David R. Henderson  

Freedom of Speech and Private Property

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In the last few days, I've seen a number of discussions, mainly on Facebook, in which even some libertarians have claimed that two people's free speech rights were violated in two recent events. I was thinking about writing about it, but then I found that Casey Given has already done so. His article is titled "Milo Yiannopoulos and Richard Spencer remind us what free speech is and isn't." Casey nails it.

The two events I'm writing about are white nationalist Richard Spencer showing up at a bar in a hotel where a libertarian conference, the International Students for Liberty Conference (ISFLC), was held and the Conservative Political Action Committee (CPAC) disinviting speaker Milo Yiannopoulos from its annual conference.

Casey writes:

The reaction to both events have [sic] generated predictably lazy outcries that the controversial speakers' "free speech rights" have been violated. Had they been disinvited or removed from a public university, perhaps the outrage mob would have a point. But it's important for libertarians and conservatives to also recognize private property rights when discussing such flare-ups.

Casey continues:
Just as Spencer has the right to discuss his despicable views at a bar, so did the ISFLC conference-goers have the right to confront him about them. In matters of private property, it's up to the business owners to decide who gets to stay or leave. In this instance, they decided to disperse the crowd and eject Spencer.

From the extensive video I watched on line, it looked to me as if the bar manager ejected everybody. That's how the Students for Liberty, organizers of the conference, saw it also. Funny how profit-maximizing businesses don't like people arguing and raising their voices when other customers are there simply to drink and socialize.

I do want to challenge one thing Casey Given says:

Nobody's rights were violated. Indeed, given Spencer's history as the victim of a physical attack, the ISFLC crowd should be commended for respecting the non-aggression principle.

He's right that nobody's rights were violated. That's the really good news. I think Casey overstates, though, in commending the crowd for not physically attacking him. Of course, it's good that they didn't. But that hardly deserves a commendation.


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CATEGORIES: Property Rights




COMMENTS (13 to date)
John Hall writes:

I agree that in the strictest sense they shouldn't be saying "rights are being violated", but you shouldn't have to tie yourself into such knots. Freedom of speech as a concept is not the same thing as the first amendment. As a general principle, we should encourage a wide range of ideas and tolerate differences of opinion. As Mill said (courtesy of Wikipedia), "there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered"

David R. Henderson writes:

@John Hall,
Freedom of speech as a concept is not the same thing as the first amendment.
I agree, but not for your reasons. The first amendment restrains Congress. Freedom of speech restrains government in general.
As a general principle, we should encourage a wide range of ideas and tolerate differences of opinion.
I agree. Interestingly, in an earlier draft of this, I stated how I would have dealt with Spencer and it involved talking to him, which, by the way, some of the attendees did. The video is worth watching if you have time.
As Mill said (courtesy of Wikipedia), "there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered."
I agree with those words, but I don’t agree with what Mill (and, I think you) meant by them. People who are asked to leave, or even told to leave, private property do have liberty.
But, to the spirit of your and Mill’s point, yes, I would have engaged.

Hazel Meade writes:

The thing that made this situation particularly problematic for libertarians is that he was apparently invited by someone and was representing himself as affiliated with the conference, as some sort of "breakout session". So it was important for people attending the conference to make it clear that he wasn't welcome and has no official association with them.

There is a kind of war going on inside the libertarian movement right now between the alt-right and right-leaning libertarians in the age of Trump and the mainstream libertarian movement. It's shocking how many people have essentially exposed themselves as supportive of not only Trump but the main concepts promoted by the alt-right, particularly on the issue of immigration. For example, the idea that Hispanic immigrants have to be kept out because they vote for socialism is seriously being passed off as a pro-liberty argument in some quarters.

The fact that someone at SFL apparently invited Richard Spencer to show up and essentially argue this position shows how big the problem is.

Jon Murphy writes:

Prof Henderson-

I agree with your attitude of engagement, but that assumes the other party is willing to engage as well. Spenser's role at the ISFLC was to intentionally disrupt (this was stated on Facebook by the Hoppe Caucus who "invited" (for lack of a better word) Spenser to the hotel bar). Any attempt at discussion was doomed to fail because discussion was never the intention.

Further, I do not think Mill's quote that John Hall mentions means that anyone who believes in freedom of speech is required to give someone a platform. A Christian church has no obligation to give air time to a Satanist to preach from their alter. That is, in no way, denying the "fullest liberty of professing or discussing...any doctrine..." (if Mill would disagree, I'd contend he is wrong on property-rights grounds).

David R. Henderson writes:

@Hazel Meade,
The fact that someone at SFL apparently invited Richard Spencer to show up and essentially argue this position shows how big the problem is.
From what I can gather, no one at SFL invited him.
@Jon Murphy,
I agree with your attitude of engagement,
Good.
but that assumes the other party is willing to engage as well.
True.
Spenser's [sic] role at the ISFLC was to intentionally disrupt (this was stated on Facebook by the Hoppe Caucus who "invited" (for lack of a better word) Spenser to the hotel bar).
I think that’s true also.
Any attempt at discussion was doomed to fail because discussion was never the intention.
Here’s where I disagree. You may be right that discussion wasn’t his intention. But outcomes can often differ from intentions. See my comment to John Hall. I observed, for a while, a civil discussion between Spencer and a sharp critic who was trying to get him to say whether Spencer would keep his daughter’s grandparents from entering the country to visit their granddaughter. Sure, Spencer bobbed and weaved in that discussion, but that often happens in discussions.
Further, I do not think Mill's quote that John Hall mentions means that anyone who believes in freedom of speech is required to give someone a platform. A Christian church has no obligation to give air time to a Satanist to preach from their alter. That is, in no way, denying the "fullest liberty of professing or discussing...any doctrine..." (if Mill would disagree, I'd contend he is wrong on property-rights grounds).
I agree with you, Jon, as I said in my response to John Hall. Do you see that I was agreeing with you, or are you simply reiterating a powerful and important point? Not that there’s anything wrong with reiteration.

drobviousso writes:

@David R Henderson
>>The first amendment restrains Congress. Freedom of speech restrains government in general.

No, that is incorrect. It was incorporated against the states in Cantwell v. Connecticut. The other branches of the federal government are constrained to act within the law, which can only be created by Congress. Therefore, the First Amendment incorporated by the 14th does restrain all parts of all levels of government in the US.

In any case, I believe that this post and the link make a pretty common mistake - conflating "freedom of speech" with "the first amendment." Outside of university settings, these are all private actions by private actors, so they implicate freedom of speech but not the first.

Freedom of speech is kind of a squishy thing with blurry edges. Asking an interloper to leave your gathering doesn't implicate freedom of speech.

A private gathering that bows to totally legal public pressure to disinvite an invited speaker Absolutely 100% implicates the gathering's freedom of speech. Its bad when it happened to a mud slinging shock-jock. Its bad when it happens to a commencement speaker. Its bad when it happens to a speaker at a tech conference. It was bad when it happened actors and fill-makers that were gay or red.

David R. Henderson writes:

@drobviousso,
No, that is incorrect. It was incorporated against the states in Cantwell v. Connecticut. The other branches of the federal government are constrained to act within the law, which can only be created by Congress. Therefore, the First Amendment incorporated by the 14th does restrain all parts of all levels of government in the US.
Yours is the traditional view. It’s the view that you’ll learn in Con law. It’s also incorrect. And to see why, you just have to see that words have meaning.
Here’s what the First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Incorporating that to the states cannot mean, if language has any meaning, that a state legislature shall make no law.
Everyone would understand that with other parts of the Constitution. So, for example, the Constitution says that to be president, you must be at least 35 years old. “Incorporating” that to the states would not mean that to be governor, you must be 35 years old.

Zeke5123 writes:

Professor Henderson -- beg to disagree on the First Amendment's incorporation. The textual hook by the court is in the 14th Amendment. It basically states the principles of freedom of speech / freedom of religion as elucidated by the 1st amendment are protected rights under the 14th amendment.

Where the court went wrong is saying it's a violation of due process. Instead, the argument should be it is a privilege and immunity enjoyed by Americans. As a result, the state's police power generally is limited by the case law under the First.

Jon Murphy writes:

@Prof Henderson-

Thank you for your response to me.

Do you see that I was agreeing with you, or are you simply reiterating a powerful and important point?

I was reiterating my point, but I had also misunderstood what you had said. Your subsequent comment to me and others clarified that for me. Thanks!

Shane L writes:

I remember arguments about this in a discussion forum I helped to moderate some years ago, which had frequent bouts of personal attacks that ground discussion to a halt. When moderators banned members for these infringements they were accused of attacking free speech.

In reality it cost nothing to set up a new discussion forum and there were thousands of others to choose from anyway. Moderators were not denying people the freedom to make their points, only denying them the freedom to make their points here; they were still free to post elsewhere. Forums were best treated as private property of the owner, who may choose to evict members who were spamming it with advertisements or constantly abusing others. Some forums went entirely unmoderated and these swiftly declined, ruined by spambots and trolls. Access to a free exchange of ideas was greatest where moderators were busy kicking out the abusive members.

John Hall writes:

I appreciate the reply.

drobviousso writes:

@David R Henderson
Respectfully, I spent the first half of my life writing code, and the second working in the legal field (I am not a lawyer). If anyone understand that words have meaning, its probably me.

In the realm of US law, words mean what the Supreme Court says they mean. Zeke5123 has the right explanation.

Jade M. writes:

Throughout the newest generations, complaints of freedoms being violated have risen. Many people have the confidence to say any and everything they please without care of repercussions. This leads to one of the reasons I believe the newer generations assume their freedoms indicate they can do anything desire, which is a lack of respect. Lack of respect for those who run this country to create our freedoms, those who fight to give us our freedoms, those who raise us with freedoms, and those who they tear down by utilizing their “freedom.”
Without providing each other the freedoms we seek, we can never be free from the discrimination and war we supposedly work towards terminating. Without teaching emerging generations the concepts of hard work, respect, appreciation, and privilege, we’ll never be able to pull away from the path that could lead us to be a discriminatory and stringent elitist country that is loathed by the other countries of our world that are pushing towards the right path. I believe when society again sees our freedoms as given privileges rather than demanded rights, we can move back to the path leading us to a brighter future as a country.

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