Writing at Bloomberg, Cass Sunstein decries corporate First Amendment defenses against compelled speech. In other circumstances, I might point out that any time any American purchases anything in the US, thanks to the arcane, circuitous quasi-federalist tax system that includes block grants to states, she supports foreign conflicts whether she wishes to or not. I for one loathe that my time and treasure support, directly or indirectly, the ongoing drone campaigns in the Near East. I struggle to retain my composure when I remind myself that the drumbeat of war again directs its thudding bass towards our perennial enemies in the Fertile Crescent. In a stunning reversal, it's Iran this time. Or Iraq again. Who can keep track? We have always been at war with Eastasia.
But that's not what catches my eye this bleak, blue Monday. Instead, consider this exchange between Clark of Popehat fame and Ken|Patrick (probably Patrick) of also Popehat fame. The short version runs something like this:
Patrick: Did you guys see the new Taco Bell commercials? Great stuff, man.
Clark: I did see them. They're in bad taste. I agree with Sam.
[some pro-, some anti- remarks from others]
Patrick: You guys are off your rockers. Do you also think DPRK_News is reprehensible? How about Mel Brooks's The Producers? Did you laugh at Springtime for Hitler? Why are those okay but the Taco Bell ads are offensive?
This was a fine place to conclude the disagreement. Once it's no longer a matter of a dispute with a factual basis, de gustibus non est disputandum rules the fort. And here, it's extremely easy to forgive ardent defenders of robust first amendment protections to fail to see the sliver of light that separates commercial and private speech. Indeed, I tend to agree with the legal arguments that make no distinction between a citizen qua citizen and a commercial interest in the eyes of an impartial system of justice. If an act is otherwise acceptable, adding the exchange of money to the activity does not alter my jurisprudential moral calculus.
But I must confess to harboring a double standard when I vacate the halls of justice. Patrick's honeypot Twitter account is not, despite the well-deserved popularity of the Popehat brand, the public face of a Fortune 500 company. Popehat products are tailored for well-educated punters. Taco Bell is tailored for... well, Taco Bell customers. I'm sure that they're fine people, Stuart. Good Americans. But they genuinely don't know what the Communists are doing to the soil.
So I (and Clark, evidently) have a moral intuition that tells me that this commercial speech is categorically different than Hogan's Heroes depiction of Nazis as bumbling goofballs rather than the banal, bureaucratic, institutional evil they were. There's some moral intuition that tells me it's just crass to hawk flatus fuel using the aesthetic of mass institutionalized murder in a way that doesn't also apply to either parody or naive appropriation. I suppose I have an analog to a fair use doctrine in mind, and Taco Bell fails to meet my standards, while Patrick's own mockery easily makes the cut.
But I'm careful to distinguish between my private opinions as a Concerned Citizen and what I might bring as a petition to the sovereign. My aesthetics, my moral intuitions are mine and mine alone. If I am incapable of moral suasion, that's either the tarnish on my silver tongue, the recalcitrance of my interlocutors, or as astonishing as it may sound, the possibility that I am simply wrong.
"Conflict mineral" disclosure requirements seem to occupy a similar space at the crossroads between law and common sense morality. If the issue of mining in war zones (or in areas where slavery still exists) is important enough to bring to the attention of the public, direct intervention by the legislature is one way to get there. Another would be to form an independent certification board, like exists for Fair Trade coffee or consumer electronics. "This xylophone certified conflict-free" could easily be another sticker on whatever goods get shipped hither and yon. I think there is good reason to be suspicious of handing this responsibility over to the government mostly because determining which areas end up on the list of no-no regions would be of great interest to the political ambitions of the State Department, and I pay just enough attention to politics to know that giving additional censure authority to the Henry Kissingers (or the Hillary Clintons if you're so inclined) of the world is perhaps a little unwise.
Commerce with firms who use conflict minerals might not be euvoluntary, but that emphatically does not imply that it should be political. Imagine that your worst political enemy might wield this tool. And then wait a few years, for it's sure to happen.