Superinjunctions and the rule of law

6503

superinjunctions-and-the-rule-of-law

Britain’s furore over legal gagging orders – superinjunctions – raises some serious questions for rights and the rule of law in a free society.

Do people have a right to privacy? Well, I have certain information, such as my bank login codes, that I think should be protected from being made known to the public, so yes. But should that extend to, say, the illicit affair of a top footballer, whose wife and children could be damaged by the media circus surrounding its revelation? Are ‘pro-family’ politicians fair game if they cheat on their spouses? But should politicians who make no moral pronouncements be allowed privacy with respect to their private lives?

One thing that is certain is that the rule of law isn’t working. There is one law for the rich who can afford to take out gagging orders, and another for the poor who can be libelled but cannot afford the huge cost of defending themselves. Until we make the courts a lot cheaper – and that means denationalising them and opening the legal profession up to competition – such injustice will remain.

And how far can or should one country’s courts attempt to block information that is freely available elsewhere? The law can’t defend people against reality, and the reality is that the superinjunction names are all out there.

Press freedom is essential, though. Back in 1957, the editor of the Express, John Junor, was called to the Bar of the House of Commons and made to apologise for revealing the special petrol allowances that MPs granted themselves. We need our leaders to be held to account.

Our legal system should follow reality, not try to distort it. That means that politicians and celebrities will need to follow a new rule. Don’t do anything that you are not prepared to see reported in the News of the World. The amazing thing is (as the expenses scandal showed) how few of them actually follow this rule. But in the age of instant and cheap information, what other option is there?

Super-injunctions and the right to privacy

6427

super-injunctions-and-the-right-to-privacy

Free speech is one of the few liberal totems that has been adopted across the political spectrum, but sadly only nominally. The current debate around “super-injunctions” – gagging orders that prevent the press from even reporting the injunction, let alone the person involved – highlights this. (For anybody wondering who has taken these out, a quick Twitter search should be helpful.)

The right to privacy is usually invoked to justify this gagging of speech, but what does this right actually constitute? The logic of the injunction-backers implies that the right to privacy should mean that we may not say true things about people if it will embarrass them. Well, ok – I’ll be sure to remember that next time someone reminds me of any silly things I’ve done while tipsy. Or maybe it means you can’t say it to an audience of a certain size – so soft talkers might be OK, whereas loud talkers are in trouble. Or maybe it’s just famous and/or rich people that have this right. I don’t fully understand the logic, possibly because there isn’t any.

Talk of a right to privacy is like the right to be loved in the UN’s Convention on the Rights of the Child. Both are noble sentiments, but meaningless without a description of how they’re enforced in the law. Under a libertarian system, people derive protections of their privacy from private property. For example, nobody should be able to find out what I get up to in my bedroom without my permission, but if I did the same thing in a public park, I wouldn’t be entitled to the same protections. The crime would be in bugging my room (or whatever journalists and governments do to spy on people), not in embarrassing me by reporting something I’ve done.

The same goes for the right to free speech. If I’m in your house and I start saying things you don’t like, you should have every right to eject me at any time – to do so would not be a violation of my rights, because it’s your property. I only have a right to speech on my property or that of a consenting party (in a newspaper, for instance).

So, back to super-injunctions. A gagging order is, simply, the use or threat of violence to shut people up from saying embarrassing things. To add insult to injury, this is only available to people with a lot of money. The state is a mercenary, after all. 

It would be nice if footballers’ affairs weren’t reported on, absolutely. But using state violence to shut people up isn’t how we should achieve that. No, we should not have a right to spy on people’s private property, but nor should people have a right to avoid embarrassment or hurt feelings. 

How the drug war created crystal meth

6424

how-the-drug-war-created-crystal-meth

When discussing the liberalization of our drug policy it is common to hear many concede that in regards to some drugs, cannabis in particular, the UK should move towards a more permissive policy. However, many people are more reluctant to advocate an equally permissive policy for drugs like crystal meth (methamphetamine). This reluctance is ill-founded, as when one examines the history of crystal meth it becomes evident that it is a creation of the drug war, as moonshine was a creation of alcohol prohibition during the prohibition years in the United States. Controlling it will simply lead to an even stronger drug being developed.

There can be no doubt that crystal meth is an extremely unpleasant drug. Crystal meth is highly addictive and one of the most dangerous of the illegal drugs to quit and has a high relapse rate. Users develop extensive neurological and physiological damage; one of the most debilitating and damaging of these effects is what is known as ‘meth mouth’ which results in the deterioration of the gum and teeth loss.

Despite its reputation and prevalence today, methamphetamine has been around since the nineteenth century in medicine and is still used in some medications today. But its use as a recreational drug is a relatively modern phenomenon. Why then, when there are less dangerous drugs with similar effects, is crystal meth even on the drugs market? The answer is that crystal meth is a creation of the drug war.

In Mark Thorton of the Ludwig Von Mises Institute's article, What Explains Crystal Meth?, he says:

…crystal meth is a cheap date; it has been referred to as the poor man’s cocaine. Cocaine and meth are both stimulants, so it is reasonable to assume that they appeal to the same subset of drug users. During cocaine’s heyday, meth was nearly extinct on the illegal market.’

However, during the drug war this changed as it became cheaper and safer for those who traded in cocaine to switch to a cheaper product. And so was born the drug we know today as crystal meth.

This is a pattern in other prohibitions. The prohibition of a substance does not eliminate demand, it only changes the nature of the market. During the prohibition of alcohol in the United States moonshine became a substitute for previously legal alcohol. Although having the same desired effect of alcohol before prohibition moonshine contained higher levels of toxins and was regarded as more dangerous previously available alcohol. Like many government policies, the prohibition of illegal drugs is motivated by good intentions. However, the unintended consequences have been disastrous with more potent and dangerous drugs entering the market.

The government should move towards a policy that allows for the free trade of substances that are currently prohibited – however brutal those substances are to their users. Such a policy, which moves towards total legalisation, would be effective in reducing crime and breaking the monopoly criminals have on the drugs trade, and reduce the tendency toward ever-stronger substances. A more realistic policy decision would be to move towards a system of decriminalisation as currently used in Portugal. A more liberal policy would allow for a safer environment for those who use the drugs, remove many stigmas currently attached to drug use, and make it easier for addicts to seek treatment.

Nudge theory and personal liberty

6389

nudge-theory-and-personal-liberty

I'm in Nassau (it's a hard life) at the Association of Private Enterprise Education meeting, where I've been catching up on some of the latest thinking on free-market and libertarian economic issues. This morning I got some interesting insights on the 'nudge' approach – constructing choices so that we all do the 'right' thing, such as saving more for our retirement or donating our organs to medicine – from a string of specialists including one with the engaging name of Adam C Smith.

Smith points out that the 'nudge' idea implies the existence of a policymaker who is doing the nudging. And as we know from Hayek, not to mention Buchanan, Tullock and Niskanen, policymakers are less than perfect. Indeed, economists figure that they have even more behavioural shortcomings than the rest of us. That's partly because the information they have, and on which they construct our choices for us, is less complete, and more out of date, than the information we have ourselves.

Another contributor, Dan Houser, contrasts a 'nudge' with a 'shove'. The latter, you feel. The former, you don't. The whole idea is that you are being manipulated without your knowledge. That, says Houser, is a very non-transparent policy. And non-transparency invites politicians and officials to promote their own, hidden agendas. It might even invite corruption. It certainly makes it difficult for the public or the media to check and control 'nudge' policies when they are, by design, unseen.

The classic illustration of the 'nudge' idea is of course the school cafeteria, where kids choose more healthy food if you put the less healthy stuff at the end or at the back. But that example illustrates another problem: how do you know what people's real preferences are if you are constantly manipulating their choices? Our ambition should be to understand our own human nature, not to obscure it, because if we obscure it we cannot deal sensibly with it.

And the school cafeteria illustration is fatally flawed anyway. Most of us think that it is quite right to constrain and channel the choices of children – that is how children learn behaviour that is beneficial to themselves and their fellow creatures. But I'm not sure what right a self-interested government has to treat us just as if we were children. Do you?

Candy is dandy, but liquor is quicker

6352

candy-is-dandy-but-liquor-is-quicker

Our drinking must be constrained by taxes, they argue, because people underestimate the health costs of alcohol use. Perhaps some people do. But it is a silly argument for taxing consumption, because ignorance cuts both ways. Some people surely overestimate the health costs, and those who have never drunk may underestimate the pleasure. Yet no one ever suggests subsidizing alcohol to counteract such errors. . . .

"Paternalism" is an unfortunate name for the policies that lead to this governmental micro-management of what ought to be private affairs. It suggests that, as in real families, the costs are borne by the parents. But they are not. Our political parents simply arrange for the costs to be paid by some of the children for the benefit others. More importantly, the term directs attention away from the demeaning consequences of these policies. They would be better called infantilism.

Jamie Whyte, "Adults of the world, unite!" – Wall Street Journal

Happy St Patrick's Day

6306

happy-st-patricks-day

The true danger is when liberty is nibbled away, for expedients, and by parts.

Edmund Burke, " Letter to the Sheriffs of Bristol (1777)"

British lecturers spying on their students

6303

british-lecturers-spying-on-their-students

A review of policy on radicalisation will call upon university and college lecturers to monitor radical students, according to the BBC. Of particular concern are students who might be vulnerable from radical groups trying to recruit them (no doubt the TNG will soon be under investigation). Lecturers would be encouraged to monitor course work for signs of extremism. It is as yet unclear what the detailed recommendations will say. The Radicalisation Review, chaired by LibDem Lord Carlile, will probably be published in May. The report is aimed at Islamist extremism.

The state telling lecturers to spy or to police the beliefs of their students should be fought tooth and nail by every freedom loving individual on four grounds:

1. This is clearly a free speech issue. Democracy and freedom can only survive if unfettered free speech is allowed. Outlawing or persecuting radical views will only result in those going underground (and becoming more exciting and cool as a result). Freedom can win from anti-freedom extremism in every open debate. Take for example the infamous Phelps family. Under the name of the Westboro Baptist Church, Fred Phelps and his family have picketed all sorts of events for many years – including veterans’ funerals – with a message of hate towards gays. Seeing them in action is cringe worthy and makes you feel ashamed to be a human like them. But the fact that they are allowed freely to express their views shows the whole world what plonkers they are and how bigoted and hateful their views are. Freedom wins: as a reaction against Phelps, more tolerance towards gays will result.

Reducing freedom of speech by outlawing or persecuting specific views is either lazy (not bothering to make the counter-argument in free and open debate), or defeatist. As Voltaire said: “I may not agree with what you say, but I’ll fight to the death for your right to say it”.

2. If we change our way of life, the extremists win. We should never suspend any form of freedom under pressure from extremists or terrorists. Freedom is our main selling point. It is why we can always win from them. I don’t want to smother you with quotes, but can’t resist another one: “He who sacrifices freedom for security deserves neither” (Benjamin Franklin).

3. A thought should never be a crime. A thought, including when it’s expressed in speech, harms nobody. It is only when the thinker or speaker or the audience acts upon it that it can become a crime against other individuals. The police and the judicial system deal with criminal acts.

4. Give students a break. University is the time when many are attracted to this or that form of extremism. Later, we sometimes regret it – but that’s part of the learning process. With views unfettered by social fear students are often at the vanguard of new and exciting change. Students are the first to stand on the barricades. Recently students were the first to oppose the tyrannies in the Middle East. Renewal seldom comes from those with a mortgage, 2.1 kids, a steady job and a semi (nothing wrong with those characteristics, of course).

Let’s leave the spying to MI5.

Would you like a nanny with that?

6299

would-you-like-a-nanny-with-that

For the first time, starting this month, Ofcom has allowed businesses to use product placements in British TV programmes. Businesses wishing to place their product must comply with Ofcom's rules, required under UK and European law, which include bans on the placement of not only alcohol, infant formula, foods high in fat, and cigarettes. Ofcom have decided that a good way to alert the British public of product placement is to insert a logo which will appear on the bottom of the screen to alert the viewers that a business has paid for their product to be placed in the program. While this move by Ofcom would strike many as fruitless, it is also betrays a worrying attitude towards the public and business.

Product placement is of course nothing new. Films through their history have been full of placed products that their producers have paid to be featured. The most recent James Bond film came under some criticism because of the favourable exposure Sony Ericsson received. Apple, Coca Cola and many car companies and fast food chains are known for the prominence of their products in films and television series. Many celebrities and athletes are paid millions of pounds to use or wear certain products. It’s hard to see why British TV viewers should be treated differently.

The objections raised to product placement assume that the public is too stupid or naive to notice when they are being sold something, and thus needs a government approved body to protect them. It also assumes that this agency will be competently run, which is a big assumption. But people can usually tell when they are being sold something. When someone sees advertising from Mercedes, Audi, Apple or Microsoft, they know that competing products and brands are being pitched to them.

That the advertising in question is being done via product placement is no different in principle to standard advertising: it is only the method that has changed. There is also, it seems to me, nothing wrong with someone buying Nike products because Roger Federer endorses them or buying Sony Ericsson phones because James Bond makes calls on them. Nor is there anything wrong with Nike paying Federer to endorse their products or for Sony Ericsson to pay United Artists for featuring their product.

The move by Ofcom should be reversed, as it is likely to annoy customers and make companies hesitant to invest as much money in product placement as they would were this decision not in place. Ofcom should also consider lifting the bans they have imposed on certain products, but being a government-created body bound by European law, I won’t get my hopes up.

Smoking and individualism

6285

smoking-and-individualism

On ‘No Smoking Day’ the government announced its intention to ban the display of tobacco in shops and to seriously considering requiring plain packaging for all tobacco products.

Both of these measures are fundamentally illiberal. Neither is justified based on the evidence (have display bans in Iceland and Canada further reduced youth smoking or helped people to quit? No.). And both will create all sorts of unintended consequences (display bans will cost shopkeepers thousands of pounds, plain packaging will severely exacerbate existing problems with counterfeiting).

But there’s a deeper sense in which I find the ‘war on tobacco’ disturbing. It seems to me that tobacco is at the coalface of a much bigger cultural battle, in which capitalism, individualism and rationality are all coming under relentless attack by the enemies of freedom.

Industries are vilified for lacking a so-called ‘social purpose’, regardless of whether they are providing a good or service that people freely want to purchase. The government spends our money on campaigns to ‘denormalize’ anyone who refuses to conform to the politically correct lifestyle ethic. Reason is rejected in favour of preachy junk science and tabloid-friendly scare stories.

I’m reminded of Ayn Rand’s The Fountainhead, and in particular Ellsworth Toohey’s speech to Peter Keating on how to rule the world:

Look at the moral atmosphere of today. Everything enjoyable, from cigarettes to sex to ambition to the profit motive, is considered depraved or sinful. Just prove that a thing makes men happy -- and you've damned it. That's how far we've come. We've tied happiness to guilt. And we've got mankind by the throat. Throw your first-born into a sacrificial furnace -- lie on a bed of nails -- go into the desert to mortify the flesh -- don't dance -- don't go to the movies on Sunday -- don't try to get rich -- don't smoke -- don't drink. It's all the same line… Kill the individual. Kill man’s soul. The rest will follow automatically.

The Coalition's war on smokers and shopkeepers

6277

the-coalitions-war-on-smokers-and-shopkeepers

The ASI's Director, Eamonn Butler, was one of several think tank-heads to co-sign the letter below, published in today's Daily Telegraph. Hopefully someone on Whitehall will sit up and take notice.

---

SIR – Today, smokers are asked to observe No Smoking Day. They may also finally get to hear Government proposals that could ban the display of tobacco products in retail outlets, and only allow tobacco to be sold in plain, state-prescribed packaging.

If the Coalition is committed to defeating the enemies of enterprise, as David Cameron, the Prime Minister, claims, a good start would be to call a halt to the relentless campaign to “denormalise” smoking through an endless barrage of new controls, directives and diktats.

Mr Cameron claimed last weekend that he would wage war on bureaucrats who concoct ridiculous rules and regulations. Banning the branding of tobacco products or making cigarettes an under-the-counter product would be yet another victory for these very bureaucrats. Life would become more difficult for newsagents and tobacconists and easier for the providers of illicit tobacco to pass off their wares as legitimate.

We cannot yet be sure about whether the Prime Minister’s commitment to combating regulation and red tape is truly serious. If his Government now unveils proposals to further restrict the sale and purchase of tobacco, it will be a clear sign that his new commitment to enterprise is little more than political rhetoric.

Yours, etc,

(signed)