Rodney Dangerfield Should Have Run For Mayor: Via Marc Randazza, I see that Tucson Mayor Bob Walkup thinks that people petitioning the local government should be compelled by law to show "respect." Mayor Walken alleges that City Attorney Mike Rankin told him that a law requiring that petitions be respectful would pass First Amendment muster. Hey Mayor Walkup — with all respect, you're a douchebag and a moral weakling. And with all respect to Mike Rankin, if he told Mayor Walkup that the respect requirement is constitutional, he's incompetent.
Are You Now, Or Have You Ever Been, A Goth?: Via Free Range Kids, I see that if your kid cuts her finger in shop class (something that happens when messing around with tools, you know), she may be subjected to an inquisition and forced to sign statements guaranteeing that she is not a self-cutter:
They forced this girl to fill out a range of forms stating that she did not cut herself on purpose, and that she would pledge NOT to start cutting herself on purpose in the future.
The Government Knows Best: Via SayUncle, here is a story of a judicial decision about food freedom that is all the more appalling because it is probably a correct exposition of the state of our Wickard v. Filburn law:
“no, Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd;”
“no, Plaintiffs do not have a fundamental right to consume the milk from their own cow;”
“no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice…”
I've Always Thought That Interpretive Dance Was Shovel-Ready: Finally, courtesy of , a story about how stimulus dollars were used. As reflected on Recovery.org, you — the taxpayer — spent $762,372 to create 1.5 jobs doing this:
The PI and her team of technologists, choreographers and artists will work together to define an evolving system that assists in the design and production of interactive dance performances with real-time audience interaction. The Dance.Draw system will enable dancers' motions, tracked via small RF transmitters worn in satin cuffs, to act as input streams that can be flexibly applied as control parameters for interactive visualizations. The system will log dancers' motions and will be able to composite video of the dancers with different visualizations, enabling post-hoc analysis of the choreography and exploration of prospective mappings between the motion and the projected media. This will allow choreographers to explore interactive dance without always having a full cast of dancers present. In addition, it will enable other stakeholders, such as artists and musicians, to experiment offline with their media and adjust how these interplay with the choreography.
Leaving aside the thorny question of the role of the government in the arts, let me ask this: if stimulus money is supposed to create jobs to stimulate the economy, can we really not do better than paying half a million dollars per job?
I've said it before, and I'll say it again — to most people and institutions, the purpose of a criminal justice system is not to test the government's accusations, but to deliver a preordained result that matches our expectations and prejudices.
The acquittal of Casey Anthony has produced a torrent of outrage supporting that proposition. The Mommy Mob's reaction illustrates how high-profile cases can drive people to become the useful idiots of the security state and the unwitting shills of the media.
First, take law enforcement and government. Frequent readers know that one of our favorite topics — captured under the tag Think of the Children! — is the way that politicians and nanny-staters manipulate our anxieties about our children to impose increasing restrictions upon our freedom. You'll see new examples every day. Note, for instance, politicians arguing that the existence of a tiny minority of child pornographers justifies tracking the internet use of hundreds of millions of innocent Americans. It's for the chiiiiildrun, they tell us, reasonably confident that our brain will turn off when they say so.
Casey Anthony's acquittal has produced a surge of exactly the sort of mindset that the government craves. That mindset is captured perfectly by one of the most vocal anti-Casey Anthony think-of-the-children folks on Twitter, who (like many of her ilk) is outraged that some people think that the howls for "Caylee's Law" are misguided. She says this:
How can a law that protects children be WRONG? How can it be questionable?
Bingo. That's exactly what law enforcement and the politicians want you to think: if a law is presented as "for the children," it must be beyond question. if you think that it's restricted by subject matter to the Anthony trial, think again. When Kevin Underhill wrote a perfectly reasonable post suggesting that 14-year-olds shouldn't be branded sex offenders for life for sticking their ass into somebody's face, and that the Caylee's-Law mentality is what allows that sort of thing to happen, the usual suspects pounced:
@loweringthebar you've got 2 STOP publishing articles like this on YAHOO goo.gl/eW04T coz I promise u WE WILL #FIGHT4CAYLEE !!!!
You might think that politicians and other state actors hate it when a Casey Anthony gets acquitted. You'd be wrong. The acquittal of someone like Casey Anthony — accused of killing a cute white girl, and worse yet, accused of being a slut and a party girl — is an opportunity for the state to get useful idiots to drive its favorite narratives. Those narratives are "when the government charges you with something, that means you are guilty" and "government witnesses are credible; defense witnesses are not" and "defense lawyers deal in deceit; prosecutors deal in truth" and "a juror's job is to convict the guilty", and so on. Th Mommy Mob is flogging those narratives like crazy. They devote web sites to excoriating the jurors and suggesting that they ought to be prosecuted for some sort of fraud or dereliction of duty. They attack the defense attorneys, suggesting that they ought not be paid and arguing that the State Bar ought to investigate them. They speculate about what citizens might be associated with Casey Anthony and then post contact information for those citizens. They call on their flying monkeys to harass the judiciary. They demand retrial of Casey Anthony based twisted interpretations of the Dual Sovereign Doctrine.
In short, Caylee's ghouls carry the government's water for them. Their messages are clear: jurors, if you fail to convict when the mob thinks you should, you will be identified, reviled, and quite possibly harassed. Judges, if you fail to rule the way the mob wants, the mob will jam your phone lines and deluge you with bizarre emails. Defendants, if your trial ends up in anything but the result the mob demands, expect to be hunted for as long as you occupy the mob's imagination. Defense lawyers, your job is to be hated and to be attacked if you are successful. All of those messages support the security state — the viewpoint that the government knows best and that the government's claims and accusations must be accepted to keep order. The government's labels must be accepted uncritically.
Second, there's the media. The media has made big bucks off of Caylee Anthony's disappearance and death. Nancy Grace and her shouty ilk have discovered a way to monetize the easy outrage of the chronic daytime-TV-watchers and trial-followers, turning frothing hatred of the "tot mom" into advertizing dollars. Though Casey Anthony's acquittal looks, at first blush, like a defeat for those who so smugly proclaimed her guilt on cable, the opposite is true. It's a bonanza. A conviction would have turned off the money-faucet quickly. But an acquittal — that they can milk for months or years, continuing the lucrative circus that was the trial.
The loudest Casey-haters, with an abject and ironic lack of reflection, have now thrown themselves behind a boycott movement, vowing to boycott any entity that pays Casey Anthony to write or talk or appear. A boycott is a perfectly valid First Amendment avenue. But it's astounding to see the mob wield it without apparent shame. If Casey Anthony were like 99 out of 100 accused murderers, her story wouldn't be worth a nickel to any media outlets. But she's not — because the boycott crowd accepted the media narrative about her and followed her as the latest "trial of the century." The madding crowd that now cries "boycott" is the very reason that her story is worth money — because angry people follow her obsessively. That's why calls for boycotts often result in a surge of sales for the communication the boycotters are attacking. It's possible, perhaps even likely, that every angry tweet and blog post by the Boycott-Casey crowd will put money in Casey's pocket. Whether it does or not, the media will continue to make money, as the boycott itself becomes the latest chapter in the lucrative Casey Anthony story. The mob is the media's foil.
Imagine, for a moment, if all of that outrage could he harnessed and directed not against the acquittal of one accused defendant, but against the ruinous war on drugs or police misconduct or any number of other causes that don't amount to being government's fluffer. But the mob, by its nature, is conservative. And useful idiots are, by their nature, only useful to the bad guys.
Imagine this scenario:
You're arrested and charged with possession of child pornography. You're stunned. What the hell did you have in your possession that could possibly be child pornography? Could the state be misrepresenting the nature of innocent pictures of your kids at the beach? Could someone have planted materials on your hard drive, using your unsecured wi-fi network? There's only one way to find out — thank God for your due process right to a vigorous defense. You and your attorney demand to inspect the evidence — to see the alleged child porn so that you can be ready to challenge the government's proof at trial, and even have a defense expert review it to counter the government's expert, who may be flat wrong in identifying the materials as child pornography.
Not so fast, says the state. Merely possessing child pornography is a crime. Moreover, every time anyone looks at these pictures, the children in them are re-victimized. Therefore, we can't allow you to examine the materials to prepare your defense. You'll just have to see them for the first time at trial, like the jury. Don't worry — we're the state, you can trust our judgment when we accuse people of crimes.
Fortunately, that scenario does not illustrate the actual law. In real life, the accused has the right to review the evidence against him. But how you feel about that scenario can help to determine whether you lean liberal or libertarian — whether you are suspicious of state power in all instances, or whether you trust the state and look to its firm hand when it comes to hot-button issues, like OMG THINK OF THE CHILDREN!
We've been conditioned by the culture to expect that "liberal" and "supportive of due process and fundamental fairness to all people accused of crimes" go hand-in-hand. It's a lie.
Take the scenario above. It's remarkably close to an actual case that inspired this revolting and insipid Gawker post by Brian Moylan about the criminal case against Marc Gilbert in Washington State. Gilbert stands accused by the state of terrible crimes:
Marc Gilbert is accused of sexually assaulting young boys and videotaping the abuse.
It's undisputed that the videotapes are material evidence relating to the crimes, and apparently the state wants to use them to prosecute Gilbert. The Washington media — and Brian Moylan at Gawker — are outraged that this means that Gilbert, who is representing himself, is allowed to view the videotapes — outraged that the matter does not end like the scenario above, with the accused denied access to the evidence For The Children. Quoth Moylan:
See, Gilbert is acting as his own lawyer in the trial, so as his defense attorney, he needs to be able to review all the evidence in the case. Since the evidence in this case is footage of him allegedly raping boys, then he gets to review that evidence to his heart's content. And since his access to this evidence will only go on for the duration of the trial, you can expect this thing to drag on for as long as Gilbert can make it. This is how justice gets served.
(Emphasis added, government-fluffing douchebaggery in original.)
The government — like the rabble of commenters at Gawker — view it as a "loophole" that a person accused of a terrible crime is entitled to review the evidence against him:
The prosecutor and the sheriff say the results of the legal loophole are sickening in this case, but say the state Supreme Court has ruled in Gilbert's favor.
"Make no mistake — I don't like it," said Pierce County Sheriff Paul Pastor. "But it is not my choice whether to do it or not to do it. There's no question that I don't like it. There's no question that this makes me grind my teeth."
"We don't like it. We don't want to do it, but we have to follow the law. The fix here is to change the law," said Pierce County Prosecutor Mark Lindquist.
Lindquist isn't just blowing smoke. This is exactly the sort of scenario that the state uses to expand its power and reduce the rights of individuals accused of crime — the sort of scenario that makes citizens swallow the premise that hey, maybe it's fine if the state can accuse people of crimes based on secret unreviewable evidence.
The media is frequently described as having a "liberal bias." Gawker is described as having one. For some meanings of "liberal," that's true — but only if we accept that "liberal" involves Nancy-Grace-style, law-and-order, hostile-to-rights-of-the-accused drivel.
Edited to add: It's even worse at True Crime Reports.
Edited to add: Here's an exchange I had with a commenter at TCR. Are both of us being sarcastic? I can only hope.
Yesterday I talked about how the Colorado Department of Public Health knows, in creepy-abusive-spouse detail, what is best for your kids. Sometimes the government realizes all by itself that it is a better parent than you are. But other times the government has this epiphany as a result from prodding from its partners in academia.
Take, for instance, Harvard. Harvard has long been a source of Deep Thinkers with Important Ideas about government's role in society, leading to examples of well-thought-out government intervention like the Vietnam War. We've discussed the sort of insight that comes out of Harvard before.
Today, courtesy of the redoubtable Walter Olson, I saw a new instance inflaming the news media and blogosphere today: two Harvard researchers have written a commentary in the Journal of the American Medical Association called "State Intervention in Life-Threatening Obesity" suggesting that obese children should, in some instances, be removed from their parents by the state for the good of the children. The Harvard folk are David S. Ludwig and Lindsey Murtagh (hat tip to Future of Capitalism for those links).
My first instinct, like that of Walter, is outrage and contempt and all the other pulse-elevating feelings on the I-must-blog-about-this spectrum. My second instinct, though, is to ask this: exactly what are these Harvard researchers advocating?
I knew in advance not to expect to learn much from the news media. Like legal reporting, science reporting is so inadequate that it is the butt of jokes in comics — at least the sort of comics read by the sort of people who care about the quality of science reporting.
My expectation was not thwarted. The reporting on the article was vague and ambiguous and failed either (1) to educate me about the exact scope of the custody-meddling that Ludwig and Murtagh are advocating, and (2) to convince me that this wasn't the sort of OMG MAD SCIENCE! reporting that the comics linked above lampoon.
JAMA does not provide full text of its articles online. I was therefore thwarted in my attempt to figure out whether Ludwig and Murtagh are respectable clinicians or nasty totalitarians or something in between. I was ready to write about this anyway. Then I thought how can I complain about lousy science reporting while perpetrating it myself? So I bit the bullet and paid $30 to download the JAMA article. I comfort myself that (1) JAMA is, in general, a good cause, (2) this isn't the stupidest thing I will have spent money on this week, and (3) the Popehat promise is that we read things like JAMA so you don't have to.
I was concerned that the JAMA article might be beyond my little political-science-major brain. I should not have worried. "State Intervention in Life-Threatening Obesity" is a puff piece suitable for a popular magazine or newspaper and largely free of substance. With footnotes, it's two two-column magazine pages long. It does little but set up the existence of childhood obesity in America, discuss in brief some of the health risks of such obesity, note that existing law generally allows some state intervention in parenting choices when a child's health is at risk, and opine quite generally that in some extreme cases custodial interference by the state may be warranted. This is as specific as it gets:
In severe instances of childhood obesity, removal from the home may be justifiable from a legal standpoint because of imminent health risks and the parents’ chronic failure to address medical problems. Indeed, it may be unethical to subject such children to an invasive and irreversible procedure without first considering foster care. Nevertheless, state intervention would clearly not be desirable or practical, and probably not be legally justifiable,
for most of the approximately 2 million children in the United States with a BMI at or beyond the 99th percentile. Moreover, the quality of foster care varies
greatly; removal from the home does not guarantee improved physical health, and substantial psychosocial morbidity may ensue. Thus, the decision to pursue this option must be guided by carefully defined criteria such as those proposed by Varness et al, with less intrusive methods used whenever possible.
In short, Ludwig and Murtagh seem to be doing little more than attempting to "start a conversation" about when obese children should be removed from their parents by the state. For specific diagnostic criteria, they punt to an article in Pediatrics called Childhood Obesity and Medical Neglect; that article is available fully online through the link. That article is fairly cautious:
In our opinion, 3 conditions must be met to justify state intervention, that is, a high likelihood of serious imminent harm, a reasonable likelihood that coercive state intervention will result in effective treatment, and the absence of alternative options to address the problem. In the case of childhood obesity, it is not the mere presence or degree of obesity but rather the presence of comorbid conditions that is critical for the determination of serious
imminent harm. All 3 criteria are met only in very limited cases, that is, the subset of obese children who have very serious comorbid conditions and for whom all alternative options have been exhausted. In these limited cases, a trial of removal from the home to protect the child may be indicated.
The linked Pediatrics article gives some examples of types of health risks.
Supporters of this research could reasonably argue that this standard is not really different from what courts and child authorities would apply if children were facing a risk other than obesity. In short, to the extent that media coverage of this article suggests that Harvard researchers say that the government should take your kids away if they are fat, that coverage is woefully deficient.
But that doesn't let Ludwig and Murtagh off the hook.
The proof of the pudding is in the eating; the proof of the regulatory scheme is in its drafting and implementation. There are good reasons to be highly suspicious of any social movement — driven by medical professionals or not — to encourage interference with parental custody.
The medical community is an increasingly popular vector for social agendas and state control of the individual. Norms about government control start narrow in theory — like "in the most extreme cases, some morbidly obese children facing imminent serious health consequences might be taken from their parents' homes if those parents refuse to address the health problems." In practice, though, the norms get broadened and twisted to justify social, political, and religious agendas, to increase government fiefdoms, and to wage cultural wars. The norms are implemented not by the knowledgeable professionals who envisioned them, but by bureaucrats of mixed capacity and motives under regrettable conditions. The result, amongst actual people, is inevitable: norms permitting limited state intervention into the lives of citizens are capriciously and maliciously applied, usually in a disproportionate fashion against the unpopular or the powerless. Moreover, when the state trains and equips to exercise power upon some justification, it tends to see that justification whether or not it exists. In our society, the natural and probable result of normalizing state custodial interference of extremely obese kids is not sparing application; the natural and probable result is abuse and misapplication.
Ludwig and Murtagh may well take the Beckian stance that they are "just asking questions" — simply raising the topic for greater discussion, not advocating any hasty broadening of state power over citizens' children. I interpret their brief column as exactly that — an attempt to start the discussion and lend JAMA's credibility to the proposition that forcible removal of obese children is supported by medical academia at the highest level. But the state always thirsts for such power, and is always too eager to get academic support for seizing it. Sooner or later, Ludwig and Murtagh will be cited in some local bureaucrat's application to take a child from his or her parents. Will that child meet the narrow diagnostic criteria that Ludwig and Murtagh have in mind? Perhaps — and perhaps not. The strong possibility that those footnote-referenced diagnostic criteria will be neither understood nor met is, I submit, a factor that Ludwig and Murtagh have not weighed adequately. They have started the dialogue, but distant, barely-supervised and poorly-restrained state officials will finish it for them. Ludwig and Murtagh might also have suggested that parents could buy vicious attack dogs to scare their fat children away from the refrigerator; though the dogs could be trained, in theory, to do so in a safe and appropriate manner, the natural and probable result is blood on the floor.
Most of us probably expect the government to regulate child care businesses to a certain extent, with sensible rules like "no open sewers" and "no chainsaw juggling" and "no registered sex offenders working as nurses," and so forth.
But such minimalistic regulations ignore an important fact: people in government are much smarter than we are and know much better exactly how our children should be cared for. And when I say exactly, I mean "with an unsettling, Rain-Man-like level of obsessive specificity."
For example, I give you the recently proposed Colorado Department of Human Services Proposed Child Care Center Rules, which have gotten a certain amount of coverage.
It's not easy to mix worrying vagueness and unmedicated-OCD-level detail, but the Colorado Department of Human Services manages. Its 98 pages of dense regulations for child care centers range from the catch-all-provision-allowing-regulators-to-do-anything-they-want . . . .
ALL PERSONNEL SHALL REFRAIN FROM CONDUCT THAT WOULD ENDANGER THE SAFETY OR WELL BEING OF CHILDREN.
. . . . to the terrifying, future-dystopian micro-regulation of common human activities, like two pages with multiple points and sub-points precisely dictating all adult and child hand-washing.
You may think that you, as a parent, are capable of choosing a child care center based on its staff, curriculum, equipment, and approach to learning. You may think that you can best determine, in consultation with the child care center staff, what your child should be doing all day. The CDHS disagrees. The CDHS knows better than you, for instance, exactly how much screen time your child should have per day, and when and how it may be viewed:
TELEVISION, VIDEO, AND COMPUTER TIME IS LIMITED TO 20 MINUTES PER DAY UNLESS IT IS A SPECIAL OCCASION.
4. TELEVISION AND VIDEO VIEWING SHALL NOT BE ALLOWED FOR CHILDREN UNDER THE AGE OF TWO (2).
5 TELEVISION, VIDEO AND COMPUTER TIME SHALL NOT BE AVAILABLE DURING SNACK OR MEAL TIMES.
You may think that your child care center can determine by itself which toys to stock, and that maybe you'll supplement it with donations. Once again, you're wrong. The CDHS knows, down to the number of paintbrushes and the type and number of blocks, what kind of toys your child should play with:
EACH INFANT AND TODDLER CLASSROOM SHALL HAVE AT LEAST ONE (1) SET OF 6 OR MORE SOFT VINYL OR PLASTIC
SCHOOL AGE BLOCKS AND ACCESSORIES
A. EACH CLASSROOM SHALL HAVE AT LEAST TWO (2) SETS OF BLOCKS WITH A MINIMUM OF TEN (10) BLOCKS PER SET.
B. EACH CLASSROOM SHALL HAVE A VARIETY OF AT LEAST FIVE (5) ACCESSORIES FOR EACH BLOCK SET. THE ACCESSORIES
SHALL BE STORED WITH THE BLOCK SETS AND SHALL BE REPRESENTATIVE OF PEOPLE, ANIMALS, TRANSPORTATION ETC.
Speaking of toys, maybe your kid isn't Anglo. Mine aren't. Do you care if the child care center has non-white dolls? Would you like to donate (for instance) an Asian doll, like we did, so your kid will have a doll that looks like him or her? Or do you not care? It doesn't matter, your government has regulated doll ethnicity for you:
DOLLS SHALL REPRESENT THREE (3) RACES.
Do you think you can work out the details of things like whether your child wears a sweater, and when and if your child wears sunscreen? Fool. The government knows, in queasy detail, exactly how your child should be protected from Mr. Sun:
D. Sun Protection
1. THE CENTER SHALL INFORM PARENTS OR GUARDIANS,
THROUGH THE POLICIES AND PROCEDURES STATEMENT OR AN
AUTHORIZATION FORM, THAT SUNSCREEN WILL BE APPLIED TO
THE CHILDREN’S EXPOSED SKIN PRIOR TO OUTSIDE PLAY. A
DOCTOR’S PERMISSION IS NOT NEEDED TO USE SUNSCREEN AT
THE CENTER. PARENTS OR GUARDIANS SHALL NOTIFY THE
CENTER STAFF IF SUNSCREEN HAS BEEN APPLIED TO THE
CHILD’S SKIN PRIOR TO ARRIVING AT THE CENTER.
2. SUNSCREEN SHALL BE APPLIED ACCORDING TO THE
MANUFACTURER’S INSTRUCTIONS FOR APPLICATION AND IN
ACCORDANCE WITH THE MANUFACTURER’S RECOMMENDED
AGE FOR USE.
1. The center must obtain the parent or guardian's written authorization and
instructions for applying sunscreen to their children's exposed skin prior
to outside play. A doctor's permission is not needed to use sunscreen at
23. When supplied for an individual child, the sunscreen must SHALL be
labeled with the child's first and last name.
3. 4. If sunscreen is provided by the center, parents must SHALL be notified
in advance, in writing, of the type of sunscreen the center will use.
45. Children over FOUR (4) years of age may ARE ALLOWED TO apply
sunscreen to themselves under the direct supervision of a staff member.
6. A WRITTEN STATEMENT FROM A CHILD’S HEALTH CARE
PROVIDER AND PARENT OR GUARDIAN IS NEEDED IF
DRAFT–PROPOSED CHILD CARE CENTER RULES–04/28/11–DRAFT
Revised on September 7, 2010 45 of 98
SUNSCREEN IS NOT TO BE APPLIED. A WRITTEN PLAN TO
PROTECT THE CHILD FROM OVER EXPOSURE TO THE SUN SHALL
BE IN PLACE AND KNOWN TO STAFF CARING FOR THE CHILD.
You might think that such detail is unnecessary. But the CDHS — and government entities like it — are staffed with people who are more attuned to the particular needs of your child than you. If it weren't for their superior grasp of your child's well being, there is a clear and present danger that your child's sunscreen might be labeled with only her first or last name, not both. THAT, my friend, is what proper regulation can do for YOUR family.
See, the CDHS and its staff are part of the global village necessary to raise your child. They are kin to the concerned folks everywhere who, through litigation or regulation, would like to help you raise your children by regulating their pets and walking habits and Happy Meal contents and anything else that concerned, important people can think of. This is a Good Thing, particularly in this economy. Folks need jobs. If the CDHS' staffers weren't paid with your tax dollars to sit around and think of exactly how your child's day should be spent, how would they feed their own families?
If this level of state control creeps you out, don't worry. The government will never be able to regulate the core of your child-care experience — the personal relationships you develop with your kids' teachers and child-care workers, relationships that often develop into friendships. The government can't regulate human interaction on that level . . . .
CHILDREN SHOULD BE GREETED INDIVIDUALLY AND
PLEASANTLY UPON ARRIVAL AND DEPARTURE
. . . . yet.
Oh Karen, my Karen, our vile culture is rife
With "fuck!" and "cocksucker!" and other such strife
Nobody's polite. Nobody keeps cool.
Nobody uses nice words for their stool.
Instead of discoursing in the way that we should,
We all swear like that guy getting blown on Deadwood.
Even kids — O, sweet Children! — are subject to scorn,
We curse them! We rue the day they were born!
We damn their behavior, we laugh when they weep,
We employ cruel invective to tell them to sleep!
Well, not to their faces. We're not all that rude.
But in private, our venting is terribly crude.
It's as if we were human, and sorry to say —
As if parenting's foibles were funny! No way!
You know better, dear Karen. You know kids are no joke
You know bad words hurt those about whom they're spoke
Even if they don't hear them. Bad words hurt us all
They cheapen the culture, they lower the wall.
Between us and barbarians. For isn't it said
That the Etruscans, who cursed, are all now mostly dead?
We need you sweet Karen. We need you to flit
To wherever there's call for a nannying twit
We need you in comics. We need you in games
We need you if someone says womyn are "dames"
But we don't know that we need you. Oh, for shame
Our permissive culture is surely to blame
We imagine we're able to think for ourselves
About which dirty books to put on our shelves
We believe there's a difference, a key one in fact,
Between in-private fun, and company tact.
So please, Karen please, spare a thought for us churls,
As you faint on your couch and clutch at your pearls,
One day we'll admit you know best for our health,
But not today, Karen. So go fuck yourself.
(Hat Tip To Nick Gillespie, and to my dear wife, who gave me the offending book in question for Father's Day.)
It's uncommon for two of us to blog about the exact same thing here at Popehat; usually one of us strikes first and the other snipes from the comments. However, rather than pollute Patrick's thoughtful piece about art and taste with my banal legalities, I've decided to blog separately about Brown v. Entertainment Merchants Association, today's Supreme Court ruling striking down the California law restricting the sale of "violent video games" to minors.
I write separately (and in far less entertaining fashion) to point out that Entertainment Merchants Association illustrates one of the themes that I've been belaboring: the government's use of categorical thinking to build its own power. The government most often does this politically — for instance, by trying to sell us the war on drugs or movie piracy as fitting into the anti-terrorism category, or trying to convince us that shameful sex offender laws are really about defending children. However, the tactic also also crops up in legal analysis. As Patrick referenced, the Supreme Court recently struck down another censorious law in U.S. v. Stevens, firmly rejecting the government's invitation to create a new categorical exception to the First Amendment for depictions of cruelty to animals.
Stephens aside, and despite today's good result, Entertainment Merchants Association demonstrates that the categorical temptation remains. Take Justice Thomas' dissent. Thomas appeals to the original intent of the Framers to resolve the dispute, saying that California's law passes muster because the men who drafted the Bill of Rights never intended for the First Amendment to apply to an entire category of speech: talking to other people's kids:
In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents.
This rather breathtaking conclusion demonstrates that the "conservative" and "liberal" political labels are often a poor fit for constitutional analysis. Justice Thomas suggests a an approach to the First Amendment that is nominally "conservative" (in that it is based on original intent analysis and declines to strike down a statute based on a Constitutional right) but would be appealing to many "liberals", among them nanny-state ninnies who want to restrict commercial speech to all children rather than parent their own.
Justice Breyer is not quite as ready to carve such abroad categorical exception from whole historical cloth, but he's perfectly ready to find one amidst the Court's precedent:
In doing so,the special First Amendment category I find relevant is not (as the Court claims) the category of “depictions of violence,” ante, at 8, but rather the category of “protection of children.”
SCOTUS went 7-2 against California's violent video games law, but two of those seven thought that a narrower law might pass muster. That's encouragement for the likes of the law's author, California legislator Leland Yee, who waved your kids around like a bloody shirt against the evils of the Supreme Court, the First Amendment, and Corporate America, somehow neglecting terrorists and child molesters:
In a statement, Yee said: “Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children. As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.
Come play games with me, Leland Yee. I badly want to headshot you and then teabag you. For the children.
It won't surprise long-time readers to learn that I approve of Justice Scalia's majority opinion in Brown v. Entertainment Merchant's Association, which struck down California's ban on the sale of violent videogames to minors. The opinion is more or less mandated by United States v. Stevens, another case we cheered.
So I won't dwell (other than to applaud it briefly) on the majority's holding that minors do have First Amendment rights, nor on the cynicism of California's attempt to end-run the First Amendment by claiming that all speech may be regulated in the name of protecting children.
I want to dwell on the concurring opinion of Justice Samuel Alito, which shows the danger posed by statutes such as California's Violent Videogame Act, and of judges who believe their opinions as art critics ought to be the law of the land. This passage:
It is certainly true, as the Court notes, that “ ‘[l]iterature, when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.’ ” Ante, at 11 (quoting American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001)). But only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads thepassage in Crime and Punishment in which Raskolni- kov kills the old pawn broker with an axe. See F. Dostoyevsky, Crime and Punishment 78 (Modern Library ed. 1950). Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hearsthe thud of the axe hitting her head and her cry of pain;who sees her split skull and feels the sensation of blood onhis face and hands. For most people, the two experiences will not be the same.
illustrates the problem perfectly.
For those who haven't read it, spoilers follow:
When I was a kid, summer was a magical time of freedom. I'd lurch out of the house rubbing my eyes with the birdsong at dawn and not return until dinner, filthy and tired and delirious with possibilities fulfilled. My parents would have a basic idea where I was — going to Eric's or Brian's (to start, at least) or to the movies — but they would not know with a GPS-anklet level of specificity. I walked through wild chaparral canyons and hills to friends' houses, rode my bike to the little one-screen movie house and ice cream shop miles away in Montrose, and roamed the horse trails of Flintridge, dodging piles of horse crap and playing militaristic versions of Calvinball with hooting friends. Physical activity that made me whine during the school year (like walking uphill a mile and a half to get home, alone, from first grade on) suddenly was all part of the fun. I might occasionally check in with mom by phone, as a courtesy, but in the days before message machines or call-waiting or cell phones, who could blame me if there were great, sprawling blocks of time when I was untraceable?
Now, of course, I'm a parent of young kids, living just a couple of miles from where I grew up. Would I let them roam the hills I grew up in unsupervised? Would I let them flit from one friend's house to the next, unscheduled, driven by whim and by whose Atari was working that week? Would I let them ride their bikes a mile to the boulevard for a candy bar? Hell no. Because I have caved fully and completely to the relentless message of the media, the government, and the people-who-know-such-things: my children are on constant peril.
I'm dwelling on this sad fact this week because of this maddening story over at Free Range Kids, the excellent site I first mentioned three years ago. Blogger Lenore Skenazy describes how a mother was admonished by police that letting her kids play in the neighborhood the way I used to play — indeed, the way kids have played since before anyone could remember — is illegal:
Dear Free-Range Kids: Our kids have always been “Free -Range.” Unfortunately, today, someone called the police because of the “unsupervised children” running around the neighborhood. My son is six (seven in September), and we allow him to ride his bike to friend’s houses up the street (we live in a small, three-street neighborhood far from any major roads), rollerblade down the road, play with friends in the little patch of woods across the street from our houses, play in sprinklers with the neighbors, etc. There are constantly kids running around our neighborhood, playing with their friends — kids of all ages.
The officer said that kids under ten, by law, are not allowed outside, unsupervised except in their parents’ yard. The officer did not come to our house, but visited the mom of two of my son’s good friends. The people who called reported that all the way back in the winter, a “whole bunch of unsupervised kids were sled riding down the hill” that is across from our townhouse units.
This cop might be all wet about the laws of his state or locality. But the sentiment he expresses — which would have been reviled and regarded as un-American fifty or even thirty years ago — is now mainstream. The media pummels us with stories about children in peril. Politicians snatch low-hanging fruit by demanding more and more and more laws protecting children. Schools and other institutions, rocked by frivolous lawsuits and by the collapse of personal responsibility, ban anything that might lead our little special snowflakes to skin their knees. And so we fear — and we deny our kids the sort of freedoms that we enjoyed.
Our fears are largely spectral — or, at least, vastly exaggerated. We're led to believe that every shrub hides a lurking child molester. Yet all reliable statistics indicate that such crimes against children have steadily declined (not to mention the fact that children have always been at greatest risk for abuse at home, not running around in the wild). Morons driving badly are still a danger, but not more to kids than to adults, and not more now (when they are distracted by texting) than they were back in the day (when they were distract by jamming the 8-Track into the player). Our parents weren't careless, nor were they made of more fearless stuff — they simply weren't bombarded with the daily message of danger, danger, danger. If the Leave It To Beaver/Norman Rockwell vision of America glossed over many ugly truths, at least it did not send the insidious message that little Cindy and Bobby would be kidnapped if they rode to the park and decapitated if they used an off-brand pool toy.
Why should you care? Well, you should care because the danger danger danger drumbeat and our capitulation to it is part of the process of making us more dependent upon the government, more subservient to authority, more willing to let the state use kids as an excuse to tell us what do to in an increasingly wide and unprincipled array of circumstances. Accepting that kids' lives must be heavily structured normalizes the idea that all of our lives must be structures. And it's self-sustaining. We crank and rant about youth being the slackoisie, but can you really blame them? Kids raised in the whiffle life are taught dependence and fear, not self-reliance and self-assurance. Do you think those kids are going to grow up and vote for more personal freedom and liberty when you're an old crank? Or are they going to look to the Nanny State, lovingly embodied by their own dear parents, to tell everyone what to do, just as it has always told them? Can you expect them to respect your desire to wander where and how you please, when they've always been taught they mustn't do that because it's dangerous? Sure. Good luck with that.
Now excuse me — my kid has a scheduled playdate.
Edit: Forgot to note that the Free Range Kids story was courtesy of Walter Olson.