Although the Littleton tragedy is still fresh in our minds, the national struggle to respond is well under way. We’re asking what we can do to avoid such a thing in the future. Yet we know that such tragedies are all too human. Thus, the real question is how to reduce their likelihood–consistent with our remaining a free society.
That qualification is no small matter, of course. We could reduce crime dramatically, for example, simply by locking up all 15 to 30‐year‐old males, who commit most crimes. But we don’t do that. And we don’t because those men have rights–rights to be free until they’ve done something wrong.
Yet we hear calls today to restrict the freedom of people who in some way we “associate” with the Littleton tragedy–gun owners and manufacturers, movie and video game producers, even school and corrections officials who may have been “implicated.” And we hear calls as well to hold such people legally liable.
Before heeding those calls, however, it may be useful to review how freedom limits what we can do. None of this is to be confused with having a “fetish” for freedom–to the exclusion of all risk‐prevention measures. Rather, it is simply to recognize that in a free society we cannot eliminate all risk. Moreover, we can hold people liable for risks that materialize only when they are fairly directly responsible for those incidents.
Thus, there are two basic ways we handle risk through law. We try to reduce risk, prior to something’s happening, through regulatory restrictions. And after an incident, we hold those responsible legally liable–criminally liable, where punishment is appropriate, or civilly liable, to pay for the losses.
In either case, of course, the hope is that the threat of legal sanctions will lead people to adjust their behavior. But as we know even in the Littleton case, that doesn’t always happen.
How, then, should we respond to those who call for a legal “crack‐down” on our culture? Should we impose restrictions on those who produce movies and video games that feature gratuitous violence, or hold producers liable when their products are “implicated” in some incident?
The answers are not obvious, but the presumption, in a free society, must always be against such measures, and the burden of proof on those who would impose them. It is easy to invoke the law, after all, but eventually we could find ourselves in a police state, which none of us, presumably, would want. What, then, are the issues that need sorting out?
Regarding regulation, the Constitution rightly limits what we can do by way of prior restraint. Nevertheless, we distinguish adults from children. And we already have voluntary restraints on movies in the form of the industry rating system. Perhaps the video industry should do the same. The problem, however, is practical. Those games are easily exchanged among children. And most are used in the home, where parents, presumably, are best able to impose any restrictions. Thus, short of an outright ban, which would infringe the rights of adults, it is doubtful that regulatory restrictions would be at all effective.
But what about holding producers legally liable when their products are “implicated” in an incident like that in Littleton? Much as we may want, when confronted with such a tragedy, to hold someone liable, we can’t hold just anyone liable. We need a good reason, some principle of the matter–a principle that sweeps narrowly enough not to later haunt us. By tradition the principle has always been, at least until very recently, that only those who fairly immediately caused the loss can be held liable for it. Thus, we don’t hold parents liable for the crimes of their children–by definition, “crimes” require a mind mature enough to be “guilty”–unless they “aided or abetted” the acts. And we shouldn’t hold gun manufacturers or sellers liable either, unless they too aid or abet. We shouldn’t because responsibility rests ultimately with those who commit forbidden acts, not with those merely “implicated.”
Without doubt, culture “influences” people. Tobacco ads encourage some people to switch brands, but they don’t “cause” that, much less cause people to smoke. We have to be very careful about extending liability–criminal or civil–because there is no end to it. After all, at some level, everything is connected to everything else. Today, it may be video games. Tomorrow it could be Romeo and Juliet, for “encouraging” suicide.
The Littleton tragedy has many aspects, and it is doubtless comforting to cast the net of responsibility widely, especially when it captures momentarily unpopular objects. But we deceive ourselves when this distracts us from the immediate sources of wrong. The flight from individual responsibility is all around us. That is what needs our attention.