Lawyers versus Free Speech

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Boris Johnson’s
recent bike
helmet article
was both timely and amusing, and drew praise
from many readers on this side of the pond. Many seemed to believe
it took courage on Johnson’s part to criticize the nanny-staters.
I disagree. If he were the mayor of a major American city, he wouldn’t
have written it. Nor would the mainstream media have published it.

We in America
are no longer allowed to question the received wisdom of safety
experts. The reason, I believe, is that the corporations that control
the mainstream media have an intense fear of litigation. This problem
exists in Britain as well, but it is less severe, because the UK’s
"loser
pays"
rule provides a lesser incentive for frivolous lawsuits.
In the USA, the gravest threat to free speech is not the FCC or
the Patriot Act. It’s the legions of tort lawyers that infest this
country.

Consider
the case of the infamous 1990′s MTV cartoon series, Beavis
and Butthead
. The title characters were dim-witted, irresponsible
teenagers. Beavis, whose tagline was "Fire! Fire!", enjoyed
setting random objects ablaze. This got the network in hot water
when an unsupervised preschooler, playing with his mother’s lighter,
set the family mobile home on fire, causing the death of his baby
sister. Of course, the mother claimed the child was inspired by
the show. The threat of this lawsuit (and potentially others) caused
MTV to expurgate Beavis’ firebug habit in subsequent reruns of the
show. The experience apparently also affected the series’ creator,
Mike Judge. His current animated show, King of the Hill,
has little of the Beavis and Butthead edginess. For example,
no character is ever shown in a car without a seat belt, or using
a power tool without safety goggles. To a rural boy like me, it
seems to misrepresent the redneck culture the show purports to celebrate.
But who can blame Judge for being cautious? In today’s litigious
society, magazines, how-to books, and travel guides have all been
subject
to lawsuits
— even the Weather Channel.

Frivolous
lawsuits targeting the media drive home the point: it’s dangerous
to joke about or condone behavior that is unsafe, or frowned upon
by safety experts. Civil juries do not have a reputation for understanding
risk, or rendering sensible verdicts. The financial cost for a business,
in our victim-oriented society, can be staggering. The risks are
greatest for the deep-pocketed corporations that currently control
the American media.

This has,
I believe, led to a pervasive self-censorship that has even affected
our political discourse. My home state of Arizona provides a good
example. Last fall, as in many other states, we had a ballot initiative
that enacted a sweeping indoor smoking
ban
, which included bars. There was a less severe counter-proposal
sponsored by the tobacco industry which failed despite heavy spending
on advertising. But I never heard anyone disputing the official
"facts" about the dangers of second-hand smoke. Was the
Surgeon General’s fortuitously timed multi-hundred-page report on
that subject actually unbiased? Could the dangers have been exaggerated,
for the purpose of saving smokers from themselves? Don’t say it,
that would be heresy!

Even libertarians
have been largely silent on these issues. Those of us who attack
nanny-state legislation almost always do so with a wishy-washy defense
of personal freedom, which appeals to no one but other libertarians.
Occasionally we’ll argue against a law’s unintended consequences,
which is more persuasive, but skirts the danger of actually disputing
the frequent misrepresentations and exaggerations of the health-and-safety
authorities. One exception to this rule is Reason Magazine.
Disregarding their unfortunate neoconservative tilt in foreign policy,
Reason’s writers have been consistent defenders of personal
freedom. Reason editor Jacob Sullum has written excellent
books defending smokers
and recreational
drug users.
But other than a number of references to the bad
consequences of helmet laws, and this article about Americans’ safety
mania
, bike helmets themselves haven’t been subjected to the
Reason microscope. But many bike-riders are children, so
maybe Reason also feels the fear.

For a serious,
two-sided discussion of this issue, we have to go to the Internet.
Of course you won’t see this hot potato issue handled by any corporate-affiliated
site. The best coverage I’ve seen is on a cycling website by a California
environmental activist named De Clarke. Clarke argues against cycle
helmet laws from a pragmatic perspective: they have been shown to
discourage many people from cycling, which slows the progress of
alternative transportation. Her site has numerous links to articles
on both sides
of the helmet issue
. They include skeptics who defend the relative
safety of cycling as a form of transportation, and dispute the effectiveness
of helmets against injury. Many of those writers are from Britain,
Canada or Australia (the last of which, unfortunately, has a national,
all-ages helmet law.)

In my view,
the strategy of American nanny-staters is clear: First they conquer
the media, and then, when it’s become unthinkable to dispute the
central assumptions behind their arguments, they watch the public
meekly succumb to their anti-freedom agenda. Of course, helmets
are already mandated in almost every organized cycling event, due
to the liability concerns of corporate, government, or organizational
sponsors. It’s a win-win situation for attorneys and safety zealots.

Is there
any hope for limiting this economically-driven tyranny? Maybe, and
maybe not. Tort
reform
, largely driven by doctors’ groups to counter astronomical
malpractice suits, has gained some ground lately. But these proposals
are all too often a band-aid approach, with items like caps on jury
awards, time limits on filing, restrictions on lawyers’ fees, etc.
This kind of "reform" is likely to affect only the most
egregious cases, and won’t stop injured cyclists from trying to
blame others for their mistakes. More promising is the movement
to reform the concept of "joint and several" liability,
which allows "victims" to enrich themselves at the expense
of companies with little or no actual culpability. One
such measure
was recently enacted in Pennsylvania. Still, I
wonder if these reforms are too little, too late, as well as subject
to legislative fiddling. For example, Pennsylvania’s law exempted
the "dram shop" clause that allows accident victims to
sue tavern owners rather than the drunk drivers themselves.

All things
considered, the situation is likely to get worse before it gets
better. The ideals of free choice and individual responsibility
are dead, as far as the media is concerned. Cycling, skiing, horseback-riding,
skating – all these moderately risky activities Americans have enjoyed
for generations – will come under the helmet mandate, first in the
media and then in real life. For the time being, I can still, as
a private individual, legally ride bike without a helmet — but I’d
better not advertise that fact.

June
25, 2008

Vaughn
Treude [send him mail]
is a computer engineer who lives, works, and occasionally cycles
in the Phoenix, Arizona, metropolitan area.

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