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
