American courts — VOICES for REASON

If you’ve seen “The Social Network,” the movie about Facebook, you remember the Winklevoss twins. These Harvard students sued Facebook’s founding genius, Mark Zuckerberg, alleging he stole the idea for Facebook from them.

Here’s what happened in real life. When the suit was dismissed on technical grounds, the parties went to a mediator. After a day of negotiations, they signed a handwritten “Term Sheet & Settlement Agreement,” which provided for the twins to drop their claims in exchange for cash and part-ownership in Facebook.

Later, the parties couldn’t agree on a formal contract to carry out the settlement. The twins said the deal was off, but Zuckerberg disagreed. Last week, a federal appeals court in California determined the ensuing litigation in Zuckerberg’s favor. The written decision, authored by Chief Judge Alex Kozinski, concludes with these words:

The Winklevosses are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace. And the courts might have obliged, had the Winklevosses not settled their dispute and signed a release of all claims against Facebook. With the help of a team of lawyers and a financial advisor, they made a deal that appears quite favorable in light of recent market activity.  See [a Wall Street Journal article] (reporting that investors valued Facebook at $50 billion . . . 3.33 times the value the Winklevosses claim they thought Facebook’s shares were worth at the mediation). For whatever reason, they now want to back out. Like the district court, we see no basis for allowing them to do so. At some point, litigation must come to an end. That point has now been reached.

Decisions like this are rendered by the hundreds every day in America’s courts. They reaffirm the certainty that parties need when they enter into contracts. Yes, there can be legitimate disputes, and I’m not saying the Winklevoss position was frivolous. But it’s important to know that, despite widespread infringements on contractual freedom, courts have not lost sight of the need for contracts to be enforceable.

Image: Wikimedia Commons

There are 391 national parks in America. You might think you could visit any such park to relax on a vacation, without being confronted by spokesmen for religious, political, or social movements. But you would be wrong.

Because national parks are “public property,” not private property, any restrictions on expressive activities such as leafleting, oratory, and picketing must pass First Amendment scrutiny, since such restrictions are government actions. (The First Amendment doesn’t apply to private decisions on private property.) To the extent any national park is a “public forum” for debate (this varies from park to park), the government’s attitude must be “hands off.”

Until recently, to maintain a recreational atmosphere, the national parks required anyone engaging in First Amendment activity to obtain a permit in advance. But now a federal appellate court, in a case called Boardley v. U.S. Dep’t of the Interior, has declared the permit system unconstitutional, at least as it applies to individuals and small groups.

My point is not to criticize or praise the D.C. Circuit’s decision, because there is no way to decide such a case correctly. That’s because the institution of “public property” creates insoluble conflicts among individuals. Citizens who just want to relax in a park have no use for speakers peddling controversy—but speakers peddling controversy want nothing more than to shake vacationers out of their complacency. Because both groups are composed of taxpayers who “own” the park, both have a plausible claim to use it for their own purposes. As a result, their disputes end up in court, where judges are supposed to “balance” the two sides where no scales of justice exist. 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

For the first time in American legal history, a judge has explicitly endorsed important principles of Ayn Rand’s political theory in a published appellate opinion.

Judge William Nels Swandal’s passionate dissent in the case of Buhmann v. State, decided by the Montana Supreme Court, concludes as follows (beginning at page 94):

Ayn Rand correctly observed that the right to life is the source of all rights–and the right to property is their only implementation. Without property rights, no other rights are possible. These principles are embodied in the Montana Constitution in Article II, Sections 3 and 29. I invite the majority to read them. The fundamental rights to acquire, possess, and protect property are not even given lip service by this Court. Under the majority’s opinion, the State suffers no consequences for the exercise of coercive and unreasonable power in destroying these businesses. There is no serious effort to balance benefits and burdens. It may be too early to start asking, “Who is John Galt?” but more decisions like this will seriously impact all private property and business owners in this State.

I strongly dissent from the majority opinion.

In a footnote explaining the John Galt reference, Judge Swandal wrote: “In Ayn Rand’s work Atlas Shrugged, the phrase becomes an expression of helplessness and despair at the current state of the novel’s fictionalized world.

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