Prohibition Implies Definition

00:10 Wed 09 May 2007
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I’ve covered some of this groud before, but I’ve been reminded of its importance once again, primarily in relation to free speech issues: when you prohibit something, and allow some authority to enforce that prohibition, you are also granting to that authority the power to define the thing prohibited.

Not in cases where the prohibited thing is clearly defined. If you ban a specific chemical, then enforcement authorities will have a hard time using that ban to ban some other chemical, or some unrelated substance or activity. But where there’s less clarity, and especially where highly subjective judgments about intent and/or effect are involved, the authorities will have tremendous leeway. Even if they can’t convict, this leeway will give them at least enough freedom to prosecute.

Pornography and obscenity laws are classic examples. Even where written narrowly, they are frequently used to target expression that the authorities dislike on political grounds, and will be expanded beyond their initial narrow scope. This is one of the reasons that I am extremely leery of laws banning “hate speech” (or “terrorist encouragement”, for that matter)—the enforcement authorities will stretch their definitions to suit themselves. The effects of this range from the silly/trivial (such as the German government banning one of the editions of Doom because one of the maps had a swastika-shaped set of corridors) to the serious (selectively using “anti-terrorism” laws against green activists and anarchists, making criticism of religion legally problematic, etc.).

Anytime you find yourself in a position where you think you support government suppression of some type of speech, remember that you’re not really ceding to the government the right to suppress your conception of what that type of speech is, but rather the right for agents of the government to suppress what their conception of that speech is. They don’t merely get the ability to ban it, they get the ability to ban what they define as it. A good exercise (which probably works well with most laws) is to think about worst-case scenarios in which zealous prosecutors could abuse that law, in this case how they could twist it to cover all kinds of things you might think wouldn’t be covered by it.

(My post on Frank Gaffney and treason is also relevant here.)

2 Responses to “Prohibition Implies Definition”

  1. Lev Says:

    Hail hail! That’s the libertarian spirit! I’m perpetually dismayed by how many people in this country just don’t understand that freedom of expression is the sine qua non of liberty.

    “The man who trades freedom for security does not deserve nor will he ever receive either.”
    Benjamin Franklin

  2. Tadhg Says:

    I agree with your dismay, but let me add also that the point of this post is not that free speech is an unbelievably important liberty that must be protected (which is true) but that regardless of where you stand on the question of free speech, in any context, you must be aware that prohibiting some form of it gives significant leeway to whatever authority is doing the prohibiting. This is a cost that must be considered but rarely seems to be—arguments for speech regulation are often conducted as if it will always be obvious and clear when the regulations should apply. but this is utterly unrealistic.

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