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Archive for the ‘libertarianism’ Category

Every libertarian has a pet peeve, and mine is paternalism. Yes, I am deeply disturbed by the warspolice militarization, Obama’s pursuit of whistleblowers, regulations which make it illegal to do math without a license, and many other freedom-snuffing things. But the kind of stuff that gets me most riled up are laws to protect people from themselves.

It is impossible to have a discussion of these laws without referring to the following passage from John Stuart Mill’s influential work On liberty. The sentence in bold from the excerpt below is usually called the harm principle and is a cornerstone of libertarianism.

The object of this Essay is to assert one very simple principle … That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

I suspect that many liberal-progressive types agree with the harm principle on some level. So they often tend to justify paternalistic laws not on paternalistic grounds but on the grounds of limiting negative externalities. For instance, in their support for motorcycle helmet laws, their argument might echo that of the Massachusetts high court, which in 1972 (when it affirmed that a motorcycle helmet law was rationally related to the public welfare) declared:

From the moment of injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job; and, if the injury causes disability, may assume the responsibility for his and his family’s continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned.

In other words, your decision to ride un-helmeted harms other people, and so society can rightfully coerce you to wear a helmet.

The word “harm”, of course, needs to be interpreted narrowly in order that the harm principle be meaningful. A harsh word hurts. Breakups hurt. Abandoning your wife and going off with someone else may cause intense emotional harm. Everytime I buy something from X and not from his competitor Y, I am harming Y and favoring X. All these activities are legal, and should be.  Only kinds of harm that directly violate others’ rights (by causing violence upon them, or depriving them of their life, liberty, or property) should enter into the calculus.

Still, it is clear that if society is forced to pay extra because of someone’s recklessness, it is indeed a harm inflicted by the reckless individual upon the other members of society; who then might be justified in their intervention. This is what the high court affirmed in its ruling. In doing so, however, the court committed an elementary (but common) mistake; the failure to consider the alternative. The pertinent questions — when considering whether there should be a helmet mandate — are the following:

  • Does a person who rides unhelmeted cause a negative externality greater than one who wears a helmet?
  • Can any such negative externality be removed (i.e. internalized) without resorting to a helmet mandate?

Let us tackle the first question first. It is almost an article of faith among many that the unsafe and the unhealthy incur higher health costs. However, a recent study by Dutch researchers found that smokers and the obese typically cost less to society than the average person, the reason being that they die younger. It is likely that similar conclusions hold for several other activities that the safety brigade frowns upon. There is no doubt that a typical mountaineer or a base jumper spends much less over his lifetime on health and hospital costs than your average grandpa. So even if one lives in a jurisdiction where health costs are socialized, the argument that these people cost more to society, and hence their unhealthy/unsafe activites should be restricted, is specious.

The data on motorcycle helmets is more ambiguous. Some studies have found that riding unhelmeted reduces health costs per person (for the same reason as above, namely untimely death). Others have found a slight increase. For instance a 1996 NHTSA study showed average inpatient hospital charges for unhelmeted motorcyclists in crashes were 8 percent higher than for helmeted riders ($15,578 compared with $14,377). Now, that’s a small difference, and it is worth noting that the study only considered motorcyclists who were actually admitted to a hospital. When those who die on the spot are included, it is quite possible that riding unhelmeted actually reduces costs to society. There is also evidence that helmet mandates make little difference to  insurance premiums. Currently there are 30 American states where there is no universal helmet law for motorcyclists. There are 20 states where such a law does exist. The health insurance premiums across these states show almost no correlation with helmet laws. None of this is to say that it is good to be reckless or unhealthy, merely that the claim that by doing so you cost extra to society is often not true.

For the sake of argument, however, let us assume that there is indeed a significant negative externality associated with the act of not wearing a helmet. I would argue that this does not justify a mandate. What it does justify are steps to internalize this externality. How can this be done? By making sure that those who ride helmetless pay for the consequences. Here’s a proposal: Every motorcyclist who does not wear a helmet should be forced to either a) carry adequate insurance, or b) have proof of sufficient personal funds, or c) pay a certain amount of money annually into a common pool that would pay for any accident related costs not covered by their insurance; the amount would be empirically adjusted to ensure that unhelmeted motorcyclists, as a group, are cost-neutral for the taxpayer with relation to their helmeted counterparts, or d) sign a waiver that no part of their health or other costs reasonably attributable to their decision to not wear a helmet can be charged to the taxpayer. Furthermore, insurance companies, if they wish, should be allowed to charge an extra premium on helmetless riders.

People often go bonkers saying that they do not care to pay for risky decisions taken by others. Well, they don’t need to! Switzerland, the country I currently live in, has the right attitude about some of these things. The Swiss mountains are beautiful but many of the activities people love to do here (hiking, skiing, mountaineering, sledging, climbing, paragliding, base-jumping and so on) carry inherent risks. They do not ban any of these things here or mandate protective gear (a recent straw poll on a Verbier ski-slope found almost everyone, including the helmeted, opposed to compulsory ski-helmets) or even skimp on the protections. In fact, every time someone is in trouble and calls for help so that he can be airlifted out, a helicopter comes in swiftly for the rescue. What they do later, however, is to make an airlifted person pay the bill. Unless, of course, the person is already a patron of REGA, which one can do by paying a measly sum of 30 francs. Most avid adventurers choose to do so, and this small fee (which is basically an insurance premium) covers any heli-rescues they may need to avail of. So if you happen to need an airlift, and you aren’t a REGA patron, you pay for your rescue to the last cent. If you are a patron, you don’t pay anything. Externality internalized.

The proposal on internalizing public costs due to helmetlessness that I briefly sketched above is similar in spirit. I really don’t see how anyone committed to the harm principle can reject such a proposal and continue to defend helmet mandates. Yet, I know from experience that many will. I think the reason is that many of those arguing for mandates on grounds of externalities haven’t really thought carefully about externalities, nor do they really care. As evidenced above, the externalities related to motorcycle helmets, whether positive or negative, are most certainly negligible as a fraction of total costs; no one will notice any real difference in taxes or insurance premiums whatever the helmet law. There are all kinds of legal activities that people regularly do that create far, far, larger externalities, or involve much bigger risks. Then there’s the fact that the people who call loudly for helmet laws (whether it be motorcycling, cycling or skiing) only do so when someone tragically dies, but they barely notice it if someone is injured and requires expensive long-term care. Yet it is the former that actually saves the taxpayer money. When these same people resort to the specious “externality” argument while debating their helmet laws, I want to scream at them: “Stop arguing in bad faith.”

In fact, the act of riding a motorcycle itself is highly risky; whether or not one wears a helmet makes a difference in only a small number of cases (if a motorcyclist gets into a serious crash, a helmet will rarely save him). Yet very few people would support actually banning motorcycles. If one only cared about externalities and costs to the taxpayer, one should support regulations and counteracting measures roughly in proportion to the size of the externalities. In reality, the regulations reflect the size of the moral disapproval. It is stupid to ride without a helmet. It is such a completely unnecessary risk. Riding helmetless or not wearing a seatbelt is incredibly foolish. There should be a federal law stopping all these. Period.

The true reason behind paternalism (whatever the purported reason) is the desire of people to impose their values on others. Quite simply, paternalists ignore that different people have different values. Like all nannies, they think they know best. They decide what risks are acceptable and what risks are unnecessary. They fail to see that maximizing health is not the same as maximizing happiness. To some people, the joy of riding down a hill, unencumbered by a helmet, unweighed by laws, feeling the wind in your face and hair, is indeed worth the risk of severe injury or death. Besides, there is an inherent value to freedom. As Jacob Sullum put it, when it comes to how people feel about their lives, they may well prefer to make their own bad choices rather than have better ones imposed on them.

Most people has a deep seated urge to control others and bring them to the “right” path. It is important to be able to recognize this urge as the greatest evil. Libertarians oppose laws that mandate helmets or seatbelts, and those that prohibit drug use, prostitution, raw milk sales and the infinitely many other things the unwashed masses are supposed to keep away from. Yes, we personally may not indulge in or encourage most of these behaviors. But we recognize our decision to do so for what it is, an exercise of our own values and cost-benefit analyses, which may not match those of others.

***

The group was driving south on Route 11 in Lafayette around 1:30 p.m., headed toward Lake Como, just south of the Finger Lakes. It was a nice day, but they were there to make a point.

In the group was Philip Contos, from Parish, NY, and he was 55 years old. They were participating in a helmet protest ride initiated by ABATE, an organisation that opposes mandatory helmet laws. A beautiful day it was, but Philip’s bootlaces got stuck in a chain. The biker looked down to inspect the problem, looked up and saw traffic slowing and slammed on the brakes. The bike fishtailed, and he was ejected. He hit the ground with a crunch and he died on the spot.

He died on the spot. What did he die for? Was it to preserve his freedom to be an idiot, a rebel, a reckless individual? Perhaps he would have survived if he was wearing a helmet. But then again, if there was no law in New York that mandated helmets, he would not be out protesting that day, that beautiful day, and maybe his shoelaces would have not stuck in the chain…. His brother, Richard Contos, said Philip would do it again, if he could. “He would have wanted it that way. … He protested everything.” So, who was this man who protested everything?

I never met Philip Contos, but I feel joined to him. 

He died defending the freedom to be himself, to be free of moral busybodies telling him how to lead his life. I would probably wear a helmet if I did ride a motorcycle, but if I were in New York that makes it illegal to ride without one, I’d probably be joining Contos in his protest.

Helmets make one safer. But safety is just one thing among many. We do not have to live life in a way that maximizes safety. We have the right to make whatever trade-offs we wish in our personal decisions. He died defending this sacred right.

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Another day, another outrageous attack on free speech. Colorado resident Phillip Greaves was arrested a week ago by Florida cops on obscenity charges. His crime? Writing a book on pedophilia called: The Pedophile’s Guide to Love and Pleasure: A Child-Lover’s Code of Conduct. The cops, posing as buyers on the internet, got him to mail a copy of the book to them and then flew to Colorado to arrest him.

I haven’t read the book, but it is apparently not — despite the title — a book on how to abuse children, but instead on how pedophiles can conduct themeselves around children in a manner that conforms to the law.

Eugene Volokh wrote a nice post explaining why Philip Greaves has not violated the obscenity statute nor any child pornography laws. Also read this post at Sexhysteria.

I am pretty sure that the charges against him will be eventually dismissed. Even if the jury convict him, he can appeal and will be virtually certain to win. The operative word though is “eventually”. Till then, he sits in jail. It appears that he lacks the money to hire a good lawyer or set himself free on bail (set at $15,000).

For a related case, read this old post of mine.

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Flex your rights has four videos up on Youtube. You should definitely watch these if you live or have plans to live in America.

The intro and the music at the beginning is a bit jarring, and the acting could have been more professional, but overall these videos are well-made. They are an excellent primer on your rights when dealing with police and strategies for asserting these rights effectively but sensibly.

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Outrages against liberty by various arms of the Indian state are neither rare nor mild, yet, even by those standards, the sentencing of Binayak sen is a shocking event. When a good doctor and an internationally acclaimed humanitarian is convicted by a court in a democratic(!) country and sentenced to life imprisonment: for violating arcane laws which should probably not be there, and which he anyway appears not to have violated, it is time for grief and rage.

I am not an expert on the various aspects of this case, but this much seems clear to me: Binayak Sen was not responsible for an act of violence. It doesn’t matter to me whether he is a Maoist sympathizer or not — if he is, that’s an exercise of his right to thought. It doesn’t matter to me if he spoke in favour of the Maoist movement — if he did, that was an exercise of his right to speech. It doesn’t matter if he possessed banned books — as far as I am concerned, possession of a book, whatever it is, should never be a crime. It doesn’t matter if he gave significant medical aid to an injured Maoist leader — if he did, he was doing exactly what every good doctor would have done in his situation. It doesn’t matter that he visited said Maoist leader in the jail or elsewhere — even disregarding the fact that such contact would have been normal in view of the doctor-patient relationship, noone, should ever, in any circumstance, be penalized merely for being in contact with another human being.

If Binayak Sen actively played a role in planning or executing violent deadly attacks, he should serve the time. But as far as I can tell, there is no evidence whatsoever he did so. Whatever evidence there is, point in a very different direction.  The notion — non actionable, even if true — that he was some sort of a believer in a Maoist ideology seems to be supremely wrong-headed. By all accounts — and I am relying here on accounts of those who know him — Sen’s beliefs were of a far more mild variety: he believed in inclusive growth, aid to underprivileged communities, an opposition to a system that created “two kinds of people” (the haves and have-nots), and so on. He is on record saying he abhors violence, including the Maoist variety. The evidence also points to him selflessly serving these underprivileged communities through his work as doctor. From the linked Tehelka article:

Drive 150 kilometres away from Raipur into the unforgiving dustiness of the forest around Bagrumala and Sahelberia in district Dhamtari, where Binayak ran his Tuesday clinic, and the heroic dimension of his work overwhelms you. There is nothing that could have brought a retired colonel’s elite, accomplished son here but extraordinary compassion. Scratchy little hamlets, some no more than 25-houses strong. Peopled by Kamars and other tribals, the most neglected of the Indian human chain, destituted further by the Gangrail dam on the Mahanadi river. No schools. No drinking water. No electricity. No access to public health. And increasingly, no access to traditional forest resources. Here, stories of Binayak Sen proliferate. How he saved young Lagni lying bleeding after a miscarriage, how he rescued the villagers of Piprahi Bharhi jailed en masse for encroaching on the forest, how he helped Jaheli Bai and Dev Singh, how he helped create grain banks. “Do something. Save the doctor,” says an old man in Kamar basti. “We have no one to go to now.”

In short, the evidence points to him being a man who above all believed in doing good. As a doctor, and a humanitarian with certain beliefs, he did good to everyone, from the powerless poor to some who the state considers its enemy. He spoke out against things he considered unjust and criticized the state whenever he felt it did wrong. Some of his acts made him, in the eyes of the powerful, a dangerous man who needed to be put down.

This ruling is certain to be challenged, but it still means that the forces of evil have won this round. For India and for liberty, this day is a black one.

****

When I last wrote about Sen, a reader (Chetan) asked some interesting questions.

If this issue were to be discussed on the basis of principle alone, I would like to know your views about how you would view an arrest of a person who is actively involved in aiding and abetting a violent political movement.

For instance, were it to be proved that a person provided not just intellectual but also material and tactical support to a violent movement, do you think the State has no right to imprison him? (The implicit assumption here is that the person didn’t involve himself with the violence. Let’s just say he provided funding and helped perpetrators of violence hide from the cops knowing what they had done)

While I cannot cover every scenario here, a few things I believe are:

Helping a violent movement  in a way that is directly linked to the execution of violent criminal acts (giving them money knowing it would be used to buy guns, helping them plan an operation, carrying letters detailing this plan from one person to another) should be a crime.

“Helping” a violent movement in any other way (moral or intellectual support, giving legal advice or medical help, carrying a letter that merely contains seditious propaganda) should not be a crime. Nor should giving money be a crime if it is the case that this money will only be used for legitimate purposes and not for violent acts (or, by mens rea, even if the financier believes incorrectly such to be the case).

From the libertarian viewpoint, the most important issue when pondering the legality of a certain sort of indirect support is whether its nature is intrinsically rights-violating (NAP violating). A good rule of thumb to resolve this is to ask the following question: would it, in your mind, be legal to offer the same sort of support to another group that had till then not committed any crime? If the answer to this question is yes, then the support should probably be legal even when offered to a violent lawless group.

Granted, a few cases are somewhat on the line, but in Sen’s case, it doesn’t even seem close.

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Here is his latest article, illustrating how NY Times and other papers routinely divulge information — and rightly so! — that is far more secret and consequential than Wikileaks is accused of doing.

I have admired some of Greenwald’s writings in the past. But on Wikileaks and related First Amendment issues, he has been nothing short of breathtaking, a one man army. He has made every point worth making. He has repeatedly pointed out the dangers to free speech from an Assange prosecution, and the legal equivalence between Wikileaks and traditional newspapers. He was the first to reveal to a broad audience the inhuman conditions in which Manning is being held. He has been passionate in his appeals, razor-sharp in his arguments and accurate in his facts. With every article, he has exposed the hypocrisy/evilness of the US administration on this issue and has furthered the cause for liberty and free speech.

***

I donated some money to Greenwald today via Paypal. It was not so much to help him financially — I am sure he earns a good salary from his Salon column and other gigs — but more to express my support and admiration. This is what I wrote in my message: I am a libertarian. Likely we don’t agree on a lot. But for everything you have written about Wikileaks, you are my hero.

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I forgot to post this earlier. Ron Paul on the floor of the US Congress:

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I noted yesterday that the apparent government strategy to indict Assange as co-conspirator rather than disseminator of the leaked cables would be still be highly problematic, and the danger to the First Amendment no less grave. Since then, there have appeared articles by several well known writers and legal experts who have come to the same conclusion.

Here’s Jack Goldsmith:

I’m not so sure this path avoids awkward questions.  Charging Assange as a conspirator to Manning’s leak might distinguish the Times in the wikileaks case.  But it would not distinguish the Times and scores of other media outlets in the many cases in which reporters successfully solicit and arrange to receive classified information and documents directly from government officials.  Prosecution of Assange on this theory would therefore raise awkward questions about why DOJ does not bring charges against the American media for soliciting classified information on a regular basis.  It would be a fateful step for traditional press freedoms in the United States.  Indeed, unless I am missing something, it seems that a successful prosecution of Assange for conspiracy to leak would have broader and more corrosive implications for press freedoms than a successful prosecution under the ambiguity-riddled Espionage Act.

Josh Gerstein:

Reporters seek classified information all the time in telephone conversations, in private meetings and other contexts. Just Wednesday, the New York Times carried a front page story from Elizabeth Bumiller describing two classified National Intelligence Estimates on Pakistan and Afghanistan. Does anyone think she was entirely passive in this leak? That the reports, or some summary of them, simply arrived on her desk or in her inbox and she did nothing either to solicit them or to seek more details about them after receiving them? Frankly, if she didn’t at least do the latter, she wouldn’t be doing her job.

It seems to me if the Justice Department takes the approach the Times describes, the issue of classification might fall away altogether. But that could potentially make the First Amendment questions even more profound. A reporter who asks a county clerk for a document that is traditionally sealed might be committing a crime. And with virtually all information stored on computers these days, almost anyone who asks a government employee a question the employee might not need to know the answer to might be conspiring in an unauthorized intrusion into a government information system.

Jack Balkin:

Journalists are not merely passive recipients of information they receive from their sources. It make take weeks of negotiations (and rounds of drinks at the Mayflower Hotel) to get a source to agree to provide sensitive information, and work out the details of the disclosure. Agreements not to reveal a source who provides sensitive information are just that, agreements. If prosecutors wanted to, they would argue that such agreements were part of a conspiracy to leak classified information under the Espionage Act or related statutes.

Journalists should be very worried about the conspiracy theory that the Justice Department is considering. It puts them (and their jobs) in serious danger.

Glenn Greenwald:

Very rarely do investigative journalists merely act as passive recipients of classified information; secret government programs aren’t typically reported because leaks just suddenly show up one day in the email box of a passive reporter.  Journalists virtually always take affirmative steps to encourage its dissemination.  They try to cajole leakers to turn over documents to verify their claims and consent to their publication.  They call other sources to obtain confirmation and elaboration in the form of further leaks and documents.  Jim Risen and Eric Lichtblau described how they granted anonymity to “nearly a dozen current and former officials” to induce them to reveal information about Bush’s NSA eavesdropping program.  Dana Priest contacted numerous “U.S. and foreign officials” to reveal the details of the CIA’s “black site” program.  Both stories won Pulitzer Prizes and entailed numerous, active steps to cajole sources to reveal classified information for publication.

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