Torben Mark Pedersen’s opinion piece overlaps some of the themes that were discussed on Tuesday’s open discussion thread.
Freedom of expression does not exist
by Torben Mark Pedersen
23 March 2011
Torben Mark Pedersen clears up the definition of freedom of expression: Freedom of expression is not a ‘right’, private property rights are. Without private property rights, there can be no freedom of expression.
Freedom of expression does not exist. And this statement is not just a pessimistic declaration on the state of the world.
No, it is more fundamental than that. In spite of various human rights declarations, bills and constitutions, it makes no sense talking about freedom of expression as a human right.
In fact it should be quite obvious:
I have neither the right, nor can I demand to have my letters to the editor printed in the newspapers, or have my points of view aired on radio or TV; I have no right to take to the Speaker’s chair in Parliament, or go on stage at the Royal Theatre to state my candid opinion on cultural subsidies.
I am not allowed to make political speeches in the Supreme Court, I do not have permission to shout “fire” in a crowded theatre; I would not be popular if I slandered my friends’ girlfriends in their own homes; I doubt if I’d be allowed to make speeches about the crimes of socialism at the Socialist People’s Party headquarters, unless they invited me to do so.
I may not publish naked photos of my ex-girlfriends on the internet; I am not even allowed to put a naked photo of myself on Facebook. I cannot express my artistic calling by painting graffiti on the walls of apartments and public buildings.
We enjoy private property rights, not freedom of expression
Because freedom of expression is not a ‘right’. Private property rights, on the other hand, are.
All liberties originate in private property rights; fundamentally in self-ownership: The moral assertion that every man owns himself and the use of his own abilities — physical as well as mental.
Self-ownership is the determining factor in being a free human being, for if one is owned by others one is a slave; if one is owned by no-one it would lead to the absurd state of affairs that one cannot determine the use of one’s own body (it is the opinion of certain feminists that this applies to women if they choose to use their bodies for purposes (sex for money) which they (the feminists) do not approve of).
The right to use your physique, to work, to enjoy the fruits of your own labour, to trade with others and to buy and sell rightfully acquired property, to give away your property and to destroy it, to travel, to practice your religion, write, draw and say what you want, as long as none of this violates the corresponding rights of others: All of this is grounded in self-ownership and private property rights.
But as far as all these derivative rights are concerned the question begs: Where do we have the right to write, say or draw what we want? Where do we have the right to work? To trade with others? To practice our religion?
And the answer is: Inside or on your own private property, or where a rightful owner of the property gives you permission to do so.
The notion of freedom of expression as a property right solves all problems of defining freedom of expression
If we speak of freedom of expression as a right in itself we run into all sorts of problems explaining why we cannot express ourselves freely in all of the above examples.
Any property owner has the right to put his property at the disposal of others to express themselves, but he also has the right to impose any conditions or to exact any price for the privilege. A newspaper is free to print letters to the editor, but also to reject them on any grounds or even without grounds.
The same is true for Facebook, which has unlimited rights as a property owner to remove undesirable material or profiles. This has nothing to do with censorship but everything to do with the exercise of private property rights, in exactly the same way that you or I have the right to throw out a guest who harasses us in our own home.
In the same vein it is illegal for me to shout “fire” in a crowded theatre, not because it might create panic, for it would create (at least) as much panic if there really were a fire, but in that situation it would not be illegal.
It is illegal because it violates private property rights: The rights of the spectators to enjoy the performance they paid for, and the rights of the owner to make a profit from putting on a theatrical performance without having his business disrupted.
Problems with defining freedom of expression
Nearly all problems related to the definition of freedom of expression stem from an imprecise definition of property rights. This applies particularly in the public sphere, where it is unclear exactly what (property) rights citizens enjoy. In certain areas the state acts as a private property rights holder, excluding “unauthorised persons” from expressing themselves.
This holds true in DR [state owned radio/TV broadcaster], in Parliament, in the Supreme Court and in government buildings and institutions as a whole. In public places like streets and squares the lines are less defined, because fundamentally the citizens have the right to move about and speak freely in the street. However, as the public space represents a scarce resource there is a need for a rationing mechanism.
There is not an unlimited amount of space for buskers; traffic and demonstrations may compete for access to the same thoroughfares, streets and squares, and in certain cases traffic will be limited in order to benefit the citizens’ right to demonstrate, but traffic considerations demand that this right is limited in both time and space.
The point is that this is not a matter of limiting the freedom of expression, but of rationing scarce resources.
It should be self-evident that neither religions nor “races” have private property rights. Only individuals have property rights; therefore only the rights of individuals should be protected and no collective groups should enjoy any other protection than that which applies to individuals of that same group, in relation to their individual private property rights.
Thus the Racism and Blasphemy Clause [the infamous § 266b of the Danish Penal Code] conflicts with the notion of freedom of expression as a private property right.
What about defamation?
Each individual owns himself but not others’ opinion of him, so how can defamation laws ever be justified?
There are liberalists who think that defamation laws can never be justified, precisely because no-one has ownership of other people’s opinions of them.
I do not agree.
Defamation and slander may violate someone’s private property rights in the sense that it can destroy their human capital. For example if someone spreads false paedophilia rumours about a teacher, of if someone spreads false rumours that a bank employee embezzled his previous employer.
Likewise, if someone spreads false rumours that an academic falsified his credentials, or that a solicitor leaked confidential information or misappropriated client funds, it is likely to ruin his earnings and career opportunities and would destroy his human capital.
This constitutes a violation of his private property rights and should not be allowed.
We could extend this notion so that if someone spreads false rumours that a named person used to beat up his ex-girlfriends, then that person should be able to claim damages for his ruined prospects on the matrimonial market.
It goes without saying that it would be harder to put a price on the value of this loss, but there can be no doubt that false accusations can impose financial an non-financial losses on an innocent person, and that consequently his private property rights are violated.
Commercial enterprises habitually put a price on their “goodwill” in their annual reports, and scandals invariably lead to substantial downgrading of the value of that ”goodwill”, so the notion that a company’s capital can be destroyed by slander is well known in the commercial world.
This notion of freedom of expression as an exercise of private property rights shows also that we should not defend freedom of expression based on the role it plays in democracy, or indeed based on any other collectivist arguments, but simply and more fundamentally because it is a human right which is insolubly tied to the right to be a free human being.