July 7, 2009

Community Standards of Decency

May communities (justly) set standards of decency? In the recent Philosophers' Carnival, Russell Blackford of Metamagician and the Hellfire Club (a blog with which I am not familiar) argues that they may not. Blackford argues from not-quite-libertarian principles (he allows some limited degree of paternalism) to the conclusion that neither burkas nor nudity should be banned in public. What I want to do here is to show that, on the libertarian picture, either having or not having community standards of decency creates a problem, and try to chart a way forward from there.

Libertarians (and, indeed, all proponents of liberal democracy) believe in, for instance, freedom of speech. However, like most other freedoms, there is a freedom of the other party not to put up with your speech. No one can be forced to listen to anything they don't want to. So suppose, arbitrarily, that I am offended by the word 'blue.' On libertarian principles, I shouldn't be forced to listen to people saying 'blue,' but people also shouldn't be forced not to say it. This means that I should be able to only talk to people who agree not to say 'blue.' If I live in a culture where everyone thinks this is ridiculous (like, say, any culture in the world), then perhaps no one will consent to talk to me on these terms. In that case, I will have to choose between being offended and being a hermit. Tough luck. Being stuck in this position does not violate any of my (negative, libertarian) rights.

On libertarian principles, this is precisely the sort of picture we would like to see: everyone has their own standards of decency, and communicates with people who agree to abide by them. People decide for themselves whether or not to relax their standards in order to communicate with those who refuse to be confined to their standards.

However, there is a practical problem: meeting new people. Now, one might think that, when interacting with a new person, you could simply state your standards and learn theirs. Of course, this might be a little bit difficult if you are offended by the mention, and not only by the use, of certain words,* but you could figure something out. (Perhaps this whole thing will seem less crazy if we say that I have a child I am trying to shield from offensive speech.) Suppose, however, that someone wanted to seek out people to talk about blue with. Perhaps she should put out some kind of advertisement? Advertisements of this sort amount to public speech, which targets everyone indiscriminately. If she already knew who wanted to talk about blue, she wouldn't need an advertisement.

There are more problematic cases. For instance, some time ago I remember reading a post on the Volokh Conspiracy (I can't find it now) about a college whose 'sexual harassment' policy included any unwanted sexual talk as harassment. This might seem reasonable at first, until one realizes that there is no surefire way to determine whether someone wants to talk about sex without talking about sex! Furthermore, of course, there is no way of figuring out if someone wants to do anything 'sexual' (is kissing 'sexual' in the relevant sense?) without engaging in sexual talk. Another problematic case is the case of dress, with which Blackford is concerned. By the principles given above, you should have the right to walk around naked, and I should have the right not to see you naked. What if we just happen to go the same place? How shall we solve this apparent antinomy? (Sorry, I was working on Kant yesterday.)

If I am trying to avoid seeing naked women other than my wife (which I am), I need to know where I can safely go. In real life, we have ratings and online reviews for movies, which I can use to determine whether I should see this or that movie. We also know that, for instance, different beaches have different rules of modesty. I also have certain expectations about what I expect to see and hear on public streets. All of these are necessary to my ability to self-censor, and as such I have a legitimate interest in them.

Blackford discusses the possibility of interacting differently with someone because their dress is offensive, but he doesn't go as far as a proper libertarian will. Libertarians, generally, can see no justification for prohibiting private discrimination: if I want to refuse to let people in burkas, or naked people, (or even, say, black people) into my shop that's my business. If people don't like it, they should respond with peaceful protests and boycotts, not with force of arms. Coercion through government is not morally different than coercion by an angry mob in this particular case. I can (and do) refuse to associate with naked people.

Now, the question is, where can I go without associating with naked people? In our society, pretty much anywhere. Most places require people to wear clothes, and the places that don't require people to wear clothes are mostly places that people go to specifically because there are naked people there (e.g. strip clubs) and not for any other reason. The reason I can do this is that most people in the United States agree at least roughly with my standards of decency. (People can and do walk around wearing less than I think they should, but not so much less that I would consider living in a religious commune or something to avoid them.)

Having community standards lets me know what I can expect to see and hear, and not see and hear, when I go outside. This allows me to plan my life in ways that accord with my desires and moral convictions. But what about the people who want to walk around naked? Well, those people have the right to walk around naked, but just as they don't have the right to walk around naked in my house, so they don't necessarily have the right to walk around naked on a public street. The same goes for screaming obscenities, etc.

So what does their right to walk around naked amount to? Well, they can walk around naked alone or where everyone around consents. The community as a whole doesn't consent.

Now, here is another question: suppose someone walks around naked on their own property, which is adjacent to mine, and doesn't have a privacy fence? Should they have to build a fence in order to walk around naked, or should I have to build a fence in order not to see them? There are a lot of complicated issues related to the boundaries of property rights, including the physical boundaries between pieces of property. On Kant's view, it takes positive law to fix these boundaries precisely, but the Lockean/libertarian view is supposed to be that they are fixed by natural rights. It is a difficult question.

There is a clear restriction on the standards of decency: namely that they cannot, like the sexual harassment policy mentioned above, prevent consenting parties from finding each other. So, for instance, if most of the community is offended by religion, they cannot set standards of decency that prohibit all public talk about religion. They can, however, set standards of decency designed to prevent non-consenting parties from having to listen to excessive, pushy religious talk while ensuring that people who want to talk about religion together can still find each other. (Which will necessarily include, e.g., allowing churches to advertise publicly.) If someone wanted to introduce this sort of policy I would fight it politically, but only because I don't like it - because they aren't my standards - not on the grounds that it violates the natural right of free speech. Furthermore, of course, one can't restrict what goes on on private property among consenting parties.

There are two final problems I want to consider: (1) what if the standards are extremely restrictive? and (2) what if the standards target one class of people? So, for the first case, suppose that most of a community is offended by seeing skin - any skin at all. Everyone, male or female, must wear a burka, or an equally modest garment. (Well, I suppose a form-fitting body suit would be less modest but ok.) This simply comes back to the fact that it is going to be difficult for you to associate with anyone if your sensibilities are radically different from those of the surrounding community. You should consider moving. (Of course, if the government or anyone else is coercively prohibiting you from moving that's a whole different rights violation.) I tend to agree with Blackford that there is no principled difference between requiring someone to wear or not wear a burka and requiring someone to cover or not cover their genitals. The two are at opposite extremes, but they are exercises of one and the same coercive power. We tend to think of requiring someone to wear a burka as a greater violation than requiring someone not to wear one, and of requiring someone to uncover their genitals as a greater violation than requiring someone to cover them, but I can't see how this has any objective basis in rights. Rather, it reflects the level of dress or undress we as westerners are comfortable with: you and I want to cover our genitals but not wear burkas. A prohibition always seems greater when I actually want to do the thing prohibited. If there are enough people who want the prohibition dropped, even if they are still a relatively small minority, then in a libertarian/capitalist society the very first thing that will happen is the development of private spaces where the prohibition doesn't apply, so the real problem here is only that it is difficult to live in a society you are radically out of step with, and surely that is not a problem to be solved by coercive legislation.

The second question is perhaps more troubling. What if, for instance, there is a community with a large majority of whites and they are offended by dark complexions? As a result, the few minorities will be required to wear burkas, but not the whites, and they won't have the votes to do anything about it.

This seems like a case of government discrimination and of course while libertarians say that we cannot prohibit private discrimination, they nevertheless generally support prohibitions on government diiscrimination. If the whites want to live in a privately owned commune with this rule, they can, but they shouldn't be able to enforce a discriminatory rule like this by government. Still, it's not clear what the principled reason for this is, and its also not clear whether the reasoning will apply to having different indecent exposure laws for men and women. After all, in both cases, there is some objective feature (dark skin, breasts) that one group has and the other lacks which we require to be covered up. It might be different if, say, blonde Scandinavians were not permitted to show their hair, but blonde Germans were. There the law is clearly discriminatory in a way different from the women case because the very same feature is permissible in one group but not in another. We could play with thought experiments like this all day.

In the end, I don't have the problem solved; I don't have a principled distinction to draw. However, I hope this post has done something toward showing that there are good libertarian reasons for having community standards of decency, namely, the fact that the freedom of expression does not extend to expressing oneself to non-consenting parties.

* Philosophers distinguish between the use of a word, as in "the sky is blue," and the mention of a word, as in "the word 'blue' is offensive."

Posted by Kenny at July 7, 2009 10:09 AM
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