se, as humans do, I think the so called "act of speech" here that is being upheld can be restricted by the social contract in the form of a government restriction because it is inherently destructive. It is tormenting and killing animals for no productive purpose. (I would not call some pervert getting his jollies at the expense of innocent animals a productive purpose.)

Destruction of animals or property is something that I believe can be regulated by the government for the greater good of society. For example, I can't spray paint anti-war slogans or whatever all over the Lincoln Memorial. I can stand on the steps and say my piece and have a demonstration, yes, but my speech legitimately ends when destruction of property ensues. Free Speech does not equal Vandalism or Animal Torment. I find this 1=1 argument that the Supreme Court is making is simplistic at best, and ridiculous legal fiction at worst.

Which brings up my second point of "what exactly is speech?" To me, speech has to have a message. I have never really bought the argument that pornography is "speech." Sex is a biological function, and as such I don't believe should be protected as "speech" per se. I could possibily be persuaded by an argument that pornographic materials could be protected under some liberty like the right to private property or the pursuit of happiness or a limited government doctrine, but it is never framed in that way. I have never bought that it is, in fact, "speech" because in my mind it lacks a message.

In the case at issue here, I read the whole opinion, and basically the argument is just that: they say its speech, therefore, its protected, no questions asked. This is as if "free speech" is the blanket we wrap any action whatsoever, whether it has a message or not is irrelevant.

Therefore, because I do not believe the case has been made that pornography is speech, I believe I can be a Libertarian and oppose the logic in this opinion as stated because pornography is more properly an action or function and therefore can be regulated as such because in this case it is destructive and harmful to animals.

The Anti-Gnostic said...

Such phenomena convince me that the liberal society* is a time-limited experiment. Everything not expressly prohibited is permitted and so, if there's no law proscribing the videotaping of women in stilettos crushing a hamster underfoot, somebody is going to do it. When such a law is passed they will move on to gerbils, and so on.

[* - I use the term "liberal" in its 19th c. sense.)

The liberal society twists itself into pretzels defending its premise (which is admittedly beyond dispute) that all men are equal under the law. Thus, the crush video producer may avail himself of the same scrupulous protections we expect for a homeowner accused of a minor code violation. The average bourgeois will rarely have to avail himself or herself of such protections. The violent, the libertine, etc., will have frequent use of them. And so vast resources are directed towards protecting the rights of people who, there is no polite way to put it, are simply not the equal of the typical person who strives to be polite, add value, and raise a family. Society becomes defined by its margins rather than its center and the ratchet for acceptable behavior slips another notch.

In times past, crush video producers would be ridden out of town on a rail, not hiring counsel and arguing at the Supreme Court. That is the role of civil society: moderating behavior that we don't want to trust a nuclear-armed government with regulating. But inevitably it seems, the State becomes the sole mediator of interpersonal relations, displacing the civil society and its pre-State institutions of Church and Family.

More later...

Anonymous said...

The censor is a necessary part of civilization. The censor sharpens rather than dulls the artist - without the censor the artist degrades to sollipsism and degeneracy.

LIbetarianism does not work from either a social or economic perspective. I was a card carrier for Rothbardism at one time. From an ideological point of view, it is not much different than Marxism. A pox on both their houses.

Fish is virtually the only sane person at the Times. God bless him.

Christian Prophet said...

Since there is no such thing as the "good of society" divorced from the good of each individual making up the society, in cases like this there needs to be a standard for determining true "good" as opposed to "ego-vested interest." Incidentally, you might be interested in the article, "Libertarian Pledge of Nonviolence."
http://spirituallibertarian.blogspot.com/

Visibilium said...

I'm not sure that crushing animals is a non-criminal act in the jurisdictions in which the video would be viewed. Therefore, videotaping a criminal act may be construed as abetting such an act, depending on the elements of a crime. If I'm correct, you can relax, John, because your libertarianism is safe, unless you think that libertarianism is identical to libertinism, which I don't.

Now, if someone wants to feign the crushing of an animal or create a digital cartoon of such an act, then maybe we can have a discussion.

The Anti-Gnostic said...

John, because your libertarianism is safe, unless you think that libertarianism is identical to libertinism, which I don't.

Animals are property, and their human owners may do with them what they will so long as they don't harm other humans. However, this right is tempered with our duty to act as compassionate stewards of the Creation God has gifted us. And with that last sentence, I am already off the libertarian reservation.

Visibilium said...

Maybe. It depends on whether "tempered" means that the right itself is limited or whether "tempered" means that one voluntarily refrains from acting in particular ways toward Creation even though one has the right to act in those ways.

My belief is that our stewardship is voluntary and that we have a right to act toward Creation in any way we see fit. Stewardship is meaningless without ownership. God gives me stuff to use as I will, and He doesn't force me to be a good steward.

For example, I have a right to torture animals, but my Christianity suggests to me that I should voluntarily refrain from exercising my right to torture animals. It's my right and my decision.

Christianity is about self-restraint, not God's tyranny.

Whether it's good for the State to forcibly limit the exercise of my right to torture animals is another issue. This issue pertains more to the implementation of a right, rather than the right itself.

Anon, I've heard someone else say that libertarianism is like Marxism, although I haven't heard anything other than a bald assertion. If you could amplify, I'd appreciate it.

Visibilium said...

Maybe. It depends on whether "tempered" means that the right itself is limited or whether "tempered" means that one voluntarily refrains from acting in particular ways toward Creation even though one has the right to act in those ways.

My belief is that our stewardship is voluntary and that we have a right to act toward Creation in any way we see fit. Stewardship is meaningless without ownership. God gives me stuff to use as I will, and He doesn't force me to be a good steward.

For example, I have a right to torture animals, but my Christianity suggests to me that I should voluntarily refrain from exercising my right to torture animals. It's my right and my decision.

Christianity is about self-restraint, not God's tyranny.

Whether it's good for the State to forcibly limit the exercise of my right to torture animals is another issue. This issue pertains more to the implementation of a right, rather than the right itself.

Anon, I've heard someone else say that libertarianism is like Marxism, although I haven't heard anything other than a bald assertion. If you could amplify, I'd appreciate it.

Anonymous said...

In the most general sense, Libertarianism is pure ideology, the latter always considers itself to override reality. I mean this in in all seriousness: have you read Hannah Arendt? At the very least it makes it impossible to see reality clearly.

If you find the old journals Left and Right, you can see exactly how easy it was to dovetail New Left and libertarian thinking. Or take a look at the old individualist anarchist literature in the US (it's fascinating actually: the best specific history is James Martin's Men Against the State). These guys were pretty clear on their self-identification as socialists.

I had in mind, however, Rothbard's For a New Liberty, which he meant to be the "Libertarian Communist Manifesto".

Visibilium said...

Metaphor has its place, and saying that Rothbard's book is libertarianism's Communist Manifesto is actually fairly apt judging from its seminal nature and formative influence. Pushing the metaphor to say, however, that he's Marxist would probably be resolved by a more careful reading of his book.

The left-wing anarchists didn't like property too much, but I think Rothbard did a good job in pointing out that property rights were at the basis of civil liberties. You can't have freedom of the press without the right to own a press. Rothbard was able to attract left-wing and right-wing libertarians under the same tent.

Hannah Arendt had some good ideas and some bad ideas. Implementing sustainable political liberty has historically been a challenge. Tyranny is much easier to implement and sustain. Less thoughtful, too.