Abortion is a contentious matter in the United States and politicians must expect to answer questions about their position. As such, Trump should have been prepared when the questions turned to abortion during Chris Matthews interview of him on MSNBC.
While Trump has expressed a pro-choice position in the past, he told Matthews that he was now pro-life. When Matthews inquired about the legal implications of an abortion ban in terms of punishing women, Trump asserted that the “answer is that there has to be some form of punishment, yeah.” Since Trump has routinely been rewarded for talking tough and expressing misogynistic views, he was probably genuinely surprised when he experienced a broad backlash for his remarks—most especially from anti-abortion advocates.
In response to this backlash, Trump’s campaign released a statement saying: “If Congress were to pass legislation making abortion illegal and the federal courts upheld this legislation, or any state were permitted to ban abortion under state and federal law, the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman.”
Interestingly enough, many anti-abortion advocates hold to this view as well (at least in public statements): women should not be punished for getting illegal abortions and the punishment should be limited to the abortion provider.
While some might claim that Trump’s initial position was an expression of misogyny, his inference was certainly justified given the usual approach to illegal actions. If abortion was criminalized and crimes should be punished, then it would follow that a woman who chose to have an abortion should be punished. This is the case with other crimes.
To use an obvious analogy, if Sally hires Jean to kill Jack, then Sally has committed a crime and should be punished for her role in it. A just court would and should punish Sally for her role in this crime. It would be patently absurd for someone to say “If Congress were to pass legislation making murder illegal and the federal courts upheld this legislation, or any state were permitted to ban murder under state and federal law, the assassin or any other person performing this illegal act for a woman would be held legally responsible, not the woman.” As such, if abortion were a crime (which opponents often consider murder), then it follows that the woman should also be punished.
Another analogy is with illegal drugs. If Sally buys illegal cocaine from Jean, then Sally has also committed a crime and should be punished. It would be ridiculous to say “If Congress were to pass legislation making cocaine illegal and the federal courts upheld this legislation, or any state were permitted to ban cocaine under state and federal law, the drug dealer or any other person performing this illegal act (providing cocaine) for a woman would be held legally responsible, not the woman.” Once again, if abortion were a crime, then the woman should also be punished.
Obviously, the analogies could continue through a multitude of crimes, thus showing that the position advocated by Trump and others is contrary to the usual workings of justice, namely that those participating in a crime are to be punished. That said, there is a way to hold to the position that the woman should not be punished and the abortion provider should.
Holding this position requires asserting that the woman lacks agency in the crime and is thus not responsible. One approach, which is not uncommon, is to argue that women in general lack agency. This sort of view was used to justify, for example, denying women the right to vote and treating them as property.
This approach would be analogous to that taken by some states in regards to child prostitution. Although prostitution is a crime, children lack the agency to consent to sexual relations and are thus not responsible for the crime. Instead, those providing or purchasing the sexual services are responsible for the crime. As such, they should be punished and the children should not.
While some might find this approach appealing, it is obviously problematic. One rather absurd implication is that denying that women have agency would give them this legal status across the board—thus undermining the possibility of fully holding women accountable for crimes they commit. There are, of course, so many other problems with this approach that it has no legitimate appeal.
Another option is to accept that while women have agency, they generally lack such agency when it comes to choosing to have an abortion. Or, rather, women do not truly choose to have abortions—they are coerced, tricked or beguiled into having them. If this were generally true, then the position that women should not be punished for illegal abortions while those performing them should be punished would be reasonable.
To use an analogy, if Jean kidnaped Sally and her daughter, then killed the daughter, Jean would be the criminal and Sally would be a victim. As such, Sally should obviously not be punished. The challenge is, of course, to show that abortion providers generally use coercion to compel women to get abortions against their will. This, however, seems contrary to the facts.
As another analogy, if Jean was able to beguile Sally into believing she was in terrible danger from Jane and only Jean could save her at that moment by killing Jane, then Sally should not be punished for agreeing to this. Likewise, if abortion providers beguile and trick women into having abortions that they would not have had without being under the mesmeric influence of the abortion providers, then women who have illegal abortions should not be punished. What would need to be shown is that abortion providers have such powers to beguile. This also seems unlikely.
It could be claimed that surely there are cases in which women are coerced or beguiled into having abortions against their will. This, I accept, probably does happen. I am also confident that people are also coerced or beguiled into committing other crimes. As with such cases, I would agree that the person who is forced or beguiled into participating in a crime should have any punishment reduced or eliminated based on the degree to which they lacked agency. Obviously enough, those that coerce or beguile people into crimes should be subject to punishment proportional to their contribution to the crime. This all assumes that the crimes are morally worthy of punishment—crime is a matter of law and there can be unjust laws.
Lest anyone be confused about my overall position, I would prefer that there were fewer abortions (as argued in another essay). But, I do accept that abortion is generally morally acceptable under the current social conditions. As such, I oppose banning abortion and certainly oppose punishing abortion providers or women who have abortions. My point is that those who wish to criminalize abortion need to accept that the punishment of women is entailed by this view. As such, the position that abortion is a crime and that abortion providers should be punished while women should not be punished for their role in the “crime” is an inconsistent and untenable position. This, naturally enough, is for cases in which abortion is not the result of coercion or deception.
Apparently eager to do some serious damage to North Carolina’s reputation and economy, the state’s Republican controlled legislature passed “the bathroom bill” and the Republican governor signed it immediately. This law seems to have been in response to Charlotte, North Carolina passing a city ordinance extending legal protection for LGBT people and allowing transgender folks to use bathrooms based on their gender identity.
The “bathroom bill” makes it so that local governments cannot pass their own antidiscrimination laws—the state law, which is more restrictive than the Charlotte ordinance, trumps all local laws. The reason it is called the “bathroom bill” is that it has the effect of forbidding transgender people from using the bathroom that matches their gender identity. Instead, they must use the bathroom that matches the sex on their birth certificate. Interestingly enough, the law also precludes any local government from passing its own minimum wage laws—the minimum wage falls under the antidiscrimination law.
While the most plausible explanation for the law is prejudice against people who differ from the heterosexual norm, the proponents of the law obviously cannot make that the public reason for their support. Rather, there are two main reasons presented in defense of the law. The first is that the imposition of state control over local governments was an attempt to rein in “governmental overreach” on the part of Charlotte and other local governments.
There is a certain irony in Republicans passing a law that restricts the liberty of local governments—this is because the importance of local government and assertions about getting big government off the back of the people are stock talking points. However, many Republicans seem to be fine with local government only to the degree that the locals do what they want.
To be fair, there are legitimate issues here about the extent of the authority of local governments and the extent to which the state has the right to impose on local authorities. One approach is practical: having a hodgepodge of inconsistent laws across a state would be difficult for citizens and businesses—there are advantages to uniform, statewide laws. Another approach is a matter of ethics—the restrictions and liberties of laws should be the same across the state based on the principle of fairness. Of course, using a moral foundation for uniformity would require a moral assessment of the laws being imposed: having an unjust law imposed uniformly would be worse than a just law that was imposed in limited locations.
My own view is that antidiscrimination laws should be uniform but also just. As such, I do agree that the state (and federal government) should be setting these laws. But, these laws must be just. In the case of the North Carolina law, my view is that it is unjust because it codifies discrimination while forbidding local authorities from passing just laws. Hence, the state is in the wrong here. I now turn to the second justification for the law.
Proponents of the law contend that they do not support it from prejudice and that it does not discriminate. They claim that the law is needed in order to protect people, especially children, from being assaulted in bathrooms and locker rooms by transgender people.
On the face of it, the law does aim at meeting what I consider a basic justification of a restrictive law: it has the professed intent of protecting people from harm. This is an excellent justification for limiting liberty and is the principle that justifies, for example, forbidding companies from knowingly selling dangerous or defective products.
While the professed intent does matter, the proper assessment of a restrictive law aimed at preventing harm requires considering whether the harm in question justifies the restrictions being imposed. In the case of the bathroom bill, the easy and obvious answer is that it does not. The reason is that there seems to be an exceptional lack of evidence that transgender people will present a danger to others if they are permitted to use bathrooms based on their gender identity.
While it is certainly not impossible for a transgender person to engage in such an attack, the statistical evidence is that there have been no attacks. There are currently numerous states and many cities that allow people to use facilities based on their gender identity—so there have been many opportunities for such attacks.
The obvious reply is to point to claims that such attacks (or at least sexual misconduct) have occurred, thus refuting the claim that transgender people are not a threat. The counter to this is to point to the fact that such claims tend to be mere urban myths and that the evidence shows that the myth of the transgender bathroom assault is just that, a myth.
It could be countered that while there is currently no evidence that allowing transgender people to use bathrooms based on their gender identity, an attack could happen and this possibility, however remote, justifies the law.
The easy and obvious response to this counter is that basing restrictive laws on the mere possibility that something bad might happen would be absurd. This principle would warrant incredibly restrictive laws across the board and would also warrant violating most, if not all, rights. For example, men might attack women on hiking trails, so trails must be restricted to one gender to avoid the possibility of attack. As another example, a car might be used in vehicular homicide, therefore people should be forbidden from owning cars. Naturally, if it could be shown that transgender people pose a serious risk to the safety of others, then restriction would be justified. However, the threat would need to match the restrictions imposed by the law.
As a final response, a proponent of the law could say that when a case of a transgender person attacking someone in a bathroom is confirmed, that will show the law is justified. The counter to this is to point out that this principle is absurd—if a car ban were proposed, it would not be justified by pointing to a case or even a few cases of vehicular homicide. As noted above, what would be needed is evidence of a threat that warrants the restriction.
In light of the above discussion, the “bathroom bill” fails the basic test of restrictive laws: it imposes restrictions without the justification of preventing a sufficient harm. This should come as no surprise—the law is not about protecting people but about prejudice.
The Republican Party is well known for its consistent support of gun rights and opposition to attempts to impose restrictions on these rights. As such, it might strike some as odd that the gun-loving Republicans are holding their national convention in a gun free zone in Cleveland, Ohio. Though the party might seem helpless in the face of the Secret Service (which banned guns from the Republican national convention in 2012), brave patriots have risen in its defense. A petition to allow open carry at the Quicken Loans Arena during the Republican Party’s national convention has been signed by over 50,000 supporters of the Second Amendment.
While some have suggested that the petition is not the work of true gun-loving patriots but by wily Democrat James P. Ryan, it is well grounded in an interesting moral argument. In any case, to dismiss the moral argument because of the identity of the author would be to fall into a classic ad homimen fallacy. After all, the merit of an argument depends on the argument, not the identity of the author.
The argument used to justify the petition is based in the principle of consistent application—this is the principle that standards must be applied the same way in similar circumstances. Exceptions can be justified, but this requires showing that there is a relevant difference between the applications that warrants changing or not applying the standard.
Not being consistent is problematic in at least three ways. One is that the person or group runs the risk of hypocrisy, which is morally problematic. The second is that inconsistent application is unfair, which is morally problematic as well. The third is that such inconsistent application runs the risk of undermining the justification for the standard, thus suggesting that the standard might not be well supported.
The case for the inconsistency of the Republican Party, the NRA and the three remaining Republican candidates is rather effectively made on the petition site. As such, I will present a rather concise summary of the case.
First, the NRA has argued that gun free zones, like where the convention will be held, are essentially advertising the best places for mass shootings. The NRA consistently opposes such zones—or at least it did. Second, Trump, Cruz and Kasich have explicitly opposed gun free zones. Trump and Cruz have both echoed the NRA’s line that gun free zones are bait for mass shooters. Third, there are the stock arguments made by the NRA and pro-gun Republicans that people need guns to defend themselves—that a good guy with a gun is the only one who can stop a bad guy with a gun. As such, for the Republican Party to hold its convention in a gun free zone with Cruz, Trump, Kasich and the NRA agreeing to this would be a clear act of moral inconsistency. Since they all oppose gun free zones (including, in some cases public schools) they should insist that the same standard they wish to apply to everyone else must also be applied to them. That is, guns must be allowed at the convention.
It could be countered that the Republican Party does back private property rights and, as such, they could consistently say that the Quicken Loans Arena owners have the right to ban guns from their property (though they are just laying out irresistible murder bait by doing so). While it is reasonable to accept that private property rights trump gun rights, the obvious counter is to insist that the convention be moved to a private or public venue that allows guns unless Quicken Loans Arena is willing to change its policy for the event.
Another counter is to note that the Secret Service has apparently insisted that guns not be allowed at the event. The Republicans could thus say that they really want to have guns, but the government is violating their rights by forcing them to ban the guns they so dearly and truly love. That is, if it was up to them the convention would be well armed.
The easy and obvious reply is that the Republican Party and candidates could take a principled stand and insist that guns be allowed. After all, their position on the matter of gun free zones is quite clear—the least safe place to be is a gun-free zone. Presumably the Secret Service is concerned that someone might bring a gun to the convention and try to kill Trump, Cruz or Kasich. Since these three men believe that gun free zones would simply attract assassins, they should be able to convince the Secret Service that they would be safer surrounded by armed citizens and, of course, sign whatever waivers or forms would be needed to make this so. If the candidates and the party lack the clout to make the convention gun friendly, surely the gun-friendly Republican majority in Congress could pass legislation allowing guns to be carried at the convention. This, one might suspect, would be a law that Obama would be quite willing to sign.
If the Republicans do not approach this affront to their gun rights with the same will and tenacity they deploy against Obamacare, one might suspect a hypocrisy regarding their position on guns: doing without gun free zones is fine for everyone else; but the Republican establishment wants the protection of gun free zones. This does not, of course, show that they are in error in regards to their avowed position opposing gun free zones—to infer that would be to fall victim to the ad hominem tu quoque (the fallacy that an inconsistency between a person’s claim and her actions shows her claim is wrong). However, it might be suspected that if the Republican establishment is fine with the convention as a gun free zone, then they have some evidence that gun free zones are not, contrary to their professed view, murder bait and are safer than gun zones.
Like almost everyone else, I would prefer that there were far fewer abortions. While this might seem like a problematic claim to some, it actually is obviously true. People who oppose abortion obviously want there to be fewer abortions. However, those who are pro-choice are almost always not pro-abortion. That is, they do not want abortions to occur—they would prefer that women did not end up in situations where they see abortion as the best option.
While I do not fall into the pro-life camp in terms of political labelling, I do take a position in favor of life. To be specific, I prefer to avoid killing when doing so is possible and I fully accept that killing anything is an act of some moral significance. In some case, the ethics of killing are easy: I have no issue with killing the bacteria that are working hard to kill me and I accept the need to kill other living things in order to use them as food. In other case, like abortion, the ethics are rather more challenging. After all, abortion involves killing a potential human being and this is clearly an act with great moral significance. Because I have a general opposition to killing, I have the obvious general opposition to abortion. However, I do accept that killing can be morally justified and believe this does apply to certain cases of abortion. As such, I favor reducing the number abortions and support certain means of doing so. I do not, however, favor it being banned.
For those who follow abortion in American politics, the usual means of reducing abortions are aimed at making it harder for women to get abortions. Numerous states have passed laws requiring waiting periods and have imposed medically unwarranted restrictions on abortion clinics aimed at closing them. I am completely opposed to these means of reducing the number of abortions. While I have various reasons supporting my view, my main reason is that these approaches put the burden almost entirely on the woman. Roughly put, it is the woman who bears most of the cost of the moral and religious views of those who impose such restrictions. These costs can be extremely high and not only in terms of the financial cost.
The moral foundation for my opposition to this method of reducing abortions is based on the fact that such imposition is unfair and the fact that this method imposes an extremely high cost on women and society as a whole. It is the wrong way to reduce the number of abortions. As such, I favor approaches that would reduce the number of abortions while distributing the cost more fairly and also reducing the cost to women and society as a whole. To this end, I offer the following general proposals.
The first is doing what is required to reduce sexual violence against women—this would reduce the number of abortions and, rather importantly, make the world safer for women.
The second is to mandate effective and realistic sex education for the youth and also make effective contraception readily accessible. If people have a better understanding of sex and have access to the means to prevent pregnancy, there will be fewer unwanted pregnancies and hence fewer abortions. This has other obvious benefits, although some people do oppose birth control.
The third is to provide greater social support for mothers and children. This would include such things as affordable day car for all working mothers, financial support for lower income mothers, and other support that would make raising a child less of a financial burden. This would reduce the number of abortions by making the choice to have the child more viable.
The third is to address the numerous aspects of gender inequality that burden women. These include wage inequality, the glass ceiling, and other such things that contribute to making it difficult for women to have a family and a career. This would lower the number of abortions by making being a woman and a mother less of a career handicap, thus giving women a greater opportunity to choose to continue an unplanned pregnancy.
There are, of course, some obvious objections against these proposals. The first is that doing so would require the use of public money. The “advantage” of the usual approaches is that they are initially free for the state and the cost is put upon the women. Such cost shifting is beloved by the morally shifty. As such, it comes down to the ethics of deciding who should bear the burden and cost. Being pro-life rather than anti-abortion, I hold that the cost should be shared—I am willing to pay a price for my principles rather than expecting others to bear that cost.
The second objection is that these approaches would require some radical changes to society. Those who oppose fairness and prefer the “traditional” approach of keeping the women burdened will find this problematic. However, they would seem to be wrong about this—morally defending unfairness is rather challenging.
The third objection is that this approach will still allow abortions to occur—there is no proposal to impose new restrictions or ban abortion. My reply is that I do acknowledge that it would be preferable to have no abortions—just like it would be preferable to never have to harm anyone or anything in any other context. However, if it is accepted that a person’s interests can warrant harming another living being, then there are clear grounds for warranting abortion in many cases. As such, while I favor reducing the need for abortion, I cannot favor eliminating it—anymore than I can support a total rejection of ever doing harm. I do, of course, recognize that such complete pacifism could be morally commendable.
In 2013 Texas passed a law imposing strict conditions on abortion providers and justified it by asserting that its intent was to improve patient safety. Opponents contend that it is aimed at restricting abortion and that there is no medical justification for the law. The issue has reached the Supreme Court which is currently down to eight justices due to the death of Antonin Scalia. As always, the battle over abortion is philosophically interesting.
One rather interesting matter is the fact that proponents of the law insist that it is solely intended to improve the safety of women. One reason for this is that openly asserting that the law is intended to restrict abortion would be politically and legally problematic. After all, the Supreme Court has consistently held that women do have a right to abortion and that laws cannot impose an undue burden on women. Hence, the law is presented as aimed at addressing a health issue rather than restricting abortion. This leads to the question of whether or not the claim about the intent of the law is plausible.
Opponents of the law have pointed out a blatant inconsistency: procedures that impose more risk than abortion (such as a colonoscopy) do not face the restrictions imposed on abortion. If the true intent was to protect the health of patients, then the same restrictions would be applied to procedures that presented equal or greater risk. While it might be argued that the legislature decided to just address one procedure at a time, they have had ample time to advance bills covering other procedures. Their failure to act consistently shows rather conclusively that the law is an anti-abortion law, despite the claim that it is motivated by health concerns.
Opponents have also pointed out that the medical experts and professional medical organizations uniformly hold that there is no medical justification for the law. As should be expected, supporters of the law claim that they know better than the medical experts. While experts are not always right, the majority opinion of the qualified experts is the most reasonable thing to accept as true. Especially when the opposing view is put forth by non-experts who have a clear bias in the matter (they are anti-abortion). Thus, by the reasonable standards of freshmen level critical thinking, the rational choice is to believe the medical experts. As such, the medical justification for the bill is unfounded and this would seem to leave as its only plausible goal the restriction of abortion.
It could be argued that the supporters of the law are truly motivated by concerns about health and truly believe that the law is in accord with best medical practices. This would require attributing to such supporters the inability to understand the principle of consistency and either ignorance of the medical facts or an unfounded rejection of experts.
A more plausible explanation is that the supporters are being disingenuous—they are well aware of the inconsistency and medical facts and support the law because it is an effective means of creating undue burdens on women seeking abortion.
If supporters are engaged in lying to defend the law, then the moral matter of these lies becomes a point of concern. On the face of it, such deception would seem to be morally wrong—especially lies told by legislators to the public. A moral person, one might argue, would be honest about the facts and her intent and would not resort to duplicity.
This could be countered by appealing to the consequences of the lies. The idea is that the good done (in terms of reducing the number of abortions) would outweigh any evil arising from the lying. That is, this could be defended on the grounds of lying for a good cause. This assumes many things, such as abortion being morally wrong and the principle that the consequences of a lie can morally justify the lie.
Another approach to justifying the lies is to accept that the lies are wrong, but that the evil of abortion cannot be countered if one is honest about the facts and one’s intentions. The Supreme Court has ruled that the state cannot constitutionally put an undue burden on a woman seeking an abortion. Justice Stevens has defined “undue burden” in terms of its severity as well as lacking “a legitimate, rational justification.” In the case of the Texas law, if the honest admission was made that the law was intended to make accessing abortion as difficult as possible and that there is no medical basis for the law, then it would be easy enough to show that it would fail the undue burden test. After all, this admission would be a direct admission of such a failure.
However, if the claim is made that the law is intended to protect the health of women and is based on medical considerations, then it becomes more difficult to establish the existence of an undue burden. It could thus be argued that opponents of abortion are required to lie in order to limit abortion. As such, it is the law of the land (as interpreted) that is making them lie—so they are not morally to blame. They have no choice if they are to oppose what they regard as a great evil.
One counter is that the law is not making them lie—they can be truthful about their anti-abortion law. They just need to provide a legitimate, rational justification for imposing the restrictions they wish to impose. This seems like a reasonable requirement for any law. After all, if no legitimate, rational justification can be provided, then the law would be illegitimate and unjustified.
A possible counter to this is to claim that Roe v. Wade has set a precedent making it impossible to provide legitimate, rational justifications for the restrictions they wish to impose. As such, they must lie to achieve their end.
The reply to this is that they do not need to lie—they need to try to get Roe v. Wade overturned. This, of course, will result in the counter that this either cannot be done or, at the very least, will take too long—hence they need to lie now and perhaps forever in order to achieve their goal of restricting abortion. While this can be seen as a reasonable position, there is certainly something problematic about using systematic lying to achieve an allegedly moral end.
While a concealed weapon permit allows a person to carry a gun many places, the campuses of public universities have generally been gun-free areas. My adopted state of Florida has been wrangling with a bill to allow concealed carry on campus and Texas recently passed such a bill into law.
The faculty of the University of Houston met to discuss this issue and express concern about its impact. A slide from a faculty meeting about the law suggests that faculty “be careful in discussing sensitive topics”, “drop certain topics from your curriculum”, “not ‘go there’ if you sense anger”, “limit student access off hours, go to appointment-only office hours , and only meet ‘that student’ in controlled circumstances.”
What is rather striking about this slide is that the first three suggestions are identical to limits imposed by what detractors call “political correctness” and there are also similarities to recommendations about trigger warnings. This provides the grounds for the discussion to follow in which I consider limits of free speech and academic freedom.
One way to justify limiting academic freedom and free speech is to argued that students are entitled to a non-hostile learning environment in which diversity and difference are not only tolerated but respected. That is, students have a right to expect limits on the academic freedom and free speech of professors. This is often supported by a moral argument that appeals to the harms that would be suffered by the students if the freedoms of the professors were not suitable limited for their protection. For the good of the sensitive students, professors are supposed to accept such restrictions.
This sort of reasoning assumes that students would be harmed without such restrictions and that their right not to be harmed exceeds the imposition on the rights of the professors (and other students who might gain value from such subjects and discussions).
A similar sort of argument can be made in the case of concealed weapons. The reasoning is, presumably, that an armed student might be provoked to violence by what happens in class and thus hurt other students. As such, for the safety of students, professors should accept restrictions on their freedoms.
This reasoning assumes that armed students pose a threat and are easily provoked to violence—a factual matter that will be discussed later. It also assumes that the risk of harm to the students by a fellow student outweighs the rights of free expression and academic freedom (on the part of both professors and students).
Somewhat ironically, the attitude expressed in the slides suggests that there will be a hostile environment for gun owners—something I have experienced. Being from rural Maine, I learned to shoot as soon as I could hold a gun and spent much of my youth hunting and fishing. While many colleagues do not take issue with this, I have run into some general hostility towards guns and hunting. I have had fellow professors say “you are not stupid, so how can you like guns?” and “you seem like such a decent person, how could you have ever gone hunting” (often said between bites of a burger). While being a gun owner is a matter of owning a gun, there is also a culture that includes guns—one I grew up in and remain a part of. Hostility towards people because they belong to such a culture seems comparable to hostility towards other aspects of culture—like being hostile towards Muslims or towards men who elect to wear traditional female clothing.
It might be replied that gun culture is not worthy of the same tolerance as other cultures—which is, of course, what people who hate those other cultures say about them. It might also be argued that the intent is not to be intolerant towards people who have guns as part of their culture, but to protect students from the dangers presented by such irrational and violence prone people.
Another way to justify limiting academic freedom and free speech is on practical or pragmatic grounds. In the case of political sensitivity, professors might decide that it is not worth the hassle, the risk of law suits, the risk of trouble with administrators and the risk of becoming a news item. As such, the judgment to voluntarily restrict one’s freedom would be an assessment of the practical gains and harms, with the evaluation being that the pragmatic choice is to run a safe class. This, of course, assumes that the practical harms outweigh the practical benefits—an assessment that will certainly vary greatly depending on the circumstances.
The same justification can be used in the case of armed students. The idea is that professors might decide on purely pragmatic grounds that risking provoking an armed student is not worth it—this would not be a moral assessment, simply a pragmatic decision aimed at having a bullet free day in the classroom.
This, of course, assumes that a pragmatic assessment of the risk shows that the best practical choice is to focus on safety.
A final way to justify restricting academic freedom and freedom of expression is a moral argument that is based on the potential harm to the professor. In the case of political sensitivity, there is considerable concern about the damage that a professor can suffer if she is not careful to restrict her freedom. While privacy concerns preclude going into details, I have had colleagues in the professor express considerable terror at the prospect that a blog they write for might post a controversial piece. The worry was that their careers would be damaged in terms of keeping or finding employment. While such fear might be unfounded, it is quite real and certainly provides a moral foundation for self-censoring: the professor must restrict her freedom to avoid doing moral harm to herself. As with any such assessment, the risk of harm and the extent of the harm needs to be considered. As noted above, this does seem to be a very real fear today.
In the case of guns, the worry is that a professor could cause herself harm by provoking gun violence on the part of a student. The moral foundation for self-censorship is the same as above: the professor must restrict her freedom to avoid doing moral harm to herself.
As was the case with career damage, a professor would need to consider the risk of provoking a student to gun violence and perhaps the moral choice would be to choose safety over the risk. This leads to the factual matter of the extent of the risk.
The fear expressed by some about concealed carry on campus seems to be based on an assumption that it presents a significant risk to professors. However, it is not clear that this is the case. First, the law only allows those with permits to bring their guns on campus. Threatening people and shooting people remain illegal. If someone is willing to break the law regarding threatening or murder, presumably they would also be willing to break a law forbidding guns on campus. As such, there does not seem to be a significant increase in risk because of allowing concealed carry on campus.
Second, campuses do not (in general) have security checks for guns. It would be one thing if the law disbanded existing security screening to enter campus—this would increase the risk of guns on campus. This law just allows law-abiding citizens to legally bring a gun on campus and has no effect on how easy or hard it is for someone to bring a gun on campus with the intent to commit violence. As such, campuses would be about as safe as ever.
It might be objected that a person will legally bring a gun to class or the professor’s office, be provoked to violence and act on this provocation only because she has a gun (and would not use her hands, a knife or a chair). Thus, the danger is great enough to warrant professors to self-censor.
One reply to this is to note that violence by students against professors is rather rare and allowing guns on campus would not seem to increase the violent tendencies of students. It could, of course, happen—but a student could also decide to run over a professor with a car and this possibility does not justify banning cars from campus. The fear that a student carrying a weapon legally will murder a professor after being provoked in class or in the office seems analogous to the fear that Muslim refugees will commit terrorists in the United States. While it could happen, the fear is overblown and does not seem to justify imposing restrictions. As such, while free expression combined with legal campus carry does entail a non-zero risk, the risk is so low that self-censorship seems unwarranted.
Companies like Uber and Lyft profess to be shaking up the old economy. As has happened with every shake up, there has been a legal up—that is, endeavors to regulate the changes. In some cases, these regulations are at the behest of influential players in the established economic order who wish to maintain their economic dominance. In other cases, the regulations are motivated for more benign reasons, such as protecting the public.
As this is being written, Uber and Lyft are involved in a legal struggle in Texas. The city of Austin is considering a program for fingerprinting drivers of these services. Lyft and Uber are both opposed to this—mainly on the grounds that they fear this will start the slow march towards ever-increasing regulation. This is not the first shootout in Texas over fingerprinting: Houston mandated the fingerprinting of drivers and Lyft responded by abandoning the city. Uber elected to remain and operate within the requirement. While the matter of fingerprinting is interesting in itself and will be the focus of the discussion to follow, there is also the general matter of imposing new regulations on these new approaches to business. Not being a lawyer, I will focus on the ethics of this matter on the grounds that I contend regulatory laws and policies must have a solid moral foundation.
When approaching the regulation of a new business, it is natural to look for precedents in regards to existing businesses. In the case of Uber and Lyft, it is natural to turn to the regulation of taxi and limousine companies on the grounds that they offer the same basic service: transportation via automobiles. In general, taxi drivers are required to undergo fingerprinting and a background check. As should be expected, those in favor of having Lyft and Uber drivers undergo this process point to this fact and some make an argument based on consistency.
Consistency requires that the regulation of a new business should be modeled on the regulations of older businesses to the degree the businesses resemble each other. There are two foundations for consistency: logic and fairness. In regards to logic, the reasons that justify the regulations of the old business would apply to the new business to the degree they resemble each other. As such, if the fingerprinting of taxi drivers is justified, then the fingerprinting of Uber and Lyft drivers would be justified to the degree that the businesses have relevant similarities.
Fairness, which is a matter of ethics, requires that businesses that are relevantly similar be treated in similar ways. To use a specific example, if Lyft and Uber were able to avoid regulations that taxi companies have to deal with, then this would provide an unjust advantage—at least to the degree that Lyft and Uber are like taxi companies.
Companies like Uber and Lyft often try to avoid regulation by arguing that there are relevant differences between their companies and their competition such that they should not be subject to the same regulations. In the case of these ride sharing services, the two main concerns are whether or not these companies are relevantly similar to taxi companies and whether or not their drivers are relevantly similar to taxi drivers. The resemblance or lack thereof is not all or nothing: ride sharing services might be the same as taxi services in some important ways and very different in equally important ways.
While this is a specific matter about fingerprinting drivers, the general principle here is that if regulation of one aspect of a business is warranted, then it is also warranted in regards to businesses that are relevantly similar. As such, this principle would also apply to companies like Airbnd.
In the case of fingerprinting and background checks for drivers, I would contend that the ride sharing services are similar in relevant ways. After all, whether it is an Uber or a taxi, the passenger is put into a position of considerable vulnerability. As such, if the fingerprinting of taxi drivers is warranted, so is the fingerprinting of Uber and Lyft drivers. There is, of course, still the question of warrant. This leads to the general matter of justifying business regulations.
The first concern in regards to business regulations (and any laws that require or forbid) is whether or not there is a harm that is significant enough to justify regulation. As I usually do in such matters, I follow Mill’s principle of harm: the only justification for imposing on the liberty of a fully functioning adult is the prevention of harm to others. This is obviously subject to debate, but Mill’s arguments are rather compelling. Even if this principle is accepted, there is still a vast territory of dispute regarding the significance of the harms—that is, sorting out what level of harm justifies which level of regulation. To use a concrete example, some contend that even a submicroscopic level of voter fraud justifies a buffet of regulations ranging from voter ID requirements to ending early voting. To use another concrete example, some contend that any increase in gun regulations is unacceptable even in the face of significant levels of gun related deaths.
In the case at hand, the concern is whether or not there is a danger to public safety on the part of drive sharing drivers that needs to be addressed. It is clear that there is a danger—a driver could kidnap, assault or kill a passenger. However, the main issue here is whether or not the likelihood of such harms is high enough to warrant the imposition of fingerprinting. On the one hand, the fingerprinting is not a big deal in terms of time and cost. On the other hand, it is not without cost and the risk of attack by a driver is probably exceptionally low. In any case, the dispute comes down to a factual issue about the odds of attacks and a value assessment regarding the balance between the cost of the regulation (in terms of money, time, imposition, rights and so on) and the cost of the harm. My opinion is that fingerprinting does not seem an undue imposition given the (rather low) risk—but I do not have a very strong opinion on this point.
The second concern is the efficacy of the regulations in regards to the harm. There could be a significant harm that would warrant regulation to protect people, but the proposed regulation might be ineffective at achieving the goal. To use the Uber and Lyft example, the danger presented by drivers might be regarded as significant enough to justify imposing mandatory fingerprinting and the cost of said fingerprinting might be regarded as reasonable, but it might be the case that fingerprinting would not actually make passengers safer. To use another example, it might be true that voter fraud is a significant problem, but it could be the case that requiring voter ID would do nothing to address the fraud.
Since the justification for regulation is the prevention of harm, ineffective regulation would be unwarranted—provided that the defect lies in the regulation and not in, for example, a failure to actually enforce the regulations.
In the case of fingerprinting, it would seem to have some efficacy in screening out people who already have a criminal background. However, it would obviously not screen out people who do not have a record yet might present a danger. Because of this potential efficacy, I would not be opposed to requiring ride sharing drivers to undergo fingerprinting—but I am not strongly committed to this position and could easily change my position in the face of reasonable arguments.
Data breaches, hacking and device theft are a routine part of modern life. In order to help defend customers, Apple and Google added very effective security features to their phone operating systems. American law enforcement, who had grown accustomed to easy access to the treasure trove of evidence that is a smartphone, were generally dismayed by this—they could no longer get Apple or Google to unlock a phone because the phones were effectively unlockable.
In the light of revelations about the extreme ineffectiveness, egregious incompetence and privacy violations on the part of the state security apparatus, the public was generally in favor of the strong encryption offered by Apple and Google. The FBI, however, thinks it has found an ideal rhetorical tool to exploit against encryption: the murders in San Bernardino. The FBI has claimed that the work iPhone of one of the alleged attackers contains critical evidence and a judge has demanded that Apple write a special version of its iOS to enable the FBI to crack the phone. Apple, which has cooperated fully with the investigation to this point, has refused to create a means of breaking iPhone encryption. The company has made its case via a letter to the customers.
Since people have an irrational fear of domestic terrorism vastly out of proportion to the actual threat level, the FBI has chosen wisely with this case. They can try to make use of scare tactics and appeal to fear to get the public to unwisely side against Apple. Since I have argued at length against backdoors in general, I will not rehash those general, rational arguments here. Instead, I will focus on the situation at hand. Since I am not a lawyer, I will stick primarily to the ethics of the matter and leave the legal wrangling to those who have billable hours.
The standard argument in favor of giving the state access to private information, be it on a phone or written on paper, is based on security: the state needs that information in order to protect citizens from harm. In the case of the iPhone, the argument is presumably that the phone contains information the FBI needs to conduct its investigation. Since the person who knew the passcode is dead, the FBI cannot compel that person into allowing access to the phone. Either the FBI lacks the means to get into iPhones or has elected not to reveal that capacity, so they need to turn to Apple to access the data.
Others in law enforcement advance similar arguments: they have many phones that they think contains data relevant to cases and the argument from public safety should, they think, override all other concerns. Since the focus of the FBI and law enforcement in general is on finding and prosecuting criminals to protect the public, it makes sense that they would see the matter from that perspective. Apple and Google, as they see it, are helping the criminals and terrorists by providing them with unbreakable vaults for their data.
The argument from safety should not be simply dismissed. After all, the primary function of the state is to protect its citizens and the usual utilitarian moral argument can be made in favor of endeavors aimed at reducing privacy in order to increase security.
The easy and obvious counter to this security argument is another security argument. If the United States government and law enforcement were the only ones who could access such data and could do so only via due process of the law, then it would be reasonable to allow such access. Unfortunately, such access cannot be limited to the United States and history has shown that the state has a rather vague notion of due process. Because of this, it seems likely that far more harm would be done by getting on the road the FBI wants Apple to walk. While law enforcement would, it is true, be able to crack some phones and get some information that would prove useful, this would be outweighed by the harm done to citizens by criminals and foreign states. After all, if law enforcement can get into an iPhone, then so can China and criminal hackers. It could, of course, be argued that my estimate is in error—that the harms prevented by allowing law enforcement into phones will vastly outweigh the harms that will occur from hackers getting into the phones of citizens and the harm done when foreigners decide to go with competing phones rather than risk using an American iPhone or Android phone. However, given the damage done by hacking and the fact that law enforcement can use other means of investigation (such as what they did before smart phones), this does not seem to be the case.
Another approach is to make use of stock conservative arguments against government overreach and in favor of rights. Conservatives routinely argue against government regulation, in favor of small government, against government intrusion and in favor of constitutional rights. While these arguments are usually employed against environmental regulations and in defense of gun rights, they would also apply with slight modifications to the matter at hand. Libertarians who grasp the concept of consistency are in favor of such encryption and against such intrusions into privacy rights. Unfortunately, some conservatives throw away their espoused principles in the face of overblown fears about terrorists and criminals. However, these principles need to be applied consistently and, if they were, conservatives should oppose such government overreach and intrusions into the freedom of businesses and into constitutional rights.
As a final point, consider the stock argument in favor of gun rights that citizens need guns in order to engage in self-defense and to do so even against the tyranny of the state. The same sort of argument would seem to apply in the case of phone encryption: it serves as a digital defense against criminals and terrorists, but also as a very real defense of the tyranny of the state. So, if citizens have a right to firearms to defend against the forcible acts of criminals and state tyranny in the physical world, they should have the right to encryption to defend against criminals and state tyranny in the digital world. What is needed is a suitable slogan on par with the NRA’s famous line about guns: “I’ll give you my data when you take my phone from my cold, dead hands.”
While all states allow for concealed carry, schools have generally been areas of exemption. As this is being written, my adopted state of Florida is considering a bill that would make concealed carry legal on the campuses of the state’s public universities. Some other states have already passed such laws. While I have written about concealed campus carry before, my focus here is on professors who refuse to allow guns in their classrooms and offices.
While I am not a lawyer, I am inclined to believe that professors lack the legal authority to impose such bans. This is, presumably, something the courts will be hashing out in upcoming lawsuits—perhaps including suits alleging a violation of a constitutionally protected right. Since I am not a lawyer, I will leave the legal matters to the experts. Instead, I will focus on the moral aspects of the subject.
One moral argument that could be made in favor of the professors is that they have the right to ban things they regard as morally offensive from their classrooms and offices. So, a professor who is morally opposed to guns could refuse to allow them. This is analogous in some ways to religious freedom arguments used to justify a business not providing coverage of contraception or those deployed against allowing same sex-marriage. The idea in all these cases is that the moral interest of one person or group overrides that of another, thus justifying the freedom of one over another. In the case of guns, it is the right of the professor to teach and hold office hours in a gun-free environment that overrides the right of others to carry guns.
One reply to this argument, as is used in the religious freedom cases, is that the right of the professor to restrict the right of the students is not justified. That is, their right to carry a weapon trumps her right to be in a weapon free zone. This would be somewhat similar to how the right of a same-sex couple to marry trumps the right of religious people to live in a same-sex marriage free country.
Another reply to this argument is to draw an analogy that is aimed at showing the absurdity of such a professorial ban. Imagine a professor who has a deep and abiding moral opposition to birth control and wants to ban them from her classroom and office. This includes birth control that is being “concealed” in the body (for example, a woman on the pill)—while the professor cannot see it, the mere presence is morally intolerable to her. While the professor has the right to keep students from fornicating in class, she would not seem to have the right to ban the presence of birth control. A similar argument could be made with smart phones: a professor can forbid their use in class because they can be disruptive and be used to cheat, but he cannot refuse to allow students to have them in their backpacks or pockets. As such, professors do not seem to have the right to ban guns simply because they are morally offended by them.
A better moral argument is based on the matter of safety: a professor could be concerned about people being shot (intentionally or accidentally). Colleagues of mine have also spoken about the chilling effect of allowing guns on campus: people, it is claimed, would be afraid to discuss contentious issues. It is also claimed that some professors would be inclined to grade easier to avoid getting shot.
There certainly are legitimate safety concerns about allowing guns on campus. However, there are two obvious points worth considering. The first is that guns are already allowed many places and people do not seem generally inclined to avoid contentious discussions or to not do their jobs properly because someone might shoot them with a (up to the murder attempt) legally carried gun. As such, unless campuses are simply special places, this concern does not warrant a special ban on campus carry. Put another away, if guns are allowed almost everywhere else, then without a relevant difference argument, they should be allowed on campuses. The second, as I point out to my colleagues, people can very easily carry guns illegally on campus. If someone intends to kill a professor over a bad grade or a heated discussion (which has happened) they can do so. Campuses are generally quite open and I have never seen anyone checked for weapons at any university. A professor ban would certainly not provide a greater degree of safety—even if the professor was able to enforce such an almost certainly illegal ban.
Interesting, the state legislatures who pass concealed carry on campus laws generally forbid people to bring guns to the legislature. While this shows inconsistency, it does not show the law is wrong. It does, however, point towards a relevant difference argument—perhaps the campus is relevantly similar to the legislature.
My view is that there is not really a compelling reason to walk around campus with a gun and I am concerned about safety issues. However, I do not have the moral right to ban guns from my classroom or office. In fact, I would plan on carrying one myself.