Stephen W. Browne Rants and Raves

December 14, 2010

Legislating moral indignation

Filed under: Free Speech,News commentary,Op-eds — Stephen W. Browne @ 8:07 am

Note: I’m cleaning up my “drafts” file and seeing what’s fit to publish. Among other reasons because I’m home with strep throat, losing money but not quite fit to write.

I originally wrote this last year as my weekend op-ed. The case referred to was a disorderly conduct charge against a 14-year-old girl who in Feb., 2009, called a 17-year-old black girl the N-word outside the local teen center. She then followed her into the bathroom at a pizza joint nearby, again used the epithet and said something to the effect of, “You don’t own this town.”

The disorderly conduct case went all the way to the North Dakota Supreme Court.

The 14-year-old got six months probation and had to attend a “sensitivity class.” This was all finished by the time the appeal went to the North Dakota Supreme Court as, “In the interest of H.K., a child.” I’m told there shouldn’t be any long-term legal burden for the girl, since juvenile records are by law destroyed when the juvie turns 18.

I don’t know any of the parties in the incident. I do know the attorneys on both sides.

It was spiked.


Something has been bothering me since the North Dakota Supreme Court ruling in a local case last month, something I haven’t quite been able to put my finger on until recently.

The Supreme Court upheld the disorderly conduct finding in juvenile court of a 14-year-old girl accused of using racial slurs against a 17-year-old African-American girl last year. The defense had argued the juvenile court was trying to criminalize the use of an offensive word, and that even offensive words are protected by the First Amendment.

I realized what was bothering me about this the other day, when I saw my son crying because a young teenage girl told him his T-shirt was “gay.”

(I advised him to suck it up and don’t let them see you cry or they’ll torment you without end.)

In the local case I fully realize there is more at issue than free speech. There are legitimate questions the prosecution raised about what constitutes disorderly conduct, fighting words, and actions likely to result in a disturbance of the peace.

And yet, I wonder if what was decided was less a question of law than moral indignation.

But shouldn’t we be indignant? Shouldn’t we do something?

Sure should, and if my kids used racial slurs like that I’d be pretty indignant on their backsides. But should moral indignation be a matter for the law?

There’s a lot of complicated ways it can be applied, but I think the basic question of whether a rule of conduct should be a law is, does it protect life and property?

The question is not whether it makes people nice, polite, socially conscious, non-smoking consumers of low-cholesterol organic foods.

I’d like to point out two examples of the desire to legislate moral indignation that fall, conveniently enough, on opposing sides of the political spectrum.

Once upon a time, in a state far, far away, I was a welfare bureaucrat for the state’s Department of Human Services. My job involved an awful lot of time spent establishing applicants’ eligibility for services. The department at that time claimed to have disbursement rate of around 60 percent. That is, sixty percent of all the tax money the department received eventually wound up in the hands of single mothers, dependent children, the aged, disabled, and blind.

This was considered very good for any welfare agency, where disbursement rates are more often around 40 percent.

There were of course, a fair number of clients who were con artists and scammers, i.e. “welfare cheats.”

This makes some people livid.

“That money is for the genuinely needy! We need to catch those cheats and make them pay it back, or send them to jail!”

In vain I’d explain that catching all the ineligible recipients would cost more money than the department would save, and actually make less available to genuinely needy clients. Didn’t matter to them, it was wrong and it had to be stopped, whether it would save money or not.

Switch to the opposite end of the political divide and income distribution.

Here live the people who are made livid by multi-million dollar golden parachutes paid to incompetent executives to buy out their employment contracts before they ruin their companies.

Again, it does no good to point out that the money paid them is insignificant in terms of total revenues, does not significantly affect costs of the company’s goods and services, and is in fact money well-spent to get rid of an incompetent or under-performing CEO. (Hat tip to Thomas Sowell for pointing this out.)

“It’s wrong!” and has to be stopped, whatever the damage done to contract law which, like free speech, is one of the foundations of our civilization.

There’s no doubt moral indignation feels good. Research shows feelings of moral indignation can cause a release of endorphins in the brain, resulting in a “natural high.” This would explain a lot about “cause junkies,” whose lives revolve around a passionate quest to set the world to rights.

But passion is a poor basis for deciding questions of law.

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