The Media's Right to be Disgusting

February 2001 -- "There is no right to do wrong." So said Alan Keyes used to say during his presidential campaign. Apparently, he either did not grasp or did not care that freedom implies the right to do wrong, inasmuch as a person permitted no option but to walk the straight and narrow does not walk this path freely. Of course, libertarians know well the truth of that observation, but today it demands a rider: Freedom exists only when the right to do wrong is more than nominal.

With public funds, administrative regulations, and liability law seeping into every corner of our lives, true freedom exists only if the right to do wrong is not abrogated by the oblique controls these tools allow.

This thought is provoked by the recent campaign to persuade Hollywood and the recording industry to adopt, voluntarily, regulations that would lessen the violence and sexuality of their products. One leader of this campaign was the late Steve Allen, and he was an admirable choice as spokesman. For one thing, he was no prude. In his day, Allen had been a cutting-edge comedian and, as he confessed, had told more than his share of "blue" jokes in the country's adult clubs. Secondly, Allen was long-time leader of the secular humanist movement and could not, by any stretch of the imagination, be identified with the Religious Right. Lastly, Allen was a dyed-in-the-wool liberal and his opposition to censorship was beyond question. When he said that he spoke of using only private persuasion, such as shame and boycotts, no one could doubt his sincerity.

Unfortunately, what Allen the liberal could not see was that the victories of modern liberalism have effectively destroyed the private-public distinction in America. One notable step in eradicating that divide was the case of Shelley v. Kramer (1948), in which the U.S. Supreme Court overruled the Supreme Courts of Missouri and Michigan to find that state enforcement of a "restrictive covenant" (a private contract forbidding the sale of a home to blacks) constituted racial discrimination by the government. A second major step was the Civil Rights Act of 1964, which forbade racial discrimination by a private facility deemed to be a "place of public accommodation." Another significant step was the Supreme Court case Bob Jones University v. U.S. (1983), which held that an "an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy." More recently, liberals have sought to drive the Boy Scouts from every venue tinged with a public connection, citing the organization's policy towards homosexuals.

Thus, in the end, it made no difference that Allen's July 1999 "Appeal to Hollywood" said emphatically, "we are not asking government to police the media." The appeal was signed by Senator Kay Bailey Hutchinson (Republican of Texas), Senator Sam Brownback (Republican of Kansas), Senator John McCain (Republican of Arizona), and Senator Joe Lieberman (Democrat of Connecticut). And predictably the attempt to maintain a distinction between private pressure and public coercion did not last long.

One year later, Brownback convened a "Public Health Summit on Entertainment Violence" at which four leading health organization issued a joint statement linking media violence to violent behavior in children. The American Medical Association, the American Academy of Pediatrics, the American Psychological Association, and the American Academy of Child and Adolescent Psychiatry proclaimed: "Children exposed to violent programming at a young age have a higher tendency for violent and aggressive behavior later in life than children who are not so exposed."

The next step was almost inevitable. If a causal connection could be established, then the government could bring the media to heel by unleashing, joining, or facilitating lawsuits, just as it did with the tobacco companies. The beauty of that approach, as Ed Hudgins pointed out in the December Navigator, is that coercive acts like the tobacco settlement are not technically acts of government regulation and thus not subject to the same limitations. That point has not been lost on Washington. "'Those are deep pockets,' says one Republican staffer, referring to the studios. 'It may actually be the trial lawyers who would help us, bizarrely enough.'" Said another staffer: "'It's starting to look more and more like Big Tobacco. . . . We've found our Joe Camel'" (John Meroney, "John McCain, Culture Warrior," The American Enterprise, January/February 2001). In short, the federal government will honor Hollywood's First Amendment right to make violent films. But if children see them, despite the industry's best efforts, politicians will make sure it is hit with hundreds of billions of dollars in damages.Senator Hutchinson was more direct. Without bothering to argue that violent films harm young viewers, she took the industry rating system as a starting point and declared "I don't think it's working." She then threatened that, if the industry did not make the system work-somehow-it would "see some kind of legislation because parents are throwing up their hands in frustration." This past January, the Federal Communications Commission "suggested" that television broadcasters "could" refrain from airing movie ads or other material inappropriate for children when a significant number of children might be watching.

Now, some libertarians have tried to fight these threats by citing studies that show no connection between media violence and violent behavior. (See "Naughty Pictures," by Jacob Sullum, at  http://www.reason.com/sullum/080200.html ) And there is nothing wrong with citing such studies, if they are accurate. The liability threat does turn partly on these factual issues. More important, however, is the issue of responsibility. What children "at a young age" are exposed to--not occasionally exposed to, but repeatedly and redundantly exposed to--is the proper responsibility of their parents, not the government or the media. It is quite understandable that today's parents are throwing up their hands, or just throwing up, at the behavior of their children. But that is a social, cultural, and philosophical problem, not a political one. Parents--most of whom want what is best for their children--need sound, non-PC information about effective child-rearing. The only remotely political aspect to the situation is for bureaucrats and edu-crats to restore to parents the power to guide the growth of their children in accordance with such information.

To say that much, however, is the easy part of the argument. Less palatable is the need to defend the media's right to produce a tidal wave of disgusting material. And that is said without irony. Broad distinctions among cultural products are not matters of personal taste, and today's media, at their worst, are certainly as appalling as their severest critics say. But that is neither here nor there. If freedom is to survive, the media must have the right to do wrong.

Nor can this be only a nominal right. When government was smaller, one could simply defend the right of revolting people not to be subjected to obvious and overt coercion. Today, we are called to a much harder task. Because government now invades people's lives by any plausible means, on any plausible excuse, we must work with those we actively despise to ensure they are not denied by indirect methods any reasonable means of exercising their rights to the full.

In the case of Hollywood, as noted above, several junior-level commissars who serve as congressional staff are plotting to use liability law against the film industry. Their employers, apparently Republican congressmen, should be reminded that the essence of a free society is self-responsibility. Kids have long been seduced by "bad company," and some have no doubt been seduced into crime. But that is a problem to be handled by parents and their children. It is no answer to destroy those who constitute "bad company."

Meanwhile, several senator-censors threaten to control Hollywood by distinguishing between the making of films (which they piously proclaim to be protected under the First Amendment) and the marketing of films (which they deride as merely business). The proper response, though Hollywood may not care to hear it, is that the mind is free in a jail cell. But a human being does not have freedom unless he is protected in mind andbody, thought and action, ideas and industry.

This article was originally published in the February 2001 issue of Navigator magazine, The Atlas Society precursor to The New Individualist.

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