The Case for Prohibiting Vice
Once you notice the proliferation of vice, it is hard to stop seeing it. Sometimes the drive-through operator is stoned; other times, it's the barista. A young man you know spends all his money on sports-gambling apps and goes five figures into debt. On Wall Street, news reports tell of young investment bankers popping amphetamines for work and pleasure. For a time, you could buy psychedelic mushrooms at a store 10 blocks from the White House. (You can still get them elsewhere in the nation's capital.) The men sleeping on the streets are on a cocktail of drugs we had scarcely heard of a decade ago: fentanyl, xylazine, nitazene. Elon Musk used drugs while campaigning for President Trump, as did Hunter Biden during his father's vice presidency.
The data corroborate these impressions. In 2023, a record 62 million Americans smoked pot; 17 million now use it daily or near daily. One in 12 young adults used a hallucinogen; one in 18 misused prescription stimulants such as Adderall. Another 2.6 million Americans over 12 took meth. Overdoses still claim the lives of 70,000 Americans annually; the majority died using synthetic opioids like fentanyl. Half of American men have a sports-betting account, up from almost zero seven years ago. "iGaming" — gambling via casino apps on your phone — is now legal in seven states. By some estimates, pornography now generates more revenue than Hollywood, and OnlyFans creators collectively make more than players in the National Basketball Association.
This panoply of vice, and the swiftness with which it has come to dominate our culture, has caused many people to recoil with shock. A backlash has ensued. In polls, majorities now favor aggressive regulation of online sports gambling and a ban on betting on college sports altogether. Laws to control minors' access to pornography are on the books in 25 states and were recently upheld by the Supreme Court. A majority of Americans now say marijuana use is individually and socially harmful; legalization initiatives were rejected in several states in 2024. Congress also recently voted to re-ban accidentally legalized hemp-derived THC products.
This backlash makes sense. Millions of Americans are now dependent on addictive, harmful products, which they can freely purchase at the touch of a button. Surely there is something wrong with this state of affairs. Our natural discomfort, even revulsion, must correspond to some actual problem that deserves social or legal response.
But it is not possible to build a campaign against vice on disgust alone. After all, the proliferation of addictive products is downstream of arguments against disgust. Over the past six decades, Americans have increasingly embraced the idea that simply finding something alarming, revolting, or otherwise unsettling, does not mean that we can use the law to control it. A powerful strain in public philosophy and legal theory argues that the law should not be used to regulate vice, insofar as it is "victimless" — meaning that it does harm at most to the users and not to the society around them. "You may not like that people smoke pot, watch porn, and bet on sports," the argument goes, "but what business of the state is it that they do so?"
This framing of the vice issue — as a matter of permitting behavior that may be immoral but is more importantly "harmless" — is so central to our public debate that both proponents and opponents articulate their criticisms in its language. They haggle about which is more harmful, vice or its prohibition. Yet this dynamic reveals the basic incoherence of the "harm principle" — if both vice and its regulation can be evaluated only in terms of individual harm, our approach to the question of whether vice should be regulated becomes far too narrow and constricted.
As Americans become increasingly wary of this new wave of vice proliferation, opponents of it should look elsewhere for a way to frame their attacks. Talk about harm, yes. But those concerns should also be grounded in a comprehensive and coherent account of why vice is incompatible with human freedom — an account that, if framed correctly, can appeal to Americans on both sides of the political spectrum.
THE HARM PRINCIPLE
The modern push for vice legalization does not come from nowhere; it depends upon a previously laid theoretical and legal groundwork. At its deepest extent, it is built on John Stuart Mill's articulation of the "harm principle." As Mill put it in On Liberty, the principle asserts that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant."
The harm principle — that a person can be subject to state power only and insofar as he harms another — is perhaps the basic premise of modern liberalism. By making only interpersonal action subject to government control, the principle circumscribes a zone of individual autonomy, into which the state ought not to intrude. That makes it an interpretive key to how we think about many of the freedoms that liberalism secured: freedom of speech, freedom of worship, freedom of property ownership, and so on.
But the harm principle sits in uncomfortable juxtaposition with the long and older legal tradition of regulating vice. Smoking marijuana, or gambling, or watching pornography, do not — at least at first glance — appear to involve harm to others. For that matter, neither do activities that involve others voluntarily, such as the sale of drugs or solicitation of prostitution. More generally, Mill's conception of liberalism is incompatible with "legal moralism," the idea that laws ought to impose collective judgments about what is and is not moral on individuals. Legal moralism was, historically, the basis on which vice laws were erected.
Although America was founded as a classically liberal country, legal moralism nonetheless remained the norm for at least the first century and a half of the republic. Moral laws were enforced throughout the colonies, and the earliest bans on gambling (for example) date back to the Plymouth colony. This tendency persisted into the early republic: consider, for example, Pennsylvania's 1794 law prohibiting "cockfighting, cards, dice, billiards, bowling, shuffleboard, horse racing, or any other type of gambling." The young nation experienced several waves of moral reform, including the Second Great Awakening and the progressive era. The latter saw not only the first major nationwide drug prohibitions (modern drugs not having been invented before the late 19th century), but also the most aggressive experiment in moral legislation in American history: alcohol prohibition.
It is not true, of course, that everyone agreed on moral legislation, or that morality was regulated uniformly across all states and at all times. But legal moralism was common, and in many states and times was the dominant mode of thinking about what law ought to do. The harm principle did not yet control Americans' views of the state's role.
That began to change in the second half of the 20th century, and especially in the social revolution of the 1960s and 1970s, culminating in what criminologists Jerome Skolnick and John Dombrink termed "the legalization of deviance." Landmark Supreme Court rulings, from Griswold v. Connecticut to Roe v. Wade, demarcated a zone of individual privacy as a central feature of constitutional law. Movements in the 1970s to decriminalize marijuana and prostitution were built on arguments from autonomy. Pushes for sexual liberation, including efforts to decriminalize homosexuality, turned on the view that consenting adults' private acts were no business of the state, regardless of what the public thought about their morality. Advocates of these and other proposed liberalizations often invoked the notion of a "victimless crime." Drug use, prostitution, gambling, and other previously proscribed behaviors at worst harmed only those who engaged in them. Insofar as this was so, it contravened the harm principle to prohibit them.
It should be noted that these advocates of Mill's liberalism either lost or won only partial victories. Prostitution and public drug use remain mostly illegal. Marijuana is now partly legal, but only after painstaking, state-by-state efforts. Sports gambling became widespread only after judicial fiat opened the door to state legalization; gambling more generally is available in some states, but has expanded slowly. The great exception is pornography: Supreme Court invention in rulings such as Miller v. California has granted it First Amendment protections not available to the other vices. At the same time, legal moralism is all but a dead letter in American public life. How did legal moralism's prohibitions survive even as its prominence didn't?
THE NEW PROHIBITIONISM
The answer, put simply, is that opponents of vice adapted the harm principle to their purposes. As Columbia legal scholar Bernard Harcourt has observed, the 1980s and 1990s saw a number of legal movements against vice framed explicitly as responding to the harms that it caused, not to the morality of the vices themselves. Critics of disorder, from New York City's Rudy Giuliani to Chicago's Richard Daley, waged war against public drug use and prostitution on grounds of health and safety, not of morals. Daley even pushed a modern-day "vote dry" movement in Chicago wards, justified on the basis of public safety and order rather than morality. Catharine MacKinnon and Andrea Dworkin attempted to reground criticism of pornography not in its intrinsic obscenity, but in the harm it does to women — an approach that only failed because of how courts were required to treat speech.
This strategy — of countering appeals to harm with different appeals to harm — persists today. To the extent that there is any debate about vice at all, it is found squarely in arguments about the dangers of vice and the negative effects of its prohibition. Critics of vice articulate their concerns in the relevant harm-reduction language by focusing on risks to children, to families, and to communities, rather than on the intrinsic immorality of the act.
There is a lot of evidence, of course, behind the idea that modern legal or semi-legal vices are harmful. Take sports gambling. The rolling legalization of gambling allows social scientists to isolate the causal effect of the end of prohibition on harmful outcomes. A robust literature has done just that, finding that legalization increases problem gambling, alcohol use, and calls to gambling helplines. This rise in problematic behavior in turn elevates the risk of reckless financial dealings, including bank overdrafts, swelling credit-card debt, and a 25% to 30% increase in bankruptcy.
Or consider marijuana. Legalization leads to increases in use and addiction. These in turn translate into greater rates of intoxication, resulting in more workplace accidents and car crashes. Then there are the long-term health harms: heart attack, stroke, lung damage, and schizophrenia. There are also the social harms: Marijuana legalization increases rates of homelessness, reduces property values, and of course permeates cities with the stench of weed.
Is porn harmful? It is, much like any addictive product. Repetitive use yields social isolation, lack of motivation, sexual dysfunction, and the like. It promotes an industry that is damaging to its participants and that has a long history of failing to abide by legal safeguards, from abetting the distribution of child sex-abuse material to spreading non-consensual content. Perhaps most persuasively, American teenagers routinely report its ubiquity in their lives, deforming their sense of the meaning of sex and their way of relating to each other.
This litany of harms, rather than shoring up the case for prohibiting vice, has mostly served to make the debate unresolvable. As Harcourt has noted, the fact that both proponents and opponents of vice have resorted to appeals to harm actually greatly undermines the harm principle's utility. Part of the purpose of the principle is to separate the truly damaging from the merely unliked. But the distinction, it turns out, is far less coherent than proponents once claimed. "Victimless crimes" often end up having victims at a close distance, such that the whole category is rendered largely incoherent.
In truth, the situation is worse than that. In response to opponents mobilizing harm, proponents either downplay the reality of the harms or, more often, identify even greater dangers from prohibition than those that might come from legalization. In the resultant debates, each side tries to run up a greater total of harm than the other. Such measurements are always imprecise and underwritten by value-laden assumptions, however, meaning that those disputes are intrinsically undecidable.
Marijuana, again, is an instructive example. Advocates for its legalization count up the harms of prohibition: the direct and indirect effects of interaction with the criminal-justice system, people deprived of access to "medical" marijuana, the cost of pleasure foregone, the second-order effects of social marijuana use, and so on. Opponents do their own summation: car crashes, mental illness, the toll of addiction, the smell, disruption of family life, etc. And each side attempts to modify the other's tally, by arguing that marijuana is not addictive, or that the effects of criminal-justice involvement are overblown, or the like.
The result of this process is, in essence, a façade of utilitarian calculation: Each side can claim its total is bigger, and there is no real way to resolve the debate. Voters and policymakers end up making decisions about vice based not on a real, objective balancing of costs and benefits, but on which of the enumerated costs is most salient to them. That salience, in turn, is determined by prior value judgments — judgments that, because of the cultural power of the harm principle, tend to favor autonomy.
All this explains why, though opponents of vice have won some pivotal victories, they will always be at a disadvantage attempting to argue purely in the language of harm. It is hard to look at the long arc of policy history since the 1960s and conclude that such arguments have done anything but merely slow vice's advance. Even if the reason to prohibit vice is that it is harmful, appeals from that justification appear to be weak medicine. A different foundation is needed.
BEYOND HARM
The anti-vice crusader's adoption of the language of harm was always contingent, a tactical response to the failure of legal moralism against the onslaught of a liberalism dominated by the harm principle. This is not to say that people who oppose the legalization of vice today don't really believe in their arguments. They do, much as people on the other side of the debate believe in theirs. Indeed, some of the most effective critics of the new vice industries address them through the lens of "public health," arguing in terms entirely denuded of explicit moral judgment.
Nonetheless, the shift to the "new prohibitionism" was, historically speaking, an adaptation to the collapse of a previously effective moral paradigm. Even those who have embraced it are fundamentally doing so tactically, because it became the groundwork of contemporary debate.
At the same time, the inadequacy of the harm principle to describe Americans' intuitive revulsion at the rise of vice creates an opportunity. What if we started to think and talk about vice in different language? That is to say, what if the proliferation of vice — at an unprecedented level — allows us to insist that it is worthy of state attention for reasons other than, or at least not limited to, its harmful consequences?
There are certain moves that critics of vice probably cannot make. A return to moral legalism is extremely unlikely. Americans simply are not particularly morally censorious, especially not on issues of what we consume. In Gallup's most recent poll of what Americans believe to be morally acceptable, 63% called gambling morally permissible; in less recent polling, a similar share said the same for marijuana use. (The exception was pornography, which just 35% say is moral.) More generally, the steady erosion of moral legalism by Supreme Court precedents means that even if there was appetite for its return, there would not be much state infrastructure to carry it forward.
Moral-legalist arguments are ultimately grounded in a meta-ethical assertion: Certain behaviors are wrong, and that wrongness is a reasonable basis for the state to regulate or prohibit those behaviors in at least some cases. Even if we have rejected intrinsic wrongness as a reason to regulate or prohibit behaviors, opponents of vice might still be in a position to argue that certain features of what vice does are sufficient to deserve state control — not for their harms, but per se. A richer theory of vice and its effect on humans, in other words, might yield a fruitful account of why we can curb it.
To begin to sketch such a theory, we must first raise a fundamental question: What is "vice," anyway? Denotationally, the term means the opposite of virtue. In the legal-moralist framework, that's coherent — smoking pot or watching porn or betting on sports are bad because they are immoral, which is to say unvirtuous. But clearly here we mean something more specific: There is something about those actions and products that is different from behaviors that are self-evidently immoral, stretching back to the Ten Commandments — murder, lying, adultery and the like.
Two aspects distinguish the kinds of vices we have been talking about. One is that they are products: They are goods or services bought and sold on the market. That means they are subject to the dynamics of market forces, and can be regarded by regulators as, at least to some extent, in the same category as more mundane products such as broccoli or tissues. (Murder, by contrast, is never or at most rarely, a product.)
The second is that they are addictive. What that term means, exactly, is extraordinarily thorny, encompassing philosophical, scientific, and normative judgments. But an appropriately functional definition might be inspired by that offered by the National Institute on Drug Abuse, citing the Diagnostic and Statistical Manual of Mental Disorders: Addiction is "compulsive [product] seeking and use despite adverse consequences."
Addictive products have long been the target of state concern. They are subject to a wide range of controls: prohibition, medicalization, regulation, and even constitutional protection. But in general, we recognize that something about them, and the state they induce, requires special scrutiny, in a way that other products do not. That something might form a better basis for opposing their legalization — or for justifying their regulation — than harm does.
THREE WAYS OF THINKING ABOUT VICE
How might we think about what addictive products do to the people who consume them? There are three different, but interrelated and compatible, frameworks.
One approach, which might be labeled the "behavioral economics" approach, argues that addictive products are an issue insofar as they contravene our rationality. Conventional economics describes consumers as rational actors. Some economists extend this to consumers of addictive products, providing an account of a "rational theory of addiction." In this framework, addicts can be said to be rational insofar as they are optimizing their subjective utility, much like any other kind of consumer. The rational theory is a favorite of libertarian advocates of drug decriminalization, who argue that the market should be allowed to satisfy the heroin user's wants as much as anyone else's.
Insights from behavioral economics, in the words of drug-policy scholars Jonathan Caulkins and Nancy Nicosia, allow us to "[relax] certain aspects of" the rational theory of addiction, "while preserving the idea that drug users are making choices, albeit constrained and imperfect ones." Behavioral economists generally observe that humans do not make perfectly rational decisions, but instead use reliable heuristics or rules of thumb. "Addictive substances," Caulkins and Nicosia have written, "can bring out the worst in our heuristic decision-making."
For example, classical rational-actor theory assumes that humans value the future at a declining rate — a dollar today is worth more than a dollar tomorrow, and we steadily "discount" the value of the dollar (or any other reward) as our receipt of it moves further into the future. But behavioral-economics research suggests that humans often discount the future following a hyperbolic function, such that the value of future goods diminishes more rapidly than it ought to if we were behaving rationally. This appears to be particularly true for people struggling with addiction. Such people often know that getting clean would benefit them in the long run. But the short-run rewards of continuing to use can outweigh that benefit, in part because the future is less valuable to them than it rationally ought to be.
Another, related insight is that intoxication can impair our decision to act rationally. That's true of addictive products such as alcohol and marijuana, which directly alter our mental state. But it can also be true of the experience of gambling or consuming pornography — consider the trance into which many users of both products enter while they are engaged in a "binge." The decision to consume an addictive product may be initially rational (in the sense of maximizing utility) but results in irrational subsequent behavior, which the impaired person is unable to correct. The first dose might make sense, in other words, but also might put us into a state where we take the second dose against interest.
This insight — consuming addictive products can render us vulnerable to irrationality — is directly related to the second critique of vice: the "consumer protection" view. Much as the loan shark takes advantage of his clients' straitened circumstances to charge usurious interest rates, so too does the drug dealer capitalize on his buyers' dependence to extract more cash. This argument finds a natural home on the political left, which tends to identify predatory business as a significant threat to human freedom and dignity.
The consumer-protection view can be used as a criticism of illegal dealers in vice, but it is most effective when condemning the legal vice market. Thus, attacks on "Big Green" marijuana distributors point out that they want to engage in "addiction for profit." Those concerned about the corporatization of social media can be cajoled into criticizing porn distributors, including for the oligopolistic nature of the market. One critique of the legalization of sports gambling is that it is harmful. But another, potentially equally effective one is that it has handed power to a handful of large sportsbooks, which are more or less entirely unbeholden to regulation.
There are similarities between the behavioral-economics approach and the consumer-protection view, insofar as both concern themselves with the inability of vice consumers to fully participate as competent consumers in the marketplace. But while behavioral economics emphasizes the intrinsic challenges addictive products pose to rationality, consumer protection references broader concerns about "corporate power" that have unified some on the left and right in recent years. Vice is a problem not merely because it is harmful, nor because it messes with our brains, but because the companies that retail it have undue control over the people to whom they sell — a steadily increasing share of the population.
Advocates of consumer protection on today's left are in some ways restating an older, more conservative criticism of vice — what might be termed the "republican virtue" framework. This view is the one most nearly related to legal moralism, but thickens the legal-moralist account of why it is legitimate for the state to concern itself with right conduct. Specifically, it argues that a republican form of government — in which the people collectively rule themselves, rather than being ruled over — is only possible if citizens practice certain virtues integral to self-rule. In the absence of virtue, republican government quickly degrades into tyranny: As John Adams famously put it, "[o]ur Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other."
Addiction, in this view, is a problem because it can engender an inability to govern oneself and, therefore, to participate in the collective process of self-government. A person who spends his day intoxicated or addled by drugs is less competent to participate in democracy. And tens of millions of people more interested in getting high than in running our society represent a challenge to the idea of self-rule as such. As a result, the state can be said to have an interest in fostering good behavior insofar as it ensures the maintenance of a republican form of government. Much as education is necessary for the formation of responsible citizens, so too is restraint of vice necessary.
"Self-government depends on citizens capable of governing themselves," Walter Berns wrote in The Public Interest in 1981. "Such a regime cannot be indifferent to the character of its people, and the arts, including the popular arts, do have an effect on that character." Berns was then arguing for the necessity of suppressing obscenity to building the moral character of a free people. But his argument might be extended to the suppression of other vices as well.
ANTHROPOLOGY BEFORE MORALISM
These three frameworks — behavioral economics, consumer protection, and republican virtue — together span the left to right spectrum. Proponents of each may find things to dislike in the other. Yet while the language varies, the basic argument is actually the same. Something about vice, and addiction per se, threatens our capacity to act as fully capable humans and citizens. Vice, and those who peddle it, suppress our freedom — tyrannize us — in a way that the state has a legitimate interest in counteracting.
Adopting the freedom-suppression argument above affords a stronger basis for the modern opponent of vice than does the embrace of the harm principle. Vice is a problem not merely when it produces incidental harm, this reasoning goes. Rather, it is intrinsically a problem, because human well-being — the good life — is always threatened by it. The fact that this harm does not always materialize does not mean that the state cannot curtail vice. When those harms obtain, it is because of something essential about vice and humans, not an accident to be distanced from its causes.
Focusing on human freedom and self-rule does not mean a return to legal moralism, in the sense that it does not justify the suppression of vice on the grounds that it is wrong per se. But it does entail the kind of thick anthropology that many proponents of vice so disdain. It makes, in other words, certain claims about what people are and what it is to live well. But such claims are necessary and, helpfully, true. Opposing vice means being willing to make them forthrightly and without apology.
