Andrew Langer

A bedrock principle underlying the American tort reform movement is the understanding that litigation drains resources from a business—time, money, manpower, and attention. According to the American Tort Reform Association, the cost of the U.S. tort system runs nearly $250 billion annually, or nearly a thousand dollars for every American. Getting a handle on needless litigation has been a top-tier issue for the nation’s small business advocates, as small businesses are the least equipped to handle such lawsuits. Generally, such lawsuits are of the frivolous, disgruntled customer-type, like the $54 million “pants lawsuit” that was filed in DC. That lawsuit cost the Korean couple who owned the dry cleaning business at the heart of the suit thousands of dollars, and nearly their entire business.

In that case, it was an individual suing the government. But what happens when it is the government initiating the frivolous lawsuit, or creating a policy which forces someone singled out to have to challenge that policy in court? Worse, what happens when the government decides to press criminal charges against an individual or that individual’s business, when no real harm has been done to anyone?

There are two central problems when governments attack, either via litigation or legislation. The first is the comparative inequity between the state and the individual. Even the Microsofts of the world cannot compete with the resources of one of the globe’s largest economies, and proportionally, the entity attacking and the entity being attacked are on entirely different levels of the playing field. Governments have the element of time on their side, and can take that time to grind down an opponent, forcing them to yield. In lawsuits challenging violations of private property rights, for instance, cases can take a dozen or more years, wearing claimants down until they either drop their case or settle for meager compensation. In the case of Wayne Hage, a Nevada rancher who was forced to sue over grazing issues, victory came after 18 years of litigation, after both he and his wife had passed away.

Like other citizens whose constitutionally-protected rights have been cavalierly violated by the government set up to protect them, Hage was forced to sue to defend what was his. Similarly, the Electronic Software Association has had to sue nearly a dozen times to defend the 1st Amendment rights of its members. In each instance, the ESA has been successful in defending its rights—but has had to spend millions of dollars in order to do so. Dollars that ultimately have had to come from its members, many of whom are the small businesses that are the engine of the economy.

It isn’t just the waste of the small business resources that are a problem—ultimately, the taxpayers are paying for these lawsuits. We pay for the litigation at the outset, when government lawyers are put in the position of defending laws that violate individual rights, and, in many cases, the taxpayers foot the bill when those persons suing to defend their rights are successful in doing so (as is only fair, frankly). But there is an “abuse of the public trust” at issue here—in a Constitutional Republic, individuals shouldn’t have to sue their government. Government should be protecting individual rights, not attacking them, and it certainly shouldn’t be spending millions upon millions of dollars in an active effort to undermine individual rights.

The ante is upped exponentially when the government adds a criminal angle to its attack. In the case of David McNab, an anonymous tipster led federal law enforcement officials to prosecute him for importing undersized lobster tails. Though he was unaware, and no person was harmed by his mistake, the nevertheless pursued felony charges against him. And because he had imported what they considered an illegal product and actually paid for his shipment, the government tacked on smuggling and money laundering charges as well! McNab was forced to spend huge sums of money defending himself, and he ultimately lost—he is now sitting in a federal prison, another waste of taxpayer resources.

Likewise, the prosecution of entrepreneur John Stagliano on obscenity charges is another gross misuse of taxpayer resources. Stagliano, a staunch champion of individual rights (especially the right to free expression), is currently facing the ultimate nightmare: a criminal prosecution on ill-defined charges from a federal prosecutor thousands of miles away from where he lives. His crime? He sold a legal product that adults can legally buy to an adult who apparently wanted to buy it. Apparently, however, the undercover FBI officer who actually ordered the adult-oriented material was doing so in an effort to build a legal case against Mr. Stagliano, which while it isn’t entrapment, seems to border closely on it.

What’s clear is that nobody was forcing this FBI agent to buy Mr. Stagliano’s DVDs, and everyone has a choice in whether or not they want to see them. Like the videogames made by the members of the Entertainment Software Association, whose rights to make their videogames have been upheld (at no small cost to them), Mr. Stagliano has a right to make films (provided the making of those films involves the consensual activity of adults). The real crime here is that the federal government is wasting taxpayer resources pursuing Mr. Stagliano—who is now living with the day-to-day pressure of having to fight a criminal prosecution, and the possibility of going to prison.

America faces real problems, real threats to our security and our economy. Those who make adult films, make video games, import seafood, and raise cattle on the range categorically aren’t threatening either. In fact, they are part and parcel of the very system that makes America free, prosperous, and great. Such attacks are not only an egregious waste of taxpayer resources, but they undermine the very system they are supposed to be protecting. Government exists to defend individual rights—but far too many people in government are actively trying to destroy those rights. Frivolous lawsuits from the litigation cottage industry are bad enough, an attack from the mighty arsenal of government is far worse.


Andrew Langer

Andrew Langer is President of the Institute for Liberty, an organization that works to ensure that America stays both exceptional and strong.