David R. Henderson  

Flags, Free Speech, and Property Rights

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Law professor Eugene Volokh has a recent piece in the Wall Street Journal defending the right to burn the American flag as an exercise of free speech. It's good reasoning, and there's nothing in it that I disagree with. But he omits a much better argument based on property rights. If you burn my flag without my consent, I don't care how much you're exercising your right to free expression. Free expression does not guarantee you the right to other people's property any more than it guarantees you a working larynx. But if you burn your flag, you're simply exercising your right to use your property as you wish. It's a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case.

UPDATE: I just noticed Professor Volokh's and Professor Somin's responses. While I appreciate Professor Somin's attempt to bail me out, I do think that Professor Volokh correctly saw what I was getting at and did give me an important lesson in constitutional history. Touche.


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CATEGORIES: Economic Philosophy



TRACKBACKS (2 to date)
TrackBack URL: http://econlog.econlib.org/mt/mt-tb.cgi/2042
The author at The Volokh Conspiracy in a related article titled "How Far the Courts Have Moved Away from Defending Property Rights": writes:

    David Henderson (EconLog) writes:

    Law professor Eugene Volokh has a

    [Tracked on July 7, 2009 2:35 AM]
The author at The Volokh Conspiracy in a related article titled More on the Decline in Judicial Protection for Property Rights; writes:

    In his most recent post on our debate, Eugene agrees with

    [Tracked on July 7, 2009 5:55 PM]
COMMENTS (19 to date)
Constant writes:

This argument applies to most speech, I think. E.g. the owner of a printing press has the right to do whatever he likes with it, his customers have the right to purchase a copy of whatever he produced, etc.

Tom writes:

I agree with your property rights argument and it is a shame that flag burning doesn't revolve around property rights. I would think (logically, not legally in the bizarro legal world we live in) that burning your flag on your property should be protected, but what about burning your flag on a public street? Should you have the right to burn your flag in the street as long as no damage occurs to the street? People have a right to burn cigarettes in the street. However, if burning your flag caused damage to someone else’s property you should be held liable for damages.

David R. Henderson writes:

Tom,
Well put. Of course, your point about the public street also points to the problem with "public," i.e., government, streets. And, as you imply, if people are now allowed to burn cigarettes in the street, they should be allowed to burn their own flags.
Best,
David

Bill writes:

On (supposed) property rights...

Can I see your carbon permit to burn that flag and release dangerous, life threatening toxins into the air?

Joe Marier writes:

The flag is intellectual property, though.

ThaddeusMcMonster writes:

Your argument doesn't follow. Just because it's your property doesn't mean you can do anything you want with it. A pet is property, but animal abuse is still illegal. That it's your pet is no defense.

Similarly, you can own a historic building, but that doesn't mean you can destroy it. Now you can make a libertarian argument about how the market will preserve history better than government regulations, (I'm not sure I'd buy the argument, but I'll grant you that there is an argument to be made). What you can't do very effectively is make an argument that such a regulation is unconstitutional. It seems absurd to me that you would criticize a constitutional scholar for making a constitutional argument.

qgambit writes:

ThaddeusMcMonster is right on.

I'll just add that constitutional protections of property rights are much much weaker than speech protections. So Volokh is making the stronger [constitutional] argument.

Constant writes:

...a sign of how far the courts have moved away from defending property rights...

And also a sign of how far the law has moved away from defending property rights.

A pet is property, but animal abuse is still illegal.

A sign of how far the law has moved away from defending property rights.

you can own a historic building, but that doesn't mean you can destroy it.

A sign of how far the law has moved away from defending property rights.

I'll just add that constitutional protections of property rights are much much weaker than speech protections.

A sign of how far the law has moved away from defending property rights.

The commenters seeking to refute the blog entry end up illustrating its thesis.

Steve writes:

Constant,

are you suggesting that property rights should allow us to abuse our pets?

Mike Rappaport writes:

David -- Whether or not your property rights argument is correct as a matter of political theory, it is not really relevant to the question that Eugene is addressing: the original meaning of the First Amendment.

Constant writes:

Steve - is/ought. I made a statement about what is, you're asking me about what I think ought to be.

I suspect you meant pro-property, not pre-property.
Also see Ilya at Volokh,
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1246952705
One of these days I'm going to bring a flag-burning case under a state constitutional free speech clause.

Steve writes:

Constant,

If your statement didn't imply ought then what did it mean?

Constant writes:

Steve, I don't know how to answer your question, since the statement itself was my expression of my meaning. Merely asking me what I meant is not a very useful request for clarification, since it does not let me know what about my statement you had trouble with and therefore how I should modify my statement to improve communication.

Ben writes:

Steve- David (in the OP) didn't say that the law should have more regard for property rights, merely that these events show it doesn't.

Various respondents produced replies to show that property rights ought not be the alpha and the omega.

However, Constant showed that all these examples merely re-enforce the original argument: they are evidence that the law has scant regard for property rights.

Neither David nor Constant ever said the law *should* have more regard.

Charlie writes:

I remember the part of the constitution where it says "congress...shall make no law...abridging the freedom of speech" where is the part about "abridging the freedom of use of private property."

Why do so many people think the constitution says so many things it doesn't? Think of how many things would not be possible if that were in the constitution: collecting taxes, collecting fines, impounding vehicles, freeing slaves, regulating interstate commerce in most any way...

Still not convinced, look at the fifth amendment:

"nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]"

As long as there is due process of law, you can be deprived of your property, and as long as you are justly compensated your property "can be taken for public use."

If you aren't happy about it, don't be made at Volokh or courts, be mad at the constitution.

Steve writes:

Constant,

let's start with your response to Thaddeus's statement....

"A sign of how far the law has moved away from defending property rights."

That would mean that his example was, in your opinion, a violation of property rights.

The "is/ought" response is invalid. What you are saying is that that situation is incongruous with YOUR definition of property rights.

That statement is tantamount to me saying that an illegal search and seizure is a violation of someone's civil rights.... is that not an "ought" statement?

and Ben, how can you say that David wasn't giving us an "ought"?

" But he omits a much better argument based on property rights"

that isn't an ought?

and Mike,

"original meaning"? does that really have ANY significance?

I thank everyone for their civil discourse...

Steve

Constant writes:

That would mean that his example was, in your opinion, a violation of property rights.

The "is/ought" response is invalid. What you are saying is that that situation is incongruous with YOUR definition of property rights.

Let's see if I can make your own statement more explicit. You call this an "ought", so let me flesh this out:

you are saying that when a person mentions property rights, then what he is actually referring to is his own personal set of "oughts" with respect to property. For example, if I am a communist, then what you are saying is that when I say "property rights" what I mean is the rule, "from each according to his ability, to each according to his need" - since this is what I believe ought to be the law with respect to property (that is to say, I as a communist believe that property ought to be abolished). You are referring to my communist hostility to any and all property as what I mean when I say "property rights".

But I propose an alternative. When I, a communist, refer to property rights, what I am referring to is an archaic, evil, and obsolete system of laws which I loathe and desire to bring to a rapid and complete end.

Thus, when I refer to "property rights", I am not referring to my own personal set of "oughts" with regard to property.

Constant writes:

A system of private property rights is (roughly speaking) a system which assigns control of specific stuff (objects, areas of land) to specific private individuals (or groups). Government regulation of the use of property reserves partial control of the stuff to the state. The greater the government control, the less the system in place can be said to be a system of private property rights. At the extreme, ownership is nominal and the government has de facto control over the stuff. This is sometimes how fascism is defined. In socialism, government takes nominal as well as real control over stuff.

Thus, greater regulation of the use of property is movement away from a system of private property rights, and in the direction of fascism and socialism.

Take a specific example. Suppose the state establishes one company as a legal monopoly in the provision of a certain service, such as trash collection or electricity delivery. The state then regulates this monopoly. This set of laws (the prohibition of competition and the regulation of the monopoly) creates a situation not that far removed from direct state provision of services. It would be strange indeed to describe this situation as one in which the state is the stalwart defender of private property rights.

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