Column on Free Speech and Property Rights

So, Here We Go Again!
Tibor R. Machan
The lawsuit against a Kentucky school district over a Confederate flag
prom dress, set to go to trial in August, is yet another illustration of
what trouble is caused by public or government schooling. When Jacqueline
Duty reportedly alleges that the Russell Independent Board of Education
denied her right to free speech when she was barred from her senior prom
in May 2004 because of a homemade dress bearing the confederate flag, she
shows that freedom of speech and government schooling are plainly
incompatible.
But this has been clear for years. All those lawsuits against school
boards about making students say the Pledge of Allegiance, saying a prayer
before a football game, etc, and so forth, demonstrate that a prerequisite
for being able to exercise the right to free expression is privatization
and the institution of private property rights. This is also clear from
how broadcasting over government owned airwaves cannot enjoy the
protection of freedom of expression?just consider how Howard Stern has
been bumped off their air for using foul language (and, indeed, how
several decades earlier George Carlin met with a similar fate). That?s
also why the Federal Communications Commission has the authority to tell
broadcasters that they must air public service messages so many times a
week or may not run too many ads during a program. Not very long ago this
went so far as to impose on broadcasters the Fairness Doctrine, according
to which stations had to be balanced in their treatment of controversial
topics. (This is why tobacco ads were originally taken off the air,
because the FCC coerced broadcasters into airing opposition ads to tobacco
commercials.) And believe it or not, in our time many modern liberals in
Congress, mostly Democrats, are asking for the reinstatement of this
policy, seeing nothing wrong in making broadcasters be the mouthpiece of
government.
These hassles will not go away until the scope of the public realm is
significantly reined in. The greater that realm, the smaller the sphere of
free expression and, indeed, of free action. Even such policies as the
banning of smoking in ?public? establishment, like private restaurants and
taverns, gained legal support on the basis that they connected with a
public realm such as the street onto which they opened their doors. But
this reasoning, as I have noted umpteen times before, one could also begin
to censor newspapers sold in boxes sitting on street corners!
It is clear that freedom of the press, freedom of artistic expression,
and freedom of political speech all rely on the institution of private
property rights. In public spaces all these are subject to the authority
of public officials who do what they claim is required of them by the
democratic process (or some facsimile). Just in a monarchy it is the royal
court that calls the shot, so in a democracy the politically active and
powerful voters do?often the ones with the fiercest bigotry in their
hearts and the greatest influence on government.
Yet this point is hardly every realized by the supposed champions of
freedom of speech and expression. ACLU types hardly every defend the
institution of the right to private property, even as they claim to find
the right to privacy in the U.S. Constitution. But instead of looking to
the Fifth Amendment for the right to privacy, where it is clearly linked
to the right to private property, they seek in in the Ninth Amendment,
where by this time in our constitutional history such a right is very
difficult to locate. (That?s because the Ninth has been rendered nearly
void through systematic neglect by U.S. courts.)
What this suggests to me is that despite how often modern liberals,
Leftists, proclaim their loyalty to freedom of expression, based on the
First Amendment, they will not do what is most vital to secure this
freedom, namely, affirm and defend the right to private property. That?s
because these folks are far more hostile to capitalism, a clear
consequence of this right, than they are friendly to free speech, also a
clear consequence of it. They are caught on the horns of a dilemma and
their stronger sentiments, namely, against economic liberty, renders them
intellectually paralyzed for purposes of standing up effectively for
freedom of speech.