"Rights to Speech" as Property Rights

Not sure if I've posted this already, but I was going through my old papers and stuff from last year at GMU (which still reside on my hard drive), and I came across a free speech paper I had to write. I wrote it in the spirit of Chapter 15 from the Ethics of Liberty. Namely, there are no such things as "human rights", but only property rights. Even the things we call "civil rights" must be understand in terms of their pertinence to what is mine and what is thine. Anyway, here is the complete text of the paper that I wrote so many moons ago (I actually think it wasn't too bad!):

Free Speech Rights as Property Rights

Much ado is given to debate over the nature of “free speech” and the extent to which it may be freely exercised. But, it will be demonstrated, the bickering within the mainstream will never bring about satisfactory, objective rules concerning the exercise of free speech, for the mainstream’s dialogues fail to realize that all rights are subsets of property rights and can only be rationally understood within that context. First, a cursory explanation of the implications of an ethical theory of property rights will lead to the conclusion that a man can only have a right to exercise his free speech unmolested on his own property or on the property of others if he abides by the owner’s rules of usage. It will also be demonstrated that “publicly-owned” property, by virtue of its status as such, cannot possibly solve, but only create, conflicts over the use of property. Finally, it must be recognized that, therefore, there can be no objective rules governing free speech on public property. Free speech is understandable only within a context of property rights; it is legitimate to use one’s justly held property for whatever purpose one chooses, including for “free speech,” and objective rules governing free speech on public property cannot be arrived at because the notion of public property cannot solve the problems brought about by man’s necessary condition.

The problem of preventing possible conflict that might arise from the inherent human condition of scarcity, in the words of political theorist and economist Hans-Hermann Hoppe, is “the problem of social order.”[1] The most important implications of a logical, objective ethic solving this problem are the only ones that will be cursorily stated here.[2] First, a man is the only legitimate owner of his own body, and may use his body to “homestead” unoccupied property for his own use; he may legitimately use his body and his justly-owned property in any way he sees fit.[3] However, he may not use either his body or his property to “forcibly change the physical integrity of places and goods originally appropriated [i.e. justly-owned] by another person,”[4] or to do the same to the person of another man. Further, it is important to note one final implication: a man’s right to do with his property as he pleases implies both the right of a property owner to define rules of usage for those he allows access to his property, and a right to exclude others from use of his property, even if that use entails only a physical presence on it. With regards to free speech rights, the conclusion that necessarily follows is that a man has a right to exercise use of his vocal chords (as they can only justly be owned by himself), in any way that pleases him, on his property so long as he does not “change the physical integrity” of others’ justly-held property. But, a man has no right to exercise use of his vocal chords on another man’s land unless that owner allows him to do so.

The case of free speech as it pertains to public property is a much more difficult one. Objective rules governing the use of public property are impossible to obtain because of the inherent contradictions of the notion of public property itself. The inherent flaw of public property stems from the fact that all actions require the use of some scarce means. If one is to make the insistence that all potential users of the property have title to ownership of a piece of land, it necessarily follows that no single “owner” of the property may use that piece of property without first securing the permission of all the other co-owners of the property to use it in a given fashion. For property ownership presupposes the right to dispense with one’s property as one pleases and thus to define rules of use for those who are allowed access to the property.[5]

It is instructive to note that if “public properties” are really co-owned by all potential users, then such properties would never be used because there would likely be no agreement over their use. The “problem of social order,” of defining ethically justifiable rules that prevent conflict over use of scarce means, would not be solved or solvable as long as property is held “in common.” Thus, it is only logical to conclude that objective rules defining free speech as it pertains to public property cannot be arrived at. Since public property cannot rule out any conflicts over use, but can only create and worsen them, it cannot rule out conflicts over use as pertaining to free speech. In short, the entire notion of “free speech” loses its meaningfulness as a “liberty” because of the internal contradictions that plague all debate over the use of public property. Still, it must be concluded that a man does have a right to exercise free speech on property he owns (or on the property of an agreeing second party) because he may use his person (in this case, his vocal chords[6]) and property in a way of his choice. It is just as important to conclude that objective rules for the exercise of free speech on public property do not exist and cannot be established because of the contradictions of public property.

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[1] See Hans-Hermann Hoppe, “The Ethics and Economics of Private Property” in Companion to the Economics of Private Property (London: Edward Elgar, 2004). The article is available online at http://www.mises.org/fullstory.aspx?Id=1646.

[2] The “rules” set forth by this ethical theory of property, and the logical justifications of those rules, are taken as given as the argument of this paper proceeds. For an exposition of the logical and moral justifications of an objective theory of private property, see Hoppe, ibid. For a more detailed exposition constructed along the same lines of reasoning and within the same natural-rights framework, see Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 2002 [1982]).

[3] Property is “justly obtained” if one of two conditions are met: either 1) the property was originally un-owned and “homesteaded” or 2) the property was traded or gifted to a new owner. In other words, use of property is not legitimate if it has been stolen from a property owner with a legitimate claim.

[4] Hoppe, ibid. Emphasis in original.

[5] There is nothing inherently wrong with a plurality of ownership of a piece of property, so long as the right to co-ownership or co-title to that property is agreed upon by all co-owners of the property. However, it is instructive to note that “public property” as a generally-accepted concept in which all potential users are considered “owners” involves no such implicit or explicit contract, freely entered into by all parties involved, recognizing co-ownership. In actuality, a state always is, always has been, and must always be the de facto owner and rule-definer for use of “public” properties.

[6] Of course, a man’s “freedom of the press” is also legitimate only insofar as the paper he prints on, the ink he prints with, and the printing press he uses are his justly held property, that he does not force anybody to read his pamphlets, and that he does not trespass on the property of unwilling property-owners in order to distribute his papers.

[Tagged: free speech, property, murray rothbard, ethics, rights, first amendment]