The Right to Say “I Do” versus the Right to Say “I Don’t”

Legal System
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GayStripesThe New Mexico state government has become significantly more gay friendly in the last week or two.

Sadly, one result is that individual freedom in the state is on the wane.

On Monday, a New Mexico judge ruled that the state’s marriage law "doesn’t specifically prohibit gay marriage," and the next day court clerks began issuing same-sex marriage licenses.

I look at the photographs of gay and lesbian couples tying the knot yesterday in Albuquerque, and I feel moved by them. Knowing how they’ve struggled to achieve the moment captured in those pictures, I feel much happier for them than I would for most strangers. And I think of the same-sex couples I know, none of them married by any legal definition, and I wonder if the piece of paper would matter to them.

This is how the state tricks libertarians into supporting the growth of government power.

I’m not suggesting that anyone in the government is actually concerned about the beliefs and political stances of self-described libertarians — we’re far too small a group for the Powers That Be to care what we think — but anyone who believes that individuals have any inalienable rights is, to at least that limited degree, libertarian in their thinking. And it is that libertarian instinct that the political class appeals to for increases in legislation and the growth of the state.

The marriage-law ruling comes one week after another so-called gay-rights case:

"Refusal to photograph New Mexico same-sex couple ruled illegal"

I can’t recall why Robert Anton Wilson stopped supporting the ACLU and started giving his money instead to the Fully Informed Jury Association (FIJA). But if you ever needed evidence that the ACLU is an anti-libertarian organization (whose name should really have the word "liberty" in scare quotes), then this case should be conclusive.

Joshua Block, an attorney with the American Civil Liberties Union, which represented the couple, said the ruling rejected a "frighteningly far-reaching" argument for allowing private companies to discriminate against gays and lesbians.

"The Constitution guarantees religious freedom in this country, but we are not entitled to use our beliefs as an excuse to discriminate against other people," said Louise Melling, also of the ACLU.

As one comrade said recently, "Thank God for the ACLU. Who else would stand up for a gay couple’s right to force a company to provide them services unwillingly?"

The photography case isn’t about gay marriage, but it nevertheless highlights why many libertarians are reluctant to support gay-marriage legislation.

Should gays be allowed to marry? At first glance, that seems like a no-brainer to advocates of individual rights. To a supporter of liberty, the question becomes, "Who has a right to stop them?" In our view, anyone (well, let’s say any mentally competent adult) has a fundamental right to make contracts with anyone else (again, consenting adults, to keep the argument on track). And while it may offend romantic sensibilities — or even personal experience — to think of marriage primarily as a contract between individuals, contract is nevertheless the proper public component of such a private union. (By this same reasoning, we support the rights of polygamists, assuming consenting adults, etc.)

But the state turns the gay-marriage issue into a sort of trick question. Because the current legal definition of a marriage is both more and much less than a mutually beneficial arrangement between the spouses: it’s a set of coercive obligations imposed on third parties.

Again, the photography case was not about gay marriage but about antidiscrimination laws, but the two are linked, because any business that, to use the ACLU’s terminology, "offers services to the public," is already burdened with legislation dictating what they can and cannot do, whom they may and may not employ or serve, and even in jurisdictions where sexual orientation is not already included in antidiscrimination laws, those laws could automatically grow to include gays and lesbians when state-sanctioned marriage (under whatever name) is applied to same-sex couples.

So the gay-marriage issue is contentious even within the libertarian movement because it practically requires us to conflate two very distinct questions:

  1. Should any adult be denied the right to "marry" any other consenting adult?
  2. Should other individuals be forced to recognize such unions?

The first question is a no-brainer, and it’s the one most people have in mind when they say they support gay marriage.

The second question is equally straightforward for a libertarian, and yet, in the current context, it conflicts with the answer most of us want to give to question #1.

Antidiscrimination laws are a violation of freedom of association.

Telling me whom I can and cannot hire or whom I must or must not serve professionally is like telling me whom I may or must befriend, date, or marry. Even the most ardent opponent of discrimination would probably scruple to force a black girl to date a white hillbilly, or a Muslim man to marry a Jewish woman. Statists believe it’s their business whom I hire or fire and whose business I must accept. But even they stop short of telling me whom I must invite into my home or into my family.

Even if we want to promote open-mindedness and persuade each other to see past the categories of religion, race, sex, and orientation, very few would be comfortable forcing personal associations on people through coercive legislation. Yet many on the Left advocate tirelessly for such coercion against businesses, without seeing it as the same issue — even when the business is just one individual trying to make a living.

I don’t want the state to discriminate against gays or any other group. But the recent developments in New Mexico will not reduce the problem. The larger and more intrusive the state becomes, the more it has to side with one group against another, feeding on conflict as it sows the seeds for ever more.

Anyone who is serious about liberating gay and lesbian couples should demand that the state get out of the marriage business altogether — and let people associate freely, not under duress, whether or not their choices strike us as enlightened.

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Price Theory a la Rupert Murdoch

(Austrian) Economics
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RupertMurdochRupert Murdoch was buying up online properties in the mid 1990s, trying to do with the newly commercial Internet what he had done with FOX television during the previous ten years or so. One of his new acquisitions was a gaming company here in Charlottesville. My friend and I became the two "web guys" for the company. It was my first full-time job in the private sector.

When I was discussing my yet-to-be-submitted laugh-track article with Paul Cantor and I mentioned that it was competition from HBO and FOX that pushed canned laughter into retreat, Professor Cantor recommended the book The Fourth Network: How FOX Broke the Rules and Reinvented Television by Daniel M. Kimmel.

He says it was his main source for this lecture:

"When Is a Network Not a Network?" (It’s a great talk!)

I said, "You know, I used to work for Rupert Murdoch."

"Don’t you realize," Cantor quipped, "at some point EVERYBODY has worked for Rupert Murdoch."

Charlottesville, perhaps like most university towns, is famously left-wing. Rupert Murdoch was infamously right-wing long before FOX News became the unofficial media arm of the Republican Party. So I sensed a definite ambivalence, sometimes defensiveness, among my co-workers about the guy in charge. One thing I remember people saying with great respect, however, was that Rupert Murdoch had built his media empire by paying not what property was worth but rather what it was worth to him.

That struck me as profound at the time.

What they meant was this: Rupert Murdoch didn’t think of a newspaper as just a newspaper, a TV station as just a TV station. He thought about them as nodes in a network he was building. This meant he outbid his competitors who saw these organizations as single units of profit and loss, whereas Murdoch saw them as part of a bigger picture: what would they contribute to the larger plan?

FourthNetworkCoverFrom the The Fourth Network:

If there was a single turning point in the history of the FOX network, a moment when the Big Three became the Big Four, it occurred in December 1993 with the simple announcement that NFL football was coming to FOX the following season.

One of the NFL’s attorneys recalled,

"What FOX offered us, the league, was the potential of having a bidder who needed the games, wanted the games, and was willing — in a sense — to overpay for them."

Why would a savvy entrepreneur overpay for anything?

As FOX exec Lucie Salhany later recalled,

"When Rupert took over, Rupert was his most phenomenal. ‘I want it, I have a vision, I’m willing to pay for it.’"

The author comments,

As he had with so many other properties, Murdoch had paid more than the market thought it was worth because he saw a greater opportunity there.

What was his vision? It turns out that 70 percent of the NFL’s viewing audience had never watched FOX.

Salhany again:

"So, in the end, it was actually a bargain to acquire the rights to the NFL to promote the rest of [FOX’s] schedule. It was cheaper. If you went out and spent the same amount of money to promote it, it wouldn’t have been as effective."

What strikes me now is not how brilliant Murdoch was as an entrepreneur (although he was and is) but how my game-company colleagues worded their praise for the man — and what it revealed about the people giving the praise:

Rupert Murdoch didn’t pay what something was worth but rather what it was worth to him.

Notice the unstated assumption that there is such a thing as value independent of an individual evaluator, almost as if "worth" is objective, but Murdoch had the genius to see it as subjective.

Only when I started to read economics almost a decade later did I come to understand that all value is subjective. Consumers pay whatever they feel will benefit them more than the next best thing they could have done with that money, whatever seems better than the opportunity forgone. The difference between consumers and entrepreneurs is twofold:

  1. Consumers pay for things as direct ends in themselves, goods that will directly satisfy their subjective needs (consumers’ goods); whereas entrepreneurs pay for things as the means toward achieving other ends (capital or producers’ goods).

  2. Consumers can make direct price comparisons between, say, a cup of Starbucks coffee and a cup of diner coffee, or between a MacBook and a Windows laptop, but ultimately the comparison isn’t much of a calculation — it remains a subjective preference for the thing purchased over the forgone option; entrepreneurs, however, need to combine the objective data of recent prices for all their factors of production and compare the result to their personal predictions for what people will pay for the final product.

The successful entrepreneur is the better predictor, the more innovative producer, or both.

When my co-workers praised Rupert Murdoch for pricing factors more presciently or using them more innovatively, they were just saying, in essence, that he was a good entrepreneur. Maybe they understood that. Maybe what they meant by "what it’s worth" was what the current market consensus is for this factor’s future earnings, discounted for time, and assuming no innovation.

I certainly didn’t understand that they were merely describing what an entrepreneur does, and admiring Murdoch for doing it so much better than everyone else.

(Cross-posted at InvisibleOrder.com.)

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Too little, but not too late: Eric Holder begins to roll back the drug war

Drug Policy, Legal System
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More than forty years after the U. S. government launched the modern drug war, its highest-ranking prosecutor has tacitly admitted that it is a legal and moral failure:

In a major shift in criminal justice policy, the Obama administration moved on Monday to ease overcrowding in federal prisons by ordering prosecutors to omit listing quantities of illegal substances in indictments for low-level drug cases, sidestepping federal laws that impose strict mandatory minimum sentences for drug-related offenses.

Attorney General Eric H. Holder Jr., in a speech at the American Bar Association’s annual meeting in San Francisco on Monday, announced the new policy as one of several steps intended to curb soaring taxpayer spending on prisons and help correct what he regards as unfairness in the justice system, according to his prepared remarks.

Saying that “too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Mr. Holder justified his policy push in both moral and economic terms.

At the risk of giving Holder too much credit, it is encouraging that he is not viewing his end-run around mandatory minimums for drug offenses in purely utilitarian terms: he recognizes the injustice of current laws which have contributed to the world’s highest incarceration rate. But it’s worth noting that these reforms follow the lead of several conservative Southern states, which have turned to treatment, diversionary programs, and early release for non-violent offenders as a way to relieve prison overcrowding. Texas, far and away the nation’s leader in executions, has experienced a steady drop in its prison population after adopting sentencing reforms aimed at rehabilitation instead of imprisonment, and is actually closing prisons it no longer needs.

Whether Holder’s proposed reforms will have a similar effect on federal prison populations remains to be seen. One caveat is that this does not represent any long-term reform of the actual mandatory minimum sentencing guidelines. Holder is simply using his prosecutorial discretion to not issue indictments that could lead to lengthy prison terms. The laws are still on the books and only Congress can change or repeal them. Should Obama or his successor appoint a more enthusiastic drug warrior, even this modest progress could be reversed. It’s also unclear who will qualify as a “low-level” drug offender. Your friendly neighborhood pot dealer may get lucky with this policy change, but it’s unlikely that purveyors of harder stuff will be unrelated “to large-scale organizations, gangs, or cartels” in the feds’ view.

But it’s a start. If President Obama wants to leverage the political capital he’ll gain from these reforms, he could take even more dramatic action to reduce prison populations by using his clemency powers to reduce the sentences of minor drug offenders. But as he has demonstrated throughout his time in office, Obama’s mercy for incarcerated Americans is quite limited.

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Hiroshima, Nagasaki, and the U.S. Terror State

War
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Being a U.S. war criminal means never having to say sorry. Paul Tibbets, the man who flew the Enola Gay and destroyed Hiroshima, lived to the impressive age of 92 without publicly expressing guilt for what he had done. He had even reenacted his infamous mission at a 1976 Texas air show, complete with a mushroom cloud, and later said he never meant this to be offensive. In contrast, he called it a “damn big insult” when the Smithsonian planned an exhibit in 1995 showing some of the damage the bombing caused.

We might understand a man not coming to terms with his most important contribution to human history being such a destructive act. But what about the rest of the country?

It’s sickening that Americans even debate the atomic bombings, as they do every year in early August. Polls in recent years reveal overwhelming majorities of the American public accepting the acts as necessary.

Conservatives are much worse on this topic, although liberals surely don’t give it the weight it deserves. Trent Lott was taken to the woodshed for his comments in late 2002 about how Strom Thurmond would have been a better president than Truman. Lott and Thurmond both represent ugly strains in American politics, but no one dared question the assumption that Thurmond was obviously a less defensible candidate than Truman. Zora Neale Hurston, heroic author of the Harlem Renaissance, might have had a different take, as she astutely called Truman “a monster” and “the butcher of Asia.” Governmental segregation is terrible, but why is murdering hundreds of thousands of foreign civilians with as much thought as one would give to eradicating silverfish treated as simply a controversial policy decision in comparison?

Perhaps it is the appeal to necessity. We hear that the United States would have otherwise had to invade the Japanese mainland and so the bombings saved American lives. But saving U.S. soldiers wouldn’t justify killing Japanese children any more than saving Taliban soldiers would justify dropping bombs on American children. Targeting civilians to manipulate their government is the very definition of terrorism. Everyone was properly horrified by Anders Behring Breivik’s 2011 murder spree in Norway – killing innocents to alter diplomacy. Truman murdered a thousand times as many innocents on August 6, 1945, then again on August 9.

It doesn’t matter if Japan “started it,” either. Only individuals have rights, not nations. Unless you can prove that every single Japanese snuffed out at Hiroshima and Nagasaki was involved in the Pearl Harbor attack, the murderousness of the bombings is indisputable. Even the official history should doom Truman to a status of permanent condemnation. Besides being atrocious in themselves, the U.S. creation and deployment of the first nuclear weapons ushered in the seemingly endless era of global fear over nuclear war.

However, as it so happens, the conventional wisdom is an oversimplification at best. The U.S. provoked the Japanese to fire the first shot, as more and more historians have acknowledged. Although the attack on Pearl Harbor, a military base, was wrong, it was far less indefensible than the attacks on Hiroshima and Nagasaki’s civilian populations.

…

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Hedy Lamarr Bet on the Wrong Horse

Business, Current Articles, History, Pop Culture, Science, Statism, Technology, War
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NakedHedwig

“Hedy stands naked in a field. She looks off-camera in dismay as her horse gallops away with the clothes she had draped over its back to take a dip in a woodland pond.”


That’s the opening line of my article “Putting Hedy Lamarr on Hold,” featured today in the Freeman.

I shared a draft with a writer friend of mine over the weekend. She is far more educated and literary than I am. She saw a parallel between the opening scene and the larger story that I confess I was not conscious of. I thought I’d just been going for sex appeal.

Here’s more of the opening:

She is not called Lamarr yet. That name will come later, in Hollywood. For now she is still Hedwig Kiesler, a Viennese teenager in Prague, playing her first starring role in a feature film, Ekstase (“Ecstasy,” 1933). The controversial Czechoslovakian film will become famous for Hedy’s nude scenes (which are not sexual) and its sex scenes (which show only her face, in close-up, in the throes of passion).

The film will give Hedy her first taste of fame. She will be known as the Ecstasy girl. An Austrian director will tell the press, “Hedy Kiesler is the most beautiful girl in the world.” Later, MGM movie mogul Louis B. Mayer will repeat the claim, using the name he insisted she change to: Hedy Lamarr.

But while the world of her time will remember her for her photogenic beauty, history will remember her as the inventor of frequency hopping, the foundational technology of today’s mobile phones and wireless Internet. [FULL ARTICLE]

FreemanHedyThe piece goes on to explain how Hedy invented frequency-hopping spread spectrum during World War II and why it took so long for that invention to usher in the wireless Internet age. Short answer: the government kept the technology secret for decades. Not only did Hedy Lamarr not see a cent from her invention; she didn’t even get credit for it until the end of the century.

So here’s what my writer friend said:

The more I think about it, the movie image you start with — Hedy looking at her runaway horse and thinking, ok now what? is exactly what you describe in your title: Hedy Lamarr on hold. She’s on hold in the movie (for a moment, I guess — given the movie title, I imagine that she’s not alone for long) and then her invention is on hold for a much longer time. … A Hollywood starlet and inventive genius who made millions in the market surrendered her most innovative idea to Leviathan, who stifled it. And she did so, ironically, because of a lack of imagination on her part — a naive faith that the state would protect and serve its citizens.

(By the way, I’m especially pleased that FEE decided not only to feature my article but also to use the image I put together for it!)

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