Skepticlawyer

Various people wrote thoughtful responses to my piece on the distinction between principled and means-end limits to law in the context of the ongoing Melinda Tankard Reist v Jennifer Wilson dust-up. I was rather busy last week and so didn’t respond; I figured I ought to respond, so here are some comments and thoughts (still, as is inevitably the case, somewhat unformed).

First up, I would like to draw attention to Russell Blackford’s excellent post in response to mine, especially his accurate summary of the abortion research that I only touched on in my piece. Russell notes:

At the other end of the scale, consider someone who wants to ban abortion on the ground that it ends up harming (causing grief, psychological trauma, etc., to) the women who choose to have abortions. This is going to be much more difficult. Sure, you can find women who regret having abortions, just as you can find people of both sexes who regret doing all sorts of things. But you’re going to have to do a helluva lot better than that if you want to make out this sort of paternalistic argument for banning or heavily regulating abortions. Among other things, you need to be confident (which means you need to do some research) that banning abortion won’t produce harms of its own and perhaps make things worse.

As it happens, anti-abortion advocates often claim that abortion leads to “post-abortion syndrome” – a state of mind involving depression and feelings of loss – but there has already been a fair bit of research on how women actually feel after having abortions. Some do feel guilt (but surely this is a self-serving argument, given the source of some of that guilt in social condemnation!), but the most common feelings involve such things as relief. The “post-abortion syndrome” meme is best seen as a form of scaremongering and bullying.

That this dodgy research is still being deployed is evidenced by the behaviour of Nadine Dorries MP over here in the UK. Her reliance on data that would get you failed if handed in for a first year statistics assignment has (among other things) led to David Cameron enjoying a joke at her expense in the House of Commons and Diane Abbott resigning from the cross-party consultation group on abortion counselling that Cameron threw in Dorries’s direction as a sop after he’d taken the piss out of her. A rather large number of people (including some feminists) rushed to Dorries’s defence, which surprised me — I’ve long held the view that if one uses one’s gender or race as the substantiating basis (ie, claiming special knowledge) of an argument (something Dorries does with abortion, and various spokesmen for groups like Fathers for Justice do with respect to custody issues), then humour at the expense of one’s gender or race is par for the course.

On the substance of the post itself, March Hare made the following observation:

A good article, but it leaves one with the impression that an activity that one ‘feels’ is wrong AND has evidence to show it produces harm (and that a law would reduce this harm) should be outlawed.

I cannot help but think that as long as the activity is between consensual adults and the only people harmed are informed participants, then there is no justification for outlawing such a thing. No matter how most people feel about it.

I’m not saying that is your position, simply that it’s the impression this otherwise outstanding post left me with.

It seems I haven’t made myself sufficiently clear (a perennial problem in  jurisprudential writing), although as blog regulars know, I lean towards the ‘do nothing’ or ‘legalise, regulate and tax’ end of the legislation spectrum when it comes to limits of law disagreements. This is the four-stage test I outlined:

When one is making means-ends arguments, one has to do four things:

1. Show that the activity is harmful.

2. Show that the enactment of laws against it would reduce the harm.

3. Show that the enactment of laws against the activity would not damage other, valued activities.

4. Accept that even if the first three requirements are satisfied, impossibility/difficulty of enforcement may still mean ‘do nothing’ or ‘legalise, regulate and tax’.

The second requirement, it should be noted, is onerous. ‘About the same’ is not good enough. The reduction in harm needs to be material and quantifiable. If the law exacerbates the harm, or does nothing while costing a fortune, or achieves a little bit while damaging another, valued activity, then it has failed.

I should have pointed out (with greater clarity) that although 2 is onerous, proposed legislation often falls over at 3, even where positive harm reduction has been adduced. This is why we no longer try to ban smoking or drinking, and is at the core of Ron Paul’s arguments against the War on Drugs. We also have to be careful with ‘legalise, regulate and tax’, too: just because smoking is harmful doesn’t mean that it should be regulated so onerously that enjoying it becomes too difficult.

Traditionally, governments have been able to extract vast sums in revenue from smokers because demand has been relatively inelastic, however, even demand inelasticity on this scale has its limits. There is now a widespread problem of cigarette smuggling in the UK from other EU countries where cigarettes are cheaper, often facilitated by the Comorra (Neapolitan Mafia). It is very hard to get through to the anti-smoking lobby that the solution is to lower the tax rate, not ramp up policing. Even partial prohibition does not work well.

Of course, when it comes to speech and expression bans (on porn, or films, or advertising), the conflict is even clearer, simply because freedom of expression often sits at the apex of constitutional rights (in countries with written constitutions) or capacities (in countries without written constitutions, or with a Roman law tradition focussing on capability-talk rather than rights-talk). Here, the option is nearly always ‘legalise, regulate and tax’ where there is a clash of rights/capacities, but as is clear from Collective Shout’s website, Melinda Tankard Reist regularly campaigns for bans.

That point shades into another excellent comment, this time from Su:

I had a scout around on the blog and I can see they have made representations to the Senate Classifications scheme review and the recommendations of that review definitely took account of Collective Shout’s submissions. The one outcome that I can see that approaches a ban is that the review recommended upholding the states’ ban on sales of X rated movies by restricting their mail order distribution from the NT and ACT where they are legal. So in effect that is merely closing a loophole.

I know she has been advocating the Swedish abolitionist approach to sex work. The evidence that this model actually makes women in the industry less safe is very substantial AIU. Decriminalization is not the panacea for all ills but it is a necessary precondition both for ensuring some degree of safety for workers and tackling the issue of genuine criminality in the industry.

Wilson’s post does its own conflation: it conflates women’s sexuality (we can all agree that that should not be regulated) and the production of advertising images and a particular product, pornography, which is overwhelmingly produced in a male dominated industry. There is feminist porn and there is porn produced by women for women including lesbian porn, but this is only a small part of the market. Now there is a huge logical leap from considering advertising images and commercial media to equating that with women’s sexuality.

I don’t think anyone would argue that advertising is representative of women’s sexuality and it is arguable for pron, depending on who made it and under what circumstances. If you read Jenna Jameson’s memoir, you would not conclude that the pron industry in which she participated was much concerned with reflecting women’s sexuality. I know this is a separate issue to what if any particular legal framework should be adopted but I thought this was a huge problem with the argument.

I must admit that I didn’t know that Collective Shout have been advocating the abolitionist approach to sex work, a known and serious policy failure in the countries that have adopted it, so that is something that is worth bearing in mind. The Swedish policy is based around decriminalizing prostitution but convicting Johns, thereby attacking the end ‘user’.

This in itself need not be all bad: the Romans arrested men who made use of streetwalkers (they called their Johns ‘Marcus’, which I find hilarious), but this was not because prostitution was illegal, far from it — the Romans represent the epitome of the ‘legalise, regulate and tax’ model — but because they had strong views about what should and should not happen in public places. People who wanted to engage in prostitution or avail themselves of a prostitute had to do so inside a building, preferably under management. For some reason, only women were permitted to own and manage brothels — even gay brothels — and the rationale offered by the jurists was an explicit public safety one (women treated the prostitutes of either sex better, even when the latter were slaves). This legal quirk later passed into various iterations of the Code Napoléon. The Swedish system, however, is designed to stamp out prostitution altogether, and has exactly the effects Su describes.

The next issue Su raises is really extra-legal, and I suspect part of my response represents a core political difference between us: how much does it matter that a given industry represents (or does not represent) ‘women’s sexuality’? Does it matter if something is mainly produced by men? (This may be true of porn but I suspect is arguable when it comes to advertising; advertising as an industry attracts many women. I would need to see data.) Is it something the law can address (never mind ‘should’)?

Also, it is worth remembering that there is a distinction between harms to users of a good or service, and harms to those who provide the good or service. As I mentioned in my earlier post, arguments linking porn to user harm are very weak. However, it may be that it is a dangerous industry in which to work, although it would need to be legalised, regulated and taxed to ascertain just how dangerous it is. It is known, for example, that timber-getting and commercial fishing are ‘dangerous jobs’; there are fatalities every year, even in western countries. Timber-getters fall out of trees; commercial fishermen are swept off decks in storms. Mining used to be very dangerous, too, as did building and construction, and even now the danger has never been fully obviated. It may not be possible to remove the danger altogether.

Su’s ‘extra-legal’ point did put me in mind of another issue that I think is germane, however, although not directly related. I raise it here for completeness.

I think it is very important for people to be able to make taste discriminations when it comes to cultural products of any kind, from porn to Prokofiev, regardless of how much those taste discriminations hurt the person/s generating the product. It is important to be able to say ‘I think what you’ve written/sung/filmed/produced/etc is just junk’.

However, it has become increasingly difficult in recent years to criticise cultural products generated by groups that have successfully claimed the ‘victim’ or ‘oppressed’ tag. To say that ‘rap is crap’, or that such-and-such Aboriginal writer really isn’t up to much has become very hard to do, and often earns the critic the epithet ‘racist’. This means that people who dislike a given cultural product are forced to make statistically tenuous ‘harm’ arguments in lieu of what they really think. When feminists criticise rap on this basis, they are placed in an invidious position, as Brendan O’Neill points out:

Of course, these misogyny-battling activists would freak out if anyone dared compare them to the square wives of late-1980s America who successfully fought to have “Parental Advisory” stickers put on every album with violent or sexist lyrics. Yet there isn’t a cigarette paper’s difference between those old censorious women of Washington who just didn’t like brash black music and today’s hip-hop haters who claim only to be concerned about the belittling of women by hip-hop superstars. In both instances, the campaigners are gripped by an urge to censor, to blot out ugly or ridiculous words and phrases, and are possessed of a patronising desire to protect fans from their own worst instincts. Where Tipper and Co patronisingly believed hip-hop might turn young black men into violent cop-haters, the new, more feministic-sounding anti-hip-hop lobby thinks it might turn them into sexist beasts. In depicting hip-hop fans as being easily warped by what they hear, these feminists with an allergy to free speech are effectively updating that infamous line from the Lady Chatterley trial in 1960: “Would you let a black man listen to this?”

O’Neill may be overstating his case somewhat, but the similarity between certain schools of feminism and ‘God’s Police’ is plain for all to see, and would have been obviated twenty-five years ago if people had felt able to make honest taste judgements on black music. My problem with Kanye West (the subject of O’Neill’s article) is that he is utterly without talent — he cannot sing, his music is derivative (Stronger was pinched from these guys), and he would misspell ‘cat’. If you want to add misogyny to the mix feel free, but the issue is separable from that. My criticism is given extra piquancy by the fact that West comes out of a musical tradition that once contributed as much to humanity’s musical achievements as Mozart or Brahms. One assumes that Messrs and Mesdames Davis, Holiday, Fitzgerald and co have probably reached the earth’s core by now from spinning so hard in their graves.

Indeed, I am willing to suggest that one of the reasons so much black music has gone down the quality drain in recent times is partly because — for fear of being racist — critics started holding black musicians to a new, lower standard. Perhaps we all need to be reminded how awful it felt to have a teacher write ‘good attempt’ on our report cards. Expecting less from minorities because they have been historically oppressed is like the brightest kid in the school patting the slow kid on the head and saying ‘you did your best’. One of the comments to Brendan O’Neill’s piece captures this process very well:

Can’t help feeling that if white working class kids had invented this degenerate crap, they’d be condemned without hesitation.

He’s correct, of course, but that condemnation would be for the right reason: if white people produce crap, critics are not afraid to call it ‘crap’. Look at John Cougar Mellencamp.

Obviously, I haven’t dealt with every issue, but I’ll just note that Russell Blackford has also written several excellent posts on the extent to which people should reveal their motives and affiliations, grasping every nettle along the way such that I have nothing to add. He has also flagged the chilling effect of defamation law on freedom of speech, something that I wish to consider in some detail in a future post (there is more to the issue than meets the eye, alas, as is always the case with the ancient torts).

Finally, Jennifer Wilson herself made a rather striking observation, one that I failed to make at the time, I’m ashamed to say:

One of feminism’s struggles has been about giving women a voice. So it was initially with amusement and later indignation that I saw two of Australia’s most public feminists, Eva Cox and Anne Summers, describe me in their articles as a blogger being threatened by Tankard Reist. Not even a female blogger, thank you very much, and Cox says I’m a nit picker to boot. She doesn’t name me, but she says I’m nit-picking. Any man who did that to a woman writer would be flayed.

[...]

Interestingly, every other account of the stoush I’ve read in blogs and the MSM has named me. I become anonymous and stereotyped only in the leading feminists’ pieces.

[...]

While I don’t believe that either Summers or Cox was being malicious, their failure to use a woman’s name in an article about feminism indicates a troubling forgetfulness as to what feminism is about.

Both women have since apologised for the oversight.

Quick lesson in legal manners for mesdames Summers and Cox: when one is discussing impending or actual civil litigation, it is customary to name both plaintiff and defendant. It’s called ‘the publicity principle’ and is a rather large part of the rule of law.

Defamation will have to wait until next time!