THE PERMISSION SOCIETY: Do We Need a No-Child-Left-Inside Legal Defense Fund?

Remember when people worried about the Permissive Society? They should stop worrying. We’ve become the Permission Society.

In January, Elise Truchan, 14, began her design and construction of an impressive, attractive treehouse in her family’s yard. She completed it in February as her eighth-grade project at Quaker Valley Middle School in Leet, PA. She built it in the front yard because there was no tree in the backyard.

It’s a fine, two-level tree house, covered in beige shingles, designed in a way that promotes safety:

A visitor climbs a short distance up the tree’s trunk, then enters an enclosed shaft that leads to a trap door and then into the treehouse itself. It has small, high windows, walls decorated with Harry Potter illustrations, and a clear plastic ceiling so Elise can see the stars.

In photographs, Elise seems like the kind of smart, happy, good kid that any town would be proud to call one of its own. When the treehouse was under construction, many neighbors complimented it. But then someone (the family doesn’t know who) complained.

Photo: Kristina Serafini/TribLIVE.com

As a result, the township ordered Elise’s family to tear down the tree house by Oct. 1, or risk citations from a local magistrate. Elise told the reporter she was “pretty devastated.”

A representative of Building Inspection Underwriters of PA told Trib Total Media that he could find no municipal restrictions specific to treehouses, but “accessory structures” are not allowed in residential front yards.

This same type of zoning regulation was used recently in Leawood, Kansas, to force 9-year-old Spencer Collins to remove his Little Free Library from the family’s front yard. Like other Little Free Libraries popping up around the country, his looked like a jumbo birdhouse. People leave books in Little Free Libraries; passersby are encouraged to “take a book, leave a book.” (My wife and I put one up recently.)

Spencer just wanted to share his love of reading. But the town bureaucrats, who probably had little choice, considered the little library an accessory structure.

An accessory structure is any structure that is not attached to a main house. Spencer, who plans to fight city hall, told a Kansas City TV station that he’s thinking outside the box: “I thought, why not get a rope and attach it to our house and the library?”

Spencer for Mayor.

Municipal governments have been taking similar actions against such deviant behavior for a long time. And not just public agencies, but private government too, including community associations, which often come down hard on residents for planting vegetable gardens, putting up basketball hoops, building treehouses and forts, and hanging American flags from balconies. In one notorious case, a Florida condo association tried to outlaw children playing outside – in their own neighborhood.

In 2006, an environmental lawyer named Brian Schmidt started thinking about nature-deficit disorder and came up with a novel idea, which he shared in his blog: “Set up a legal foundation that pays the legal defense costs of institutions and individuals who bring children outdoors and then [are] hit with frivolous lawsuits.” In the 2008 update to “Last Child in the Woods,” I passed along Schmidt’s idea, and suggested calling it the No Child Left Inside Legal Defense Fund.

At the outset, the fund would defend people “against the claims that would have established the worst precedents or had the worst potential impact,” he said, in an email. “The fund would support “all or part of defendant’s legal costs afterwards,” if the defendants did not settle the case. “Regardless of how successful this idea could become, it will never cover all the costs of defending against all lawsuits. Still it could help, and just the fact that a defendant knew it was possible to recover costs might make the defendant less likely to settle.”

His idea could be applied to civil lawsuits as well as to egregious regulations by public governments.

Who would pay for such a fund? How about trail lawyers and other attorneys, through donations and pro bono services. Many are genuinely concerned about the growth of litigiousness and the kind of regulation enforcement that can give good regulations — the kind that fight corporate polluters for example — a bad name.

“I also expect that businesses that support the outdoors would be interested in funding the foundation,” added Schmidt. He said he was just tossing “this idea out into the Googleable universe, with the additional mention that I’d be willing to put in some of my own money or time as a lawyer if the idea goes anywhere.”

This may not be the ultimate solution to overzealous regulation and hyperactive community associations, but it could provoke new thinking across political boundaries.

Judging by the content of his blog, Schmidt seems to be politically liberal. But conservative and controversial political scientist Charles Murray would probably like Schimidt’s suggestion. Murray has been out promoting his new book, “By the People: Rebuilding Liberty Without Permission.” In it, he suggests creating legal defense funds to identify regulations that “arbitrarily and capriciously tell us what to do.” In a recent interview with CNN’s Fareed Zakaria, he said, “Ordinary people can’t live their lives as they see fit anymore. They live under a constant presumption that they need permission.” He added, “I’m not so worried about the big corporations and I certainly don’t want to get rid of the regulations that are important and necessary. But the lives of people are being constantly impeded by stupid, pointless regulations.”

It’s fair to say that public and private regulations do need more scrutiny. At the very least, we should question the kinds of rules and restrictions that prevent kids from building treehouses or sharing their books. Most of us want our kids to be safe and our neigborhoods liveable. But, when pushed beyond reason, our well-meaning concern about safety and orderliness may be taking us down a road we may not want to go.

In the Permission Society, life is becoming less safe and certainly less lively.

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