Monday, May 24, 2010

BURN: Sometimes Judge Napolitano Is Nuts

Generally, I like and admire Judge Andrew Napolitano.  Generally, I like and admire John Stossel.  But sometimes Libertarians seem hell-bent on making themselves politically impotent by saying stuff that is just nuts.

I've said and written for decades that Libertarians have all the practical political power of a Star Trek convention.  There are great reasons for that, as displayed very nicely on last week's Stossel program on Fox.

Judge Napolitano held forth for the proposition that kiddie porn is protected free speech under the First Amendment...sort of.  He said that consuming kiddie porn is protected, and is nobody's business, but that producing kiddie porn is bad and should be proscribed.  That is nuts, and for various reasons.

He also said something to the effect that outlawing kiddie porn was  a species of prohibition, and we all know how well that works...wink, wink.  Stossel's studio audience seemed to warmly agree.

But the reality is that prohibition works fine way more often than it does not.  Napolitano either does not know that, or he was being disingenuous.  Either way, his position is completely irrational.

We prohibit murder, theft, reckless driving...any number of things.  We do that very successfully, which is not to say that these things are never done.  Only that they are very successful examples of prohibition working.

Don't care for those examples?  How about our prohibition of private possession of high explosives?  How about our prohibition of highly radioactive material in private hands?  Or pathogens?

As I asserted, prohibition works more far...than it fails to work.  And it does fail to work, and often spectacularly.  Why?  Because the scheme of prohibition is not popularly supported.  When it is supported popularly, prohibition works very well.

So Napolitano is just talking nonsense when he asserts that prohibition is a bad idea.

He's also ignoring economic basics when he suggests that you can have a demand for something (i.e., kiddie porn), while prohibiting supply.  That is simply wrong.  If you allow the demand to go without proscription, you WILL have someone moving to provide whatever people are demanding.  That is a certainty.

An example is criminalizing prostitutes, while letting their johns go without penalty.  It is silly and wrong.

I also take violent exception to the Stossel theme that the First Amendment covers...or should cover...the exchange of any kind of idea.  Kiddie porn is a great example of ideation that society has a real, obvious and totally constitutional interest in suppressing.

Which leads us to another of Yurhonor's fallacious statements: if there is some disparate standard of law in one community than another, that is unconstitutional (i.e., as in obscenity law).  Bullspit!  We call that Federalism.  This is a favorite canard among SOME libertarian thinkers.  They point to the horror of Blue Laws, which I agree are dumb.  But I also support the idea of local people expressing even dumb notions in law, so long as I have the option of removing myself to a different locale if I find those laws sufficiently onerous.  We want that in America. The alternative is totalitarianism, where we have a homogenized law that falls on us all, regardless of our values and standards.

In some jurisdictions, killing a litter of kittens or puppies (unless you are the authorities) is considered a crime.  In vast swaths of the American hinterland, it is considered responsible stewardship.  Farmers and ranchers live much more reality-driven lives, and we don't have "authorities" to whom we delegate unpleasant tasks that nature insists somebody perform.  If some urbanite finds it anathema that kittens should be killed (outside the local animal shelter), I can live with that.  So can the Constitution.

Like a lot of conservatives, I share a lot of common cause with libertarians.  I have trouble when their ideology leaves the realm of reason, which sometimes they allow it to do.  See Rand Paul...


  1. I can not see any scenario where child porn would be protected. I thought Mills' "harm principle" was universally accepted as the limit of the first ammendment.

    "...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."

    How could anyone in their right mind argue that child porn does not harm children? Though I would dissagree, a case could be made that prostitution is a victimless crime, and adult porn could be protected - I am astounded that Napolitano would even consider the possibility that child porn is a protected expression.

  2. I think that I reported his position faithfully, and I was gob-stopping. I think Napolitano's support for proscribing the supply side was a sop to the obvious truth that kiddie porn has victims. But that does not BEGIN to address the harmSSSS that that crap would entrain.

    Sometimes, as I noted, libertarians just take a good notion WAY too far, and fail to consider the big picture.