Horror Comics v. Comically Horrible Laws

Although my paying job has of late been keeping me too busy to blog, it continues to expose me to delightfully blog-worthy material. Now that I finally have a free moment, I can share the latest and funniest legal oddity I've encountered: California Business & Professions Code § 16603 (2004). I ran across it while researching exceptions to the extraordinarily broad ban on convenants not to compete set forth in Cal. Bus. & Prof. Code § 16600. Those exceptions follow in subsequent sections of the Code, so I went tripping through them. Most relate to such unremarkable things as trade secrets and sales of businesses. Then—whoa!—up popped this legal freak:

§ 16603. Every person who, as a condition to a sale or consignment of any magazine, book, or other publication requires that the purchaser or consignee purchase or receive for sale any horror comic book, is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($ 1,000), or by both.

Lawmakers originally passed § 16603 in 1955. They must have worried that comic book publishers were using pernicious marketing practices to flood California with graphic images of unsavory behavior. Although horror comic book "pushing" may now sound like a laughably old-fashioned concern, lawmakers in 1984 approved an amendment doubling the statute's fine.

But what the heck is a "horror comic book"? § 16603 defines it thusly:

As used in this section "horror comic book" means any book or booklet in which an account of the commission or attempted commission of the crime of arson, assault with caustic chemicals, assault with a deadly weapon, burglary, kidnapping, mayhem, murder, rape, robbery, theft, or voluntary manslaughter is set forth by means of a series of five or more drawings or photographs in sequence, which are accompanied by either narrative writing or words represented as spoken by a pictured character, whether such narrative words appear in balloons, captions or on or immediately adjacent to the photograph or drawing.

Two odd things about the definition bear noting. First, the "horror" comes not from supernatural phenomena, but from anti-social behavior. Second, the definition does not require that a horror comic book glamorize or condone the crimes it relates; even a purely factual or resolutely disapproving pictorial sequence would fall within the definition.

Does § 16603 unconstitutionally violate freedom of expression? I am not sure. On the one hand, it plainly singles out a particular message for special and mildly unfavorable treatment. You might thus analogize it to a statute that imposes a tax on speech about crime, a matter of vital public interest. On the other hand, the statute does no more than penalize a peculiar and not very essential marketing device. Anyone who wants to deal in horror comic books can easily work around the law. You might thus analogize it to a statute barring, say, publishing crime stories on lilac-scented paper. Given those two contrasting ways of understanding § 16603, I remain unsure whether to regard it as horrible or comical.

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The Pragmatic Content of Principles

In a recent post, Julian makes the following comment about the death penalty:

I tend to oppose the death penalty for pragmatic more than principled reasons. (That is, if someone's done something sufficiently wicked that we see no problem locking him in a concrete cube with gangs of thugs for 50 years, it's not obvious why a death sentence is inherently beyond the pale. But as currently applied, there are clearly too many errors and inequities for it to be necessary when the person’s no longer a threat.)

Note Julian’s distinction between principled and pragmatic reasons. I share Julian’s position on this issue, I’ve often stated it in the same way, and I’ve made a similar distinction between principle and practice on other issues. But I always wince internally when I do so, because the wording implies that feasibility, logistics, and other practical matters are somehow not the stuff of principle. Now, if your ethical principles derive entirely from a priori, deontological considerations, that makes sense. But for people who admit consequences matter at all in ethical decision-making – and you don’t have to be a utilitarian to think that, though it helps – pragmatic considerations will inform your selection of principles. You can’t arrive at principles, at least not terribly useful ones, without practical knowledge about how the world works, how perfectly or imperfectly rules will be enforced, whether the institutions you favor will in fact select the right rules, how prevalent are bias and abuse, etc.

Principles exist in layers, from the broadest and most abstract (e.g., “Maximize human happiness”) to the narrowest and most concrete (“Don’t let cousin Lou have more than two drinks”). In between, there are principles with an intermediate degree of abstraction (e.g., “Let people make decisions that are primarily self-regarding”). It is the intermediate principles that provide the most guidance, since the most abstract principles are fairly useless without more information (“what makes people happy?”), while the most concrete principles provide little guidance outside their narrow purviews (“is it okay for cousin Carol to have another drink?”). All but the most abstract principles implicitly incorporate information and factual judgments, usually in the form of generalizations about the world.

When principles are highly specific, relying on a great deal of context and relevant information, people are likely to regard them not as principles, but as pragmatic judgments. This is especially true when we wish to draw attention to the factually-contingent nature of a conclusion. Hence statements like Julian’s about the death penalty: by calling his judgment pragmatic, he draws attention to his willingness to revise his opinion in the face of a different set of facts. Still, there is a clearly a matter of principle at work here, something like, “Don’t vest untrustworthy agents with the power of life and death over others.” Other opponents of the death penalty rely on a similar argument, namely, that agents of the state cannot be trusted to administer the death penalty without bias – but then they conclude with a categorical condemnation of the death penalty under any circumstances. Apparently, they must consider their factual judgment about the trustworthiness of state agents to be more universal in character, perhaps attributable to immutable human nature rather than historical or institutional features of the current system. (Or they might be deploying the trustworthiness argument for persuasion’s sake, while basing their own categorical opposition on more general principles – but I’ve met at least some libertarians who oppose the death penalty categorically based on their general distrust of the state.)

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Missing Equations

Via Mark Liberman, I found a list of the 20 Greatest Equations. It was constructed primarily from the nominations of physicists, which probably explains why some of my favorites didn’t make the list.

I have to agree with Liberman that Bayes’ Theorem definitely deserved inclusion. Among other things, Bayes’ Theorem (a.k.a. Bayes’ Rule) explains why you shouldn’t jump out a window after testing HIV-positive, why students shouldn’t be suspended upon failing a single drug test, and why you might want to switch doors on “Let’s Make a Deal.”

I also think there should have been an equation relating to time-discounting, such as the relationship between a present value (PV) and a future value (FV):

FV = PV(1+r)^t

This equation tells you how much PV will grow into in t periods if invested at interest rate r, but you can also divide both sides by (1 + r)^t to find the value now of a claim to money to be received t years from now.

Alternatively, the list could have included the closely related formula for continuous compounding of interest:

A = Pe^(rt)

which tells you the amount A you’ll have in t years if you invest principal P at interest rate r (compounded continuously).

And, of course, I’m shocked that the list did not include the famous equations relating the actual to the apparent amount of toilet paper left on the roll.

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Better a Non-Voter than an Emoter Voter

Of course the right to vote is important. But should we be encouraging people to exercise it, regardless of whether they’ve bothered to become informed? Trey Parker and Matt Stone, the creators of South Park and Team America: World Police (coming out this Friday!) get it exactly right:

“I think just saying ‘Vote or Die’ is a serious danger to democracy,” Stone told [Rolling Stone magazine] of P. Diddy's voter initiative, with Parker adding, in what is described as a “Cartman-esque voice,” “Hey, 19-year-old who doesn’t know anything -- you choose.” Concluded Stone, “If you don't know what you’re talking about, there's no shame in not voting. They say if you don't vote, you can’t bitch. But you can bitch all you want. This is America.”

It’s pretty obvious to me that emoter voters are hardly a boon to democratic government. But some disagree. Sean Penn sent Parker and Stone an angry letter:

“I never mind being of service, in satire and silliness,” Penn is quoted as saying in the letter (good thing, because he's reportedly mocked in the movie). “I do mind when anybody who doesn’t have a child, doesn’t have a child at war, or isn’t or won’t be in harm’s way themselves, is encouraging that there’s ‘no shame in not voting if you don't know what you're talking about.’”

Continues Penn, “It's all well to joke about me or whomever you choose. Not so well to encourage irresponsibility that will ultimately lead to the disembowelment, mutilation, exploitation, and death of innocent people throughout the world. The vote matters to them. No one’s ignorance, including a couple of hip cross-dressers’, is an excuse.”

Now it becomes clear what Penn really wants. He pretends he just wants people to vote – but what he really wants is for people to vote for Democrats, John Kerry specifically. If Penn encountered a 19-year-old Bush-supporter, I’ll bet he wouldn’t tell him he should vote. The only reason Penn and his ilk want the youth demographic as a whole to vote is they believe that young people skew Democratic.

It happens that, in this particular election, I’m on Penn’s side – not because of Kerry’s awful platform, but because gridlock is good. But it’s self-righteous nonsense for Penn to claim he’s championing democracy while Parker & Stone defend irresponsibility. The opposite is closer to the truth. Penn says people should vote even if they are utterly ignorant of the stakes, while Parker & Stone say it’s better for people to actually know something before they head to the polls.

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Electoral Triage, Cont.

Eugene Volokh emails the following, in response to my post below about the Electoral College and voting errors:

It's an interesting theory, but the flip side is that with a winner-take-all, more is at stake because of each contest. So while you're right that we can imagine a 266-266 electoral college split with three one-electoral-vote disputes all over the country, where with a winner-takes-all system none of the disputes would matter, we could also imagine a 268-262 split with one 8-vote state being close, where a proportional-share system wouldn't have yielded any real controversy, since it would have given someone well over 269 votes in any event. How can we tell whether the number of close contests effect is likely to swamp the more at stake effect, or vice versa?

An excellent point. (But notice that it is directed at the choice between proportional and winner-take-all allocation of electoral votes, not between the Electoral College and direct popular election - more on this below.)

To take the obvious historical example, suppose Florida had allocated its electoral votes proportionally in 2000, and hold all other states’ allocation systems constant. Not including Florida, Gore had 266 electoral votes to Bush’s 246. Florida had 25 electoral votes, and its popular vote was so close that – regardless of the recounting scheme – a proportional share system would have given Gore at least 12 of them. Gore would have won with at least 278 electoral votes. Given that margin, initiating a recount would have been pointless. (See the numbers here.)

But there are two important caveats: (1) We have to assume people would have voted in the same way under the two systems. But that’s not necessarily so; for instance, GOP voters in California might have a greater incentive to bother voting under a proportional-share allocation. (2) Holding the other states’ allocation systems constant is crucial. Supposing that all 50 states plus D.C. had used proportional-shares and that voting behavior were unchanged, my quickie calculations indicate that Bush would have gotten a bare majority of electoral votes. More importantly, in many (at least 12 by my reckoning) of the states, small changes in vote totals could have generated single-electoral-vote shifts in one direction or the other. In short, I think proportional allocation would have created even more controversy in 2000.

Nonetheless, Eugene’s theoretical point is correct: proportional allocation of electoral votes would generate offsetting effects, so it’s not clear whether it would increase or decrease the relevance of voting errors.

Eugene’s argument only addresses the choice between winner-take-all and proportional allocation of electoral votes within the Electoral College system. Would his point alter my main argument, which was that the Electoral College reduces the relevance of voting errors relative to a direct popular election? I think it might. We can imagine an election in which a popular vote would have generated a national margin of victory larger than the national margin of error, but with a disproportionate number of voting errors having occurred in states where the margin of victory was much closer. In such an election, the Electoral College would result in more relevant errors (and hence recounts) than would a direct popular election.

So what’s the bottom line? It depends. If aggregation tends to cancel out margins of error while magnifying the margin of victory, then a popular vote would be preferred for dispute-minimizing purposes. But if aggregation tends to cancel out margins of victory while magnifying the margin of error, the Electoral College looks better. My suspicion is that aggregation tends to cancel out margins of victory (look at the 2000 numbers: despite the very close national total, Bush and Gore each won by landslides in many individual states), and that would tend to support the Electoral College. But if margins of error also tend to cancel out in the aggregation process then it’s still unclear which system is better.

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