ARI’s Point of View on Regulation in a Free Society

The government’s sole function, according to Ayn Rand, is to secure and protect the rights of the individual. Proper laws define the crimes and other actions that violate rights and establish the rules by which government may prosecute these crimes and settle disputes among men. Proper laws thereby place the government’s use of force under objective control.

But when laws are non-objective, they enslave rather than liberate. The best example of non-objective laws today are the thousands and thousands of pages of impenetrable regulations, whose meaning and purpose you as a citizen must try to guess and whose actual enforcement is determined by the whims of some bureaucrat, which you must try to predict. “Non-objective law,” according to Rand, “is the most effective weapon of human enslavement: its victims become its enforcers and enslave themselves.”

Rand provides a glimpse of how this regulatory process works in “Have Gun, Will Nudge.” In this essay she discusses the actions of the FCC in the early 1960s to pressure broadcasters to “improve” the quality of their programming. Rand’s observations about the destructive impact of that by-now-forgotten episode of non-objective law apply to the hundreds of other regulatory agencies — from the FDA to the EPA to the SEC — that control an ever greater part of our daily lives.

It is for this reason that ARI makes a sharp distinction between law and regulation. Laws that protect individual rights are necessary and proper. But in a free society there is no place for regulation: for any attempt to control the individual’s thought, production or trade.

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Have Gun, Will Nudge
by Ayn Rand

Mr. Newton N. Minow, Chairman of the F.C.C., is performing a great, educational public service — though not in the way he intends. He is giving the public an invaluable object lesson on the nature and results of a "mixed economy."

The basic evil in any theory of a "mixed economy" — an economy of freedom mixed with controls — is the evasion of the fact that a government holds a legal monopoly on the use of physical force and that political power is the power of coercion. While a dictatorship rests on a blunt acknowledgment of this fact, on the motto that "might is right" — a "mixed economy" rests on pretending that no such distinction exists, that might and right can be safely scrambled together if we all agree never to raise this issue.

The current policy of the F.C.C. has provided a spectacle of not raising that issue, on a grand scale.

First, Mr. Minow announces that any television or radio station which does not satisfy his unstated criterion of an unspecified public service, will lose its license, that is: will be silenced forever. Then, while the victims mumble feeble protests, vaguely referring to censorship, Mr. Minow assumes an air of injured innocence and asserts that his sole intention is "to nudge, to exhort, to urge those who decide what goes on the air to appeal to our higher as well as our lower tastes." And President Kennedy declares: "Mr. Minow has attempted not to use force, but to use encouragement in persuading the networks to put on better children's programs, more public service programs."

No one has stepped forward to ask Mr. Kennedy whether his word usage is correct; and, if it is, whether we should claim that a holdup man who points a gun, is not attempting to use force, but to use encouragement in persuading a citizen to hand over his wallet.

No one has challenged Mr. Minow's description of censorship: "I dislike censorship as much as anyone else. Yet today we have censorship in a very real sense . . . There is censorship by ratings, by advertisers, by networks, by affiliates which reject programming offered to their area. I want to free expression rather than stifle it. All sections of the community should be served rather than have them cut out by censorship which decrees they cannot see or hear something." (Show Business Illustrated, September 19, 1961.)

Let's see whether we can adopt Mr. Minow's concept of censorship: it would mean that the failure of a bad play is "censorship by the box office" — that the frustration of a lady who, weighing three hundred pounds, does not get a chance to model filmy negligees, is "censorship by advertisers" — that the plight of an inventor who finds no backers for his perpetual motion machine, is "censorship by bankers" — that the bankruptcy of a manufacturer who offers us gadgets which we don't buy, is "censorship by consumers" — and that free expression is stifled, whenever a manuscript molders in its author's trunk, cut out by "the censorship of publishers" who decree that we cannot read or hear something. What, then, is non-censorship? Mr. Minow's edicts.

So long as people evade the difference between economic power and political power, between a private choice and a government order, between intellectual persuasion and physical force — Mr. Minow has reason to assume that he can safely stretch their evasions all the way to the ultimate inversion: to the claim that a private action is coercion, but a government action is freedom.

It is true, as Mr. Minow assures us, that he does not propose to establish censorship; what he proposes is much worse. Censorship, in its old-fashioned meaning, is a government edict that forbids the discussion of some specific subjects or ideas — such, for instance, as sex, religion or criticism of government officials — an edict enforced by the government's scrutiny of all forms of communication prior to their public release. But for stifling the freedom of men's minds the modern method is much more potent; it rests on the power of non-objective law; it neither forbids nor permits anything; it never defines or specifies; it merely delivers men's lives, fortunes, careers, ambitions into the arbitrary power of a bureaucrat who can reward or punish at whim. It spares the bureaucrat the troublesome necessity of committing himself to rigid rules — and it places upon the victims the burden of discovering how to please him, with a fluid unknowable as their only guide.

No, a federal commissioner may never utter a single word for or against any program. But what do you suppose will happen if and when, with or without his knowledge, a third-assistant or a second cousin or just a nameless friend from Washington whispers to a television executive that the commissioner does not like producer X or does not approve of writer Y or takes a great interest in the career of starlet Z or is anxious to advance the cause of the United Nations?

What makes it possible to bring a free country down to such a level? If you doubt the connection between altruism and statism, I suggest that you count how many times — in the current articles, speeches, debates and hearings — there appeared the magic formula which makes all such outrages possible: “The Public Interest.”

What is the public interest? No specific definition has ever been or ever can be given by anyone. Since the concept is not used in its literal meaning, to designate the personal interest of every citizen of a country, but is used to imply and establish a conflict, the opposition of private interests to public interest — its use can convey only one meaning: the right of some men (those who, by some undefined criterion, are the public) to sacrifice the interests of other men (of those who, for unspecified reasons, are not the public). Once that collectivist formula becomes the moral standard of a society, the rest is only a matter of time.

Mr. Paul Rand Dixon, F.T.C. Chairman, has announced: “Private rights are important but the public interest is a greater right.”

An article entitled "His Master's Voice?" by Shirley Scheibla in Barron's magazine for January 1, 1962, offers the following warning: "The [Communications] Act gives the [Federal Communications] Commission a broad grant of authority to regulate broadcasting 'in the public interest.' Since neither Congress nor the courts ever have been able to agree on a working definition of what constitutes the 'public interest,' the commissioners need only decide that it is served by the way they happen to vote."

That such is the ultimate goal of our present trend, is indicated in Mr. Minow's "vast wasteland" speech of May 9, 1961. While all the concrete-bound, range-of-the-moment modern mentalities have been clamoring over the issue of Westerns versus spelling-bees, the ominous key-sentence of that speech has been passed by in comparative silence: the threat to "those few of you who really believe that the public interest is merely what interests the public."

Here is an open declaration that the public is not competent to judge its own interest. Who, then, is? Who will be its guardian and determine its interest, which supersedes any individual rights? Mr. Newton N. Minow.

Consider the implications. If the public is not competent to judge television programs and its own entertainment — how can it be competent to judge political issues? Or economic problems? Or nuclear policies? Or international affairs? And since — on the above premise — the answer is that it can't, shouldn't its guardians protect it from those books and newspapers which, in the guardians' judgment, are not consonant with the public interest and would only confuse the poor incompetent that's unable to judge?

Today — when rule by precedent has all but replaced rule by law, and nothing protects us from enslavement but the fragile barrier of custom — consider the consequences of a precedent such as Mr. Minow is seeking to establish.

Bear in mind what I said about the issue of Antitrust last month, when you evaluate the significance of the following: the article "His Master's Voice?" mentions that General Electric and Westinghouse have both applied for renewal of their broadcasting licenses, and: "Although FCC officials are unable to explain how they would improve program quality by forcing these two companies out of the field, the Commission currently is pondering whether the applications should be turned down on the ground that both firms have been convicted of antitrust violations."

Do you observe the nature of the pincer-movement or the squeeze-play — and the nature of the possibilities inherent in non-objective law?

For the special consideration of all those who are engaged in any branch of the communications industry, I submit the following: In January, 1961, in a case involving censorship of motion pictures (Times Film Corp v. City of Chicago), the Supreme Court ruled in favor of the censor, by a majority of one (in a five to four decision). The dissenting opinion, written by Chief Justice Warren, stated: "The decision presents a real danger of eventual censorship for every form of communication, be it newspapers, journals, books, magazines, television, radio or public speeches.... I am aware of no constitutional principle which permits us to hold that the communication of ideas through one medium may be censored while other media are immune…. It is not permissible, as I read the Constitution, for government to release one movie and refuse to release another because of an official's concept of the prevailing need or the public good."

That is the reason why one should fight against the terrorization and enslavement of television. That is the issue at stake in the F.C.C. hearings — not the issue of whether today's television programs are good or bad (most of them are atrocious, particularly in the public affairs department) — not the issue of whether some cowboys, gangsters and private-eyes should be sacrificed in favor of more newsreels, slanted documentaries and panel discussions of political topics, with big close-ups of selfless public servants from Washington.

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