The First Amendment to the U.S. Constitution has long been regarded by practically every hue of the political spectrum as the most sacred and revered of all political rights and guarantees provided the American people; as indeed the cornerstone upon which all other rights are based. Yet despite this broad consensus, application of the First Amendment has been uneven, to the point where there is now a plethora of views within American jurisprudence as to what constitutes an appropriate constitutional exercise of freedom of speech. How is it that such a seemingly straightforward and articulate statement of this most basic freedom has become so mired in controversy?
To answer this question, and to find a way out of the perplexing confusion which surrounds the First Amendment, it is necessary to determine the proper philosophical underpinnings upon which it is based. The First Amendment, as with all political institutions and ideas, does not exist within a void. It is based upon a view that freedom of expression is a positive good; that without it citizens are defenseless against capricious and tyrannical acts of government—which by having a monopoly on the legal exercise of force—will be able to stifle dissent against actions which violate the rights of its citizens. So in essence, freedom of speech exists to enable the exercise of rights which the founding fathers regard as unalienable; the rights to “life, liberty and the pursuit of happiness.”
In the course of human history, the idea that citizens have the unfettered right to express themselves is relatively new, owing its genesis to Age of Enlightenment philosophers. Prior to that, it was generally assumed that either the state or the church had ultimate sovereignty over one’s life, liberty, and property, and that the individual had no a priori claim over such rights. Thus, the great struggles which bloodied the pages of history before the Age of Enlightenment were between the conflicting claims of church and state over the soul and property of man.
It was the English philosopher John Locke who first made popular the idea that it was neither the church nor the crown who had first claim upon the life and property of man, but that those rights resided in the individual himself. In laying the foundation for his startling theories, he maintained that private property rights are the cornerstone of all other rights. By “mixing one’s labor” with the soil the individual obtained a property in the product of his labor. Thus, any state or religion which abrogated that property was engaged in theft and violation of the conditions necessary for life to have meaning, fulfillment, and efficacy. To the extent that the individual was not free to enjoy the fruits of his labor, he was unfree and a slave.
Property Rights Antecedent to Free Speech
It was out of this philosophical heritage that America’s founders created a new nation, based on the principle that each individual is a sovereign within’ his own right, free to enjoy the blessings of liberty, and free to realize his true potential without interference from church or state. Property rights then became the ac knowledged foundation upon which other constitutional freedoms rested, including freedom of speech. It was not until this century, when private property came under relentless ideological assault, that the First Amendment was subjected to ambiguous and convoluted contention.
Indeed, it is the failure to recognize property rights as the antecedent of free speech that has led to uneven, conditional application of the First Amendment in the twentieth century. Why is this so? First we need to look again at what “life, liberty and the pursuit of happiness” really means. By having the right to “life,” we own, from the moment of birth, our life, which no one has the right to take away. Since infants and children cannot sustain their lives without support from adults, parents and/ or guardians have an obligation to sustain that life with their labor. That does not mean, as it would with inanimate objects and animals, that adults, by mixing their labor for the maintenance of children, have a “property” in the child. That would make children slaves, and would deny them their unalienable adult rights to liberty and the pursuit of happiness. How ever, it does give parents and guardians the right to restrict a child’s freedom until the child reaches sufficient maturity where it is possible for him to make decisions about his own welfare and where he at least has the potential to be self-supporting.
Once a child evolves to maturity, he can then exercise his “liberty”; meaning he can be free to take whatever actions he deems appropriate for his happiness and well-being, provided in so doing he does not restrict the rights of others to exercise their liberty. John Smart Mill, the nineteenth-century utilitarian philosopher, put it succinctly when he wrote: “The right to swing my arms in any direction ends where your nose begins.”
So by “life” man is free from the fight of another to take that life without consent, and “liberty” is freedom of action. Unfortunately, many civil libertarians who appear to be in the forefront of defending the First Amendment are content to rest their case for free speech on life and liberty precepts, and look no further, ignoring the significance that the “pursuit of happiness” plays in protecting and preserving freedom. For once an individual has liberty of action, it is essential, if that freedom is to have meaning, that he be able to realize the fruit of his liberty. It is a shallow liberty indeed if he is not free to exchange voluntarily with others the product of his efforts on terms that are mutually agreeable.
With a consistent application of property rights, where all property but essential government facilities are held privately, conflicts which currently abound over where the proverbial nose of another begins would virtually cease. Within the confines of private property, the property owner would have undisputed right to determine the kind, extent, and terms by which speech could be exercised. Thus, the irreconcilable disputes over, for example, what speech should be permitted in public schools would become irrelevant. This is because a pure application of private property rights would preclude the existence of public schools, since they are supported by taxes, and taxes are the involuntary expropriation of property by force.
In today’s polity, this is a radical statement, yet how else can taxation—and the “public” property on which it is founded—be viewed? For despite the bold pronouncements of Enlightenment philosophers that the individual has absolute sovereignty over his life, liberty, and property, the twentieth century, up until very recently, has seen a resurgence in the statist doctrines which held man in bondage to others. With that resurgence has come an enormous increase in the taxing powers of the state, to the point where the average American surrenders more than forty per cent of his earnings to government.
Not surprisingly, freedom of speech, as with most other freedoms Americans take for granted, is perched on an increasingly shaky foundation. Without a comprehensive philosophical base built on the sanctity of property rights, the vagaries of each First Amendment Supreme Court decision are as uncertain and unpredictable as a loose cannon on a rolling deck, and the task of protecting First Amendment rights in the face of a growing public sector seems to become ever more difficult. As I shall argue later, a counter-trend is developing which is slowing, and now seems to be reversing this otherwise inexorable process.
Returning to the issue I alluded to earlier, where freedom of speech issues become irreconcilable with the existence of public schools, it is instructive to look at the famous 1962 and 1963 Supreme Court decisions which banned prayer in the public schools. These rulings were made on behalf of a nonreligious minority of parents who felt that religious observance was being forced upon their children without their consent. As contributors to the public school system, and consistent with First Amendment guarantees of separation of church and state, they were within their rights to have the prohibition imposed. Yet what of the rights of the majority of parents who also contribute to the school system, and would like to have prayer in public schools? Are they not entitled to consideration for what they judge to be in the best interests of their children? Given the existence of public schools, whereby the entire community is forced to contribute through the imposition of taxes, there is no way to equitably resolve the inevitable conflicts over publicly held property. No matter how the conflict is ultimately resolved, someone’s property rights will be subordinated, without their consent, to the wishes and desires of others.
However, in a society without public schools, First Amendment rights would not become an issue. Parents who wished their children to partake in religious observances in school would be free to choose the school which offered it. Alternately, parents who do not want religion in school, could likewise choose schools which provided that option. Neither the religious nor nonreligious would be imposing their preferences on each other’s children, with the rights of both being respected. It can be argued that those options are available today, and that parents can send their children to religious schools, but that does not negate the fact that they are still forced to contribute to schools they neither use nor approve.
Another area where the First Amendment comes into conflict is the right to assemble, march, and speak on public roads and in public parks. In the Supreme Court case, Clark v. Community, the Committee for Creative Non-Violence took legal action against the U.S. Park Service for imposing a ban on camping in Lafayette Park, which is across the street from the White House in Washington, D.C. The Supreme Court ruled in favor of the Park Service, accepting their argument that to allow camping would impose excessive wear and tear on the park, thereby reducing the aesthetic value of the park for visitors who pay for its maintenance through their taxes. Thus, the interest of the taxpaying public was upheld over the interests of those who wish to engage in symbolic speech on land which they have just as much a claim to as visitors and tourists.
Solving the Problem of Rights in Conflict
The same sort of conflict arises whenever the streets are used for demonstrations and marches. While few would want to deny the rights of most groups to use the streets for this purpose, nevertheless, the rights of motorists who pay taxes to maintain the roads are being violated. The problem then arises in trying to determine how often and how long may a group use the streets for protest, versus the rights of motorists to use the streets which their taxes support for commercial and personal use. Would a proper interpretation of the First Amendment permit a given street to he given over to protest once a week, once a month, once a year, or none of the above? What formula could be applied which would equitably and fairly distribute the publicly owned streets between motorists and protesters? For that matter, how about nudity on public beaches? Must the minority of taxpaying citizens who support public beaches and wish to enjoy them in their birthday suits have their wishes subordinated to the majority?
Again, as with the public school illustration, if roads and beaches were all privately held, then protesters and nudists could contract with the owners of such property for usage under whatever mutually agreeable terms could be arranged. Adjudication and rights conflicts would not exist in a society which did not recognize the right of government to seize a portion of its citizen’s property without their consent.
Defenders of the status quo will claim it is possible, under such an arrangement, that some groups, because of the unpopularity of their ideas or behavior, would not have the means to exercise their “freedom” to speak or disrobe because there may be no property holders willing to offer them terms for use of their property; or failing that they may not have the resources to meet the terms which might be offered. Yet do these hypothetical circumstances legitimately constitute an unconstitutional restriction on First Amendment rights?
On the contrary, property rights prevent some individuals from seizing the property of others to promulgate their own views or activities. It is no more a denial of freedom to prevent the use of private property to exercise speech which the property holder does not approve, than it is a denial of freedom to not allow property to be taken from the affluent to the indigent so that the indigent may have the “freedom” to enjoy Iranian caviar or Dom Perignon champagne.
As long as individuals have the rights to life, liberty, and property, they will always have the freedom to obtain the means to exercise their freedom of speech. If the talents and energies of those holding unpopular views are sufficient, they will be able to earn a forum within the marketplace of goods and ideas. Instead of fearing that there would be less opportunity for expression in a society which holds private property as an absolute, there is every reason to expect there would be more.
Take, for instance, the striking contrast between what is available to the public through the printed versus the electronic media. In the United States, where private ownership of the press is widespread, there is no limit to the avenues of expression through that medium. On the radio and TV airwaves, however, where a “property” in airwave channels does not exist, broadcasters are subject to censorship, where airing offensive programming risks the prospect of a license not being renewed. In 1931 the Federal Radio Commission (precursor to the FCC) denied the renewal of a broadcasting license to a Mr. Baker, who operated a station in Iowa. The Commission ruled that Mr. Baker’s “. . . cancer cure ideas and his likes and dislikes of certain persons and things [and] his infliction of all this on his listeners is not the proper use of a broadcasting license.” (Decisions of the FRC, Docket No. 967, June 5, 1931)
In a more recent case, the FCC threatened the nonrenewal of a Honolulu radio station’s license because the station broadcast libertarian programs several hours a day for two years. When the FCC opened lengthy hearings in 1970 to consider nonrenewal of the station’s license, the threatened cost forced the owners to shut down.
Such forms of censorship could be prevented by homesteading the airwaves, and abolishing the restrictive franchises which currently exist with cable TV. In this way, consumers would be offered a greater variety and higher quality of programming instead of the bland, noncon- troversial fare now available.
Admittedly, the policy prescriptions advocated here for clearing up conflicts relating to the First Amendment depart so radically from current realities that it may appear pointless to even suggest them. Yet history has shown that ideas are a powerful force for achieving change. When allied with technological advances, the possibilities are limitless.
Already, the remarkable advances in telecommunications and computer technology, combined with a growing appreciation for free market economics, are creating something of a revolution within the FCC, where the emphasis is increasingly upon deregulation and privatization of the airwaves. The provision of services formerly considered the exclusive domain of local government is being increasingly called into question, as are exclusive government-sponsored franchises such as electricity, telephone service, and the exploration of outer space.
Even the sacred cow of universal public school education is coming under indirect assault with the policy initiatives of the Reagan Administration for tuition tax credits. While it would be naive to assume that the public schools or the interstate highway system will be privatized any time soon, the powerful trends toward greater recognition and appreciation for the free market—and the private property concepts on which it is founded—bode well for the furtherance of First Amendment protections over the long term.