Liberty and Property

RTD columnist Barton Hinkle today takes the ACLU to task for a recent lawsuit it filed aimed at extendng protection for free speech to private commercial space such as malls.

Hinkle makes some curious points in the column, starting with the premise of the article, that a parallel can be drawn between the ACLU’s arguments and the Supreme Court’s recent judgment in Kelo about eminent domain.

But let’s take a look at a smaller point first. Count this space as among those whom Hinkle correctly observes are worried that “almost every Kelo-style seizure of property will take from the poor and the modest and give to the rich.”

But Hinkle also attacks the “quasi-socialist assumption that a person should be allowed to own property only so long as it of little use to his neighbors.” Well, the “quasi-socialist” who first made an argument along those lines was none other than 17th century English theorist John Locke, generally credited as the founder of the notion of limited government and as one of the most important philosophical inspirations for the American Constitution.

Locke believed in a “state of nature” prior to the formation of government, people could come to acquire a right to property through labor–so long as as much and as good land and resources remained for others to use.  In short, so long as land is plentiful and one can easily walk a little further and get one’s own plot of land, someone’s claim to the piece of land they themselves have worked on should be respected. But it’s not permissible (according to Lockean logic) for one individual on, say, a small island to claim a property right to the only 3 acres of fertile land on the island and exclude the other 100 persons. In that case, the common good clearly trumps a private property right, Locke thought.

All this is by way of reminder that Locke assumed that the establishment of private property rights are intended as a way to promote, not undermine the common good. That reminder is useful in thinking about the ACLU case. It’s also useful to note that property rights (at least in the U.S.) are rarely if ever absolute; there are limits, set by the need to respect other social and ecological interests, to what property owners can do on or with their property. I can’t play my electrical guitar full blast and disturb my neighbors all night long, just because I do so on my property. (And that would be true even if I were a talented guitarist rather than a hack.)

Hinkle is surely aware of that, and might rightly say it’s a matter of where to draw the line. The ACLU wants to argue that contemporary commercial spaces are the public fora of contemporary society, and that giving property owners the right to exclude political speech endangers free speech and political liberty. In short, our collective political liberty and collective interest in maintaining effective spaces for free speech should trump a private right to exclude people from commercial space on account of their efforts to share their political views.

That’s a claim Hinkle doesn’t even formulate properly, let alone rebut. Instead, he says that attempting to bolster free speech in commercial areas will hamper privacy. That is an interesting claim–if activists are allowed to picket at malls, property owners’ right to do what they want in their bedrooms will be at risk.

One consequence simply does not follow from the other, and I have enough confidence in our courts to make the distinction between those two kinds of cases.

In the end, Hinkle resorts to the ideological argument that all restraints on property (of any kind) represent a restraint on liberty. But there are many cases in which this is simply not true, and in which we need to restrain property for the sake of other goods, including liberty itself.  Locke provides a salient reminder of this; under his theory, when property owners agree to the formation of government in order to establish security for their own rights, they also agree to be regulated by the government, in the interests of the common good.

As for the ACLU strategy itself, I suspect they may be fighting an uphill battle. The best strategy for preserving free speech in public areas is to promote commercial spaces that are themselves owned by the public, so that the supposed right of a private owner to exclude free speech never arises. In such spaces, the underlying land might be owned by the public, then leased to businesses and other tenants. That kind of development could protect free speech (while also providing revenues to the government). It makes a whole lot of sense–unless one is worried about being labeled a “quasi-socialist.”

Published in: on October 3, 2006 at 2:28 pm  Leave a Comment