Legal Moralism and the FCC: Wherein I Invite the Cocksucking-Shithead-Motherfuckers at the FCC to Fuck Off

by Joe Miller

First, a big welcome to all of you who just found this site while looking for porn. I'll just throw in the words 'teen'’ and 'MILF'’ and I should pretty much capture the highly-coveted Comic Book Guy demographic.

For everyone else, welcome to (another) defense of free speech. I'’ve been thinking some lately of the so-called '“Hart-Devlin Debate'” current in the philosophy of law about 40 years ago or so. For those not so up on 40-year-old trends in academic philosophy and law circles, the Hart-Devlin Debate concerns the concept now known as legal moralism, or the view that society is justified in using the law to enforce its commonly-accepted conception of morality. I was reminded of the debate while listening to Peter Singer discuss Mill's harm principle at the Mill Bicentennial earlier this month. Singer wanted to defend certain paternalistic laws (namely, seatbelt laws) on utilitarian grounds while rejecting legal moralism for reasons much like the ones that Mill offers in On Liberty. Singer'’s solution: he claims that the reason for opposing legal moralism is that the sorts of activities that legal moralists typically attempt to restrict aren'’t really immoral anyway. So he rejects legal moralism on the grounds that it would use the law to restrict actions that are perfectly permissible from a moral perspective.

I'm not so sure that I buy Singer's defense here. It strikes me that his argument is dangerously illiberal. Once my justification for allowing some action A is, 'It'’s perfectly moral to A,'” then it seems to me that I'’ve abandoned the principle of state neutrality in favor of a principle that establishes law based on one particular conception of the good. The fact that I happen, mostly, to agree with Singer'’s conception of the good (I'’m a utilitarian too, though a hedonistic utilitarian rather than a preference-satisfaction utilitarian) means that I'm inclined generally to favor the same types of actions that he might want to enshrine in the law. I think, however, that there are good utilitarian reasons for adopting a principle of state neutrality. I'’d sketch those reasons here, but Mill has already done such a nice job of it that it seems like a waste of time to reinvent the wheel here.

Anyway, I was thinking of the topic in somewhat generic abstract terms when some of my students were discussing George Carlin's '“Seven Words You Can Never Say on Television'” (yes, I know, not exactly current events. There were, I think, two people in that room who were alive when Carlin released that album. I was just barely one of them) during a break in my War and Morality course. That led me to think some about possible arguments for restricting (I'’m tempted to say '“censoring'” here, but I don'’t want to beg the question) what can be said on network television. What follows are, as far as I can tell, the (first two of four) main arguments in favor of FCC restrictions.

1. The public owns the airwaves and can thus restrict them as they see fit.

This one initially has at least a bit of plausibility.[1] After all, private individuals are free to do as they wish; when their property is in question, they may restrict the freedoms of others in all sorts of ways. Landlords, for example, can refuse to allow me to pain the walls of my apartment neon orange regardless of whether I think that neon orange walls would really nicely set off my new teal sofa. The problem, though, is that airwaves are not held by a collection of private individuals. Nowhere at any time has each individual been issued a stock certificate for a portion of the electromagnetic spectrum. Nor have regulations restricting the use of said spectrum ever been the result of a shareholder’s meeting. Rather, the government owns the spectrum (supposedly on behalf of the people, with a big emphasis on '‘supposedly'’) and the FCC, an unelected body, creates and establishes rules.

Of course, there is a big difference between the sorts of things that private joint stock ventures can morally do and the things that a state can do. States ought to be neutral with respect to the good. That means that, in a liberal democracy, there are going to be limits on what sorts of laws individuals are permitted to enact. And laws that are grounded in a particular conception of morality are going to be ruled out, even if lots of people accept that conception of morality. Indeed, the Framers of the Constitution worried far more about those views that had overwhelming support than they did about those views that had only weak support.

2. Certain shared moral standards are necessary if any society is to survive, so enforcing those standards may well be a necessary function of government.

This is essentially Devlin's argument. Let me first say that this is, at its bottom, an empirical claim, and it's one that doesn't seem likely to be particularly true. After all, our society has endured for rather a lot of years despite the fact that we hold some pretty radically different moral standards (slavery anyone?). Empiricism aside (facts? I'm a philosopher; don't bother me with facts), from a theoretical standpoint, Devlin's argument been pretty thoroughly dismantled by two generations of small-l liberals, starting with Hart and still popping up occasionally in legal-philosophical circles. Consider Bernard Williams' characterization of Devlin's argument:

1. Activity X is wrong
2. Activity X is wrong in the functional sense, i.e. for the persistence of that society
3. Therefore Society S has the right to do what is necessary to preserve its own existence; it may do what is necessary to suppress Activity X

The problem is that (3) doesn't follow from (1) and (2). It hardly follows from the fact that a society will disintegrate if X is suppressed that a society ought therefore be permitted to prohibit X. After all, some societies are morally degenerate (again, slavery in the Confederacy or more recently Afghanistan under the Taliban). So the mere fact that permitting some activity may lead to the collapse of a society is insufficient grounds for suppression of that activity.

The argument works only if we reinterpret (2) to say something like

2. Activity X is objectively wrong.

The problem, of course, is that however convinced I may be that Activity X is objectively wrong, I can't really be certain that I'm right. Indeed, the only way that I can really discover the truth, it seems to me, is by allowing what one might call experiments in living. If I don't, then I run the risk of error. I'm trying to remember who it is who makes an argument like this. Some 19th C Brit, I think...

There are (at least) two more arguments often given. One accepts Mill's harm principle and then argues that obscenity harms children. The second, is Joel Feinberg's modification of the harm principle, the offense principle. As this post is already starting to drag on a bit, though, I'll take up these (and any others that occur to me in the meantime) in a future post.

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[1] Or at any rate, it'’s plausible if we ignore the oddity of saying that someone can own a particular section of the electromagnetic spectrum. You would, I think, quite rightly reject my claim to own the wavelengths between 400 and 750 nm, and my subsequent claim that I could then regulate anything that appears in those wavelengths. (Ed: the spectrum between 400 and 750 nm is the entire range of visible light).