[Our kids] are different from us ... We made mixed tapes, they remix music. We watched TV, they make TV. It is technology that made them different. And as we see what this technology can do, we need to recognize you can't kill the instinct the technology produces we can only criminalize it. We can't stop our kids from using it we can only drive it underground. We can't make our kids passive again, we can only make them "pirates." And is that good? We live in this weird time. It's kind of an age of prohibitions, where many areas of our life we live life constantly against the law. Ordinary people live life against the law, and that's what we are doing to our kids. They live life knowing they live it against the law. That realization is extraordinarily corrosive, extraordinarily corrupting, and in a democracy we ought to be able to do better.He was talking about copyright law but the observation about living in an age of prohibitions applies much more broadly than just to music mashups.
Prohibition of drugs, prostitution and other consensual commercial activity driven into black markets are the big, hot-button culture war issues that come to mind when one thinks about living in an "age of prohibitions," but really the situation is much more pervasive than that. I've complained frequently on this blog that government attempts to solve nearly every social problem with prohibitions and criminal sanctions when often that's the least effective tool available. A great example is criminalizing truancy or using police and courts to handle juvenile misbehavior that in years past would have been dealt with through internal school discipline. Laws regulating teen "sexting" as porn raise similar emerging issues. But there are hundreds of other, even more mundane instances.
As laws proliferate, so do the number of violators. I've joked about Texas having 2,383 separate felonies on the books, including 11 involving oysters. And it's true. (There are also additional, oyster-related misdemeanors.) But the reason is that specific laws were passed to protect and/or regulate various industries or interest groups. And that's in part because the arms of government tasked with regulating industry are weak and atrophied from disuse, while over the last three decades the criminal-justice wing of government has grown increasingly powerful. So there was no financial regulator capable of stopping a Bernie Madoff, for example, but the feds are happy to give him a 150 year sentence when he's finally caught. Investors, however, would be better off if his activities were prevented on the front end, as they should have and would have been under a more robust regulatory structure. In that sense, de-regulation helps spawn overcriminalization, as does the decline of civil liability (via tort reform, etc.) as viable options for redress of grievances.
Even more than that, though, there's a pervasive, bipartisan mindset among the governing class which encourages the view that criminalizing undesirable behavior is the best or even only way for government to influence it. Outside of tax cuts aimed at job creation, there's very little discussion of creating incentives instead of (or even in addition to) punishments - few carrots to go with the stick. As such, Lessig's observation reminds those in government of a lesson learned by every parent: that punishment may inspire fear, but it may also generate defiance when it's seen as unfair or hypocritical. I suspect the professor is right we should be worried that a new generation of American youth has grown up with the knowledge that many of their everyday activities have been criminalized - not just online but everything from playing hooky to scribbling their sweetheart's name on their desk at school. And I wonder with him, what are the societal consequences when that situation becomes the status quo and most people come to view obedience to the law as a situational obligation?