The Year of Regulatory Reform: The Common Decency Justification
Even as it loses a federal court case about censoring vanity plates, Rhode Island is stubbornly trying to cling to censoriousness by invoking concern for public decency.
As this project has noted before: a common justification for regulation is the welfare of the community writ large. By creating standardized processes that force actions onto the public record, proponents of various types of regulation believe they promote accountability and safe practices. For example, occupational licenses are meant to ensure that customers at businesses like beauty salons receive treatments from people with the requisite knowledge to perform the services they’re offering. Not only is this supposed to insulate the customer from harm, but, should things go wrong, the state knows who to investigate.
Regulation that has public safety in mind at least has a concrete goal: ensuring no one is harmed through private interactions. Unintended consequences frequently means it fails in this objective, but this kind of regulation is at least reacting to a specific perceived problem.
But there’s also another kind of regulation, which looks to more proactively shape the world and mold it in accordance with a certain set of values. As justification, this kind of regulation invokes “common decency,” an ambiguous term that frequently gives legislators carte blanche to act in a wide variety of ways. And those almost always infringe on the individual’s ability to define and act in accordance with their own values.
Rhode Island is known as the colony founded on the idea of religious freedom, but its modern day mindset is undeniably Puritanical. It often invokes “community standards” as a justification for punitive regulations that punish actions it wishes to discourage its residents from taking.
A few years ago, state legislators discussed a much-mocked bill that would have effectively outlawed the digital streaming of pornographic content. The bill would have held Internet providers accountable for distribution of content the state deemed objectionable, not the actual websites producing them. It required ISPs to block websites deemed by the state to host “sexual content and patently offensive material.”
Per the government’s reasoning, people shouldn’t be able to use publicly regulated utilities to promote content that violated standards of public decency.
But that’s not all the bill contained: consumers could pay a $20 fee to unblock sexual content, which the state would collect quarterly and send to the state’s attorney general to fight human trafficking.
What was sold as a principled stance for good, old fashioned morals was just a revenue raising measure in the guise of protectionism. The state was willing to drop its pearl-clutching concern for community decency the minute money entered the picture. So much for community standards.
The bill, unsurprisingly, didn’t pass. It was a ludicrous proposition: what right does the state have to interfere in the actions people take of their own free will through private channels? From a civil liberties perspective, absolutely none.
That the government was willing to sell out its supposed concern for community decency for the low price of $20 shows the bill was never actually about protecting anyone from anything objectionable. But the appearance that government wants to protect people from harm is powerful and resonates with a lot of communities.
Concern for public welfare has become a generally acceptable justification for government intervention, this is a good go-to anytime government wants to do something that might seem unreasonable. In America, the majority rules. Pit yourself against the community and you’re instantly branded as selfishly pursuing your own narrow interests without any regard for how they affect other people. It’s an easy way to stymie debate and discredit anyone who dissents.
It helps drive absurd ideas a lot further through the legislative process than if they were branded as what they really are: an attempt to modify behavior not just to suit the personal preferences of those in charge, but to institute penalties from which the state can collect resources when people go against what’s “acceptable” in the community.
More recently, the Rhode Island DMV announced it has suspended applications for vanity plates because it wants community input on what arrangements of letters and numbers should be banned because they might be construed as something offensive.
Rhode Island law currently bans “Any letter or combination of letters and numbers that might carry connotations offensive to good taste and decency.”
But here’s the kicker: A federal court recently ruled that law unconstitutional. The DMV lost a suit brought by RI resident Sean Carroll, whose vanity plate, which was originally approved by the state, reads “FKGAS.” Carroll claims this is meant to stand for “fake gas.” The plate is affixed to his Tesla. At some point, the DMV realized this could be read a different way and, rather than offend the sensitive eyes of anyone Carroll happens to drive past, decided to revoke the plates. With the help of the RI ACLU, Carroll sued, alleging this was a violation of his free speech. And he won.
So, even while the state is losing a battle on the grounds that censoring vanity plates is a violation of the First Amendment, it’s asking for input on what words shouldn’t be allowed on vanity plates because they might offend community values. The DMV has also rather ludicrously pasted onto this announcement the statement that it wants to have a discussion about what language goes against community standards while respecting free speech. The two are not compatible and a federal court has affirmed this. But still RI government wants to have it both ways. And it’s relying on community standards to help it walk this non-existent line.
The problem with community standards, of course, is the vagueness of this term. A community of retired grandmothers who get together to knit and gossip probably have very different sensibilities than does a club for appreciating punk rock music. Should the state promote the interests of the God-fearing, apple-pie baking grandmothers or the harder-living punk rock fans? It can’t do both. It has to pick between the two, which gives greater legitimacy to one viewpoint and one way of living.
And that’s a problem, not just because it makes rule of law impossible by violating the idea that everyone holds rights that need to be protected in equal ways, but because it’s prejudiced against minority views. Both examples in the paragraphs above are stereotypes, but communities are often a lot more diverse and are comprised with people that might have a few qualities in common and otherwise have vastly different viewpoints and lifestyles. Why should the values of minorities be viewed with less legitimately simply because their beliefs don’t have the strength of numbers on their side? That’s certainly not an approach American government was founded to promote.
Defining “community standards” is a Sisyphean task. Often, these definitions end up being so overly broad as to be meaningless, or they tend to adopt the values of the legislators and regulators whose job it is to write statutes. Just look at the RI DMV’s attempt to censor license plates: it’s not even censoring actual profanity; it’s censoring something it thinks might be construed as something someone may find offensive. That’s a lot of qualifications for an action that could violate community standards but does violate the First Amendment.
In either case, regulations that invoke something that is communally-held as acceptable holds a special amount of legitimacy. Culture tells us over and over again that America is a democracy and public decisions carry the voice of the majority, which has a special significance.
But often “community standards” have nothing to do with the regulations that invoke them as justification for the limits they impose. And even if they do, should common ideas about right and wrong be a justification for putting limits on individual rights?
Common sense (and First Amendment jurisprudence) dictates, no. But, as the RI DMV’s reaction to being slapped back by a federal court shows, government may not recognize these limitations upon its authority. It will instead pay lip service to personal rights while doubling down on its ability to regulate.
The RI DMV now wants the input of residents to determine what language they think is appropriate. But a federal court has told it that conversation is moot: community attitudes towards words protected by the First Amendment don’t matter; government’s content-based restriction of speech is subject to strict scrutiny and is unconstitutional. Community standards are trumped by civil liberties. And that’s for the best: it allows individuals to determine what values they think are right and wrong and to act accordingly in their own lives.
Personal values, though, don’t have any purchase in the wider world. Community standards, therefore, aren’t rigid. They change with the makeup of community. And they’re limited: they don’t apply to anyone who hasn’t agreed to make themselves subject to the decisions of a community.
That’s effectively what the federal court’s decision to deny the RI DMV the power to censor vanity plates mean. The state can fight that decision, but they do so not in the interest of the community, but in the interest of their own power.