Ethics Confusion in Ken Burns’ “Prohibition”

I enjoy all of Ken Burns’ documentary series, and I am grateful for them. They do a better job of teaching history than the schools, and they are always thought-provoking and, of course, beautifully executed. At the same time, I am aware of the limitations in Burns’ approach, beginning with his genre. Documentaries are inherently misleading works, more misleading in the hands of some, like Michael More, than others. The sifting of which material to use, how to balance issues, choices of photographs and film footage and even the inflections of voice betrayed by narrators (To his credit, Burns has all of his narrators deliver their script in the exact same measured and deliberately-paced tones; I found myself wondering how many times Burns forced “Prohibition” narrator Peter Coyote to listen to previous Burns stand-ins David McCullough and John Chancellor in “The Civil War” and “Baseball” until he sounded as much like their clone as they sounded like identical twins) unavoidably slant the final product, sometimes unintentionally, but usually with a motive. To the extent that viewers realize this, it is an ethical medium, but for most, especially those unfamiliar with the subject matter and with no independent knowledge to draw on, it is not.“Prohibition,” Burns’ latest PBS series that debuted last week, has a more obtrusive agenda supported with more dubious logic than his previous documentaries, reminding me, at least, that his historical conclusions should always be taken with a measure of skepticism.

I had my first warning about this when I read a recent Burns’ quote to the effect that prohibition was the “worst idea” America ever had, other than slavery. How many ways, logically and historically, is this observation indefensible? To begin with, slavery was hardly America’s “idea.” Ask a million aborted babies if abortion on demand is a better idea than prohibition (or ask me.) Turning over half of Europe to Stalin? The Mexican War? The Vietnam War? The Iraq War? Nuclear weapons? Removing the stigmas of recreational drug use and unwed motherhood? Does Burns really think institutionalized oppression and discrimination against women or gays were better ideas than prohibition?

Disco?

Okay, I’ll give him disco. But in addition to telling a complex and important story about American habits, politics and social movements, Burns sets out in “Prohibition” to make the case that it is futile, un-American and wrong to try to “legislate” morality, and indirectly invites viewers to ponder what other “moral” issues are the subject of misguided regulation.  Naturally, the first such viewers were TV reviewers, whose brains have already been pureed by having to watch “Three’s Company,” “Jersey Shore” and everything in-between. Their pronouncements on the matter while cheering Burns on have ranged from facile to facile.  “The real message of “Prohibition”: Any nation ignores the lessons of history at its own peril,” intoned the San Francisco Chronicle critic. I wonder what he thinks that lesson was.

Legislating morality means passing laws to bolster moral precepts, which by definition are absolute and not moored to practical realities and nuances. Making a law against something because it is viewed by a majority as “immoral” is very different from making a law against conduct because it is seen as unacceptably damaging to people and society, though the two often go hand in hand.  Today, the phrase “legislating morality” is used as a rallying cry for individuals who have an interest in perpetrating conduct deemed by others to be damaging to the public and want to block inconvenient laws. Are laws against sexual harassment based on morality, or equality and justice? Are laws against incest, statutory rape, and bestiality based on morality, or protecting the innocent from abuses of position and power?

As I often write here, law steps in when ethics—and society’s ability to encourage and enforce conduct that is good for society over conduct that is harmful– have failed. While religious and moral crusaders were pivotal in bringing about Prohibition, there was plenty of evidence that liquor was corrupting government, ruining marriages, and destroying lives on a scale that far outweighed any perceived benefits it brought to society.
In fact, there still is. In order to make his argument, Burns neatly slides past this inconvenient truth, giving about a minute at the very end to the founding of Alcoholics Anonymous and the issue of alcoholism generally. Alcoholism costs the country billions of dollars in lost productivity, health care costs, domestic violence and disruption, crime, traffic deaths and mental illness; it devastates the early development of children, whose entire lives can be shadowed by its dire effects. Banning alcohol, like banning smoking or other drugs, can be justified as the legitimate exercise of the government’s duty to pass laws that protect the public’s health and welfare. Do Burns and the various raised-eyebrow critics of “legislating morality” that serve as his talking heads object to the government regulating, say, corporate greed? Greed is immoral, after all. Would they call gun control “legislating morality”? The objective is to prevent violence, and violence is immoral.  But it’s the specific conduct motivated by greed or leading to violence that such laws seek to control, and the “great experiment” of Prohibition was undertaken to address very serious social and health problems, many of which are still critical today.

Essentially, Burns’ argument is consequentialism, and you know how I hate that: “Prohibition was wrong because of all the bad things that happened as a result.” There is no doubt that Prohibition was a failure, and in the benefit of hindsight, it’s easy to see why. Liquor was already so imbedded in the culture that it couldn’t be removed by law, and it was futile to try. That does not mean that the movement couldn’t have been made more effective and less disastrous with compromise and appropriate limits, as Burns’ documentary points out.

His argument cuts against itself in many ways like this, most of all by the documentary’s revelations  that Prohibition did end the saloon phenomenon, did end the U.S. government’s dependence on alcohol commerce as a primary source of revenue, did spur equality among the sexes, and did moderate what had previously been a dangerous cultural acceptance of habitual alcohol abuse (The first installment of his documentary is titled, “A Nation of Drunks.”). The ends in this case did not justify the means, because the ends, on balance, were more harmful than not. Burns is just wrong, however, to claim that the means—laws against liquor—were inherently unjustifiable, and the fact that they didn’t work—at that time, with those leaders, in that culture—does not prove that the idea of banning liquor was wrong.

Burns also sinks into “the ends justify the means” pandering himself, when he endorses the argument made by Prohibition opponents that the resumption of liquor sales would create jobs. I guess the United States should start raising poppy crops for heroin production, like Afghanistan, then. The tobacco industry employs a lot of people, but if tobacco is causing a health crisis, losing those jobs is an unfortunate but necessary result of doing the right thing and shutting down the industry. The coal and oil industry employ a lot of people too, but that fact shouldn’t render health and environmental concerns null and void. The jobs that would have been revived were a legitimate consideration in balancing policy regarding prohibition, but the impression left by Burns is that creating jobs was sufficient reason for legalizing a societal scourge.

Yes, I see an intentional “legalize drugs because it will create revenue and jobs” message here. Call me cynical

Burns also uses more than his usual portion of propagandist tricks. He chooses photographs of “dry” advocates that make them look like wild-eyed zealots, while the film footage and photos of Prohibition opponents are consistently flattering. Unflattering anecdotes about Prohibition enforcers abound; I am sure that equally embarrassing tales could be told about their adversaries. (Aside: It is suspicious, I think, that there is no mention in the documentary of Joseph P. Kennedy, the father of Jack, Bobby and Ted, who built his family’s political dynasty on a fortune acquired by bootlegging. Yes, the Kennedys were one of the unforeseeable consequences of Prohibition. My educated guess is that the family, which has a long relationship with PBS, made it clear that Joe, Sr., was off-limits; the Kennedys guard their legacy like pitbulls. What and who else was left out of “Prohibition” for non-historical reasons? If Joe Kennedy’s well-known Prohibition activities had at least been mentioned, I wouldn’t have found myself asking that question. By such decisions are trust and credibility lost.)

Burns also creates unfair innuendos. For example, he prominently features the anti-liquor fervor of Assistant U.S. attorney Mabel Walker Willebrandt, who was responsible for pushing aggressive federal enforcement of the Volstead Act. When the Democrats made their 1928 presidential candidate  New York Governor Al Smith, a Catholic who opposed Prohibition, Willebrandt engineered raids on bootlegging in New York to embarrass him.  Coyote concludes her story by solemnly intoning that when she was passed over for Attorney General by the victorious Herbert Hoover, Willebrandtreturned to private practice, “where one of her first clients was a fruit juice company whose product, when combined with sugar and other available ingredients, could be turned into wine.” He also notes that she later converted to Catholicism.

This emerges, pointedly, in the episode called “A Nation of Hypocrites”; message: Willebrandt was one. Wrong, unfair, and misleading:

  • A lawyer does not endorse the objectives of a client by representing him, her or it  (ABA Rule 1.2); the lawyer’s job is to allow every citizen and organization equal access to the legal system, and the lawyer’s personal views are irrelevant. Thank you, Ken Burns, for reinforcing one of the public’s most persistent and damaging misconceptions about the legal profession.
  • As for her conversion to Catholicism, why is this relevant? It certainly doesn’t show Willebrandt to be a hypocrite, for she would have opposed Smith because of his determination to end Prohibition whether he had been a Catholic, a Buddhist, or a Wiccan. Thank you, Ken Burns, for further confusing Americans about the meaning of hypocrisy.

Changing one’s mind after previous conduct is not hypocrisy…except, perhaps, to a documentary maker who is trying to show all Prohibition advocates to be ethically compromised.

In the end, just as Prohibition did more harm than good, “Prohibition” is far more good than bad. It’s great history, and even a flawed Ken Burns documentary is a masterpiece compared to most of his competition. You should see it; I plan to watch it again. When you do, however, remember that the lessons of this history are more complex than “Prohibition” makes them out to be.

15 thoughts on “Ethics Confusion in Ken Burns’ “Prohibition”

  1. Jack,
    You lost me completely and your rationale borders on evil. The arguments against prohibition so outweigh the benefits that trying to justify it in any respect is beyond ridiculous. You can’t legislate against a behavior just because the extremes of that behavior can and have caused harm. What’s more, owing to irrational fears, useful benefits of drugs like cocaine (antiseptic), LSD (anti-psychotic), and marijuana (anti-emetic) are entirely overlooked and underutilized because it’s next to impossible to market the stuff in any kind of legal context.

    There’s nothing inherently destructive about Baseball either, yet some families have probably been destroyed because some armchair umpire couldn’t turn of the game and spend time with his kids. Tylenol is incredibly effective at treating headaches and relieving flu symptoms, and yet is directly responsible for nearly 500 deaths each year owing to overdose and other complications. What about fatty foods? People who don’t exercise? Assholes who use profane language? Think of the families, the CHILDREN. Where do we draw the line over something which carries and acceptable risk, and something that doesn’t?

    Prohibition is one of the most poignant and well-documented examples of the law of unintended consequences. Any good it sought to impart was offset by a decade of wasted money, increased crime, and a failure to achieve even its most basic objectives. You can’t legislate morality because, quite frankly, it doesn’t work.

    At times like these I thank the gods you’re a blogger and not a legislator, else I might have to defend Rick Perry as being “not so bad.” It makes no sense how society proposes to help a group of people, namely drug addicts and alcoholics, by making criminals out of them. Just imagine all the lost productivity and wasted capital spent filling our jails with such dregs of society.

    Ethics alarms and I apparently have irreconcilable differences and I must therefore end the union. Best.

    -Neil

    • Well THAT was uncalled for! Are you always in the habit of throwing a fit and stalking out of the room when your most cherished beliefs are challenged? Especially when you can’t defend them any better than that? A couple of points:

      “You can’t legislate against a behavior just because the extremes of that behavior can and have caused harm.”

      When “the extremes” cause billions of dollars of damage, kill people and wreck families, you certainly can, and should. Which part of “a nation of drunks” don’t you comprehend? This is an intellectually dishonest argument. If the “extremes” are rare, sure. In the case of liquor, the unacceptable extremes were not and are not rare.

      “What’s more, owing to irrational fears, useful benefits of drugs like cocaine (antiseptic), LSD (anti-psychotic), and marijuana (anti-emetic) are entirely overlooked and underutilized because it’s next to impossible to market the stuff in any kind of legal context.”

      Aw. Too bad. And you think that’s worth having 2 or4 times the alcoholic problem with additional drugs, do you? Talk ideology over common sense. An indefensible position.

      There’s nothing inherently destructive about Baseball either, yet some families have probably been destroyed because some armchair umpire couldn’t turn of the game and spend time with his kids. Tylenol is incredibly effective at treating headaches and relieving flu symptoms, and yet is directly responsible for nearly 500 deaths each year owing to overdose and other complications.

      Bad analogies, Neil, and beneath you. The societal problems of drugs and alcohol are real and serious, the benefits are small in comparison.

      What about fatty foods?

      You have to eat. Fat people don’t hurt anyone by themselves, and often not even that. Chris Cristie isn’t drunk, and he’s an effective governor. Better, but still not good,

      People who don’t exercise?

      Conduct, not an unsafe product. Getting colder.

      Assholes who use profane language?

      Now you’re off the rails. Here’s one—cigarettes.

      “Think of the families, the CHILDREN. Where do we draw the line over something which carries and acceptable risk, and something that doesn’t?”

      Like we draw all lines—using out heads, looking at at data, being pragmatic, and not being governed by ideology unmoored to real life.

      Prohibition is one of the most poignant and well-documented examples of the law of unintended consequences.

      I didn’t say it wasn’t.

      “Any good it sought to impart was offset by a decade of wasted money, increased crime, and a failure to achieve even its most basic objectives.”

      It didn’t work. It was not knowable that it wouldn’t work, but I agree that it probably couldn’t work.

      You can’t legislate morality because, quite frankly, it doesn’t work.

      If you won’t read the piece or can’t understand it, don’t comment. It wasn’t legislating morality, as I made quite clear. I said what I consider this: an intellectually dishonest argument, which it is. A law against murder follows the Ten Commandments—is that legislating morality? I guess so. Does it work? Pretty well—better than having murder legal.

      At times like these I thank the gods you’re a blogger and not a legislator, else I might have to defend Rick Perry as being “not so bad.” It makes no sense how society proposes to help a group of people, namely drug addicts and alcoholics, by making criminals out of them.

      I wonder what you think you’re talking about. Even in Prohibition, nobody was made a criminal for drinking. Sale, manufacture and distribution were the issue—you could make your own liquor at home if you didn’t sell it. Sorry: I have great sympathy for alcoholics, because society approves and encourages social use a drug that they have a genetic inability to handle. Drug addicts: the laws say that the substances are illegal. That should be enough to keep anyone from purchasing or using them. The reason it isn’t, among others, is too many people like you telling them its OK.

      “Just imagine all the lost productivity and wasted capital spent filling our jails with such dregs of society.”

      Cry me a river. It is damn easy to stay out of jail: don’t break laws. The individual who broke the law, not the law he broke, is responsible. Your argument isn’t even worthy of a bumper-sticker, Neil.

      “Ethics alarms and I apparently have irreconcilable differences and I must therefore end the union. Best.”

      All differences are irreconcilable if you don’t have the fortitude to work them out.

    • I also glean, from your post, that you didn’t watch the documentary either. Now THAT takes gall, Neil. Your knowledge of Prohibition is abstract, just like your opinion. In other words, useless.

  2. “A lawyer does not endorse the objectives of a client by representing him, her or it (ABA Rule 1.2); the lawyer’s job is to allow every citizen and organization equal access to the legal system, and the lawyer’s personal views are irrelevant.”

    But does this rule apply in this case? If it does, is it ethical?

    I understand the rationale behind ABA Rule 1.2. Denying a person or organization adequate legal representation because they are unpopular or you disagree with them is contrary to justice. Once a lawyer is representing some type of category of client, it would not be ethical to deny a client who falls into that category a fair trial due to lack of representation.

    On the other hand, is it unethical for a lawyer to decide what type of client they wish to represent? When deciding in which area of law you wish to practice, is it not ethical to consider whether the type of client you will likely represent in that field is in accordance with your moral beliefs? For example, if Ms. Willebrandt believed that alcohol is harmful to society and she knew that, if she went into private practice, she would be likely to be representing people who were involved in the illegal liquor industry, would the more ethical course not to have remained a U.S. attorney? If she did so, she would not have been assisting people whom she thought were harmful to society. Furthermore, she would have saved her potential clients from hiring a lawyer who might provide them with less than zealous advocacy for reasons of conscience (not intentionally, but because it is harder to represent a viewpoint to which you are vehemently opposed).

    • The position of the law is that lawyers shouldn’t be judging the motives or desires of clients. Rule 1.2 has nothing to do with unpopularity, but principle: it says that a lawyer’s representation of a person or cause says nothing about his or her personal beliefs on the matter. Prosecutors who put criminals away frequently, indeed usually, move over to defending the same kinds of criminals they prosecuted. Their job is to make the system work, not to have policy agendas. Some lawyers choose to have agendas, and it is a legitimate choice. But it fails universality—law wouldn’t work if every lawyer did this.

      Lawyers who defend murderers believe they are harmful to society, but they are still citizens, and have a right to be defended. This is why Burns’ muddling of the issue to take a cheap shot is so annoying. Most people, understandably, think about this issue like you do…but it is a misconception.

      • I want to make myself clear. I do not believe that lawyers should choose their clients. If a client comes to a lawyer with a well-founded legal issue, and that client is the type of client that the lawyer usually takes on, then the lawyer should take on that client’s case. A lawyer can, however, choose what kind of client they will likely represent. Nowadays, lawyers specialize. When deciding what area of law a lawyer wishes to practice, cannot ethical issues enter into a lawyer’s decision. For example, if a lawyer believes that unions are essential to a healthy middle class, a safe workplace and a fair wage, would that lawyer be ethical in deciding to work for a management-side law firm. The lawyer would know going in that they would mostly be representing firms that wish to achieve objectives antithetical to his or her values. Is it ethical for someone to decide to take a job in which they know they will be trying to achieve an objective that they believe is harmful to society? Furthermore, would that lawyer not be ethical to consider whether he or she would be able to provide the quality of service that his or her clients deserve, given that his or her personal desired outcome in each case will be quite different from that of his or her clients?

        If there were very few lawyers, to the point where every lawyer had to be a generalist and take on all potential clients or else some clients would not be represented, then I would agree with you that it would fail universality if every lawyer decided that they did not wish to represent a certain type of client (e.g. if every lawyer decided that they didn’t want to defend people accused of crimes). Given the state of the law and the number of lawyers, however, lawyers already have to specialize. If a lawyer decides to specialize in patent law because he or she enjoyed it best, he or she is denying his or her services to those accused of crimes. If every lawyer did so, then criminal accused would remain undefended and this would be horrible for justice. Nevertheless, we do not call patent lawyers unethical because they preferred patent law to criminal law (or criminal defence lawyers unethical because they decided not to specialize in patent law). Given that it is okay for lawyers to decide in which area of law they wish to practice, is it ethical for a lawyer to specialize in an area that is antithetical to his or her values (e.g. that he or she thinks will harm society)?

        • It can enter into it. But it is not a favored principle. As I already said–it fails the principle of universality. There are mission lawyers. They are, by far, the minority. The profession’s standards urge lawyers not to reject clients with legitimate legal needs because the lawyer might not like what they are doing. While an assistant attorney general is in the job, her duty is to enforce the law—we have no way of knowing whether Willebrandt even supported Prohibition personally—it doesn’t make any difference. Once she leaves that client, there is absolutely nothing unethical about her taking on as clients the same kinds of people she pursued in her previous job.

          There is no comparison between fields of practice and choice of client. One has to do with skills and training, the other with a lawyer’s personal beliefs. Personal beliefs are not supposed to be a factor in accepting clients unless they would actually prevent a lawyer from doing a good job. Lawyers, as a profession, do not pass judgment on their clients objectives, if they have a basis in the law. Some do, and that’s their choice…they have a right to represent who they want. But there is absolutely no hypocrisy or ethical failing in defending a drunk driver in the morning and suing one in the afternoon…and I have more respect for that lawyer than the one who only chooses the clients he likes or agrees with.

        • Only one comment to make to this: I sincerely doubt that most of the cases Willebrandt took on in private practice had anything to do with alcohol, so your analogy of a labor-sympathetic lawyer working for a corporate-friendly law firm doesn’t quite hold.

          • Of course, many of my law school classmates, children of the Sixties who protested against the military-industrial complex, ended up working for big law firms whose clients were often the same organizations they protested against. Does that mean their politics had changed? No. Did it make them hypocrites? No. It made them lawyers.

  3. Hey, man, just wondering…you wouldn’t happen to be Christian, would you? Because it sounds as if many of your “values” are lifted STRAIGHT from the Bible and nowhere else. And we all know that if you start from a flawed premise, you’ll inevitably reach a false conclusion…Especially when you mention the Ten Commandments, which DO NOT mention rape or slavery and only stipulate that “Thou shalt not kill MEMBERS OF YOUR OWN TRIBE.” (That’s the important part.) Also convient how you ignore the other 603 commandments which lay down such great laws as, “Thou shalt not boil a goat in it’s own mother’s milk,” and other such nonsense! Lol

    Morals are absolute? I think Sam Harris and Daniel Dennet might disagree with you, there. ;~D Lol

    Anyway, my question and point: I just randomly ran into this blog thru Google, so I’m just curious…What angle are you coming from to say such things? What do you base your morals and beliefs on? Basically, who ARE you, exactly? I’m just trying to understand what you wrote. It’s hard to unless you understand where the author is coming from as well, you know?

    Also, I’ve got another question for ya that I’m curious to hear your answer on: how can you justify legalizing alcohol and cigarettes, but not weed? Also, how do you feel about legalizing and regulating prostitution?

    • Hey, MAN,
      1) I fixed your 600 typos. Say thank you. If you are going to post here, have the respect to a) think and b) proof read. Unless you really meant to say that I got my values from the “Binle,” in which case I have no idea what the hell you’re talking about.
      2) You don’t know what you blather. . The Bible’s values come from many sources, and no, I didn’t get them “from” there. But then, you are wrong about everything else, too.
      3) I didn’t say that the Ten Commandments mention rape or slavery.
      4) Morals are absolute by definition.
      5) The answers to every one of your questions are available right on the blog—if you can use Google, you can find them. Do your due diligence before you ask a bunch of questions…I’m not here to do your work for you, and I don’t have to justify myself to you. See those links at the top of the page? Use them.
      6) Did you see the documentary? I doubt it. Like, man, the argument that because tobacco and alcohol are legal, like, “weed” should be is 5th Grade logic, and I’m being generous. When you can mount an informed argument, check back. Other wise, go watch your Cheech and Chong movie.

      • As a borderline atheist, my biggest annoyance with C. Pierrot’s comment is implying (probably unintentionally) that if you believe in upholding ethical standards, you have to be a Christian.

  4. That was as good an essay on the subject as I’ve seen, Jack. Congratulations. I’ve seen a lot of TV documentaries in my time as well. I’ve learned, however, to take them all with a grain of salt. Invariably, the writer’s biases will come into it. Also, documentaries must also fit into the time constraints of the medium. I’ve seen a lot of otherwise good documentaries that, likely for the reasons I’ve mentioned, still made elementary mistakes that an editor should have caught. Science documentaries are certainly no exception.

    • To measure the furious attacks on the piece, you would think I was generally critical of it. Burns does a terrific job, always, but the “legislating morality” canard has to be retired in the case of Prohibition, at least if one is going to discuss it in today’s terms. Since alcoholism isn’t a moral issue but rather a health and mental health matter, the justification for controlling, limiting or banning it isn’t moral either.

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