property rights — VOICES for REASON

In a post last August, I commented on the Supreme Court case of Snyder v. Phelps. Now the Court has decided that case, in a way that highlights the importance of the point I was making.

First, here’s a passage from the majority opinion, which upheld the First Amendment rights of obnoxious picketers at a military funeral:

On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers  carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is doomed,” “Don’t Pray  for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”

The italics in that quotation are mine. I wanted to highlight the undisputed fact that the protestors were able to get close to the funeral only by using public land. Here’s what I said in last year’s post on this issue:

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.

Of course, there’s no guarantee that a funeral home in a fully privatized society could obtain the necessary contractual agreements from surrounding landowners. And that might figure into any given funeral home’s success or failure. A home that caters, say, to Hollywood funerals for celebrities had better have good contractual arrangements for privacy if it wants to make an appealing pitch for business. But another home might expect customers to take the risk of disruption from adjacent land, which risk could exert a downward pressure on price. The bottom line is that in a free society, obnoxious picketers such as the Westboro clan would have to obtain the voluntary agreement of private landowners in order to inflict their particular brand of emotional distress upon others.

Image: Wikimedia Commons

With a new year approaching, we looked back at some of the topics we discussed on VFR since the blog was launched. Here, we highlight a few of our favorite VFR posts that you may enjoy revisiting (or reading for the first time, if you’re a new reader).

Posts by Tom Bowden.

• Jefferson’s immortal deletion
• “Plug the damn hole!”
• Kagan’s updated Declaration of Independence
• Obamacare’s assault on individual rights
• Parlor games

image: wiki commons

The zoning law for the City of Hermosa Beach, California, starts by stating that “no building shall be erected, reconstructed or structurally altered, nor shall any building or land be used for any purpose . . . .” Let’s pause and allow that to soak in. The logical starting point for this zoning code—which is typical of zoning laws nationwide—is that landowners have no right to use their land for any purpose at all.

Of course, that’s just the beginning. The ordinance then goes on, in excruciating detail, to list exceptions to the general ban on property use. But these uses are “permitted uses,” not rightful uses. And without political clout, owners wanting to put their property to an unpopular use—say, opening a tattoo parlor—will fail to garner enough votes. Result? The use will remain illegal under the initial, total ban.

Johnny Anderson, a successful tattoo artist in Los Angeles, wanted to open a parlor in Hermosa Beach, but the zoning code didn’t permit it, and so he sued. Four years (and many lawyers’ billable hours) later, the Ninth Circuit Court of Appeals has now ruled in Anderson’s favor, ordering the city to include tattoo parlors on its list of permitted uses.

This case is interesting for what it says about property rights in this country. The court did not rule that Anderson’s right to property includes the right to rent or buy a store and offer tattooing services on the premises. Far from it. The court ruled that tattoos are “purely expressive activity” and therefore protected by the First Amendment, just as a speaker on a soapbox is protected from a government ban.

Tattooing as speech? What’s going on here? If property rights were respected in this country, a tattoo parlor would not have to shoehorn itself into the First Amendment “speech” category in order to get the government off its back. It would have an absolute right to offer its services in any building it might own or rent (subject only to objective laws against nuisance, trespass, and the like). It would certainly not need permission from a zoning board.

I am neither criticizing nor endorsing the Ninth Circuit’s decision in Anderson v. City of Hermosa Beach, which may well have applied the Supreme Court’s First Amendment precedents as required. My point is that the First Amendment cannot, and was never meant to, compensate for the collapse of property rights. Something is very wrong with a legal system that requires landowners to beg society’s permission to earn a living on their own property.

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 »

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 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

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 »

I originally started this post by writing: “Apple and Adobe are at war.” But they’re not—not yet, anyway. At this point—as long as antitrust authorities stay out of the way—Apple and Adobe are engaged in economic competition, not war.

The disagreement between the two companies centers on the place of Adobe’s Flash technology on Apple’s mobile products such as the iPhone, iPod, and iPad.

Much of the Internet’s video was created with Adobe’s proprietary Flash software, but those videos won’t play on Apple’s mobile products. Why? Because Apple refuses to allow Flash and has effectively barred developers from creating “apps” using Adobe’s software. CEO Steve Jobs has a 1,671-word explanation of Apple’s policy here. It’s filled with evidence that keeping Apple’s products Flash-free will enhance operational speed, battery life, security, and error-free functionality. Adobe disagrees.

Putting the technicalities aside, my point is this: It’s Apple’s prerogative to set the terms for software development on Apple’s own products. Disagreements among competitors are settled on the free market by persuading individual customers that a particular product will satisfy their own needs. Over time, technologies succeed or fail accordingly. Gasoline engines win, steam engines lose. VHS tape wins, Sony Betamax tape loses. CDs win, cassette tapes lose. Some businesses make money, others go bankrupt.

Now, however, news reports indicate that a real war is about to break out between Apple and Adobe—not with guns and bombs, but with the politer kinds of physical force that government regulators wield: fines, penalties, and jail terms. Adobe, it is rumored, wants to force its way into Apple’s devices by threat of prosecution for violating America’s antitrust laws.

Will antitrust enforcement give Adobe the revenues it couldn’t earn on a free market? Stay tuned …

Image: WikiMedia Commons