Nuisance and Pornography

 Posted by on 4 April 2008 at 6:44 am  Law, Objectivism
Apr 042008

Paula Hall recently sent me the following inquiry:

I was browsing the Ayn Rand Lexicon and came across the following [in the entry on free speech]:
Only one aspect of sex is a legitimate field for legislation: the protection of minors and of unconsenting adults. Apart from criminal actions (such as rape), this aspect includes the need to protect people from being confronted with sights they regard as loathsome. (A corollary of the freedom to see and hear, is the freedom not to look or listen.) Legal restraints on certain types of public displays, such as posters or window displays, are proper but this is an issue of procedure, of etiquette, not of morality.

The rights of those who seek pornography would not be infringed by rules protecting the rights of those who find pornography offensive e.g., sexually explicit posters may properly be forbidden in public places; warning signs, such as “For Adults Only,” may properly be required of private places which are open to the public. This protects the unconsenting, and has nothing to do with censorship, i.e., with prohibiting thought or speech.

[The NoodleFood reader continues:] I can readily understand the concept of statutory rape. I am having difficulty with the notion that “[l]egal restraints on certain types of public displays . . . are proper,” when the context refers to displays on private property — no matter what the content. Rights can be violated only through physical force, and words and pictures are not force. Since when has there been a right not be “confronted with sights [a person] regard[s] as loathsome?” By what public standard could anyone determine what was “loathsome” and subject to restriction?

I am inclined to assume that I am missing something, rather than that Rand is inconsistent(!). What am I missing?

Paul and I have discussed this matter at some length, but I don’t have time to write up our present view in any detail. Very briefly, our view is that the government can properly forbid nuisances as a kind of tort. However, a nuisance is not just something that someone doesn’t like. Rather, it’s an unavoidable, perceptual impingement, such that a person cannot go about his ordinary business in its presence. Examples of nuisances would include bright lights, loud music, and nasty smells — but not a Mexican flag, a mural of a nude woman, or rap music at a normal volume. The particular content of the nuisance is irrelevant. A person has no right to be protected from exposure to disagreeable aspects of the world. That would open the door wide to all kinds of rights-violating restrictions on speech. However, a person does have a right not be “assaulted” by physically painful or unavoidably distracting percepts via some kind of nuisance law.

Some of that analysis fits with Ayn Rand’s quoted comments, but not all of it. If we disagree with her on this fine point of legal philosophy, so be it. However, since neither Paul nor I are experts on philosophy of law, we’re definitely interested in hearing arguments on all sides.

Spot the Logical Fallacy

 Posted by on 29 January 2008 at 8:15 am  Health Care, Law
Jan 292008

Today’s edition of “Spot the Logical Fallacy” comes from the medicolegal world:

1) A pregnant mother who had a prior Caesarean section now wants to deliver her next baby at home.

2) Her obstetrician warns her that it’s dangerous and advises the she have the baby in a hospital.

3) The mother ignores her doctor’s advice and has a home birth anyways.

4) The baby is born with “severe brain damage”.

5) The doctor gets sued. According to the article, “Plaintiffs told prospective jurors earlier this week that they are seeking more than $13 million in damages.”

Question: Can you spot the logical fallacy in the plaintiff’s case? More importantly, will the jury?

Answer: The doctor’s defense lawyer correctly states, “[T]he physician should not be held accountable ‘for choices she didn’t make, and for choices she counseled against.’”

Extra credit question: Would this sort of thing increase or decrease medical costs?

Thank you all for playing!

An Odd Grey Area in the Law of Sex

 Posted by on 24 January 2008 at 7:46 am  Law
Jan 242008

Here’s a story from the Denver Post which raises some interesting issues about prosecuting children for having sex with one another:

Utah Supreme Court justices acknowledged Tuesday that they were struggling to wrap their minds around the concept that a 13-year-old girl could be both an offender and a victim for the same act — in this case, having consensual sex with her 12-year-old boyfriend.

The Ogden, Utah, girl was put in this odd position because she was found guilty of violating a state law that prohibits sex with someone under age 14. She also was the victim in the case against her boyfriend, who was found guilty of the same violation by engaging in sexual activity with her. “The only thing that comes close to this is dueling,” said Associate Chief Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender. And Chief Justice Christine Durham wondered if the state Legislature had intended the “peculiar consequence” that a child would have the simultaneous status of a protected person and an alleged perpetrator under the law.

…State authorities filed delinquency petitions in July 2004, alleging that each had committed sexual abuse of a child, a second-degree felony if committed by an adult. The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated. Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime. Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor, but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor. For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex.

I do agree with the general principle that children below a certain age cannot genuinely consent to sex with an adult. But I’m not sure what the proper legal approach should be for two such children who engage in sex with one another.

Jan 012008

Update: is reporting that the Washington Post has misreported part of their story, and that Jeffrey Howell is being sued for ripping his own CD’s onto his computer hard drive and placing them onto his shared folder for distribution to the rest of the world through the Kazaa file sharing system.

Obviously this changes the merits of that particular lawsuit. (It doesn’t change the error of the Sony lawyer Jennifer Pariser’s statements also cited in the WaPo story.)


I am a firm believer in intellectual property rights, including copyright. However, when the RIAA (Recording Industry Association of America) takes ridiculously wrong legal positions in their supposed “defense” of copyright, it merely confuses and alienates honest consumers. A recent article in the Washington Post summarizes some of the statements that recording industry lawyers have made condemning the entirely legitimate practice of taking a music CD that one has legally purchased and transferring a copy onto one’s own home computer or MP3 player for personal use (i.e., not for widespread distribution to others):

In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry’s lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are “unauthorized copies” of copyrighted recordings.

…The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG’s chief of litigation, Jennifer Pariser, testified that “when an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Copying a song you bought is “a nice way of saying ‘steals just one copy,’ ” she said.

But lawyers for consumers point to a series of court rulings over the last few decades that found no violation of copyright law in the use of VCRs and other devices to time-shift TV programs; that is, to make personal copies for the purpose of making portable a legally obtained recording.

To make things worse, the RIAA used to explicitly endorse the practice they are now condemning. A few years ago, they stated on their official website (and still available via the Web Archive):

If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that’s great. It’s your music and we want you to enjoy it at home, at work, in the car and on the jogging trail.

But that language has since then been removed from their current website.

The danger is that when an organization like the RIAA overstates its case by making such egregiously bad claims about intellectual property rights, it merely undercuts the validity of the concept in the average readers’ minds. An average consumer might easily (and with some partial justification) conclude, “If ‘copyright’ means that I can’t listen to my own legally-purchased album on my own iPod, then screw it – I won’t respect copyrights!”

Of course, the correct approach to combating illegal and immoral “file sharing” of copyrighted material is not to make a bogus defense of property rights, but to make a genuine principled defense that incorporates the relevant technological facts about these issues.

For instance Dr. Leonard Peikoff’s briefly discusses this issue on his website (in the entry dated April 12, 2007), and arrives at a better conclusion, based on the distinction between form and content:

Q: On Copyrights:

1. Under a proper capitalist government, if you buy CDs where the only contract term is “Copyright, All Rights Reserved,” would it be legal–and moral–to copy those CDs, that one has already bought and paid for, to one’s own iPod?

A: First, a caveat: I have not thought much about issues in the philosophy of law. So some of the following is only my best ideas given limited knowledge.

I agree with your earlier general statement that creators have a moral right to set whatever conditions they want, rational or otherwise, in regard to the use of their property. As you say: “copyright owners have the right to control the act of copying as such. In support of this is the idea that their property rights cannot be limited, and that the copyright owners created the value of the music in the first place.”

However, if you ask me what is the rational policy in this issue, my answer involves a distinction between form and matter — i.e., changing the medium or organization of a purchased work in order to make its content more conveniently accessible to the buyer; vs. duplicating the purchased work (which is what I myself call “copying”). E.g., scanning OPAR into your computer in order to adjust the font vs. making a copy of the purchased book, so that you have two of the very books on sale in the store. I regard the first as, in essence, a transfer of content already paid for, and thus justified; while the second is unjustified: if you buy a book, you are not and should not be authorized to become a manufacturer of it, whether of 1 or 1,000 more copies.

The same applies to CDs. I think you have a right to transfer the content to an iPod, or to transfer excerpts from different CDs onto one CD; but I do not think you have a right to “copy” them in the sense of manufacturing duplicates of the original CDs.

I believe Dr. Peikoff’s position is essentially correct, and that form-content distinction is an important one.

There are some interesting side issues that he didn’t address that might be worthy of further analysis. For instance, does creating a physical backup copy of a CD of music or software that one has legitimately purchased (purely as a precaution in case that the original is accidentally damaged or destroyed) count as “manufacturing” in the sense that he means? Provided that one keeps that backup copy in a safe place unused (as opposed to giving/selling it to others for their use), I think this would be legitimate. Most software producers allow or even encourage this practice, and I think it would be a reasonable practice for musical content as well.

Similarly, does burning a duplicate physical copy of a music CD so that one can keep one copy in the upstairs music CD player and a second copy downstairs or in one’s car (again purely for personal use as opposed to giving/selling to others) count as “manufacturing”? Also, is the intended user (i.e., personal use vs. giving/selling to others) the critical distinction as well? I freely admit that I don’t have fully worked out positions on some of these questions of how best to apply the broad principle of copyright to specific scenarios in this era of easy digital duplication and dissemination.

Overall, I think Dr. Peikoff is on the right track with this type of analysis, and this is the correct approach to take, rather than the concrete-bound approach of the RIAA (“copying” = “stealing”) which merely undercuts respect for property rights.

I would love to see more work by Objectivists on the nature and proper justification of intellectual property rights, such as Greg Perkins’ essay, “Don’t Steal This Article!” or Ayn Rand’s own “Patents and Copyrights” in Capitalism: The Unknown Ideal. Michigan State law professor Adam Mossoff has also written a number of articles on intellectual property available on SSRN. More such work would be a welcome contribution to the often-contentious and confused discussions in the mainstream media about these important issues.

Why Originalism Won’t Die

 Posted by on 21 December 2007 at 9:27 am  Law
Dec 212007

Tara Smith’s article, “Why Originalism Won’t Die – Common Mistakes in Competing Theories of Judicial Interpretation,” was recently published in the Duke Journal of Constitutional Law and Public Policy. The article abstract reads:

In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This Article examines its resilient appeal (with a particular focus on Scalia’s Textualism). By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin’s value theory, and Judicial Minimalism), the Article demonstrates that the heart of Originalism’s appeal rests in its promise of objectivity. The Article also establishes, however, that Originalism suffers from a misguided conception of what objectivity is. All camps in this debate, in fact, suffer from serious misunderstandings of the nature of objectivity.

Happily, it’s available for free online. You can read the HTML version or download the PDF.

Monica on Stuff

 Posted by on 20 December 2007 at 8:00 am  Law, Religion
Dec 202007

Monica of Spark A Synapse has blogged some good stuff of late, e.g. on grading public school exams, on overcoming hatred of Christmas, and on whether Scientology should be banned.

As for Scientology, the major question for me is whether the Church of Scientology is a fundamentally or substantially criminal organization or not. I can’t pretend to answer that question definitively. My understanding is that the protection from scrutiny given by the designation of the Church of Scientology as a church, combined with its own secrecy, makes certain knowledge of any criminal wrongs rather difficult. The stories commonly heard about it are deeply worrisome, however.

In any case, my own years-long nightmare of being sued by a Scientologist for making unfavorable public comments about the religion he wouldn’t even admit as his own made perfectly clear that the organization and its members ought to be prevented from abusing the legal system as they so often do. A person doesn’t deserve “a day in court” just because he managed to file a lawsuit, particularly not when that costs others acting within their rights years of peace of mind and many thousands of dollars.

Of course, that problem isn’t limited to Scientologists; tort reform is needed to protect all people from unjust lawsuits from all corners. Scientologists merely seem particularly apt to abuse the system whenever someone displeases them.

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