Every once in a while a story emerges from nowhere almost perfectly calibrated to reignite the culture wars. This week it’s the lawsuit filed by a Sacramento mother against McDonald’s for tempting her 6-year old daughter with Happy Meal toys. It follows up on a threatened suit by the Center for Science in the Public Interest over the same issue. As Michael Jacobson of the CSPI argues, parents are no match for the slick marketing of Happy Meals to children. Parental authority is undermined by McDonald’s, which is asked not to fork over a multi-million dollar settlement but merely to offer healthier alternatives or get rid of the tempting toys.
Suits of this nature should be no surprise to those of us watching the epidemic of childhood obesity destroy the health of millions of Americans. First Lady Michelle Obama has made the fight against childhood obesity her guiding cause, after all.
The immediate response to the lawsuit is also predictable. While most parents agree that there is something a bit discomforting about the aggressive marketing of unhealthy food to children, most assert that it is still up to the parents in the end to put their feet down and say “no” to their children. Just to give this debate the requisite culture war “feel” to it we have an African American female plaintiff, a ruffled-hair Jewish activist/attorney on one side and none other than Sarah Palin on the other. The ABC News report linked to above is filled with the sort of culture war images that have defined our politics for so long.
Let’s just say that this is a rare moment where I agree with Sarah Palin.
But what strikes me about this is not that this is another example of Nanny State Liberalism run amuck – even if that is the case. Indeed, several famously-liberal California counties have already banned Happy Meals for the reason cited in the lawsuit. No, what I find so fascinating about this is how little we realize how deeply rooted in American culture this lawsuit actually is.
In fact, there are two widely disparaged elements at work here: excessive litigiousness (aka “frivolous lawsuits”) and pressure on government to control personal behavior when individual personal responsibility should otherwise suffice. The Happy Meal lawsuit may be something new. But frivolous lawsuits and puritanical drives to clean up our consumer culture are not.
I discovered both of these first hand while doing research in grad school on the Civil War era in Kentucky and Missouri. As I sifted through court records in various rural Missouri and Kentucky counties I couldn’t help but notice just how often these sturdy, God-fearing, Jacksonian farmers sued each other over the most mundane of causes. Whether it was encroachment on a creek for millage purposes, or allowing hogs to pasture without permission, small farmers took each other to court with seemingly little compunction. The reason for the excessive litigiousness was clear: America was a nation of laws and if private citizens believed that legal contracts were being undermined in some way then they felt it was their Constitutional right to take their alleged malefactors to court. Then, as now, judges expressed exasperation at the trivial nature of many of these suits, even as plaintiff attorneys developed increasingly ingenious legal schemes to strengthen their clients’ cases. Frivolous lawsuits are nothing new in America.
I also noticed during my research the developing campaign to prohibit the sale of alcohol. Some of these arguments were couched in explicitly evangelical language regarding the sinfulness of drink. But what made prohibition laws take hold – the first passed in Maine in 1851 – was the claim that the government needed to protect those who could not protect themselves from the destructive consequences of alcohol. The target then was women and, to a lesser extent, children, who were abused and neglected by husbands who spent the family earnings at the local tavern. What’s more, the tavern owners themselves were often ethnically dubious foreigners or, at the very least, were active players in the corruption of American politics. Kentucky would pass its series of temperance laws in the 1870s, with many of them still in place to this day .
The counterargument to the prohibitionists was that individuals should be allowed to exercise personal responsibility in deciding whether or not to consume alcohol. And besides, the prohibitionists were clearly exaggerating the dangers of drink in a fit of fanaticism. It would take until 1933 for the nation to throw off the prohibitionist charge – and in many communities not until today.
Alcohol is not the same thing as a Happy Meal. Questions of safety and morality enter the picture differently in each case. But the arguments against both are still quite similar. In each case, a product is marketed and sold to vulnerable people with disastrous health effects. Monet Parham, the plaintiff in the Happy Meal lawsuit, is just as powerless in the fight against the fast food industry as her foremothers were in the battle against the Liquor Lobby. And so, like the frivolous farmers of rural Missouri in the 1850s, she is taking her enemies to court.
Again, I am with Sarah Palin on this. Parents must assume the responsibility to turn down their children’s request for Happy Meals. After all, where does the slippery slope end. Surely, the American Family Association and other Nanny Staters on the Right (joined up with the “do-gooders” on the Left) would love to use the power of the state to regulate all kinds of private morality and private health matters.
But it’s important to remember that neither Nanny Statism nor frivolous lawsuits are a creation of a post-1960s America where personal responsibility has somehow disappeared along with the rotary telephone. These suits may have taken different form in recent decades. But we as a country have long turned to the powers of the state – via the courts or the legislature – to regulate behavior that most of us would assume today to be in the realm of the private sphere. In other words, we will certainly see these kinds of lawsuits pop up again and again as long as we remain a nation of laws, and a country that occasionally arrogates to itself the right to govern private behavior. I don’t see that changing any time soon.