← Return to search results
Back to Prindle Institute

Kids and Social Media: Why the First Amendment Argument Fails

photograph of children playing on smartphone

Utah’s recent push for legal restrictions on the social media consumption of minors represents the most aggressive legislation of its kind to date. Of course, many other countries have placed stringent restrictions on the social media usage of their citizens, but the United States has been reluctant to follow suit. The reasons why a liberal society might be hesitant to restrict citizens’ access to these platforms are obvious enough. The United States enjoys a Bill of Rights that legally ensures the freedom of speech, and because social media platforms serve as an important mechanism for exercising one’s freedom of speech in the modern world, restricting citizens’ access to these platforms might be deemed unconstitutional. Additionally, insofar as political liberalism calls for governments to make minimal value judgments, heavy-handed restrictions in the name of state paternalism are often undesirable. Thus, we’ve landed as a society in a position where the negative  impacts of social media usage are well-known, but there is no consensus on an appropriate remedy.

Due to the concerns mentioned above, I think there are strong reasons to refrain from legal intervention with the social media usage of adults. However, the picture gets more complicated when considering minors. There is strong legal precedent for limiting children’s access to certain products before they reach a particular stage of cognitive maturity. For example, the United States limits alcohol and tobacco consumption to those twenty-one or older, as well as places age restrictions on purchasing weapons and driving cars. Virtually no Americans advocate for completely abolishing these restrictions, making us functionally committed to the notion that certain rights enjoyed by adults should not be granted to children.

There might very well be compelling arguments against the legal regulation of social media usage for children. However, one of the most commonly utilized arguments against such regulations — the argument from the First Amendment — stands on shaky ground. The First Amendment is composed of five distinct rights: the rights to the free exercise of religion, freedom of speech, freedom of the press, peaceful assembly, and government petition. Those who believe the First Amendment precludes placing restrictions on the social media accounts of children claim minors have their freedom of expression protected by the First Amendment, and thus such restrictions are unconstitutional. The New Yorker recently published a piece arguing for this position, and similar arguments can also be found here and here. While such a stance is understandable, the argument ultimately rests on an implausible interpretation of the scope of the First Amendment.

Obviously, there are many nuances involved in theories of constitutional interpretation, but on any viable interpretive framework, special constraints apply to minors that do not apply to adults. With children, the exercise of a number of constitutionally protected rights is constrained in various ways, and the extent to which children are able to exercise any particular right is determined by a number of factors, including the risks associated with the expression of that right, as evidenced by the categorical exclusion of children from the right to bear arms. Of course, the right to bear arms is not the only right that children cannot fully exercise. We can also consider the nature of other First Amendment rights, such as the freedom to assemble and the freedom of religious practice. It is clear enough there is at least some sense in which the right to peaceful assembly applies to children. Minors can meet up in groups and can even attend political protests. However, a child’s right to peaceful assembly is clearly also constrained by parental consent. For example, law enforcement is permitted to limit an eight-year-old’s right to protest if the child’s parents have not consented to her being present.

Furthermore, while it is true that children bear a right against a government imposed religion, children oftentimes have a religion imposed on them by others. A child’s ability to seek out the religion of her choice is functionally highly limited by her upbringing and family of origin. For instance, if a child grows up in a conservative Jewish family, the child is likely compelled to engage in the practices associated with the Jewish tradition. Families are legally permitted to exercise a certain degree of coercive power over their children which shapes the degree and extent to which they practice a particular religion. Probably only a small minority of people would contend that this constitutes a rights violation on behalf of the child, while most people tend to agree that an adult being coerced (even if non-governmentally) to practice a particular religion does constitute a rights infringement of some kind.

The right to free speech seems to function quite like the rights of assembly and religion in that there is certainly some sense in which children have a right to free expression. The Supreme Court has ruled on a number of cases pertaining directly to the issue of free speech and minors. One of the most influential of such cases is Tinker v. Des Moines Independent Community School District, where the Court ruled that minors have a right to self-expression in schools insofar as it is not highly disruptive of the academic environment. While, in this particular case, the Court ruled in favor of the free speech rights of K-12 students, the Court has historically decided that college undergraduates (i.e., legal adults) enjoy greater free speech protections than do younger students. More specifically, there are various cases where the Court appeals to age-based considerations to defend substantive limitations on the speech of minors. One such case is Bethel School District 403 v. Fraser, where the Court ruled public schools can prohibit students from engaging in particularly crude or offensive speech.

If we look at the implications of the Bill of Rights, there are certain rights that simply do not apply in any meaningful sense to children due to the severity of the associated risks (e.g., the right to bear arms), as well as certain rights (e.g., the freedom of assembly and the freedom of religious practice) which apply in a limited way to children. My argument is that the right to free speech falls into this latter category. While there is clear legal precedent that children are allowed to freely express themselves to a certain degree, there is also strong precedent for reducing the scope of that right. For this reason, simple appeal to the First Amendment is insufficient as an argument against the type of legislation proposed by Utah.

This is, of course, not to imply that such legislation is entirely legally and morally straightforward. Perhaps a legitimate concern is that allowing legal restrictions of social media in the case of minors will have a slippery slope effect, eventually endangering the free speech rights of adults. Another potential route to striking down the Utah bill is to argue for the expansion of the free speech rights articulated in cases like Tinker v. Des Moines. Whether the types of restrictions proposed by Utah constitute a viable solution to the negative impacts of social media on young people’s lives is a debate which will need to be settled both in the courts of law as well as in the courts of public opinion over the coming months and years.

What Are the Limits of Academic Freedom?

photograph of dividing line with shoes on opposite sides

In November of 2019, Indiana University professor Dr. Eric Rasmussen tweeted a quote — “geniuses are overwhelmingly male because they combine outlier high IQ with moderately low Agreeableness and moderately low Conscientiousness” — from an article titled “Are Women Destroying Academia? Probably.” After being picked up by students and various media outlets, Indiana University’s administration was flooded with calls for his dismissal — a response which was intensified by the larger patterns apparent in Rasmussen’s social media: in a letter sent to students, then-provost Lauren Robel described how Rasmussen’s social media activity reflected a variety of overtly sexist, homophobic, and racist beliefs. In an interview with CBS, however, Rasmussen argued that he could not be held responsible for the tweet or any of the other views which Robel ascribed to him, saying that “academic freedom should protect me, even if I believed all the things [Robel] attributed to me.” Though Robel found Rasmussen’s views “loathsome,” Robel noted that the First Amendment, and its protection of free speech, “is strong medicine, and works both ways.” Though he was forced to adopt double-blind grading, Rasmussen remained on faculty until his retirement in 2021.

Earlier this year, the tension underlying Rasmussen and Robel’s exchange was rekindled in a series of essays in The Chronicle of Higher Education. Amna Khalid (whose work I have discussed in these pages before) and Jeffrey Aaron Snyder argued that when concerns about diversity, equity, and inclusion come into conflict with academic freedom, “academic freedom must prevail.” Stacey Hawkins, who serves as Vice dean and Professor of Law at Rutgers Law School, argued against Khalid and Snyder’s categorical position, writing that administrators, in resolving such conflicts, must “measure the relative harms, evaluate facts and circumstances, and render judgments that elevate the needs of the many over the needs of the few.” This drew a significant response, including a cutting critique from Brian Leiter — the Director of the Center for Law, Philosophy & Human Values at the University of Chicago — which couldn’t have a more unambiguous title: False That Academic Freedom Must Sometimes Cede to DEI Objectives.

.  .  .

Political freedoms — such as freedom of speech, religion, or privacy — are not monolithic: rather than being independent from one-another, the various forms of freedom which we hold dear are deeply interconnected, with each checking and balancing each other. Though your doctor, for example, has a right to freedom of speech, they are not permitted to disclose your protected health information without your permission; though your teacher has freedom to practice their religion, they cannot proselytize in a public school. In both of these cases, the freedom of one is limited by the freedom of another: your doctor’s right to free speech is limited by your right to privacy, and your teacher’s freedom of religion is limited by your own freedom of religion.

Academic freedoms are no different: they exist in relationship to other rights and other freedoms. This simple claim, however, can be incredibly easy to overlook. Consider the definition of academic freedom advanced by the American Association of University Professors (AAUP):

Academic freedom is the freedom of a teacher or researcher in higher education to investigate and discuss the issues in his or her academic field, and to teach or publish findings without interference from political figures, boards of trustees, donors, or other entities. Academic freedom also protects the right of a faculty member to speak freely when participating in institutional governance, as well as to speak freely as a citizen.

Most of us would hold that, in most cases, a researcher should be free to investigate issues in their field; but this freedom is not absolute, and the AAUP’s definition fails to properly acknowledge the ways academic freedoms can infringe upon — or clearly violate — the freedoms of others. Researchers are not free to withhold life-saving interventions, and lie about doing so, in order to study the natural progression of a disease; researchers are not free to spread plague-infected fleas in order to study the efficacy of various biological warfare strategies. These were very real experiments, done in the name of generating knowledge and furthering a field of inquiry — to the absolutely horrifying cost of the human beings who were sacrificed. In response to these human rights abuses by researchers, an entire field of medical research (now known as bioethics) was created, and strict protocols were established through Institutional Review Boards (IRBs) to confirm that researchers did not infringe upon the rights of research subjects. This reflects a sensible picture of academic freedom: that academic freedoms, like all freedoms, are limited by other forms of freedom and the ethical obligations which they impose on researchers. I would not accuse the AAUP of supporting unethical research; their definition of academic freedom, however, completely ignores the balance which must be struck between any form of freedom and all others.

Further, an academic cannot merely invoke academic freedom to absolve themselves of their larger ethical obligations. In the context of research, professors are routinely fired, and research is routinely retracted, for failing to abide by IRB procedures — and few would argue that they shouldn’t be. What qualifies as teaching, similarly, is not left up to professors to decide: we do not, and should not, tolerate when professors are abusive to students as part of their “teaching” process. Whether it be in the context of research or teaching, holding academics accountable requires that academic freedom be limited.

If academic freedoms, like all other freedoms, are understood in this interdependent way, then the picture painted by the Rasmussen Controversy and the debate in The Chronicle of Higher Education is cast in a very different light. It’s plausible to claim that Rasmussen’s academic freedoms are limited by his student’s freedom from discrimination, rendering the claim that academic freedom entirely absolves him of responsibility inert (and Robel’s decision to retain him ethically questionable). It’s equally plausible to claim that universities have an obligation to not just protect students from discrimination, but also to proactively support diversity, equity, and inclusion — and, therefore, that academic freedoms must be balanced against and limited by these obligations. Where this balance is struck, and in what particular instances academic freedom should be limited, is a matter which will be settled over intentional and meaningful debate. But such limitations do exist, and such a debate must be had in earnest — however forcefully claims to the contrary are made.

Anti-Trans Laws and the Thin Guise of Care

With the recent spate of laws concerning gender-affirming medical care for trans people in the United States — both enacted and under consideration — the rights of trans people to receive gender-affirming care are being severely restricted. Take for example an emergency rule set in place by Missouri’s Attorney General this month.

The Missouri rule places a number of restrictions on trans-affirming medical treatments and interventions — including puberty blockers, hormone replacement therapy, and surgery — for both adults and minors. The rule prohibits many people from receiving these interventions, including anyone with unresolved depression, adolescents who have exhibited signs of social media addiction in the prior six months, anyone “exhibiting social contagion” with respect to their gender identity, and anyone without three years of medically documented dysphoria. The rule also requires 15 separate hourly therapy sessions over a minimum of 18 months prior to treatment. The result is that almost no youth will be able to access these interventions.

The emergency rule claims that these measures are “necessary to protect… public health, safety, and welfare.” Some might think, Isn’t caution here a good thing? If these interventions are experimental, shouldn’t we take a little more time for the science to catch up? We’re talking, in some cases, about children! But I will argue that the content of the Missouri rule does not show neutral, much less virtuous, concern for the well-being of the people who might access these medical interventions. Rather, its structure makes internal sense only as an expression of transphobia.

Rationality demands that we treat like cases alike, and fairness demands the same. The Missouri rule targets trans people in a way that violates both.

Here are three examples.

First, the rule objects that the use of puberty blockers to delay puberty for a trans adolescent is not approved by the FDA. It’s what’s known as off-label use. But, as the Department of Health and Human services notes, off-label medication prescription is not only common (accounting for one in five of all prescriptions), but furthermore, legal. In this case, the off-label use is still for the purpose for which the drug was developed. Puberty blockers are designed and approved by the FDA as puberty blockers, originally for what’s known as “precocious puberty”: puberty that comes earlier than typical. Off-label use isn’t objectionable in general, so why is it objectionable in this case? The only relevant difference seems to be that the restricted case concerns trans-affirming use.

A second way this rule unequally targets trans people is this: cis people use many of these treatments to affirm their gender, but the rule is explicit that such use is not prohibited. Breast augmentation, for example, is most often used by cis people to affirm their genders. A 2019 study regarding breast augmentation surgery showed 79% of such surgeries were performed on cis women vs. 21% on trans women among the database entries eligible for the study. Here, again, we have unequal treatment in allowing the one while restricting the other.

Finally, the rule does not restrict the use of these treatments for patients with certain chromosomal or physiological conditions that can lead to atypical sexual development, for whom interventions can be used to achieve a more typical-appearing body. The emergency rule does not state that the interventions are to be used in treatment of these conditions only when they are life-saving (such as surgeries to protect against kidney disease). In other words, the interventions may be used in the service of conforming to cisgender expectations, but not in the service of departing from them.

This difference in who is and isn’t included in the emergency rule is not an incidental oversight. The statement of which medical interventions are restricted by the law specifically qualifies that it applies to cases in which such interventions are used “for the purpose of transitioning gender, decreasing gender incongruence, or treating gender dysphoria.” This qualification suggests not that these interventions are unhealthy or bad in themselves, but that it is somehow unhealthy, unsafe, or contrary to welfare to receive them for the purpose of affirming oneself as trans.

To deny a trans person access to these interventions without making the same restrictions for cisgender people is straightforwardly to discriminate on the basis of sex (specifically, sex assigned at birth).

These aspects of the Missouri rule, echoed elsewhere in new legislation, seem to show a kind of irrational inconsistency. The stated concern for “public health, safety, and welfare” extends only to trans people. But irrationality may not be the most plausible explanation. Consider the analysis of philosopher Talia Mae Bettcher: “Transphobia occurs in a broader social context that systematically disadvantages trans people and promotes and rewards antitrans sentiment. It therefore has a kind of rationality to it, grounded in a larger cisgenderist social context.” What seems irrational — or you might think, hypocritical — in these laws is instead indicative of underlying commitments against trans people. I’m not speaking here as to the individual motives of the people who enact these laws (except to suggest that doing so requires little imagination), but rather to the mechanisms at work in the enactment of these laws. The laws themselves do not exhibit care, caution, or due hesitance; they exhibit transphobia. And they use the language of care, often for children, as a thin guise for their bigotry.

As to whether we should take more time before allowing youth access to gender-affirming care: trans youth, more likely than cis youth to attempt suicide, may not have more time. Consider the testimony of trans teen Eve Devitt, responding to Idaho’s total ban of transgender treatment for minors: “You can’t wait until you’re an adult. For the vast majority of trans kids, they won’t be adults without this treatment. I wouldn’t have made it past fourteen.”

That access to this care is a matter of life and death adds urgency; but, to be clear, access to gender-affirming care should not need to be a matter of life and death in order for people’s need for it to be taken seriously. Real care for trans people involves, at minimum, respecting the reasons for which people seek gender-affirming care — reasons that are deeply bound up with one’s sense of self.  As transfeminine scholar Florence Ashley notes (speaking here of hormonal interventions, but applicable to gender-affirming healthcare more generally), these medical interventions are “ethically atypical: they are not a cure for an illness… but a tool of self-actualisation.” Without a chance for meaningful self-determination and the recognition of oneself by society, a person cannot flourish. Severe restrictions on access to trans healthcare undercut the possibility of this flourishing.

Far from showing care for the public’s safety and well-being, the Missouri rule and laws like it show a targeted disregard for trans people. Care for people involves trusting them; and, for those still in the process of coming to understand and actualize their own gender identity, it precludes making meaningful access to that process all but unattainable.

Why Academics Should Not Be Activists

photograph of lecture with crowd member recording on her phone

In his Theses on Feuerbach, Karl Marx famously complained that “philosophers have only interpreted the world, in various ways; the point is to change it.” Today, the prevailing ethos on American, European, and Australian campuses shows the same impatience with mere contemplation. “Engagement” is the academy’s mantra, and it is faintly shameful, particularly for humanities professors, to be unconcerned with politics. Some have even called for “recognizing advocacy as part of the work mandate of academic staff.” While understandable, the push to make academics activists — campaigners for social or political change — is a serious mistake because it threatens to deprive society of the goods that academic institutions, uniquely, provide.

The defining purpose of academic institutions is to generate, and then to transmit, knowledge. They undoubtedly serve other functions, but this function is what makes an institution academic. It is for this reason that institutions that share in that function, though to a lesser extent — e.g., think tanks — are sometimes called “quasi-academic.” And academic institutions exist because that function is, and is thought to be, useful to society.

Within academic institutions, professors are the ones upon whom the primary responsibility for generating and transmitting knowledge falls. Because of this, if they engage in pursuits that degrade their capacity to generate and transmit knowledge, to that extent they are disloyal to their institution and to their institutional role.

Of course, there are higher loyalties, and I’m not arguing that any professor’s highest obligation is to support her institution or fulfill her academic role. Nevertheless, it surely is the case that the bulk of what constitutes a “good” academic is the ability to produce high-quality scholarship, and the ability to convey that scholarship to others — that is, to teach.

Being an activist makes both generating and transmitting knowledge more difficult. It makes generating knowledge more difficult because, as a matter of psychological fact, it is difficult to properly weigh evidence and arguments when one is also emotionally committed — and political commitments are always emotional — to realizing a substantive political goal, if the evidence and arguments bear on, or are connected to, that goal. And being an activist makes transmitting knowledge, or teaching, more difficult because it may undermine the quality of teaching and the teacher’s credibility, at least if what the teacher teaches about is related to their activism. It does this because it raises the real possibility either that the teacher is deliberately teaching the material in a manner that furthers, or is at least consistent with, their political convictions and goals, in the face of reasonable contravening evidence and arguments; or that even if they are attempting to be objective, they are psychologically less able to properly weigh the evidence and arguments than they otherwise would be.

This point about teaching is particularly important, because like it or not, the continuing existence and vitality of the academic vocation depends upon broad-based societal support for academic institutions.

If the latter come to be seen as re-education camps rather than purveyors of a genuinely liberal education, that cannot fail to negatively impact the institutions in the medium and long-term. Of course, there will always be a certain amount of hostility toward academic institutions, because there are plenty of people who do not really like liberal education — they want indoctrination, just not the kind of indoctrination they pillory academic institutions for providing. But that does not mean academics may throw up their hands and disregard the fact that what society thinks about academic institutions is important, and professors are the group within academic institutions most responsible for determining how the public thinks about them. They must be mindful that the relatively high status that academics and academic institutions still enjoy is not a given.

Although I think this argument provides good reasons for academics to be wary of activism, it’s important to note its limits. First, the argument only applies to academics whose subject of study is connected to their activism. For example, it clearly applies to a historian of the modern Middle East who actively campaigns for Palestinian rights. But a historian of the medieval Middle East who actively campaigns for Palestinian rights may not fall within its scope. And a physicist who campaigns against animal cruelty is clearly outside its scope.

It follows, paradoxically, that the academics who are best informed about political issues by reason of their research or teaching should be the most cautious about engaging in activism.

It might therefore be objected that my argument threatens to deprive society of the best-informed voices on particular political issues. But that academics should be wary of engaging in activism does not mean that they should not engage in public outreach of any kind. It is perfectly acceptable for academics to write or speak in public forums about the subjects of their research even if their research is connected to live political debates. They can even make policy recommendations on the basis of their scholarship. What they should be wary of is campaigning for those policies. The line between public outreach and campaigning is admittedly a blurry one, but not to the extent of rendering the distinction meaningless.

Second, certain kinds of academics — for example, political philosophers — are a special case because part of their job may be to argue for certain substantive political goals. I see no reason why a philosopher should not publicly advocate for a substantive political goal if they have done so in their scholarly work. Still, even here I think activism poses a danger, since we expect philosophers to take the “other side’s” arguments seriously until they have good reasons for rejecting them. Being an activist may dispose philosophers to dismiss contrary arguments too hastily. So, philosophers should still be wary of activism, even if they may translate their scholarly arguments for a substantive political goal into language fit for general public consumption.

Third, the argument in no way implies that academics should not engage in internal activism — activism aimed at effecting change to their own academic institutions. I see no reason not to classify campaigning for such internal change as a form of activism, and it is both necessary and desirable that all members of the academic community — including academics — should be involved in efforts to better the community. Such activism generally does not raise the same concerns as outside activism, and even when it does, it can be justified with reference to the academic’s role in the institution as necessary to furthering the institution’s primary goal of generating and transmitting knowledge. By the same token, academics may perhaps justifiably participate in outside activism on behalf of academic institutions — for example, campaigning against laws banning the teaching of certain subjects like critical race theory.

However, returning to an earlier point, it may be objected that even if an academic qua academic should avoid activism, academics are not just academics — they are also citizens and members of communities. Moreover, the obligations attached to these identities trump academics’ obligation to be good academics. Again, I have no real dispute with those who feel their civic duties trump their professional or vocational obligations. However, it is plausible to hold that an academic’s scholarship and pedagogy are themselves a means to fulfill her civic or communal obligations. By generating and transmitting knowledge, academic institutions make a fairly unique contribution to society, and for that reason an academic can reasonably believe that her academic work is the primary way in which she contributes to her society’s welfare.

There is a more general point to be made here. Human life is inherently tragic, in that not all values are co-realizable in a single life (or even, perhaps, a single society). Choosing one lifelong vocation invariably involves forsaking other, equally valuable ones; for this reason, all such choices can be reasonably regretted. Both activism and scholarship are valuable pursuits, but by undertaking both at the same time, a person may find that they excel in neither. Thus, while I entirely understand some academics’ belief that their civic and communal obligations require them to engage in activism, even if it negatively affects the quality of their scholarship and teaching, I believe that they sometimes have to make a choice to pursue one thing or the other. As I have already explained, my argument in no way entails that academics should avoid all activism. But when the subject of their scholarship relates to the goals of their activism, academics would be well-advised to tread with extreme caution.

Ecotourism and Commodification

Ecotourism – what the International Ecotourism Society defines as “responsible travel to natural areas that conserves the environment, sustains the well-being of the local people, and involves interpretation and education” – is on the rise. A recent Future Market Insights report estimates that $22.48 billion will be spent on ecotourism in 2023, rising to $90.95 billion by 2033.

While ecotourists desire to see pristine, natural spaces continue to prosper, its popularity threatens to undermine its goals. Simply by visiting these areas, ecotourists disrupt them. A sharp drop in tourism during the COVID-19 pandemic demonstrated that the presence of humans, as well as the noise pollution we cause, disrupts wildlife. Tourists strain local resources by consuming food and water and generating waste. They may unknowingly transport invasive species into an area, disrupting the local ecosystem. As a result, it takes a significant amount of time and money to undo the damages visitors cause. And if ecotourism increases as projected, these problems will only get worse.

Some ecotourist destinations are implementing ways to raise the funds to pay to repair these damages. The Balearic Islands charge tourists an additional tax on their accommodations. New Zealand charges many visitors a NZD $35 fee as the International Visitor Conservation and Tourism Levy, with the funds raised going towards conservation efforts. State lawmakers in Hawaii are currently considering multiple proposals to charge tourists in order to raise funds for maintaining local environments.

My present purpose is not to criticize these solutions. Indeed, there is a certain undeniable force behind the argument for them – these spaces need to be maintained, and it seems obvious that individuals benefiting from and causing additional strain on green spaces ought to be ones to pay for their maintenance. Multiple principles of environmental justice suggest as much.

Instead, I want to present a worry about the effect such policies may have on our attitudes towards these places. Arriving at this worry will require a circuitous route, however.

Several years ago, a member of my family was diagnosed with stage four liver cancer. His prognosis was immediately grim. Unfortunately, chemotherapy caused his kidneys to fail. As a result, doctors stopped his chemotherapy, and he began dialysis. I went to one of his dialysis sessions, to show emotional support during the several hours long process and to spend some time together during what seemed to be his final days. About a week later, I received a thank you card in the mail that contained money.

This gesture stirred complicated feelings in me. I was a broke graduate student – money always helped. But accepting the money made me feel dirty. It seemed to change the nature of the interaction. It took the hours spent at the dialysis center and transformed them into something that apparently warranted compensation. What was once an act that I (believe I) performed out of a combination of desire and duty now had a price tag attached to it.

In retrospect, I now think I felt moral disgust at what seemed to be the commodification of my act.

To commodify something is to turn it into, well, a commodity – the kind of thing it is appropriate to buy, sell, or exchange on the market, the kind of thing that ought to have a price tag. Philosophers are often concerned that distorts how we value things. For instance, as I have discussed elsewhere, Karl Marx argues that a world where our labor is commodified alienates us from ourselves and each other.

This may occur because commodification muddles what philosophers call instrumental and intrinsic value. Instrumental value is value in usefulness for some other goal or purpose. Perhaps the clearest example is money. We value it because money can be exchanged for goods and services, otherwise it is only good for what any other piece of paper can do. Possessing intrinsic value, on the other hand, means that something is valuable in itself or in its own right. When something is intrinsically valuable, the question of why it is valuable stops there – we do not need further explanation for why, say, the fact that it would save lives makes a particular policy valuable. These values may often be mixed. We intrinsically value people we love, but time with them is instrumentally valuable when it brings us joy.

Commodification becomes problematic when it introduces an instrumental value for what was once just intrinsically valuable. Adding this instrumental value may change our relationship to the good. Imagine, for instance, a parent who helps her child with homework every night. A rich benefactor, trying to encourage this, offers to pay her every time this happens. It is perfectly rational for the parent to accept this offer – it’s an additional reward for what she is already doing. But there seems to be something morally questionable about making and accepting such an offer. It seems to imply that putting a price tag on the child’s education is appropriate. Further, accepting this offer may cause outsiders or even the parent herself to question her true motives.

Psychologists refer to this latter phenomenon as the “Overjustification Effect” – when extrinsic rewards (an instrumental value) are attached to something participants previously found intrinsically rewarding (intrinsically valuable), they tend to be less motivated to pursue it. Whether in blood donation, children’s drawings, or solving puzzles, research has consistently found that extrinsic rewards can undermine motivation and interest. In other words, attaching an instrumental value to something may change its perceived intrinsic value.

The worry that I have for taxing ecotourists is that it transforms their relationship to the natural spaces they visit.

They cease to merely be visiting and observing these places – they are paying for them. Natural space transforms to become more like the hotel they stay in and the plane they rode in on. It is, in some sense, a product they are buying. And once this occurs, our relationship to the space has changed.

Of course, the examples and data I outline above deal with rewards, in particular, giving someone money for behavior they otherwise would have performed. However, taxation proposals work in the reverse, charging tourists for behavior they would otherwise engage in. So, one might object that there is reason to doubt the process of commodification and the psychological effects I outline above occur here.

This observation is correct, but it does not undermine my point. Once financial transactions occur, they change our perception of the goods in question. When we do not pay for something, whether it is free, a gift, or a non-market good, we are more inclined to experience it for its own merits. We are more willing to take it as it comes and appreciate its own value – the best things in life are free. However, when a good is something with a price tag attached, we then adopt an attitude of comparison. We consider what else we could have done with that money and whether we made the right choice. In this way, we begin to treat the unique, intrinsic value of a particular good as appropriately comparable to other goods with a similar price point.

Again, I want to reiterate that my claims here are not a knockdown objection to tourist taxation proposals. The natural spaces that ecotourists are driven to see must be protected. But we ought to be deliberate when choosing our means of doing so and reflect carefully on how these means may change our attitudes towards these places. Perhaps taxing those who damage and benefit from these places is the best measure. Even so, we should always hesitate when it comes to policies that threaten to add an instrumental value to what we may already intrinsically value. The more willing we are to put price tags on them, the easier it becomes to treat them like any other good in the marketplace.

Toying Around with Earth Day

photograph of Funko headquarters

Funko – creators of, among other things, the prolific Pop! vinyl figures clogging up toy aisles – made headlines last month when it announced that it would be sending $30 million of its products to the landfill. Such an announcement isn’t hugely surprising. Corporate greed – and complete disregard for the environment – are nothing new. What’s curious, however, is that just two weeks later, Funko announced its exclusive Earth Day “I Care Bear.” For Funko, this is an annual tradition: commemorating Earth Day with an exclusive figure packaged in recycled cardboard. According to the description for this year’s figure, the “I Care Bear” shows “unwavering commitment to protecting the planet” and “bears a friendly reminder that we all need to do our part in caring for Earth.”

There’s a certain audacity in this figure being released by a company that – only weeks earlier – announced its intention to dump tons of plastic toys into the ground. It’s a paradigm case of “greenwashing” – the exaggeration of a company’s environmental credentials purely for the purposes of marketing.

But Funko isn’t alone in attempting to put a more environmentally friendly veneer on toy production. MGA has followed Funko’s lead and released an Earth Day edition L.O.L. Surprise! Doll in paper packaging. In MGA’s case, however, this item marks a concerted move towards plastic-free packaging for a line whose central gimmick is based upon the opening of a sequence of surprise elements – each of which was previously wrapped in a gratuitous amount of plastic. Even Hasbro – one of the largest and oldest toy companies – is now introducing plastic-free packaging across its lines of Star Wars, Marvel, G.I. Joe, and Transformers figures.

These developments give rise to an important moral question: Is there any value in reducing plastic packaging when the product being sold is, itself, made from plastic?

The answer here, it seems, is “yes.” It’s true that all plastic production comes at an environmental cost. The industry is enormously energy intensive and – as a result – high-emission, with annual plastic production adding more than 850 million metric tons of greenhouse gases to the atmosphere every year. That’s the same emissions produced by around 200 five-hundred-megawatt coal power plants. By 2030, the annual emissions cost of the plastic industry is estimated to almost double to 1,340 million metric tons per year.

But it also matters what we do with this plastic once it’s produced. Arguably, there’s an important difference between a plastic product (like an action figure) that we plan to keep indefinitely, and the disposable packaging that will almost immediately be discarded.

Around two-fifths of all plastic produced is used as packaging – meaning that it goes through this environmentally-costly production process only to be thrown away. While around 13% of that plastic is recycled, the rest isn’t – instead finding its way into landfills (where it doesn’t decompose), being incinerated (at a cost of around 5.9 million metric tons of greenhouse gases per year) or finding its way into the oceans as microplastics. That’s why states like California have banned “single-use plastic” items including bags, cups, straws, bottles, and plates.

What this means is that – even if we were to keep buying the same plastic items – having those products delivered in entirely plastic-free packaging would manage to reduce our plastic consumption by a whopping 40%.

Which brings us to a second moral question: if any reduction in plastic consumption is a good thing, should we praise companies like Funko for at least doing something to make a difference?

There are certainly good consequentialist reasons for thinking so. Even if a company like Funko produces only one toy in recycled or plastic-free packaging every year, that’s still one less item’s worth of plastic waste entering the environment. And isn’t that better than no change at all? It’s the same kind of reasoning that motivates us, as individuals, to make any environmental improvements we can to our lifestyles – especially when it comes to things like reducing our carbon footprint.

But other moral analyses – like Kantianism, for example – look beyond the consequences of our actions and focus instead on our reasons for acting. And that’s where the real problem lies when it comes to the likes of Funko. While items like the “I Care Bear” might pay lip-service to environmental concerns, their other actions (like dumping tons of figures into a landfill, and continuing to use non-recycled single-use plastic packaging across the roughly 230 Pop! figures they release each year) belie their true intentions.

There is a right way in which a company can make positive environmental changes and use those changes to garner the goodwill of consumers. LEGO, for example, is making a move towards delivering its bricks in 100% sustainable packaging by the end of 2025. This, however, comes after several years of concerted efforts to make its entire manufacturing process more environmentally friendly, with over 90% of their waste already being recycled, and their production facilities now entirely balanced by renewable energy.

Funko, however, has made no similar moves. This makes the Earth Day “I Care Bear” – at best – a cynical marketing exercise and – at worst – an attempt to actively deceive shoppers regarding the company’s true attitude towards our environment.

Good To Be Skeptical? Evidentialism and Climate Change

photograph of tree in the desert

When it comes to climate change, defining the limits of reasonable skepticism is not only a matter of intellectual curiosity, but also moral and political urgency. In contemporary scientific circles, skepticism is generally celebrated as a virtue. However, those who reject the near-consensus about anthropogenic climate change also claim the “skeptic” title. This raises an important question: What does it mean to be skeptical, and when is skepticism no longer praiseworthy?

Philosophers have often pondered the extent of human knowledge. Skeptics argue that our understanding is more limited than we tend to believe. Some skeptics even claim that we can never know anything, or that none of our beliefs are justified and we ought to suspend all judgment on all issues.

Many climate scientists claim the title “skeptic” for themselves and attach the label “denier” to their opponents. The Committee for Skeptical Inquiry, for example, has called on the media to stop using the term “skepticism” to refer to those who reject the prevailing climate consensus and to instead use the term “denial.” We can, according to Washington and Cook, authors of Climate Change Denial: Heads in the Sand, think of the difference like this: “Skepticism is healthy both in science and society; denial is not.” However, when it comes to climate change, the term “skeptic” continues to be associated with those who reject the prevailing scientific consensus, blurring the line between skepticism and denial.

To better understand the differences between skepticism and denial, let’s consider a concrete example: the existence of ghosts. A ghost skeptic denies that we are justified in believing that ghosts exist. They neither believe nor disbelieve in ghosts, as they think there isn’t enough evidence to justify a belief in ghosts. A ghost denier, conversely, decidedly believes that ghosts do not exist. They disbelieve in ghosts, arguing that ghosts are incompatible with our best understanding of how the laws of the universe work, and that, absent good evidence for ghosts, we should conclude they do not exist. In general, it is not necessarily better to be a skeptic than a denier. Whether we ought to disbelieve something or merely suspend judgment depends on the particular issue and the strength of the evidence we have.

So why do Washington and Cook think that denial is always a bad thing? Ultimately, they are referring to a very specific sense of “denial.” They mean someone who clings “to an idea or belief despite the presence of overwhelming evidence to the contrary.” This is a sense of denial that draws on Freudian psychoanalysis, which characterizes denial as a pathological defense mechanism that involves denying something because one wishes it weren’t true. Denial in this sense is the result of some kind of emotional or psychological incapacity to accept reality.

It is clearly bad to be a climate change denier, or any kind of denier, in the pathological sense Washington and Cook have in mind. However, we can’t assume everyone who denies the scientific consensus on climate change is suffering from a psychological disorder. Some genuinely believe the evidence they have seen does not justify a belief in anthropogenic climate change. Whether it is a mistake to disbelieve in man-made climate change depends entirely on the strength of the scientific evidence. In my own view, the scientific evidence of anthropogenic climate change is very strong and this, rather than some psychological defect, is what makes denial inappropriate.

However, it is worth noting that most of those who reject the consensus on climate change identify as “skeptics” rather than “deniers,” claiming that they have not yet formed a conclusion on the matter. But plenty of scientists who defend the prevailing view on climate change also think of themselves as still embracing skepticism. This raises the question: who is the real skeptic?

To answer that question, we first need to understand a distinction between philosophical skepticism and the scientific skepticism advocated by figures like Michael Shermer, publisher of Skeptic magazine. Shermer defines skepticism as striking the “right balance between doubt and certainty.” As William James notes, this contrasts with a philosophical skeptic who says, “Better go without belief forever rather than believe a lie!” Philosophical skeptics only think we should believe things that are absolutely certain. Scientific skeptics try to believe whatever the evidence suggests has a greater than 50% chance of being true. These are very different standards. To philosophers, scientific skepticism is just “evidentialism” – the principle that our beliefs should be based solely on available evidence.

So who are the real skeptics? Perhaps some climate skeptics are philosophical skeptics. Perhaps they think it is more likely than not that anthropogenic climate change is real, but that we still aren’t justified in believing it. In this case, climate skeptics might be the “real skeptics,” but only on an interpretation of skepticism that most scientists would think is deeply objectionable.

But most climate skeptics are not philosophical skeptics. As the philosophers Coady and Corry observe, the debate between climate change proponents and climate skeptics is not a dispute between two groups of skeptics, one scientific and one philosophical. Instead, it is a disagreement between two groups of evidentialists, who differ in their interpretations and evaluations of the evidence and hence in their beliefs. Of course, one side must be wrong and the other must be right. But both sides appeal to the evidence, as they see it, to justify their respective views.

Proponents of anthropogenic climate change often accuse climate skeptics of disregarding the wealth of evidence supporting their stance. Conversely, climate skeptics argue that climate change advocates are swayed by personal desires, emotions, or political ideologies. But, at bottom, both criticisms reveal a shared commitment to evidentialism. These are accusations of forming beliefs based on things other than the best available evidence – of violating evidentialism. Neither side of the climate debate adopts the extreme skeptical position of suspending all judgment and belief, regardless of the evidence at hand.

Acknowledging that most people on both sides of this issue are committed to an evidentialist approach is crucial, because it encourages both sides to engage in a constructive dialogue that focuses on the merits of proof, rather than resorting to ad hominem attacks or accusations of bias. By emphasizing the importance of evaluating the strength and reliability of the evidence, it becomes possible to move beyond the polarizing and confusing labels of “skeptic” and “denier” and engage in a more fruitful discussion. Perhaps this could help reverse the current trend in public opinion toward climate skepticism.

Given that both sides of the climate change debate are committed to evidentialism, instead of squabbling over the label “skeptic,” which neither side should want to claim given its philosophical meaning, our focus should return to simply assessing the facts.

Consequence and Intention in Abortion Law

photograph of abortion protest

Unsafe abortions are the leading cause of preventable maternal deaths world-wide. At least some of the laws that restrict access to abortion also, unavoidably probably, make it less safe. If pursuing more restrictive abortion laws makes it less safe, but we believe abortion is immoral, we might wonder how to balance the health and safety of women who pursue abortions against the goal of reducing the number of abortions. Which raises the question, do restrictive abortion laws reduce the number of abortions?

They do not. The restrictiveness of abortion laws and policies has no overall effect on the number of abortions performed. Given this, even if we suppose that abortions are morally problematic, why make them illegal?

Since we know that these laws will result in more harm to women without preventing fetuses from being aborted, why do it?

We might be tempted to think that everything that is immoral should be illegal. But this is not plausible. One deep reason to deny that everything immoral should be illegal is that our society is founded on the idea that we should each be allowed to pursue our own good, as we understand it, in our own way. At most, the law represents a kind of ethical ground floor that must leave room for citizens’ reasonable disagreement over fundamental matters. What form should that take in the specific case of abortion? That’s a contentious matter. Certainly some would argue that the conflict in the abortion case pits the life of the fetus against the liberty of the mother, and so (as they say) we should choose life.

However, another reason not to criminalize all immoral behavior is that it’s just not possible. Could society function and not go broke, if we policed, arrested, tried, and punished everyone for any lie they told or every time they broke a promise? Perhaps, we should make only seriously immoral things illegal – and abortion, some would argue, is seriously immoral in a way most everyday lying is not. But why bother if making something illegal does not prevent people from doing these things – and at roughly the same rate?

Maybe, seriously immoral things should be illegal, even if that doesn’t prevent them. Perhaps we can justly punish people for their bad behavior, even if such punishment does not increase the overall good and instead makes everyone worse-off. It makes the punished worse-off, obviously, but since, again, it also costs time and social resources to police, arrest, try, and punish crimes, it makes the punishers worse off too. Some people, including most famously the philosopher Immanuel Kant, believe in what is called the “retributive theory of punishment.” We should punish people for doing bad things without regard to the consequences. Punishing people appropriately, and proportionally, for the wrongs they have done does, in fact, make them, and us, better off in some metaphysical sense, retributivists say, even if it doesn’t increase our welfare.

The trouble with taking this view in this context is that American anti-abortion activists have long dismissed as insulting the suggestion that they are mainly interested in punishing women. Instead, defenders of restrictive abortion laws often argue the point is not to punish women, but doctors and other abortion providers. Arguably, this is inconsistent. They both participated in the same crime, on this account, and both have to bear serious consequences. Given the impact on maternal health coupled with the ineffectiveness in curbing abortion’s frequency, it’s hard to see the point of criminalizing abortion as anything other than the punishment of women.

Perhaps, some things should be illegal because they are wrong and we need to send a message to society as a whole that we will not endorse such behavior. In other words, maybe making abortion illegal is a kind of virtue signaling or moral grandstanding. Marking something as wrong symbolically, however, can be done symbolically. We could just send a message.

But some might think that more than a message is needed. We might think that, at a minimum, we have a moral duty to avoid providing any sort of aid or assistance to others doing what we regard as wrong. In the United States, the Hyde Amendment has forbidden the government from financially supporting abortion-related care for over twenty years. Given its impact on maternal health, this might not be a good thing. But it does suggest that the debate over who pays for abortion-related healthcare is not the same as the debate concerning whether abortion should be outright illegal.

There are other crimes that are not reduced by prohibition, but were, or still are, illegal. Prohibition, for example, prohibited (or, really, limited) alcohol consumption. But that only lasted thirteen years, mostly because it increased violent crime more than it reduced alcohol consumption. Similarly, the U.S.’s “war on drugs” has been going on for fifty-years and seems to have produced unprecedented levels of mass incarceration, especially of people of color, without limiting drug consumption. In fact, the government is starting to give up on marijuana prohibition. So, rather than thinking that abortion, like alcohol, or other drugs should be illegal, this analogy might actually support less restrictive abortion law. We might think that the lesson of the analogy is not that we should criminalize abortion care, but that is time to call a truce in the war on drugs.

Why is it that restrictive abortion laws do not lower the abortion rate? It’s no doubt partly that, like alcohol and other drugs, the demand is high and doesn’t change. As economists say, the demand is inelastic. However, it’s also because societies with more restrictive abortion laws also typically have more laws restricting access to contraception. In theory, we could reduce the abortion rate by making access to contraception easier. Though anti-abortion activists have increasingly been arguing that many kinds of contraception are actually forms of abortion. Unfortunately, this is a problem we can’t take on here.

But you can read other great Prindle Post articles on the moral and legal issues surrounding abortion, and check out my article “’Persons’ in the Moral Sense.”

Trump’s Indictment and Equality Before the Law

close-up photograph of Lady Justice statue's blindfolded face

The response to Donald Trump’s indictment has followed an unsurprising formula. Republicans, predictably, have called the indictment an outrage, the weaponization of politics, and (to add some gratuitous antisemitism) the vindictiveness of a Soros-backed District Attorney. Democrats, equally predictably, have pointed to the indictment as proof that “no one is above the law.” Left and center-left pundits have followed suit: here is evidence, they tell us, that our justice system works, and that even the wealthy and powerful cannot escape judgment. And yet, no matter how many times this cliché is repeated, it is hard to shake the reality that repetition conceals. A lingering doubt remains: if no one is above the law, why does it take so much effort to prove it? Maybe the opposite is true, and this indictment is merely the exception that proves the rule.

Writing for The Atlantic, David A. Graham has spelled out the thought succinctly: “An indictment of the former president, followed by orderly due process, would show that no one is immune to following the law simply because he is famous, wealthy, politically powerful, willing to threaten the justice system, or possessed of intemperate and powerful followers.” Clearly, this is the lesson many liberals want us to learn, and if they weren’t busy trying to pretend Trump is just another law-abiding citizen, no doubt Republicans would be happily jumping on this bandwagon as well. After all, “Law and Order” is a mantra they usually like, and it’s a mantra that would hardly have much electoral appeal if it were clear that while no one is entirely above the law, some people are very much more above it than others.

But the sequence of events seems to suggest a very different lesson. During the four years of Trump’s term as president, we routinely witnessed potentially criminal behavior. The first government investigation of one small piece of this behavior — the Muller report — presented stark realities that were largely buried only thanks to an Attorney General openly lying about its findings. Trump was the first president in American history to be impeached twice, once for blackmailing a foreign leader for his own political benefit, and once for attempting a coup. But the impeachments were quashed by Senators cringing in terror of their constituents.

And yet this isn’t the really damning part; this is politics, we might think, which shows us nothing about our justice system. Yet those four years — as well as the run-up to the 2016 election — were also filled with investigative journalists sending us a constant stream of reports of Trump’s past financial crimes; indeed, the Trump Organization has recently faced legal attacks and the threat of dissolution stemming from those past misdeeds. But all this naturally raises a question: if Trump’s presidential ambitions merely capped a lifetime of criminal activity, where was justice then?

The Republican refrain is that this indictment, like the ongoing investigation into Trump’s handling of classified documents, the investigations of his multiple efforts to stage a coup, and the investigations and convictions of the Trump Organization, is politically motivated. That certainly seems right, if what it means is that Trump’s actions have generated intense pressure on public officials from their constituents to take enforcement action instead of looking the other way despite repeated and brazen violations. But if that’s damning, it isn’t damning of the indictment or the investigations, but of the vast legal silence that preceded them. What was justice doing before Trump grew bored of real estate, steaks, and reality television and decided to play politician?

Look at the extraordinary lengths Trump has had to go to for indictment to even become a serious possibility. These lengths are literally historically unprecedented: he had to run for president, win, engage in years of corruption leading, among other things, to the two aforementioned impeachments; he had to attempt a coup, both by trying to intimidate election officials and by sending an armed mob to hang his vice president. He not only removed top secret documents from the White House, but repeatedly refused official requests to return them and, to all appearances, returned some and lied by insisting all had been returned. And yet, after all this, we still faced a steady stream of headlines about the perils of any indictment rather than its necessity, and about resistance to criminal investigations rather than reflections on how overdue they were. As Adam Serwer notes, far from the bizarre picture in some circles of the FBI as overrun by woke Trump-hating communists, in reality many agents in the Bureau were highly resistant to the prospect of raiding Trump’s residence to search for documents. Again, Trump didn’t just have to break the law to face real criminal investigations; he had to break it over and over, in the open, in blatant and unconcealable ways, from what may well be the most visible position of power in the world.

The barriers to Trump’s indictment, then, are obviously great; he had to work hard to overcome them. This is not true of most Americans, who lack protection from investigation, prosecution, and occasionally arbitrary arrest and state violence. And so the picture we walk away with falls far from the cliché that no one is above the law. The system of justice, it may seem, exists to police most of us and keep us in line, but some are above it, perhaps sacrificed on very rare occasions to make the point that justice is fair, but otherwise almost entirely untouched unless their crimes become so absurd and so visible that law enforcement agencies cannot avoid taking action.

When someone uses Trump’s indictment to tell you that no one is above the law, we should ask why they’re using this particular case to make that point. Are there so few cases that anyone wanting to shore up the credibility of our justice system must rely on egregious examples? Or, more charitably, is it an attempt to reinforce failing norms? If the latter, then the lesson is surely that we require a large-scale reform of our justice system: if we genuinely want people to believe not just that Trump’s indictment is well warranted, but also that our justice system is impartial, then we should focus on making it fair and transparent. This may involve closer scrutiny of prosecutors’ decisions not to pursue cases against wealthy criminals carried out by a federal agency (rather than simply investigative journalists, whose reports largely have an effect only if enough voters read them) in order to form a clearer picture of how such decisions are made and look for fixes. At the very least, a focus on ways to remove roadblocks to district attorneys’ will and ability to undertake enforcement actions, even in the absence of political pressure, may help prevent future Trumps from coming our way.

The Controversy Surrounding ESG Investing

photograph of plant pollution blotting out sun

On March 20th, Biden used the first veto of his presidency to defend a labor department rule allowing for ESG or Environmental, Social, and Governance investing with managed retirement accounts. Bans on such investment with government-held assets (like government employee retirement funds) have been marching through the states. Kansas, on April 6th, became the eighth state to restrict ESG investing.

At its core, ESG investing is simple. Corporations release a number of metrics related to environmental, social, and corporate governance – everything from carbon emissions to the percentage of women in executive positions. ESG investing is nothing more than investing that takes ESG metrics into consideration when deciding where to invest. So what makes this practice so controversial that Biden had to use a presidential veto to defend it?

ESG is the latest in a long line of ostensibly more ethical, or at least more socially and environmentally aware, approaches to investing. Janet Prindle, for whom The Prindle Post is named, was a pioneer of ethical investing. She avoided investing in companies that produced alcohol, tobacco, or weapons, and sought to invest in companies that treated their employees well. ESG metrics can help to facilitate these kinds of investment decisions.

To be clear, the aim of ESG investing is not explicitly about achieving social or environmental goals. It exists on the conservative end of a spectrum of socially conscious investment approaches that include Socially Responsible Investing (SRI) and impact investing. ESG investing makes use of environmental, social, and corporate governance metrics; socially responsible investing invests specifically in companies or industries that meet certain ethical standards; impact investing seeks a specific social or environmental result. In public discussion, however, these different approaches are often blended together.

Progressive critics have argued that many companies are using ESG metrics to appear socially or environmentally responsible when they in fact are not. Others worry if investment is even a viable tool for solving major social and environmental problems (also see The Prindle Post’s discussion of “woke capitalism”).

However, the dominant concern about ESG investing in American politics has been whether it violates fiduciary responsibility – the ethical and legal principle that essentially says, if you are given money to invest on someone else’s behalf, then you need to act in their interests.

What precisely fiduciary responsibility entails is contentious. One influential, and radical, position was staked out by the conservative economist Milton Friedman, who argued that fiduciary responsibility meant maximizing returns for investors. Although fiduciary responsibility generally also requires other virtues of investors such as transparency (disclosure), loyalty, and good faith. (Technically, Friedman was discussing corporate governance and not investment management but the logic carries over.)

In actuality, fiduciary responsibility will vary with the interests of the investor. For example, an investor could choose to put money under the management of someone with the expectation that their priority will be to maximize positive environmental impact. Investors are obviously allowed to choose such investments. Republicans have focused their criticisms on certain managed assets, like retirement funds, where the person who actually owns the asset (the future retiree) does not have full control over how it is invested.

Let us grant for the moment the manager of a retirement fund has a fiduciary responsibility to maximize returns. If it were the case that ESG investing delivered lower returns, then it could be argued that ESG investment is an abdication of fiduciary responsibility. In a joint statement by 19 Republican governors, they sought to ensure  “corporations are focused on maximizing shareholder value, rather than the proliferation of woke ideology.”

However, ESG investments do not appear to deliver generally lower returns. BlackRock, the world’s largest investment management firm, contends that “climate risk is investment risk, and that integrating climate and sustainability considerations into investment processes can help investors build more resilient portfolios and achieve better long-term, risk adjusted returns.” Even the labor department rule (which Congress tried to strike down and Biden ultimately protected by veto) only allowed for retirement fund managers to consider ESG metrics to improve returns. While ESG metrics can be leveraged to all kinds of ends — someone could use the information to create a fund of only stocks with very high carbon emissions — in most cases, the aim of ESG investing practices is simply better return on investment.

One could of course object to ESG investment on the basis of the nature of the investments. If someone, for whatever reason, does not like alternative energy then they may not want environmental factors being considered for the management of their assets. This may make sense at the level of an individual investor, but it does not provide an easy principled basis on which a politician can restrict the use of ESG information. The cynical interpretation of at least some political opposition to ESG would be that it is ultimately about protecting certain industries, such as fossil fuels, that stand to lose in ESG investing approaches. And indeed, frequent backers of fossil fuel interests seem to be behind the opposition.

For advocates of a strict financial return approach to investment, ESG is no threat. For advocates of certain social and environmental goals, ESG is no panacea. ESG metrics simply provide more information, usually in the service of increasing investment returns. It does, however, raise one very interesting question: if it genuinely were the case that investments that considered such factors as environmental sustainability were unable to achieve equivalent return on investment, would that be an acceptable regulatory environment? Or should the legal landscape be such that the neglect of environmental and social factors always costs corporations (whether through fines or litigation) more in the long run?

Indicting Trump: Patriotism or Treachery?

photograph of American flag hanging from tall buildings

As I write this, former President Donald J. Trump is returning to Florida after appearing at Manhattan Criminal Courthouse for his arraignment. He has been charged with 34 felony accounts of falsifying business records to conceal his alleged criminal activities. However, this is not the sole source of Trump’s legal troubles. He is also the subject of several other criminal investigations regarding storing highly classified documents at his Mar-a-Lago home, tampering in the 2020 Georgia state election, and his role in the January 6th insurrection.

Prosecuting former world leaders is nothing new. Former French presidents Jacques Chirac and Nicolas Sarkozy have each separately been found guilty of corruption. South Africa’s former president Jacob Zuma was charged with corruption in 2021. In 2013, Italy’s Silvio Berlusconi was convicted of paying an underage girl for sex (which was overturned on appeal) and, in 2014, was given community service for tax fraud. South Korea has convicted five former leaders for various crimes, including Park Geun-hye, for bribery and abuse of power in 2018, Lee Myung-bak for bribery in 2018, and Chun Doo-hwan for mutiny, treason, and corruption in 2017. However, indicting a former leader is a novelty for the United States. No other U.S. president has faced criminal charges, although Watergate brought Nixon close.

Democrats and those on the left side of American politics, like Chuck Schumer, Dick Durbin, and Jason Crow, have said that, despite its unprecedented nature, the indictment is an example of the U.S. legal system working as it should – no one, not even a former president, is above the law, and when evidence is found of wrongdoing, the consequences must be applied without fear or favor.

For Republicans and those falling to the right side of the political spectrum, including those who identify as diehard Trump supporters, the whole thing is politically motivated and, at its worst, an effort to subvert the democratic process. Trump himself has railed against both Alvin Bragg, the Manhattan District Attorney, and Juan Merchan, the judge handling the case. Marjorie Taylor Greene has said the indictment shows that the Democrats have become a party of violence and compared Trump to Jesus and Nelson Mandela. Ron DeSantis said that the charges are a weaponization of the legal system. And Kevin McCarthy said Bragg has “irreparably damaged our country in an attempt to interfere in our Presidential election.”

However, what McCarthy’s comment means is a little obscure. Why is this damaging for the U.S.? As outlined, other countries have no problem punishing their former leaders for wrongdoing. Indeed, if we take a broader view of populaces penalizing their leaders, jail is a relatively light load. For the extremes of such retributivism, we only need to look at France’s 18th-century revolution and the fates of Louis XVI, Marie Antoinette and Louis Philippe (spoiler, they were guillotined). So, what makes this historical phase in American history so seemingly damaging, at least according to McCarthy and others?

Beyond any inherent political maneuvering to gain favor and influence, I would posit that the idea underpinning this claim is one that many of us will be familiar with – American exceptionalism.

According to this idea, the U.S. is unlike other countries because it is simply better. Something about the intermeshing of political, social, religious, economic, and legal systems makes America the best country on the planet, one which other countries aspire to but always fail to match. The idea has become so ingrained in U.S. political culture that it is a necessary trait for presidents. Ronald Reagan told audiences that he had “always believed that there was some divine plan that placed this great continent between two oceans to be sought out by those who were possessed of an abiding love of freedom and a special kind of courage.” George W. Bush said that Americans “have a calling from beyond the stars to stand for freedom,” invoking some existential, even divine, purpose. And, when politicians hint that the U.S. might not be as exceptional as others indicate, they run into trouble, as Barack Obama did when, while not even refuting American exceptionalism, he said it was no different from British or Greek exceptionalism.

This is why the indictment has caused such an uproar, especially amongst Trump supporters. He built his political brand on the idea that America is the world’s best country and should put itself first. To say that a former U.S. president is fallible, even criminal, is to directly challenge that idea of America being exceptional. If the reality is that America must charge its former leaders for crimes like corruption, election interference, insurrection, or anything else, then it has to acknowledge that it is just like any other country. Not exceptional, but as imperfect as France, South Africa, South Korea, or any other. It is to accept that the U.S. isn’t God’s chosen country but simply another one among them all. If this applies to the country as a whole, it seems it also applies to those who make up the country. If America isn’t an exceptional country, then Americans aren’t exceptional people but just like everyone else, which might be a hard pill to swallow. Worst still, they elect presidents, those persons who they feel best embody what it is America is and should be, and these living symbols themselves turn out to be just as flawed as any Tom, Dick, or Harry.

How should we respond, then? Should the visage of exceptionalism not be challenged? Indeed, do critics of the government do some terrible damage to the fabric of society when they highlight such painful truths?

I would say, in fact, the opposite. Letting a government, or those embodying its institutions, enact their will free of critical eyes allows such persons and systems to run rampant of the constraints it needs to be both effective and just. Power and the powerful have a tendency for self-propagation. The rich get richer, and the poor get poorer. If this trend is to be reversed, if equality and fairness are to be achieved, then the powerful can’t be left in the hopes that they will do it because, as history shows, they simply don’t.

Unflinching dedication to a country, cause, or even a former U.S. president, is not a loyalty that we should cheer but a failure to be excised. As the abolitionist Frederick Douglass wrote:

I am one of those who think the best friend of a nation is he who most faithfully rebukes her for her sins—and he her worst enemy, who, under the specious and popular garb of patriotism, seeks to excuse, palliate, and defend them.

Trump has a loyal band of devotees, both in and outside the political arena. So, I suspect these charges will do little to dampen his political ambitions or his followers’ dedication. Indeed, since news of the indictment broke, Trump’s raised over $8M. Nevertheless, blind loyalty is bad for a democracy’s health. While the motivations behind Trump’s legal issues may have a political tinge, the fact that charges have been brought against him is not a sign of America falling into oblivion. Challenging the powerful and holding the mighty to account – be they individuals, systems, or institutions – is what a healthy democracy not only does, but should, aim for.

It’s unclear if Trump will face any repercussions for his alleged wrongdoings. But what is clear is that contrary to his most ferocious supporters, challenging him isn’t treachery, it’s what is required to be the nation’s best friend.