25 April 2004

To Market, To Market

Professor Ribstein noted yesterday that the Wall Street Journal is somewhat selective in its approval of market forces.

All of this points to a more general problem with the right. Government is bad and markets good when government wants economic regulation the right doesn't want. But government is more likely to be good and markets bad when the subject is regulating values. (There's analogous problems with arguments about state law — apparently good for everything but marriage.)

"Decency and Markets." Professor Ribstein expressed disdain for recent WSJ editorials on "decency" in broadcasting. I can think of little that is more indecent than leading the news hour during before-and-after-school drive time with the latest bloody murder of someone by a non-white, but I apparently don't get a vote on defining "decency." Then, too, reading the lips of most of the players during major parts of the Super Bowl—or, indeed, virtually any other televised sporting event—is usually far less "decent" than was the flash of Janet Jackson's mammary while the kids were probably getting snacks anyway (Janet Jackson's prime audience is not the teenybopper set, and her "co-star" is a "has been").

There is another, more subtle, aspect of this neoconservative/social conservative/call it what you will selectivity of acceptable market regulation. If one takes a look in the broader sense at regulation, one can see the real difference between the postmodern right and the semimodern left: The only regulations that the right will consider as appropriate are those that have no influence on wealth distribution, or at worst have only a neutral effect. However, the postmodern right is actually pretty pro-regulation for those kinds of regulations that meet this criterion. Frequently, these are socially conservative issues, like "broadcast decency"; sometimes, they are downright loony and offensive, like the "alternatives to evolution in basic science education" advocacy. On the other hand, the regulations that the semimodern left has and continues to propose usually neglect to consider wealth distribution. This causes the left a great deal of difficulty when it must confront arguments that are orthogonal to its intent; and it creates more than a little confusion regardless.

One classic example of this failure to communicate—although it arises from an earlier era—is the Lochner regulations. The regulations were adopted to protect the health and welfare of employees in the baked-goods industry by limiting hours, both per day and per week. As laudable as this goal is, and as actually good for the manufacturers as this is in the long run (because it limits the higher retraining costs of replacing workers who are "worn out" earlier than they might otherwise have been), this kind of regulation has a pretty clear potential for influencing wealth distribution. Thus the firestorm against such regulation that culminated in Lochner itself.

The marketplace of ideas envisioned by the First Amendment has a simple nonregulatory correction for "bad speech": more speech. Drown out the "bad" speech with "good speech," and recognize that some "consumers" of "speech" will not be "rational actors" as the majority understands that term. One can construct a compelling argument from the premises behind the Intellectual Property Clause and the First Amendment that the Constitution does not condone regulation of speech and "expressive acts"; that any such regulation must come instead from the Necessary and Proper Clause; and, in turn, that the Necessary and Proper Clause must reflexively be read in the context of the Intellectual Property Clause and First Amendment. The Cromwellian subtext is that the majority, in this case the "pro-decency" faction, must recognize in its bowels that it might be wrong, and that its arguments (and speech preferences) must convince of their own merit—not by suppression of differing views. Then, too, there's the not-so-subtle political context of the Comstock Act and its modern descendants, largely designed to maintain political and economic power in the hands of constipated old white men of good families. But that is for another time.