American Lawbreaking

Illegal immigration.

At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon.

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like "false statements" (a felony, up to five years), "obstructing the mails" (five years), or "false pretenses on the high seas" (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: "prison time."

As this story suggests, American law is underenforced—and we like it that way. Full enforcement of every last law on the books would put all of us in prison for crimes such as "injuring a mail bag." No enforcement of our laws, on the other hand, would mean anarchy. Somehow, officials must choose what laws really matter.

This series explores the black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is … nothing. These are the areas where, for one reason or another, we've decided to tolerate lawbreaking and let a law—duly enacted and still on the books—lay fallow or near dead.

Why are there dead zones in U.S. law? The answer goes beyond the simple expense of enforcement but betrays a deeper, underlying logic. Tolerated lawbreaking is almost always a response to a political failure—the inability of our political institutions to adapt to social change or reach a rational compromise that reflects the interests of the nation and all concerned parties. That's why the American statutes are full of laws that no one wants to see fully enforced—or even enforced at all.

This political failure can happen for many reasons. Sometimes a law was passed by another generation with different ideas of right and wrong, but the political will necessary to repeal the law does not exist. Sometimes, as we'll see with polygamy or obscenity, the issue is too sensitive to discuss in rational terms. And sometimes the law as written is a symbol of some behavior to which we may aspire, which nevertheless remains wholly out of touch with reality. Whatever the reason, when politics fails, institutional tolerance of lawbreaking takes over.

There will, of course, always be some lawbreaking that goes unpunished simply because law enforcement is expensive—not every shoplifter is caught, and it's not worth expending the resources to catch every kleptomaniac. But the areas we will look at here are different: What's going on here is that the parties all know the law is being broken, accept it, and—while almost never overtly saying so—both the "criminals" and law enforcement concede that everyone likes it better that way. The law in question thus continues to have a formal existence, and, as we shall see, it may become a kind of zoning ordinance, enforced only against very public or flagrant behavior. But few, except sometimes a vocal minority, actually think we'd be better off if the law were fully enforced.

The importance of understanding why and when we will tolerate lawbreaking cannot be overstated. Lawyers and journalists spend most of their time watching the president, Congress, and the courts as they make law. But tolerance of lawbreaking constitutes one of the nation's other major—yet most poorly understood—ways of creating social and legal policy. Almost as much as the laws that we enact, the lawbreaking to which we shut our eyes reflects how tolerant U.S. society really is to individual or group difference. It forms a major part of our understanding of how the nation deals with what was once called "vice." While messy, strange, hypocritical, and in a sense dishonest, widespread tolerance of lawbreaking forms a critical part of the U.S. legal system as it functions.

The motto of the Web site Erowid Experience Vaults is "You Cannot Deny the Experiences of Others." Erowid is the Web's best known site for recording drug experiences. Thousands of contributors describe in vivid detail their experiences with this or that pharmaceutical, creating something like a Zagat Guide for the discriminating drug user.

Erowid makes for an engaging read, if you've ever wondered what taking PCP is like ("began to feel weird. … my head detached and wriggled itself backward through some plants"). There are some surprises, such as the commonly noted observation that heroin is "overrated." But what's particularly interesting about the Experience Vaults is how many of the drugs reviewed there aren't actually classic "illegal drugs," like heroin or cocaine, but rather pharmaceuticals, like Clonazepam.

That's because over the last two decades, the pharmaceutical industry has developed a full set of substitutes for just about every illegal narcotic we have. Avoiding the highly charged politics of "illegal" drugs, the pharmaceutical industry, doctors, and citizens have thus quietly created the means for Americans to get at substitutes for almost all the drugs banned in the 20^th century. Through the magic of tolerated use, it's actually the other drug legalization movement, and it has been much more successful than the one you read about in the papers.

Since 1970 and the beginning of Nixon's war on drugs, the Justice Department has regulated drugs likely to be abused under the Controlled Substances Act, which categorizes such drugs into five "Schedules." Those in Schedule I—the most tightly controlled—are supposed to have a "high potential for abuse," and "no currently accepted medical use in treatment." These drugs cannot be prescribed by a doctor. Those in Schedules II through V can be prescribed, and that is what makes all the difference.

Since the beginning of the war on drugs, the "formal" drug decriminalization movement has focused on trying to change the status of marijuana, often through state referendums. While in the late 1970s and late 1990s advocates were quite hopeful, the extent of real legal change they've achieved must be described as relatively minor. Certainly, several states have passed medical marijuana laws, which provide doctors and patients with an immunity when the drug is used for medical purposes. And some cities, like Seattle, do not arrest people for possessing small amounts. But there's been no significant change in federal drug laws, or in the political conversation surrounding them, in decades. A leading presidential candidate from either party endorsing a "free weed" movement seems unimaginable. And beyond marijuana, the drug legalization movement barely even makes an effort.

That's why drug legalization is happening in a wholly different way. Over the last two decades, the FDA has become increasingly open to drugs designed for the treatment of depression, pain, and anxiety—drugs that are, by their nature, likely to mimic the banned Schedule I narcotics. Part of this is the product of a well-documented relaxation of FDA practice that began under Clinton and has increased under Bush. But another part is the widespread public acceptance of the idea that the effects drug users have always been seeking in their illicit drugs—calmness, lack of pain, and bliss—are now "treatments" as opposed to recreation. We have reached a point at which it's commonly understood that when people snort cocaine because they're depressed or want to function better at work, that's drug trafficking; but taking antidepressants for similar purposes is practicing medicine.

This other drug legalization movement is an example of what theorists call legal avoision. As described by theorist Leon Katz, the idea is to reach "a forbidden outcome … as a by-product of a permitted act." In a classic tax shelter, for instance, you do something perfectly legal (like investing in a business guaranteed to lose money) in order to reach a result that would otherwise be illegal (evading taxes). In the drug context, asking Congress to legalize cocaine or repeal the Controlled Substances Act of 1970 is a fool's errand. But it's far easier to invent a new drug, X, with similar effects to cocaine, and ask the FDA to approve it as a new antidepressant or anxiety treatment. That's avoision in practice.

Are the new pharmaceuticals really substitutes for narcotics? The question, of course, is what counts as a substitute, which can depend not just on chemistry but on how the drug in question is being used. But as a chemical matter the question seems simple: In general, pharmaceuticals do the same things to the brain that the illegal drugs do, though sometimes they do so more gently.

As many have pointed out, drugs like Ritalin and cocaine act in nearly the exact same manner: Both are dopamine enhancers that block the ability of neurons to reabsorb dopamine. As a 2001 paper in the Journal of the American Medical Association concluded, Ritalin "acts much like cocaine." It may go further than that: Another drug with similar effects is nicotine, leading Malcolm Gladwell to speculate in The New Yorker that both Ritalin and cocaine use are our substitutes for smoking cigarettes. "Among adults," wrote Gladwell, "Ritalin is a drug that may fill the void left by nicotine." Anecdotally, when used recreationally, users report that Ritalin makes users alert, focused, and happy with themselves. Or as one satisfied user reports on Erowid, "this is the closest pharmaceutical *high* to street cocaine that I have experienced." In the words of another, "I felt very happy, and very energetic, and I had this feeling like everything was right with the world."

The Ritalin/cocaine intersection is but one example. Other substitutes are opoid-based drugs available in somewhat legalized versions, with names like Vicodin and OxyContin.* Clonazepam and valium may not be exact substitutes for marijuana, but they all seem to attract users seeking the same mellowing effects and loss of some forms of anxiety. In short, the differences between pharmaceuticals and illegal drugs may ultimately be much more social than chemical.

So, as the FDA has licensed chemical substitutes for what were once thought to be dangerous drugs, does that mean roughly the same thing as the legalization of cocaine, marijuana, and heroin? Not exactly. Drugs prescribed are usually taken differently than recreational drugs, of course, even if at some level the chemical hit is the same. More broadly, the current program of drug legalization in the United States is closely and explicitly tied to the strange economics of the U.S. health-care industry. The consequence is that how people get their dopamine or other brain chemicals is ever more explicitly, like the rest of medicine, tied to questions of class.

Antidepressants and anxiety treatments aren't cheap: A fancy drug like Wellbutrin can cost anywhere from $1,000 to $2,400 a year. These drugs also require access to a sympathetic doctor who will issue a prescription. That's why, generally speaking, the new legalization program is for better-off Americans. As the National Center on Addiction and Substance Abuse at Columbia University reports, rich people tend to abuse prescription drugs, while poorer Americans tend to self-medicate with old-fashioned illegal drugs or just get drunk.

The big picture reveals a nation that, let's face it, likes drugs: Expert Joseph Califano estimates that the United States, representing just 4 percent of the world's population, consumes nearly two-thirds of the world's recreational drugs. In pursuit of that habit, the country has, in slow motion, found ways for the better-off parts of society to use drugs without getting near the scary drug laws it promulgated in the 20^th century. Our parents and grandparents banned drugs, but the current generation is re-legalizing them. That's why Rush Limbaugh, as a drug user, is in a sense a symbol of our times. He, like many celebrities, is a recovering addict. But with Limbaugh being somewhat outside of the 1960s drug culture, the medical marijuana movement was not for him. Instead, Limbaugh, the addicted culture warrior, has become the true poster child of the new drug legalization program.

Correction, Oct. 15, 2007: The original article suggested these drugs were opium-based. And a punctuation error initially listed Clonazepam and valium as opium-based drugs rather than marijuana substitutes. (Return to the corrected sentence.)

In the Unites States, using a computer to download obscenity is a crime, punishable by up to five years in prison. Federal law makes it a crime to use "a computer service" to transport over state lines "any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character."

Under the plain reading of the statute, most men in the United States may be felons. Statistics on the downloading of "lewd pictures" are notoriously unreliable, but according to some surveys, 70 percent of men have admitted to visiting pornographic sites at some point. Many such sites are probably obscene under the Supreme Court's definition of obscenity—that is, they, according to community standards, "appeal to the prurient interest," depict "sexual conduct" in an patently offensive way, and lack "serious literary, artistic, political, and scientific value."

Today, despite these laws, there are very few prosecutions centered on mainstream adult pornography. Over the last decade, and without the repeal of a single law, the United States has quietly and effectively put its adult obscenity laws into a deep coma, tolerating their widespread violation with little notice or fanfare. Today's obscenity enforcement has a new face: It is targeted against "harmful" porn (that is, child pornography and highly violent or abusive materials) and "public" porn, or indecency in the public media. This enormous transformation has occurred without any formal political action. And it illuminates just how America changes law in sensitive areas like obscenity: not so much through action as through neglect.

In 1968, the American pornography industry was new and shocking, and a "deeply concerned" Congress set up a $2 million commission to look into the growing problem. In a way that seems unimaginable today, the commission came back with findings that were exactly opposite to what Congress wanted to hear. To what Newsweek then called "the subcommittee's unconcealed horror," the commission concluded that society, not pornography, was the issue. "Much of the 'problem,' " wrote the commission, "stems from the inability or reluctance of people in our society to be open and direct in dealing with sexual matters." The commission recommended two legal reforms: repealing all obscenity laws at the state, local, and federal levels; and replacing them with new laws to protect children and to control public display. In short, the commission thought pornography, kept at home, was fine—it just had to be kept from minors and out of the public media.

In 1970, when the report came out, President Nixon and other politicians outdid one another condemning it. Nixon called it "morally bankrupt" and thundered, "So long as I am in the White House, there will be no relaxation of the national effort to control and eliminate smut from our national life." The Senate voted overwhelmingly to reject the recommendations. As a legal matter, the commission's ideas were dead on arrival.

But today, and to a remarkable degree, our pornography laws resemble precisely what the 1970 commission recommended. Prosecution of mainstream pornography is nearly nonexistent, and instead, everything is directed toward the protection of children and the zoning of the public media. Yet the laws haven't changed at all. So what happened?

Through the 1970s and '80s, prosecution of the producers of pornography remained vigorous, especially in certain regions. The Supreme Court had in the 1960s begun to create a formal legal divide between "indecency" on the one hand, and "obscenity" on the other—with indecency meaning "constitutionally protected speech." But in the 1973 case Miller v. California, Nixon appointee Warren Burger made clear that "obscene material is unprotected by the First Amendment." There would never be a Supreme Court-led legalization of all porn, in the same sense that Roe v. Wade legalized abortion. Prosecutions continued through the Reagan and Bush administrations, cheered on by the 1986 Meese Commission, which repudiated most of the conclusions of the 1970 commission.

But in the 1990s, mainstream pornography prosecutions slowed considerably and came to a near-halt, and statistically 1994 is the tipping point. That might be expected—President Clinton's speeches on the evils of sex and smut were infrequent. And, as Bruce Taylor, one of the nation's most prominent obscenity prosecutors, once told PBS, "Janet Reno just did not like doing obscenity cases."

During the Clinton years, says Taylor, porn producers were "flying high … [thinking] we're invincible, nobody's prosecuting us. The Justice Department doesn't care what we do. We can rape, pillage, and plunder, and use everybody up." Consequently, when the second Bush administration came to power, many expected a return to the old days. Early on you'd hear comments like this one, from Attorney General John Ashcroft, who said in 2002, "The Department of Justice is committed unequivocally to the task of prosecuting obscenity." Obscenity was made a "priority," and Ashcroft promised Congress a new crackdown on obscenity of 1950s proportions.

But nothing happened. Instead, adult obscenity prosecutions declined further during the first Bush term. George W. Bush is perhaps the most religiously conservative U.S. president in history. Yet his administration, despite its rhetoric, is looser on mainstream porn than Jimmy Carter or John F. Kennedy was. How did that come to be?

Ask prosecutors or former prosecutors to explain and the conversation is often strained. Some begin by shrugging and adopting a pained expression. "Those aren't easy cases to bring," says one former prosecutor from the Los Angeles office. "Juries don't like them." But didn't Ashcroft declare fighting pornography to be a national priority? "That's true," he admits.

Many prosecutors mention 9/11 and also say that given the enormous influx of all forms of pornography that came with the Internet in the 1990s, regular pornography simply became the lesser of several evils. "You deal with the white hot stuff first," says Joe DeMarco, formerly a prosecutor in the Southern District of New York. Or as Andrew DeVore, who also worked the SDNY, explains, "Child pornography was an obvious and vicious problem, and in part that's what you react to."

DeMarco also suggests that at some level it doesn't matter who is president or attorney general; the prosecutors themselves need to see harm before they'll enforce the law. "No one wants to be chasing around Playboy or Lady Chatterly's Lover," says DeMarco. As another former prosecutor told me, "Would you rather be chasing terrorists, or some guy who reads Hustler?"

DeMarco's and others' views concede a change: While they'll fight stuff that's violent or involves children, mainstream pornography—"normal" sex—just doesn't strike prosecutors as all that harmful and is unlikely to be the subject of any kind of crackdown. Or as one former prosecutor put it, "When there are porn films in Holiday Inn or the Hilton, what do you expect?"

The Bush administration has made one last effort to resurrect the obscenity laws in the mid-2000s. In 2005, newly appointed Attorney General Alberto Gonzalez—under pressure from religious conservatives—created an Obscenity Prosecution Task Force within Main Justice, with the goal of pressuring local prosecutors to crack down. The result has been an uptick in cases brought against producers of "extreme" content involving violence or degradation. But there have been no actual prosecutions of the mainstream, multibillion-dollar industry, despite its obvious tension with the law. Hotels still have porn channels.

The task force faces an uphill battle. In 2005, Alex Acosta, a loyal Bush Republican, was appointed the new U.S. attorney for the Southern District of Florida, which includes Miami. He promptly informed local FBI officials that obscenity would be his "top priority." The reaction was as close to insubordination as you'll ever see in the U.S. government. Joining libertarian groups in complaining to the press were Acosta's own prosecutors and FBI agents. "Compared to terrorism, public corruption, and narcotics, [pornography] is no worse than dropping gum on the sidewalk," said Stephen Bronis, a Miami defense attorney. The insurrection seems to have worked: The records for Acosta's district do not reveal many porn prosecutions.

So, if there's almost no prosecution of regular porn, what is actually illegal?

First and foremost, the prosecution of child pornography retains its bitter intensity. Investigators and prosecutors of child pornography have no doubt about the rightness of their work, nor, apparently, does the nation. And there are few stories of juries nullifying child-pornography convictions.

The second area is the public media, which is more zoned than ever. The famous Janet Jackson "wardrobe malfunction" led to a record $550,000 fine for CBS. But that was the figurative tit of the iceberg. Afterward, Congress passed the Broadcast Decency Enforcement Act of 2005, which raised the "per-incident" fine for indecency from $27,000 to $325,000. Broadcasters call today's FCC enforcement the "star chamber," and networks like Fox privately admit that they face dozens of indecency prosecutions for material much less racy than what you can find on a Google image search. Howard Stern's radio show is light fare by contemporary standards—but it is Stern who was fined so heavily that he left conventional radio.

What all of these changes reflect are several major shifts in how the U.S. legal system views depictions of sex. The first reveal an acceptance of the libertarian idea that private consumption of nearly any material is not a public harm. That view excepts children and animals as victims, but not consenting women and men who have sex before cameras. In that view, the U.S. legal system has effectively and informally reached the same conclusion as the 1970 commission: Whether you like it or not, private consumption of pornography is just not harmful enough to merit public enforcement.

Yet at the same time, the United States has concluded that it will not be a place, like Europe, where bared breasts grace bus-stop billboards or soft-porn films can be found on regular late-night television. Americans love zoning—compartmentalizing behavior to designated times or places. It's how a diverse nation manages to live together. And so our obscenity system—much of which takes the legal form of an outright ban—is often in practice being used to move erotic content away from public places.

But who, exactly, reached all of these conclusions and made them our de facto law? Not Congress, the courts, or any individual president. Instead it was a combined product, over decades, of the decisions of hundreds of prosecutors, FCC officials, FBI agents, and police officers—all of whom decided they had better things to do than chase around pornographers the way they chase murderers. Their consensus—that normal pornography just isn't harmful in the sense that, say, drugs are—has driven the current law more so than any official enactment.

There are, by the way, strange consequences to the tolerated illegality of obscenity. Porn, considered as a regular product, is strong stuff. Yet it is free of most consumer safety regulation—the warnings, age limits, or worker safety rules that the American legal system insists upon for even fairly innocuous products. The United States is a country where fishing lures can warn, "Caution: Harmful if swallowed." Yet porn, banned but nonetheless tolerated, has ironically managed to avoid virtually all regulation.

The birth of a new law is something the media, lawyers, and academics pay great attention to. But the decay and death of old laws can be just as important, even when they're unobserved. The story of our obscenity laws highlights where, exactly, American laws go to die.

Tomorrow: How the rules of copyright are selectively enforced.

What are the most violated laws in the United States?

Traffic laws take first place, perhaps, but your next bet should be on copyright. Every week, in various ways, you probably violate the copyright law. How? When, say, you check out old MTV videos on YouTube. Or if you, bored at work, decide to research the surprising origins of the character Grimace. Or if you make a mix CD for a friend or play DVDs at a house party. Each will lead you into a facial violation of the copyright law, and in today's world, it's almost unavoidable. But is it a bad thing?

Copyright is the nation's leading system for subsidizing the creative industries, especially film, television, and book publishing. Its total evasion can threaten the cultural health of a country—witness places like Hong Kong, where piracy has decimated what was once a booming film industry. But, like many laws, copyright has acute difficulty in adapting to rapid, real-world change. The politics of copyright policy—concentrated media companies vs. millions of disorganized consumers—simply do not lead to balanced legislative outcomes. Consequently, the copyright law only sometimes adjusts itself to new challenges in the courts or the legislature. Instead, in recent years, it is often in copyright-enforcement practice that change is happening, where tolerance of lawbreaking has become the main way copyright is adjusting to the Internet age.

In 2006, shows like Saturday Night Live began to see their skits downloaded millions of times on YouTube and other similar Web sites. That meant both millions of copyright violations and millions of viewers, prompting very different reactions between and within large media firms. The legal departments jumped: "Millions of people are stealing our work!" The marketing departments responded gleefully: "Wait—millions of people are watching SNL?" The tradeoff is between control—what lawyers want—and exposure—what marketing departments crave. And for media companies that want both at once, there's no easy answer.

Tim Wu explains how we all violate copyright in this Slate V video:

The story of Guyz Nite is the perfect illustration of this conflict within media firms. Guyz Nite is a "comic rock" group that made a video for its song Die Hard, composed entirely of clips from the three Die Hard movies, produced by 20^th Century Fox. It was posted on YouTube.

Fox's legal department went first, ordering YouTube to take down the video, pronto. But then Fox's marketing department effectively reversed its own lawyers by contacting Guyz Nite and offering to pay them to put the video back up. You can't fault Fox's reasoning: The band was creating the kind of viral marketing you can't buy—intellectual property rules be damned. In a reversal of fortune, Fox even invited the band to the New York premiere of the fourth Die Hard film.

The Guyz Nite story is not typical in copyright history. Instead, there's a more traditional response to the unauthorized use of copyrighted materials that resembles the instinctive response of man to mosquito. In the 1960s, for example, the TV broadcast industry did everything it could to squash the new "community antenna" (cable TV) industry. In the 1970s, the TV and film industries despised the new Betamax VTR (the VCR) and tried their level best to kill the "Japanese invader." And in the early 2000s, the music industry systematically destroyed Napster, Grokster, and any other company that dared name itself similarly.

But in the late 2000s, media companies seem to be changing their tune. Mass, industry-threatening piracy is still never tolerated. But the tough-guy act typified by the music industry of the early 2000s, and recently in the case of the $222,000 fine imposed on Jammie Thomas, may be going out of fashion. Instead, media companies—particularly in television and film—are at least sometimes practicing a mellower concept called "tolerated use." They watch and see whether infringements are actually harmful or not before sending out their copyright pit bulls.

Sometimes the industry disagrees. YouTube, as discussed above, has been the inspiration for massive infringement of the copyright laws. Whether YouTube itself is actually liable is an interesting, separate legal question. But even more interesting is the fact that the media firms are themselves divided as to whether YouTube is ultimately good or bad for their business.

In 2006, NBC reacted at first to YouTube by telling the company to take down any infringing videos. But it later changed its mind and began to actively feed YouTube with what it hoped might be attractive episodes of Saturday Night Live and other shows. Viacom has taken the opposite tack—this year it sued YouTube for more than $1 billion in copyright damages, and it seems determined to force the company to proactively block all Viacom content. For Viacom, this is a delicate game—for if YouTube does block all of Viacom's shows while leaving up material from NBC, ABC, and other competitors, Viacom could easily lose by winning.

Fan sites are another example where approaches to copyright enforcement differ. Such sites cannot help but violate copyright laws. As they fawn over some person or product, they are almost certain to use copyrighted content. But it doesn't take a marketing genius to realize that suing adolescents who worship your product may not be the ideal way to promote the product.

Take the Leaky Cauldron, a leading Harry Potter fan site. It features news on the Potter films and books, essays on the works of J.K. Rowling, and a large gallery of fan art. It is also, at least to a copyright lawyer, an orgy of copyright infringement—including massive unauthorized use of characters, images, and the creation of "derivative works," like fan art. Any lawyer could find hundreds of thousands of dollars in statutory damages on a given day. The site itself could be a question on a law school final exam.

"We are totally aware that we operating at the grace of J.K. Rowling and Warner Media," says Melissa Anelli, the Web mistress of the Leaky Cauldron, whom I tracked down on Facebook, the muggle substitute for the Marauder's Map. Does she think she's breaking the law? "Strictly speaking, maybe. But we don't feel that we're breaking the law if J.K. Rowling doesn't mind what we're doing," she replies. The site, Anelli says, "empowers a lot of people to become artists and writers and video makers." And like the boys from Guyz Nite, Anelli's inbox contains not cease-and-desist letters but rather invites to the premieres of the Potter films, and the after-parties, too.

In the early days of Harry Potter and other fan sites, no one was invited to the after-parties. Instead, in 2001, grizzled members of the intellectual property bar, working for Warner Bros., sent a barrage of threatening letters to teenage boys and girls, demanding they take down their sites. One girl, then-16-year-old Heather Lawver, even set up a "Defense against the Dark Arts" site to fight overly aggressive copyright enforcement. Those days are mostly over for the Potter sites, though it's true that not all Harry Potter fan sites are tolerated. Sites that explore the erotic side of Potter's world, for instance, are still ordered to cease and desist. The same goes for large fan sites that sell unauthorized Potter merchandise, like T-Shirts that say, "Dumbledore, I'll be your whore."

This spring, at the Max-Planck Institute in Bonn, Germany, I gave a talk on the phenomenon of tolerated use, and in the audience was Stanford professor Larry Lessig, a Thomas Jefferson figure in the information revolution. "So here's what I want to know," he asked. "Why should we tolerate tolerated use?" His point: If you care about free expression and the core reasons for our copyright law—i.e., protecting the artists—why would you put up with a system that makes something like fan art illegal and then tries to ignore the problem? Surely the right answer is to fight for reform of the copyright law: Have the law declare clearly that most noncommercial activities, like fan sites and remixes, are simply beyond the reach of the law.

Lessig has a point. It is hard to see how anyone could endorse a system that declares many inoffensive activities illegal, with the tacit understanding that the law will usually not be enforced, leaving sanctions hanging overhead like copyright's own Sword of Damocles. The symbolic legal message is preposterous: "Remember, copyright is important, and you're breaking the law and you may face massive fines. But on the other hand, your site is totally great, so keep going!"

But there's a reason we do things this way: political failure. The failure in this case is one of the oldest stories in political economy. Big media is the kind of politically effective group that economist Mancur Olson recognized back in the 1960s: small, well-organized, and with much to gain from government. Meanwhile, all the people sitting around in basements creating fan sites and YouTube videos are, to Washington, political eunuchs—too diffuse and underfunded to exert much influence on the nation's laws. It all boils down to this: Harry Potter fanboys don't have K Street representation. Consequently, the political system spits out one kind of answer—an answer friendly to the "property interests" of powerful media companies but one that all but ignores the interests of the basement-dwellers. The formal result of that is what we have today: a copyright law that covers almost everything we do in the digital world.

But the paradox is that the current law is so expansive and extreme that the very firms that first sought it cannot even make use of it. Nor would they want to. In a well-functioning political system, the copyright law might be reformed in a grand negotiation between all interested parties, with the long-term goal of separating out the harmful infringement from the harmless. But in 21^st-century America, that's not a result our political system is capable of reaching. And that's why, here as in the rest of the series, we leave it to tolerated lawbreaking to find some way out.

Tomorrow: How the Amish and the Mormons became a law unto themselves.

What group lives in the greatest defiance of American law? Criminal organizations like the Mafia or inner-city gangs come to mind. But if you account for volume and time, otherwise peaceful religious groups like the Amish or Mormon fundamentalists are certainly contenders.

The Amish are, as reputed, quiet people. But they have also consistently dodged many of the U.S. laws scrupulously followed by other Americans, including labor, Social Security, and education laws. Meanwhile, Mormon fundamentalists—splinter groups from the main church—live outside the law, in some instances violating bigamy, welfare, and sometimes even statutory-rape laws. As we'll see, the fate of these two groups before the legal system after 50 years of struggle with the state is very different. The Amish have "won" in the sense that, for most of the issues they care about, American law has either changed or been left unenforced. Mormon fundamentalists, meanwhile, have settled for zoning: Polygamists are unmolested, provided they remain with certain geographic limits and stay out of public view. All this shows how America in this century has used tolerance of lawbreaking to give more room to groups that want to live differently.

The Amish are a splinter group of Swiss Anabaptists—Christian reformists who emerged during the 1500s. They, like other Anabaptists, sought a return to the original teachings of Jesus Christ, including the tough parts—loving your enemies, forgoing violence, and resisting the accumulation of material treasures. Famously, the Amish today also reject most post-1860s technologies, from electricity to MySpace.com. Less well known is that the Amish also refuse to participate in any form of justice based in retribution, formally living by Jesus' instruction to "turn the other cheek."

Since migrating to America, the history of the Amish has been peaceful. But not law-abiding. While they will "give to Caesar the things that are Caesar's," when push comes to shove the Amish put the laws of heaven before those of man. While never violent, they have historically refused to obey many American laws, including education, zoning, child labor, Social Security, and conscription laws, among others.

The Amish have long refused to pay Social Security taxes, which they view as a form of compelled insurance; they also do not accept the Social Security payments. They will not educate their children beyond eighth grade, regardless of mandatory education laws. Teenagers are expected to work in fields and shops, whatever the child-labor laws may say. Some, including investigative journalist Nadya Labi, document allegations that sexual abuse is widespread in Amish communities and that state intervention is minimal. It all adds up to a degree of widespread tolerated lawbreaking that would likely lead other Americans to prison.

The Mormon fundamentalists splintered from the main Church Jesus Christ of Latter-day Saints in the 1920s, after the main church renounced "plural marriage" or polygamy. The capitulation of the main church was the consequence of a long and aggressive federal campaign against the Mormons in Utah that, much like the war on slavery, at some points involved the federal army. Thousands of Mormons were arrested for polygamy, and Mormons were effectively banned from holding government positions. Under the weight of all that federal coercion, the Mormon church renounced polygamy in 1890, and by the 1910s it had begun excommunicating active practitioners of plural marriage.

The capitulation of the main Mormon church led to the founding of fundamentalist groups that, like the Amish, disagreed with what they saw as deviations from original doctrine. Most notably, that means some fundamentalist Mormon groups continue to believe in plural marriage as holy. It also can mean adherence to other doctrines abandoned by the main church, including the law of consecration, which demands dedication of property to the church. Living by the original rules, the fundamentalists moved to remote areas of Utah and Arizona, where they remain today, practicing plural marriage and, often, communal property systems.

Should lawbreaking by the Amish and fundamentalist Mormons be tolerated? During the 20^th century, federal and state officials often answered "no" for both groups. Thus, in the 1950s, the IRS began trying to collect Social Security payments from the Amish. In one famous incident in 1961, three IRS agents seized the plow horses of an Amish farmer named Valentine Byler, auctioned them off, paid off his taxes, and then sent him his $37.89 in change. Later, in the 1960s, Amish parents were arrested, fined, and imprisoned for taking their children out of schools, until in 1972 the Supreme Court declared leaving school at age 13 to be protected as the free exercise of religion.

But today, relations between the Amish and the state are generally stable and low-key. There remain some laws with which state and federal officials still demand full compliance, largely concerning threats to the outside community. For example, states have insisted upon—and largely succeeded in—forcing the Amish to put reflectors (if not lights) on their horse-drawn carriages to prevent traffic accidents.

But those laws whose violation hold consequences for the Amish alone are today by and large left unenforced. In some instances, this is because the government and the Amish have explicitly settled their differences by working out special compromises. (The Amish refusal to pay Social Security has, since 1988, been legalized pursuant to a special congressional exemption. The Amish also won an exemption from child labor laws in the mid-2000s.) But in other circumstances, local police and law enforcement officials have simply given up. For example, in the 1980s, Pennsylvania began to insist that Amish teachers have at least three years of high-school education and state certification. The Amish didn't comply, and eventually the state folded.

The story of the Mormon fundamentalists is more violent, and much less settled. In the 1930s and '40s, enforcement against the splinter groups was sporadic. That changed in 1953, when Arizona Gov. J. Howard Pyle announced what he called a "police action against insurrection." He directed more than 100 police officers to raid and arrest an entire polygamous settlement in what was then the town of Short Creek, Ariz. The settlement, said Pyle, was "dedicated to the production of white slaves." Officers arrested every adult and took more than 200 children into custody to send a message to all such groups.

The governor probably expected a victory parade. But to his undoubted surprise, the raid led to a popular backlash, premised on the injustice of seizing children and removing them from their families. Photos of the community, published in LIFE magazine, made the group look like innocent victims. The 1953 raid in fact became a turning point in the opposite direction from that which was intended. After Short Creek, state officials never again attempted the kinds of mass arrests that had forced the main church into submission in the 19^th century. Instead, over the last 50 years, enforcement of polygamy laws has been rare in Utah and Arizona—at least when the groups stay discreet.

In 1989, a Mormon fundamentalist named Tom Green went on the Sally Jessy Raphael show to discuss and defend his polygamous lifestyle. He went from there to Queen Latifah, Jerry Springer, and finally to prison, when in 2001 he was arrested, tried, and found guilty of bigamy, criminal nonsupport, and statutory rape. Likewise, in 2005, Warren Jeffs came to national attention as the grandstanding leader of a fundamentalist group in Colorado City, Ariz., where he called himself a prophet and reportedly married more than 70 women, including many of his father's ex-wives. Jeffs was arrested in August 2006 and charged with "accomplice rape," for facilitating the marriage of underage girls. These kinds of enforcement actions are the current face of law enforcement against Mormon fundamentalists. They are targeted only at open or particularly flagrant polygamists who violate other laws as well. And they are directed primarily at the abuse of minors instead of plural marriage itself.

That's why at least one polygamous group celebrated the arrest of Warren Jeffs as a relief for "normal polygamists." Mark Henkel, founder of the national "Christian polygamy" organization TruthBearer.org, argued in a press release that " 'normal' pro-polygamists should no longer be libelously smeared by any implied association with Jeffs and his abhorrent variant of Mormon polygamy." These enforcement actions are thus a form of informal zoning: Polygamy itself will not be punished, so long as it's discreet, but abusive or public polygamy crosses the line. So only a tiny fraction of polygamists are punished; for while estimates may be unreliable, most seem to agree that there are more than 30,000 people living in fundamentalist communities of one kind or another.

In these stories of the Amish and fundamentalist Mormons, we see a form of tolerated lawbreaking different from what we have seen before. What the Amish and the fundamentalist Mormons want is not freedom from all laws. Rather, they want, as a group, to live by laws different than those that govern the rest of the state or nation. They want group rights against the nation's laws.

Such group rights are a challenge for a legal system centered on the individual. The U.S. legal and political systems, when dealing with group rights, do so only awkwardly. The states, as political units, are meant to stand in for differing preferences of the people who live there. But states are rarely good proxies for tightknit religious communities like the Amish. States are just too big and roughly drawn—even a small state like Rhode Island includes so many different groups it cannot reflect a true political community in a coherent way.

Sometimes (though more rarely in recent decades) the Supreme Court creates a group right by giving a religious or other group the right, under the First Amendment, to ignore a law that others must follow. In 1972, the court thus gave the Amish an exception to laws mandating high-school education in Yoder v. Wisconsin. But such exceptions are unpredictable and seem to depend on the popularity of the group in question. In 1878, when the Mormons claimed a group right to plural marriage, the Supreme Court said "no dice." On the other hand, the Boy Scouts of America, the Supreme Court held in 2000, have the right to fire Scoutmasters for being gay, despite state anti-discrimination laws. In contrast, when Oregon police arrested men using peyote as part of a Native American religious ceremony, the Supreme Court upheld the conviction, finding the First Amendment no defense to a law of "general applicability." In short, the Amish and the Boy Scouts were given a group right to break the law that the Mormons and Indians were not. The First Amendment is a fickle source of group rights.

These formal legal mechanisms can create important legal space for some groups who want to live differently. But they don't quite give the Amish everything they want and they certainly don't work for the Mormon fundamentalists. Consequently, tolerance of lawbreaking creates a more radical form of deviation from uniform national rules. It is by nature messy, awkward, and informal. But it is the de facto bargain we've reached, creating a legal system that allows the Amish to be not just different in the ways Texans are, but different like, well, the Amish; and it's this system that lets the Mormon fundamentalists exist at all.

There is a conspicuous difference in our tolerance of Amish and fundamentalist Mormon lawbreaking. The Amish have successfully avoided the law—they do not evade it. Their practices, or most of them, are open, and they live in peace. But the fundamentalist Mormons groups are in a state of evasion. The ban on bigamy functions as a zoning ordinance: Plural marriage is fine in isolated communities, but not in Salt Lake City, and certainly not on TV talk shows, as Tom Green found. So long as the fundamentalists remain in hiding, the extreme ugliness of conducting raids creates a form of tolerance. They are thus in a "don't ask, don't tell" state of legal limbo that could break open at any time. They are outside the law in a different way.

That strangeness leads some, like Minnesota law professor Shayna Sigman, to argue that polygamy ought to be decriminalized, so as better to focus on the abuse of children in fundamentalist Mormon communities. Yet the chances of that happening seem remote at best. It might make sense, in an ideal legal system, to have a system of group rights that makes it clear what can be tolerated and what cannot. It might be better, if that's what we really want, to clearly zone practices that the majority finds perverse—you're free to do that behind closed doors, but don't let anyone know about it. Yet the hypocrisy, strangeness, and complexity of such a law, and the kind of political conversation necessary to sustain it, seem impossible to imagine in the United States. That's why tolerance of lawbreaking is the way this nation deals with some of its most sensitive questions of religion, marriage, and group difference.

Tomorrow: How immigration laws might have been taken seriously.

On Aug. 10, 2007, the Bush administration announced that it would try something no modern administration has succeeded in doing: enforcing the immigration laws. More specifically, the administration wants to institute serious fines for any employer who fails to fire workers lacking legitimate Social Security numbers. If Bush's plan is ever implemented, it will require the sacking of millions. Don't hold your breath. The administration is trying to get at one of America's favorite instances of tolerated lawbreaking: our de facto guest-worker program, created by the nonenforcement of immigration laws. And while no one will admit it, our current system is popular enough that his effort seems destined to fail.

For the last several decades, internal enforcement of the immigration laws has been, by and large, sporadic and symbolic. In 2004, the number of fines issued against domestic employers for employing illegal immigrants was a grand total of three. Politicians usually prefer to talk about "securing our borders," a method of stopping illegal immigration that has great advantages for all concerned. It sounds tough. It's easy to fund. And it doesn't deprive us of any of the benefits of illegal immigration, because it doesn't work. In fact, it's such a laughably ineffective way to deter illegal immigration that it almost seems designed to fail.

The enforcement math at play here is simple and mainly uncontested. There are millions of illegal immigrants already in the United States, millions more people who might enter, and millions of potential weak spots along the borders. These numbers make border enforcement a fruitless way of trying to "stop" illegal immigration.

Many illegal immigrants get to the United States on visas they overstay, bypassing the border altogether. Border enforcement can even be counterproductive, because it discourages those illegal immigrants who find themselves inside the country from ever trying to leave. And even when border agents catch people, it cannot be anything but a system of "catch and release," unless the United States is willing to open a Guantanamo prison complex the size of Rhode Island.

Studies and statistics suggest that the net impact of border enforcement on total immigration rates has been something close to zero—making it more like a cultural subsidy than law enforcement. Despite the great increases in border enforcement in the 1980s and 1990s, there has been no measurable effect on the rate at which the illegal immigration population in the United States is growing. It is the classic example of applying a teaspoon solution to an ocean problem.

Meanwhile, employers and contractors are a much more obvious and logical target for a serious enforcement strategy. The number of employers who hire large numbers of illegals is not in the millions, but in the tens of thousands. Employers are large, sensitive to fines and threats of imprisonment, and tend stay in one place. Basic enforcement theory—the theory of "gatekeeper enforcement"—clearly suggests targeting the few, not the many. Gatekeeper enforcement is what government does when it actually wants to stop something illegal from happening.

So why has the United States chosen a method—border enforcement—that's less effective than zealous domestic prosecution? If we thought illegal immigration was really a bad thing—if, say, the problem were the unlawful arrival not of workers, but of disease-bearing chickens—the government might rapidly deploy the most effective form of enforcement, with the support of all parts of society. But instead the nation tolerates illegal immigration to create a de facto guest-worker program. Immigration is what economists call "trade in services," and effective enforcement would make most services more expensive, just as blockading China would make many goods more expensive. It can be tough on low-wage workers, but the United States is richer overall because we get cheaper labor, while Mexicans and other workers are richer for selling it.

If all this is true, isn't creating a legalized guest-worker program the right thing to do? That's where political failure kicks in, for the political discussion of immigration policy is both inflamed and insane. The Republican Party is split between free traders and nativists, and the latter are much more vocal. Many in the Democratic Party—loyal to organized labor on this point—go nuts when it comes to guest-worker programs. Illegal immigrants themselves don't have representation. It all adds up to a big political zero.

Under the de facto guest-worker system, the United States gets to have its cake and eat it too. We receive all the advantages of cheap labor without the duties of having new citizens. We don't actually have to pass an unpopular or complex law. Elected officials and talk-radio hosts get to talk tough about "securing the border" which is tough on the actual migrants, but doesn't raise any actual danger of halting illegal immigration, hurting the economy, or displeasing large employers. And grown men get to fly giant model airplanes in the desert to "patrol" the Mexican border. Hypocrisy, in short, has its comforts.

Immigration policy is perhaps the strongest example of the ways in which tolerated lawbreaking is used to make the legal system closer to what lies in the economic interests of the nation but cannot be achieved by rational politics. All this is why the Bush administration faces an uphill battle in the course of trying a real internal enforcement strategy. My bet is that internal enforcement will be stopped somehow, someway. Let's be honest: We'll never say it, but this country must love illegal immigration.

Article URL: http://www.slate.com/id/2175730/

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