Friday, March 25, 2011

Free Speech as an Extension of Property Rights

Our Perth correspondent Anne-Kit sends this translation from Sappho’s newsletter. She says, “I’m not sure I agree with everything he says, but I found it thought provoking enough to translate, and it might spark some discussion among Gates of Vienna readers.”

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.

No right

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.

Why not?

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.


1389 said...

The only possible problem that I see here is that a person should be able to tell the truth about a person or an organization, even if it is negative and might cause loss of goodwill and "human capital" to that organization. Thus, if we call Muhammad a child molester and cite the Qur'an to prove it, and this causes loss of reputation to mosques or other Muslim organizations, then they should have no case against us.

Anonymous said...

I just wrote a long piece that I won't bother to write again, and it got lost when I tried to post it. Thanks, Blogger.

Save to say the following: the author has confused, under the heading of 'right', 'freedom' and 'entitlement'.

'Freedom of expression/speech/the press' has always meant the right to hold and express political opinion (and, by extension, religious opinion) without the fear of legal sanctions by the state. It does NOT mean the right to be published, nor does it mean the right to tell untruths that will harm a person's reputation (generally dealt with in civil, not criminal, trials, at least in civilised countries), or the right to publish the confidential communications (including intimate activity) of others. Nor does it mean the right to shout over others (since that would infringe their own freedom).

When the author has sorted out his categories, I might take what he has to write seriously.

Evan said...

"Nor does it mean the right to shout over others (since that would infringe their own freedom)."

If I say one of the guests in my house has the right to shout over another, then he does.

If the owners of GOV decide your opinion bothers them and to ban you, then of course they have that right. "Freedom of speech" at GOV is defined by what the Baron and Dymphna and their hosting service deems acceptable.

It is very hard to make progress on "freedom of speech" by thinking in terms of our right to express ourselves. Only by thinking about the right to speak as a property right do we make progress. The key issue is not what we can say but where we want to say it. If property rights are protected, we will have more speech than we know what to do with.

oldschooltwentysix said...

What about the right to life?

Is that liberty right based on property?

In Hoc Signo Vinces† said...

In hoc signo vinces

This is a confused article what is the author trying to say.

The authors idea of private property rights appears to be one of fixed private property, a neoliberal private prison all soil and no soul.

"I have no right to take to the Speaker’s chair in Parliament."

I would argue that there is every right to take ownership of the Speaker’s chair in the context of the chair being property, reversing the author's argument concerning the chair as fixed private property that the author states he has no right to invest in.

Evan said...

"What about the right to life? Is that liberty right based on property?"

What is the alternative that you propose through which we have a right to life?

Baron Bodissey said...

This is the comment that Salome was unable to post. She had saved it, and sent it to me:


I meant to post this comment to the ‘Free Speech’ post in response to Evan but Blogger just won’t let me. This time, however, I saved it. I wouldn’t bother you, but I think there is a real failure of people to understand what ‘freedom of speech’ really means (as evidenced by the self-righteousness of the WikiLeaks crowd):

And I still say that freedom of speech, properly construed, means the freedom to hold and express an opinion without fear of sanction--and I add here: on the ground of the content of the opinion.

By ‘shout over others’ I clumsily meant shouting during, for example, a public lecture or theatre performance or Court hearing or religious service or parliamentary sitting. If you permit your guests to be ill mannered in your own home, that’s your business.

There are and have been societies in which expressing the wrong opinion is punished, even if it’s said in one’s own living room. It has nothing to do with the proprietary rights to the space in which it’s said, but to the consequences that arise because it was said.

I still say the author is confused between freedoms and entitlements. My own freedom of speech is not harmed in any way by the Baron or Dymphna deciding to remove my post. Freedom of speech is the right to say it, not to have it published.

There is altogether too much confusion these days between freedoms and entitlements on the ‘rights’ question.

Sagunto said...

Anne Kit -

Thank you so much for your excellent work. So glad to see this piece in the wake of the topic mentioned by the Baron.

With regard to the recent topics about "rights" in the context of a new post-jihad order, this is exactly what overlaps with a return I think is needed to Natural Law, private property rights and economic freedom (which is of much more interest to the common man, in fact, revolts have always been about this issue, than expression rights). Especially economic freedom has been largely absent from discussions, as it has been since the liberal philosopher J. S. Mill presented his hugely influential work "on Freedom" and declared it not to be part of the equation.

Must run, but I thought I should just briefly express my heartfelt thnx.

Kind regs from Amsterdam,

Evan said...

Hi Salome, it sounds like we are really not very far apart. If I owned a lecture hall, I would certainly not allow speakers to be disrupted, and I certainly do not wish the state to criminalize expression.