Monday, April 24, 2006

Legal Moralism and the FCC, Part II

by Joe Miller

In my last post, I looked at two arguments in favor of restricting profane speech on public airwaves during certain hours of the day (the so-called 'safe harbor' provisions which prohibit profanity between 6 a.m. and 10 p.m.). In this post I want to take up the next challenge for those who are opposed to FCC restrictions on speech.

3. Profanity is harmful to children and should thus be restricted during the hours in which children are normally awake.

First, the snark: It's called a remote control people. If you're worried that your kid might hear Charlie Sheen call Jon Cryer a cocksucker on Two and a Half Men, then don't let your kid watch it. Personally, I'd be way more concerned at discovering that my kid found Two and a Half Men to be funny, but that's just me. On second thought, perhaps if you're four, the show really is funny. I don't know. Me, I'm not really all that concerned about the whole slippery slope argument that without the restrictions, there will be no safe place for kids. I can't imagine the business model that would predict that adding "motherfucker" to the regular vocabulary of Blue's Clues would be a huge moneymaker. Indeed, I'm not really sure how it is that anyone thinks that restricting what gets said on television will protect kids from hearing profanity. For one, there is no FCC that can restrict my expletives when I whack the shit out of my shin on some toy that Matthew left where it isn't supposed to be. More significantly, no one much monitors what gets said in public. Just last week, several preteens at the McDonald's playground kept us all entertained as they shouted things like, "Hey motherfucker, get your ass away from my bitch.

On a (slightly) more serious note, I'm somewhat baffled as to how a Court that gives us a decision like Cohen v California can also manage to restrict public airwaves. Talk about captive audiences. It's not like most people who are hanging out at a courthouse can just leave if they want to. Yet the ruling there is that anyone who doesn't like reading Cohen's jacket (for the record, Cohen had painted the words "Fuck the draft" on the back of his jacket) would just have to look the other way. It's far easier to turn off the television, yet restrictions on speech are just fine there. Oh, well. If I don't point it out, someone else will: the U.S. legal system in general (and the SC in particular) are rather awful places to go looking for consistency.

So now the real response to the argument. First, the obvious: the argument as I have sketched it is perfectly consistent with the harm principle. The state is perfectly justified in preventing harm to others (yes, I know that this begs the question against anarchists, and I think that liberals--and academics--are mistaken to dismiss the arguments for anarchism so quickly, but trying to give a defense of the state in the midst of another argument takes us too far afield. Maybe another time). The question, then, is whether profanity (and obscenity too for that matter) actually harms children.

I'll have to admit that I don't know the answer to this question. Or rather, to be more specific, what I don't know is that there really is an answer to this question. It seems to me that the type of harm we are talking about here would pretty much have to be moral harm. That is, I'm not really sure what kind of objectively-measured physical harm can be said to result from exposing children to profane language. Indeed, I'm not really sure what sort of physical harm would result if, rather than just saying "cocksucker," NBC actually aired a fully explicit blowjob. What is the objection here? I can think of two.
a. Airing explicit sex and using profane language will lead children to engage in sex at earlier ages and to use profane language more frequently.
b. Sex (at least in certain forms or in certain circumstances) is morally wrong and children ought not be given the impression that such things are morally permissible.
As far as (a) goes, I must say that I still don't really see the objection. I'm not entirely sure that I see what it is that is so terribly wrong about kids having sex. Certainly I see what is wrong with kids getting pregnant and/or getting STDs. But those are objections to unsafe sex, not to sex per se. Teenage sex, however, has a number of positives, not the least of which, as Patri Friedman pointed out in a Catallarchy post last summer, is that teenage sex leads to teenage orgasms and teenage love affairs and the like, all of which are good things. (And before any of you start with the snide comments, no, I'm not interested in participating in teenage sex. I far prefer a partner who already knows what she's doing. I love to teach, but I try not to mix business and pleasure.) And the profanity bit? That seems like a complete red herring. After all, words are profane only to the extent that society takes them to be profane. So if all kids suddenly start saying "fuck off" as a matter of course, the phrase will eventually cease to be profane at all. The only drawback there is that we'd then need to invent some new profanities so that I'll still have something suitable to yell when I whack the shit out my shin.

While (a) is an empirical claim that, depending on the evidence, could turn out to be consistent with liberalism, (b) is illiberalism masquerading as harm. To say that I am harmed by some action because that action would lead to my being somehow a less moral person is to assume a particular conception of the good. That, however, is precisely what liberalism prohibits. Respect for autonomy, and the state neutrality that such a commitment entails, means that I have to allow people the freedom to pursue their own conception of the good. To restrict freedom on the grounds that the actions may produce people who fail to accord with my own personal conception of morality is fundamentally illiberal. It's also the height of arrogance; how on earth can you be so certain that yours is the proper conception of the good? To make this argument is not to endorse full-blown moral relativism. Some things are wrong, period. But it's not at all clear to me why we should think that people saying certain words or people engaging in sex with partners of their own choosing should be among those objectively wrong acts.

To sum, the claim that profanity somehow harms children is, to say the least, an open question. Arguably, the claim is resolvable only if one adopts a particular moral framework. The harm caused by profanity is, in other words, a moral harm. Even if profanity on television leads children to be profanity-spewing horndogs, it doesn't follow that the child is harmed unless one presupposes that there is something objectionable or degrading about being a profanity-spewing horndog. But that presupposition is a moral presupposition, and the whole point of the harm principle is to prevent the state from imposing a particular moral framework on its citizenry.

Next up: the offense principle.


Blogger Ocham said...

Perhaps it is that we don't like things in certain places, particularly not if we bump into them by accident. I just had the unpleasant experience of a whole bunch of unpleasant pornographic emails broadcast to an account I thought was safe. I really hate this stuff and I hate it being the house even in a cyber-ish sort of way and I hate the idea of kids of 10 and 12 being accidentally exposed to it. Actually kids of that age are quite profane. What actually shocks them is that adults do it, and that it should be acceptable in adult society.

2:26 AM  
Anonymous Mitch Ullman said...

ocham: I am terribly sorry that you managed to get pron-spam. It is a plague that sucks up much needed bandwidth. But & however, that is a price you pay for having the freedom we are talking about. What you just said was, more or less, a paraphrase of what Joe was trying to say is illiberal and precisely what we DO NOT want states to get involved in. You can have whatever views you want, so long as it doesn't impinge on anyone else's views. The government, however, cannot espouse any moral position (no matter how many beret-wearing leftists or bible-thumping wingers want their moral views to be the de facto). That's the whole 'state neutrality vis a vis the Harm Principle' thing Joe has been discussing.

Joe: I like the allusion to Carlin in not one, but two posts on profanity. "Don't worry, if one of your favorites isn't on the list, we'll get to it!"

8:32 AM  
Blogger Ocham said...

>>You can have whatever views you want, so long as it doesn't impinge on anyone else's views.

Well my view is I don't want this stuff around at all. I don't see what it has to do with "free speech". I have no problem with the bandwidth. I have a problem with the stuff itself. It's degrading to people & it's completely nasty & the people involved in the industry is unspeakable.

10:12 AM  
Blogger Rick said...

First of all sex becomes more harmful to children if you try to cloak it in shame and evil. Sexual predators tend not to come out of open and honest homes, but overbearing, oppressive, and abusive(sexually or otherwise) homes, or a Catholic Seminary.
Much like legalizing drug use, allowing something does not mean that everyone will run out to do it. I seriously doubt that Barney will whip out his purple pecker for the children to play with. Nor will there be episodes of Spongebob Squarepenis. (ok there might be, but not for children)

As far as language, what's the difference between 'oh, darn' and 'Oh, damn'? 'Oh, shoot' and 'Oh, shit'?

In response to something in the last post...How are the airwaves considered public if I cannot, as a citizen, broadcast on them? I can walk in a public park, I can drive on a public road, but I can only look at public programming, not use it. And if it is public, where is my share of the profits from selling bandwidth ranges to various companies? The only portion of the airways that are truly public are HAM and CB frequencies, and HAM you need a license for.

10:25 AM  
Blogger Rick said...

Well my view is I don't want this stuff around at all. I don't see what it has to do with "free speech". I have no problem with the bandwidth. I have a problem with the stuff itself. It's degrading to people & it's completely nasty & the people involved in the industry is unspeakable.

Funny, I feel the same way about Evangelical TV God pushers. And that's on "public" airwaves.

12:19 PM  
Blogger Ocham said...

First of all sex becomes more harmful to children if you try to cloak it in shame and evil.

We don't. It's the porn industry that is shameful and evil

2:33 PM  
Blogger Joe Miller said...

Rick: First of all sex becomes more harmful to children if you try to cloak it in shame and evil.

Ocham: We don't. It's the porn industry that is shameful and evil

You both make my point quite nicely. In a free society, people have a number of different conceptions of the good. A libertarian like Rick and a liberal like myself find nothing at all shameful or evil in consentual acts. So to the extent that the actors in the porn industry are free and consenting, then more power to them.

For Ocham, who I take it is something of a social conservative, pornography is deeply wrong and shameful and, I presume, would remain that way even if completely consentual.

My argument here (which is just a straightforward application of the harm principle) is that if I don't like it, then I don't have to buy it or watch it or look at it. What I'm not free to do as a member of a liberal democracy is to use the power of the state to impose my own conception of the good onto everyone else. I won't force Ocham to watch Jenna Jameson just so long as he doesn't prevent me from doing so. That's pretty much how a liberal society works. Though perhaps that isn't really a selling point for you Ocham?

3:32 PM  
Anonymous Mitch Ullman said...

ocham: Have you never, ever been in a history class that covers the 20th century? Facism. Look it up sometime.

8:32 PM  
Blogger Ocham said...

No I didn't say that p. was shameful or whatever, I said the industry was.

Also, how far can we take the idea of "our conception of good"? Try reading de Sade some time, to appreciate how poor this argument can be. (Sometimes he gets confused, and says that the real delight is in the evil of what he wants and does, but there you go).

I don't see what Fascism has to do with it. Fascism is an extreme form of nationalism where the nationalistic belief is deeply connected with the concept of some racial identity.

My original point, by the way, was that it's reasonable for some people, who are offended by this sort of thing, to have zones were they don't have to bump into it. I don't buy the 'off button' argument. There's no such thing. If anything goes at any time, then it will. The people who have this deeply felt need to watch blowjobs on daytime TV are impinging on the freedom of those who really don't want to see it. Can't the deeply felt need wait until 10 o'clock (say)?

2:22 AM  
Anonymous Mitch Ullman said...

Your point is that your conception of reasonable people is the be-all and that your government should impose that 'reasonable-ness' on everyone. That is Fascism, nationalism is a methodology that supports Fascism. For instance: if you don't support the war in Iraq, you are unpatriotic. Fascist use of nationalism to support an extreme right-wing ideology.

I'd like to add that your distinction between the porn industry and the porn product is down-right lame to the point of fallacy.

And, since you did not understand what I meant by throwing out the Fascism comment, I'll reiterate.

"My original point, by the way, was that it's reasonable for some people, who are offended by this sort of thing, to have zones were they don't have to bump into it." -Ocham Well, this is pretty much what I am trying to get at. You have a different conception of the good (you just happen to be among a vociferous majority). We are not necessarily arguing with your view, but your attempt to maintain the position stating that our government should impose your view upon everyone. This, if you have actually read On Liberty, is a no, no (to put it succinctly). Based on my own reading of Mill, epistemologically speaking, when you violate the Harm Principle in regards to the issue of 'free speech,' you are impeding the society's progress toward (big T)ruth. What I believe Joe has been working at is the very question of whether the FCC is in violation of the Harm Principle or whether (for instance) saying 'cocksucker' on primetime tv is in violation of the Harm Principle, thereby requiring the FCC to step in and censor.

Personally, I think the FCC needs an enema to get the bug out its ass. As for airwaves, I'm still not sure where I fall. I've supported pirate radio for a long time; however, there is the issue of the wealthy (or groups such as the religious whackos on tv) that could maintain their broadcasts over what many people would be able to do. In essence, we would have Hollywood (and all the watered-down crap that comes from it in order to serve the broadest base) running tv, funded by rich organizations. I do realize that we are not far from that as it stands, but as I said, the FCC needs a high-colonic.

Man, I haven't thought about this stuff in a while. I had sort of given up once the war started.

8:14 AM  

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