Tom Bowden — VOICES for REASON

This fall, the Supreme Court will take up a case involving anti-gay demonstrators who travel around the country ruining military funerals with inflammatory messages. If you find yourself interested in following this case’s complexities, I urge you to keep in mind one important principle: property rights.

The case is called Snyder v. Phelps. Albert Snyder’s only son, Matthew, was a marine who was killed in Iraq. Matthew’s funeral was held at St. John’s Catholic Church in Westminster, Maryland. On the day of the event, protestors from the Westboro Church positioned themselves at the main entrance to the church property. In response, the funeral procession was moved to an alternate entrance—but still the demonstrators were only 200 to 300 feet away. They carried signs saying “Thank God for Dead Soldiers,” “You’re Going to Hell,” and “God Hates You.” One held a picture of two males engaged in anal sexual intercourse. (The demonstrators’ motives in all this are a mystical mish-mash unworthy of serious consideration.)

As this case progresses, here’s the question I’d like you to think about: How were the protestors able to get close enough for their signs to be easily legible—close enough so that family members with their eyes open had no choice but to  see those ugly signs on a day of mourning? The answer, I suggest, lies in that familiar institution known as “public property.” We take it for granted that streets and sidewalks are, and must be, publicly owned. But look where that leads: Any taxpayer can claim a right to use them as an owner. So, the Westboro Church picketers can self-righteously proclaim to the Supreme Court that they were just exercising their First Amendment rights to speak on public property. If it happened to destroy the solemnity of a funeral, that’s the family’s tough luck.

Now consider how this kind of situation could be completely avoided in a society where all property is privately owned—the fully capitalist society envisioned by Ayn Rand and most closely approximated in nineteenth century America. In such an ideal society, there would be no public streets or sidewalks. I know, it sounds impossible. But in fact, private property is practical, in streets and sidewalks no less than cars and houses, and it’s been proven so whenever it’s been tried.

But even if you’re not fully convinced, stay with me on the Westboro Church case. In a society of private property, no church or funeral home would have to be bordered by land on which creatures such as the Westboro Church demonstrators had a legal right of access. Instead, every such church or funeral home would be surrounded by private property (including private streets and sidewalks), whose owners would have full legal rights to exclude such obnoxious displays as the ones at issue here. Through contracts arrived at voluntarily, a church and its surrounding property owners could agree to forbid any such interference as happened to the Snyder family.

In a private property regime, the Westboro Church demonstrators could be rendered powerless to spoil anyone’s funeral. If such demonstrators showed up on private property, the police could be called to arrest them for trespass and haul them away to jail. And that, in a case like this, would be sweet justice.

Image: Stock.xchng

In light of Elena Kagan’s impending confirmation for the Supreme Court, I’m troubled by the clash between her legal philosophy and that of America’s Founding Fathers. As I wrote recently in The Christian Science Monitor, “Kagan’s testimony before the Senate Judiciary Committee shows that she rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights. Instead, she adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.”

I suppose you could call it black humor, but I’m imagining what the results might be if Kagan were called upon to edit Thomas Jefferson’s most famous passage in the Declaration of Independence. What if Kagan’s own views, as inspired by Justice Oliver Wendell Holmes, Jr., were to replace America’s founding ideals? I’m thinking the result would look something like this:

“We hold these personal opinions to be pretty important for us, but not necessarily for anyone else—that all people are equally subject to society’s arbitrary command—–that they are endowed by majority vote with various uncertain and alienable privileges—that among these are life spent in the service of others, liberty to achieve the public interest, and the pursuit of everyone’s happiness but one’s own—that to create these privileges out of thin air, governments are fastened onto humankind, deriving their arbitrary powers from the consent of the ruling faction at any particular moment.”

It’s technically not too late for the full Senate to do the right thing and vote to reject Kagan—but unfortunately, most of our senators see nothing amiss in her philosophy of governance.

(If you need to cleanse your palate, the full text of the original Declaration of Independence is here.)

Image: WikiMedia Commons

The other day I blogged about an antitrust class action suit against Apple and AT&T, relating to Apple’s hugely successful iPhone. That post was based on press reports. I’ve now had a chance to read the plaintiffs’ complaint as filed in court, and a subsequent court decision. They provide interesting detail, but the basic injustice of this antitrust case remains.

As I mentioned in my earlier post, Apple sells “locked” iPhones. That means they work only on AT&T’s network. Consumers know the phones are locked into one network—there’s no mystery or fraud involved.

Okay, so what about the plaintiffs in this class action? They managed to scrape together enough money to buy iPhones and enter into two-year contracts with AT&T. They used their phones for the full two years. Then their contracts expired. Now they want to unlock their phones and use them on T-Mobile or some other network. There’s only one small problem with that—their individual software license agreements with Apple forbid such tampering. That’s not to mention violation of Apple’s software copyrights. But none of that bothers the plaintiffs and their class action lawyers.

Elsewhere, I have called antitrust laws a “war against contract,” and this case is a perfect illustration. These plaintiffs don’t want to be bothered with the contracts they signed. “I promise” means nothing to them. Instead, they assert what amounts to a divine right of hacking—to be achieved with the help of the infamous Sherman Act.

Here’s the plaintiffs’ legal theory: Apple and AT&T are monopolizing the so-called aftermarket for the iPhone. This “aftermarket” is not to be confused with the market for smartphones—that’s a huge market in which Apple is a significant but by no means dominant player (Blackberry, anyone?). No, the “aftermarket” amounts to the various ways of hacking the iPhone to make it work outside AT&T. Do you get this? Since the only way you can keep making calls on an iPhone after two years is sign up with AT&T for another two years, that’s evidence the companies are “monopolizing” the “aftermarket.”

Now you might say, wait: This “aftermarket” sounds more like an illegal enterprise than a market. If licensing agreements forbid unlocking, then why would the law protect an “aftermarket” devoted to unlocking? Well, in the wonderland of antitrust, anything is possible. If this class action is successful, Apple and AT&T may have to pay damages and abandon their policies against unlocking.

So much for sanctity of contract, which is but a distant memory in American law.

Image: WikiMedia Commons

In my article, “Justice Holmes and the Empty Constitution,” I discussed the widespread doctrine that the Constitution’s underlying purpose—protection of individual rights to life, liberty, and property—has no legitimate role in interpreting the document’s language. I summarized this view, pioneered by Justice Oliver Wendell Holmes, Jr., in the early twentieth century and prevalent among judges today, as holding that “the Supreme Court presides over an empty Constitution—empty of purpose, of moral content, of enduring meaning—bereft of any embedded principles defining the relationship between man and the state.”

In recent hearings, Supreme Court nominee Elena Kagan confirmed her allegiance to this modern orthodoxy.

Kagan’s views came out under clumsy questioning from Sen. Tom Coburn, an Oklahoma Republican and religious conservative. Coburn’s questions mixed together several ideas: that individuals have natural rights—that those rights pre-exist the Constitution—that such rights are God-given—and that those rights include owning guns for self-defense.

Rather than try and untangle Coburn’s mish-mash of truth, falsehood, and controversial detail, Kagan used the knife of Holmesian orthodoxy to slice them away with a single stroke. Inquiries about man’s natural rights are irrelevant to her fitness for the Supreme Court, she testified, because they are “outside the Constitution and the laws.” As such, she told Coburn, “you should not want me to act in any way on the basis of such a belief.” Read the rest of this entry »

In California, a federal judge has ruled that an antitrust class action suit can proceed against Apple and AT&T. What have those companies done to warrant being hauled into court? Basically, they agreed to sell only “locked” iPhones. A locked phone is one that works only on a specific mobile network—in this case, AT&T’s network.

So, let’s get this straight. Both Apple and AT&T want to make money. Apple makes money by creating cool mobile devices like the iPhone—creating, as in designing and manufacturing phones that didn’t exist before Apple’s brilliant designers and engineers thought of them. AT&T makes money by creating a mobile phone network–creating, as in erecting a complex array of electronic equipment capable of transmitting messages from handheld phones, a network that didn’t exist before AT&T created it.

Then Apple and AT&T decide to make money by working together. Although details of their deal aren’t public, it’s clear that AT&T saw an opportunity to increase its subscriber base by becoming the only retailer of iPhones. Apple, for its part, looked forward to receiving payments from AT&T based on a percentage of every iPhone subscriber’s monthly bill. Was this collaboration a good idea? You be the judge: consumers have bought 50 million iPhones in three years. Read the rest of this entry »

Organizers of a gay pride festival in Minneapolis are required by law to allow in an evangelist who wants to hand out Bibles, discuss theological issues, and conduct opinion polls, according to a recent ruling by a federal judge.

Why on earth did this become a legal issue? Why did it fall to a federal judge to decide who would be allowed to attend such a gathering, and what they could do there?

It’s because the festival was to be held on public property, city-owned land known as Loring Park. “As a festival attendee in a public forum, [evangelist Brian] Johnson is entitled to speak and hand out literature, quintessential activities protected by the First Amendment, so long as he remains undisruptive,” wrote Judge John Tunheim.

Conflicts such as these are built into the very concept of public property. After all, there is no rational standard by which one person can be deemed part of “the public” and another person excluded from “the public.” Therefore, Johnson can argue that he has a right to attend—just as the festival’s organizers can argue that their event will be spoiled by Johnson’s presence. Who’s right? Both of them, and neither of them. It’s an insoluble conflict, so long as governments continue to own and operate parks such as Loring Park in Minneapolis.

There is, however, a solution: private property. In a private setting, the festival’s organizers would be free to exclude wet blankets like Johnson the evangelist. Johnson, for his part, would be perfectly free to speechify about gay sex from his church’s pulpit or on any private property whose owner would allow it.

Consider that more than one-third of land in America is owned by governments, and millions of citizens have conflicting views on how that land should be used. That’s a prescription for endless civil war among pressure groups. The only prospect for peace lies in making public property private.

Image: WikiMedia Commons

Most states have tax-funded film commissions that subsidize or grant tax credits to movie production companies, provided they agree to film scenes within the state’s borders. According to this article in The New York Times, some of these state agencies are getting nervous about the kind of films they are being asked to fund.

The Michigan film commissioner recently rejected a funding request from producers of a horror movie replete with “realistic cannibalism.” In Texas, a film company was told it need not apply for financing of a picture about the FBI’s Waco raid because of inaccuracies in the script. And in Florida, the legislature recently flirted with a proposal to deny tax credits to films that exhibit “nontraditional family values.”

There’s much to challenge in the notion of allowing states to lure in film production; for a start, look at how such programs violate the rights of taxpayers. These programs take money from ordinary taxpayers (a violation of their property rights) and use it to fund movies those taxpayers may well find abhorrent (a violation of their free speech rights).

The solution is not to dictate content according to some pseudo-standard such as “family values.” Rather, the solution is to end all government funding of film production. A state government’s job is to protect its citizens against criminals, not to attract moviemakers. Private individuals and companies wishing to attract film projects to their localities are free to offer whatever incentives (such as discounts on lodging, or attractive settings for filming) that they deem likely to benefit themselves.

Hollywood is quite capable of finding investors to fully finance its ventures. Producers who cannot attract private financing have no right to draw from the public treasury—whether their films depict cannibals eating human flesh, or Bible-toting families gathered for a Sunday picnic.

[Update: Thanks to Steve Simpson at the Institute for Justice for linking here. Welcome, readers of Congress Shall Make No Law, IJ's free speech blog.]

Image: WikiMedia Commons

In recent lectures on the incessant pressure group warfare over land rights in America, I’ve highlighted the legal hurdles that Walmart faces everywhere it tries to expand. Walmart’s low prices and non-unionized workforce pose big competitive challenges to high-price mom and pop stores as well as labor unions. Our legal system encourages such groups, as well as nearby landowners, to exert pressure on state regulators and courts to deny Walmart the zoning and development permits it needs to expand.

As far as I knew, however, other large chain stores typically refrained from trying to block Walmart’s expansion through local political pressure. Boy, was I wrong. According to this article in The Wall Street Journal, Walmart’s competitors are sometimes hiring outside consultants adept at “black arts” to block new Walmart projects, while disguising the true opponents’ identities.

In Mundelein, Illinois, near Chicago, a grocery store chain called Jewel-Osco became alarmed when a developer announced plans for a shopping center anchored by a 200,000-square-foot Walmart supercenter with a full grocery store inside. (Walmart is now the nation’s largest purveyor of groceries.) Jewel-Osco turned to the ironically named Saint Consulting Group for help. Saint appointed a project manager who, per company policy, adopted an assumed name. This manager then contacted landowners near the Walmart site and complained—falsely—about how construction of a Walmart had driven down the price of his parents’ home and ruined their planned retirement. Suitably riled up, neighbors climbed on the anti-Walmart bandwagon. Read the rest of this entry »

“Brutal blackmail” and “a violation of corporate social responsibility.” That’s how some diabetics in Greece are describing the recent decision by Novo Nordisk, a Danish pharmaceutical company, to stop selling certain insulin products in Greece.

Novo Nordisk manufactures easy-to-use insulin delivery devices that resemble fountain pens. More than 50,000 Greek diabetics use them. But not for long. The company has withdrawn the products from the market.

Why? Because the government of Greece is trying to mitigate its financial crisis at pharmaceutical companies’ expense by unilaterally ordering a 25% reduction in the price of all medicines. According to a Novo Nordisk spokesperson, “the price cut would force its business in Greece to run at a loss.” Oh yes, there’s also a little matter of $36 million that Greece already owes the company, with no certainty of payment in sight.

By any rational standard of justice, Novo Nordisk is completely in the right here. The company has done nothing to harm Greeks—on the contrary, it has offered them a positive value they didn’t have before, benefiting tens of thousands of people. By refusing to sell its products at a loss, the company is simply leaving Greek diabetics exactly as they were before it first offered those easy-to-use insulin pens for sale. Greeks who want more such devices should figure out a way to pay for them—not expect Novo Nordisk to sacrifice for the resolution of financial problems created not by them but by the Greeks themselves. Read the rest of this entry »

Once again, an episode from Ayn Rand’s Atlas Shrugged leaps to life from behind closed doors in Washington, D.C. According to a recent report from The Washington Post, President Obama is angry about the British Petroleum oil leak in the Gulf of Mexico:

Since the oil rig exploded, the White House has tried to project a posture that is unflappable and in command.

But to those tasked with keeping the president apprised of the disaster, Obama’s clenched jaw is becoming an increasingly familiar sight. During one of those sessions in the Oval Office the first week after the spill, a president who rarely vents his frustration cut his aides short, according to one who was there.

“Plug the damn hole,” Obama told them.

That’s the politician’s answer to every intractable problem: give orders, issue threats, and wait for obedience. But the creative human mind cannot take orders like that. Notice I didn’t say, “refuses to take orders.” I said, “cannot take orders.” Read the rest of this entry »