Religious Conduct of Commerce: Unwinding the Hobby Lobby Case

There is a lot of confusion surrounding the Supreme Court’s recent ruling in Hobby Lobby. The libertarian perspective has been discussed elsewhere, but what the Court actually did is not being described accurately despite the fact that they helpfully include a “syllabus” summarizing each ruling for the public. Apparently, some people, including many reporters, can’t be bothered to read even the summary. Therefore in the interest of clarity, I will try to give a brief overview of the case and of the majority’s reasoning in their decision. For the sake of brevity, citations are omitted because they can be found in the actual decision.

First some background. Contrary to what some people have claimed, objections to general laws on religious grounds do excuse you from having to follow them. This wasn’t always the case. In the early 90s, the Supreme Court ruled that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest” because allowing someone to object on the basis of religion to such laws “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” In response, Congress passed the Religious Freedom Restoration Act (RFRA), overturning the Supreme Court’s decision and allowing challenges to neutral laws that burdened religious exercise. Under the RFRA, “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The people affected by such a burden are entitled to exemption from the rule unless the government “demonstrates that application of the burden to the person– (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Many people have said that the Affordable Care Act (ACA), i.e. “Obamacare”, requires employers’ group health plans to provide coverage of contraceptives. This is not correct. The ACA merely requires the plans to cover “preventive care and screenings” for women without “any cost sharing requirements.” Congress left it up to the Health Resources and Services Administration (HRSA) to decide specifically what types of care this includes. When the HRSA issued regulations specifying what was required, they mandated that all FDA approved contraceptive methods be covered. They also provided for a religious exemption for religious organizations and non-profit religious corporations. Per the requirements of the RFRA, they apparently would also provide a similar exception to unincorporated for-profit businesses operating according to the owner’s religious principles. They did not provide an exception for incorporated for-profit businesses with corporate policies stating that the businesses would be run according to religious principles. Importantly, granting this exemption does not mean that the employees of these organizations will not have contraceptive coverage. Rather, it means that the insurance companies and ultimately the government will provide this coverage at no cost to the employer or the employees.

Now for the case. [click to continue…]

Was Robin Hood a Marxist?

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Simon Schama could use a dose of classical-liberal theory. Most of us can be forgiven for knowing Marxist theory better than the liberal tradition — it’s hard not to drink Marxism in with our schooling and culture — but popular historical narrative really does suffer by the omission of the "bourgeois historians" whom Marx himself credits as the precursors of his class theory.

In the BBC TV series A History of Britain, Schama asks about the English Peasants’ Revolt of 1381, "Was this a class war, then?" (A term, he explains parenthetically that "we’re not supposed to use since the official burial of Marxism.") A pause, while the camera angle changes to closeup. "Yes," he says plainly. "It was."

"Not surprisingly," writes Schama in the print version of A History of Britain, "it was in the second half of the fourteenth century that the legends of Robin Hood … first became genuinely popular."

But as I write in "Class War in the Time of Robin Hood" in today’s Freeman, Schama is appealing to the wrong class theory if he wants to explain the mindset of the commoners marching on London in the 14th century.

I’m far from the first to offer a libertarian revision of Robin Hood’s politics, but where I focus on the ideology of his earliest historical audience, most other treatments focus on the particulars of the legend.

Some examples:

On the other hand, Ayn Rand seems to have been happy to leave Robin Hood to the socialists:

"It is said," Rand has Ragnar Danneskjöld concede in Atlas Shrugged, that Robin Hood "fought against the looting rulers and returned the loot to those who had been robbed, but that is not the meaning of the legend which has survived.

What do you think: is Robin Hood worth claiming for our tradition?

When Evil Institutions Do Good Things: The FCC’s PTAR Law

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In my Freeman article "TV’s Third Golden Age," the summary subtitle that the magazine chose was "Programming quality is inversely proportional to regulatory meddling." I couldn’t have said it better. But does that mean that everything the FCC does makes television worse?

All laws and regulations have unforeseen consequences. That usually means unintended damage, but there’s no law of history that says every unplanned outcome is pernicious.

If you’re an advocate of a free society — one in which all arrangements are voluntary and there is the least coercive interference from governments or other thugs — history will present you with an unending series of conundrums. Whom do you side with in the Protestant Reformation, for example? The Catholic Church banned books and tortured scholars, and their official structure is one of hierarchy and authority. Easy enemy, right? Clear-cut bad guy. But the Church had kept the State in check for centuries — and vice versa, permitting seeds of freedom to root and flourish in the gaps between power centers. Whereas the Protestant states tended to be more authoritarian than the Catholic ones, with Luther and Calvin (not to mention the Anglicans) advocating orthodoxy through force. There’s a reason all those Northern princes embraced the Reformation: they wanted a cozier partnership of church and state.

This is certainly not the history I was taught in my Protestant private schools.

Similarly, most of us were schooled to side with the Union in the Civil War, to see Lincoln as a savior and the Confederacy as pure evil. But as much as the war may have resulted, however accidentally, in emancipating slaves, it also obliterated civil liberties, centralized power, strengthened central banking and fiat currencies and — to borrow from Jeffrey Rogers Hummel’s great book title — enslaved free men.

"Father Abraham," as the pietists called him after his assassination, was a tyrant whose primary goal was always what he actually achieved: central power over an involuntary union. Recasting this guy as an abolitionist hero is one of the many perverse legacies of America’s official history. But it’s a mistake to simply reverse the Establishment’s verdict and claim that the Confederacy was heroic. Plenty of Johnny Rebs were fighting a righteous battle against what they rightly deemed to be foreign invaders, but even if you ignore the little problem of the South’s "peculiar institution," the Confederate government was no more liberal than its Northern rival. "While the Civil War saw the triumph in the North of Republican neo-mercantilism,” writes Hummel, “it saw the emergence in the South of full-blown State socialism.”

Reading history without taking sides may fit some scholarly ideal (actually, it seems to be a journalistic ideal created by the Progressive Movement to masquerade their views as the only unbiased ones), but it is not a realistic option. We cannot do value-free history. If we try, we instead hide or repress our biases, which makes them a greater threat to intellectual integrity.

Neither can we say, "a plague on both their houses," and retreat to the realm of pure theory, libertarian or otherwise. We have to live in the real world, and even if we are not activists or revolutionaries, the same intellectual integrity that must reject "neutrality" also requires that we occasionally explore the question of second-best or least-evil options.

I remember several years ago, when my very libertarian boss surprised me by speaking in favor of increased regulation of banking. His point was that the banks were not free-market institutions; they were government-created cartels enjoying a political privilege that protected them from the consequences of the market while they surreptitiously depleted our property and spoiled the price system that drives all progress in the material world. Ideally, he’d want the government out of banking altogether, but in the meantime having them do less damage was better than letting them do more.

It may seem anticlimactic to follow the Reformation, Civil War, and fractional-reserve banking with a little-known FCC rule about TV programming from almost half a century ago, but I’ve been reading television history for a while now (1, 2, 3, 4) as illustrative of larger patterns in political history.

The Prime Time Access Rule (PTAR) was a law instituted in 1970 to limit the amount of network programming allowed during TV’s most-watched evening hours.

According to industry analyst Les Brown, the PTAR was adopted

to break the network monopoly over prime time, to open a new market for independent producers who complained of being at the mercy of three customers, to stimulate the creation of new program forms, and to give the stations the opportunity to do their most significant local programming in the choicest viewing hours. (Les Brown’s Encyclopedia of Television)

If you still accept the official myth that the airwaves are "That most public of possessions given into the trust of the networks," as Harlan Ellison describes them in The Glass Teat, and that the federal government’s job is to manage the radio spectrum in the best interests of that public, then I’m sure you don’t see any problem with PTAR. (You can read my paper "Radio Free Rothbard" [HTML, PDF] for a debunking of this official piety.)

But a libertarian could easily jerk his or her knee in the opposite direction. How dare the central government tell private station owners what they can and can’t air on their own stations, right?

The problem with such an ahistorical take on the issue is that broadcast television was a creature of the state from the beginning. Radio may have had a nascent free-market stage in its development, but television was a state-managed cartel from the word go.

So am I saying that PTAR was a good thing? Is it like the possibly beneficial banking regulations imposed on a cartelized banking system? Should we view CBS versus FCC as the same sort of balance-of-power game that Church and State played before the early modern period of European history?

Maybe, but that’s not why I find PTAR an interesting case for the liberty-minded historian. As is so often the case with laws and regulations, PTAR’s main legacy is in its unintended consequences.

"Despite the best of intentions," writes historian Gary Edgerton in The Columbia History of American Television, "the PTAR failed in almost every respect when it was implemented in the fall of 1971."

[P]ractically no local productions or any programming innovations whatsoever were inspired by the PTAR. In addition, any increase in independently produced programming was mainly restricted to the reworking of previously canceled network series, such as Edward Gaylord’s Hee Haw and Lawrence Welk’s The Lawrence Welk Show.… Rather than locally produced programming, these kinds of first-run syndicated shows dominated the 7 to 8 P.M. time slot.

This renaissance of recently purged rural programming was certainly not the FCC’s goal, but the creation of the first-run-syndication model is one of the great unsung events in media history.

A quick note on terminology: to the extent that I knew the word "syndication" at all when I was growing up, I took it to be a fancy way of saying "reruns." For example, Paramount, the studio that bought the rights to Star Trek after the series was cancelled, sold the right to rerun the program directly to individual TV stations. When a local TV station buys a program directly from the studio instead of through the network system, that’s called syndication. But syndication isn’t limited to reruns. Studios created first-run TV programs for direct sale to local stations as far back as the 1950s, but they were the exception. The dominant syndication model was and is reruns. But two events created a surge of first-run syndication: (1) PTAR, and (2) the rural purge I obliquely alluded to above.

I write about the rural purge here, but I’ll summarize: as the 1960s turned into the 1970s, television network executives did an about-face on their entire approach to programming. In the 1960s, each network tried to win the largest possible viewership by avoiding controversy and appealing to the lowest common denominator in public tastes. This meant ignoring the rift between races, between generations, and between urban and rural sensibilities — what we now call red-state and blue-state values — in the ongoing culture wars. This approach was dubbed LOP (Least Objectionable Program) theory.

Basically, this theory posits that viewers watch TV no matter what, usually choosing the least objectionable show available to them. Furthermore, it assumes a limited number of programming choices for audiences to pick from and implies that networks, advertising agencies, and sponsors care little about quality when producing and distributing shows. (Gary Edgerton, The Columbia History of American Television)

By the end of the decade, however, NBC vice president Paul Klein (who had christened LOP theory just as its tenure was coming to an end), convinced advertisers that they should stop caring so much about total viewership and focus instead on demographics, specifically the Baby Boomers — young, politically radicalized, and increasingly urban TV viewers — who were most likely to spend the most money on the most products. CBS was winning the battle for ratings, but Klein pointed out that their audience was made up of old folks and hicks, whereas NBC was capturing the viewership of the up-and-comers.

Klein may have worked for NBC, but it was CBS who took his message to heart, quite dramatically. In 1970, the network rocked the TV world by cancelling its most reliably popular shows: Petticoat Junction, Green Acres, The Beverly Hillbillies, Mayberry RFD, Hee Haw, Lassie, and The Lawrence Welk Show.

In Television’s Second Gold Age, communications professor Robert J. Thompson writes,

CBS, in an effort to appeal to a younger audience made socially conscious by the turbulent 1960s, had dumped its hit rural comedies in the first years of the 1970s while their aging audiences were still placing them in Nielsen’s top twenty-five. Critics, who for the most part had loathed the likes of Petticoat Junction and Gomer Pyle, loved some of what replaced them.

I loved what replaced them, too: Mary Tyler Moore, All in the Family, M*A*S*H, and the like. "Several members of Congress," Wikipedia informs us, "expressed displeasure at some of the replacement shows, many of which … were not particularly family-friendly." But that was the point: the networks were no longer aiming to please the whole family: just the most reliable consumers.

But despite capitalism’s cartoonish reputation for catering only to the bloated hump of the bell curve, that’s not how the market really works. It is how a cartel works, and the broadcast networks behaved accordingly, both before and after the rural purge. In the 1950s and ’60s, they aimed for the largest possible viewership and to hell with minorities of any sort. The demographic revolution changed the target, but not the tactic: aim for the big soft mass. That’s certainly how the big players would behave in a free market, too, but the telltale sign of freedom in the economy is that the big players aren’t the only players. Fortunes are made in niche markets, too, so long as there aren’t barriers to entering those niches. As I’ve said, TV is descended from radio, and Hoover and his corporatist cronies had arranged it so that there could only be a few big players.

That’s where we come back to the FCC’s Prime Time Access Rule of 1970. PTAR created a hole at the fringe of the prime-time schedule, just as the rural purge was creating a hole in the market. All those fans of Hee Haw and Lawrence Welk didn’t just go away, and they didn’t stop spending their money on advertised products, either. Before PTAR, the multitude of fans of "rural" programming would have had to settle for mid-afternoon reruns of their favorite shows (the way Star Trek fans haunted its late-night reruns around this same time). But the rural fans didn’t have to settle for reruns, and they didn’t have to settle for mid afternoons or late nights. They could watch new episodes of Hee Haw or Lawrence Welk at 7 PM. In fact, those two shows continued to produce new episodes and the local stations, which were no longer allowed to buy from the networks for the early evening hours, bought first-run syndicated shows instead. The Lawrence Welk Show, which had started in the early 1950s, continued for another decade, until Welk retired in the early ’80s. And the repeats continue to run on PBS today. Hee Haw, believe it or not, continued to produce original shows for syndication until 1992.

I loved Mary Tyler Moore, and I didn’t care so much for Lawrence Welk, but what I really love is peaceful diversity, which cannot exist in a winner-takes-all competition. The rise of first-run syndication was a profound crack in the winner-takes-all edifice of network programming.

The strategy CBS, NBC, and ABC had gravitated toward for short-term success — namely, targeting specific demographics with their programming — also sowed the seeds of change where the TV industry as a whole would eventually move well beyond its mass market model. Over the next decade, a whole host of technological, industrial, and programming innovations would usher in an era predicated on an entirely new niche-market philosophy that essentially turned the vast majority of broadcasters into narrowcasters. (Gary Edgerton, The Columbia History of American Television)

This idea of "narrowcasting" is the basis of quality in entertainment (and freedom in political economy, but that’s another story).

I’m not out to sing the praises of the FCC for increasing economic competition and cultural diversity — these consequences were entirely unintended — but we do have to recognize PTAR as a pebble in Goliath’s sandle, distracting him for a moment from David’s sling.

Second Thoughts on Leoni, Hayek, Legislation, and Economic Calculation

My libertarianism has been fairly consistent over the years, especially since I morphed from Randian minarchist to Rothbardian anarchist around about 1989 or so (my last gasp in the minarchist camp was in a 1989 article; see Then and Now: From Randian Minarchist to Austro-Anarcho-Libertarian). I’ve been a pretty steady Rothbardian-Hoppean-Austrian anarcho-libertarian since then, for about 25 years. I try to develop my views carefully, systematically, precisely, and incrementally, building on, referencing, and integrating with previous things I’ve figured out. Sort of like the Kinsellian/libertarian common law.

On occasion I realize I made a mistake and try to regroup or redress it. Sometimes it’s just a matter of emphasis, like my de-emphasis in recent years of American constitutionalism (see Down with the Fourth of July and On Constitutional Sentimentalism)  and certain changes in emphasis in terminology (I now prefer  the term state to “government,” aggression to “coercion,” and refer to the object of ownership or property rights as a scarce resource rather than as “property,” primarily to avoid the equivocation that statists invariably engage in). I also think I slightly misstepped in my previous criticism of Rothbard on inalienability (see Inalienability and Punishment: A Reply to George Smith), though I stand by my criticism of Rothbard’s IP views and his debtor’s prison comments (I plan to elaborate on this soon). I’m also a little bit more gun-shy about engaging in armchair theorizing now than I was as a young pup. [click to continue…]

Against the Libertarian Cold War

A controversy has arisen in the libertarian movement over the proper approach to the events concerning Russia, Ukraine, and Crimea. Like many such controversies, it has quickly polarized almost everyone, and has served as a proxy for long-standing factionalism within the movement. People quickly accuse each other of supporting Putin’s aggression or backing violent U.S. intervention. I myself have been accused of both kissing up to the Russian regime and dishing out State Department propaganda. This doesn’t itself show I have the right balance in my position, only that this feud has galvanized libertarians and hardened their rhetorical loyalties.

We might learn something from looking back at the 20th century. During the Cold War, most western critics of state power erred too far in one direction or the other. There were some whose opposition to U.S. wars led them to soften their assessment of communist aggression. Free-market and leftist lovers of peace both made this mistake. At the same time, many who favored economic and political liberty often let their anti-communism translate into support for American militarism and the security state. This confusion pervaded Americans across the spectrum.

We can all see this now: Yes, some antiwar Americans were obscenely soft on the communists. Well-meaning but foolish westerners said nice things about Lenin, Stalin, and Mao—and many of a more moderate tinge had no perspective of just how much worse international communism was than the U.S. system, at least as it concerned domestic affairs. Meanwhile, many libertarians and almost all conservatives ditched their supposed attachment to skepticism of government power and signed onto the U.S. Cold War effort. This American project included dozens of coups and interventions, the instruction of foreign secret police in unspeakable torture techniques, murderous carpet bombings that killed hundreds of thousands of peasants, and wars that indirectly brought about the Khmer Rouge and the rise of Islamist fundamentalism, both of which also became directly funded in the name of anti-communism.

It is easy to look back and see how westerners were wrong on both the Cold War and communist states—each of which killed millions of people and nearly brought the world to the brink of nuclear holocaust.

[click to continue…]