A Kantian Proposal for Regulating Speech

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Most
libertarians have found that there are a lot of so-called “economic
libertarians” out there. These are folk who would like the government
to refrain from interfering in trade of “important” economic goods,
such as cars and houses; but who nonetheless think the government
should go ahead and interfere with trade of “un-important” economic
goods, such as baggies of pot or tabs of “E.” “Economic libertarians”
also have some views on what counts as an economic good: acts of
sex, for example, are often not seen as properly economic goods,
and are thus taken to be subject to government regulation.

The
viewpoint of the economic libertarian strikes me as plausible, so
long as one does not actually attempt to justify it on libertarian
grounds. For example, some version of this viewpoint might follow
from a free-wheeling Utilitarian
approach, assuming that legalization of “drugs,” prostitution, pornography,
etc., has a net-negative effect upon aggregate societal happiness.
Or one might approach things from a Humean-Jeffersonian
perspective, and argue that experience and tradition have shown
the need for communal regulation of social mores, but not of most
economic activity.

However,
how can the “economic libertarian” be accommodated through
actual libertarian principles? For example, going back to Locke
and Kant, we find the principle that force is only to be used to
limit the other's improper use of force. We might term this the
Estoppel
principle,” in reference to its proposed ground.

Locke:
“[M]
an in that state [of nature] has an uncontrollable liberty to dispose
of his person or possessions… [I]n the state of Nature, one man
comes by a power over another… but only to retribute to him so
far as calm reason and conscience dictate, what is proportionate
to his transgression, which is so much as may serve for reparation
and restraint. For these two are the only reasons why one man may
lawfully do harm to another….”

Kant:
“"Every
action is right which in itself, or in the maxim on which it proceeds,
is such that it can coexist along with the freedom of the will of
each and all in action, according to a universal law."… [I]f
a certain exercise of freedom is itself a hindrance of the freedom
that is according to universal laws, it is wrong; and the compulsion
of constraint which is opposed to it is right, as being a hindering
of a hindrance of freedom, and as being in accord with the freedom
which exists in accordance with universal laws.

These
classical liberal principles are typically “refined” by the contemporary
libertarian in terms of the “non-aggression principle,” which might
be formulated as: “No
one has the right, under any circumstances, to initiate force against
another human being, nor to delegate its initiation.”

Leaving
aside the question of what it means to “initiate” force,
it seems clear that there is prima facie a conflict between
what the economic libertarian advocates, and what is permitted by
either the Estoppel principle, or the principle of non-aggression.
For example, if I sell an adult heroin, but employ no fraud as part
of the transaction, it is not clear how I could be said to have
used force against my customer. Now perhaps I would be doing something
immoral. Even so – might I not be performing an act that is
immoral for reasons other than that it involves the wrongful use
of force? Then, according to either the Estoppel principle of “use
force only to limit wrongful use of force,” or the non-aggression
principle of “don't initiate the use of force,” it would
be wrong for anyone to use force to interfere with my heroin transaction.
And, of course, this prohibition would apply to agents of the government.

For
these sorts of reasons, it seems to me that the actual libertarian
can't really help out the economic libertarian when it comes to
the latter's support for “the War on Drugs,” etc. But maybe things
are different with prostitution and pornography. Perhaps we can
find some reasons to conclude that is right for the government to
intervene in these areas.

Kant
certainly seemed to think such government regulation is appropriate:
“The
police has specially to care for the public safety, convenience,
and decency. As regards the last of these – the feeling or negative
taste for public propriety – it is important that it be not deadened
by such influences as begging, disorderly noises, offensive smells,
public prostitution (Venus vulgivaga), or other offences against
the moral sense, as it greatly facilitates the government in the
task of regulating the life of the people by law.”
The first
thing I would note is that Kant seems to allow for prostitution,
so long as it is not public prostitution…. Indeed, this may
be an important point, as it suggests that what Kant is advocating
is that the government has some additional power to regulate: 1)
what occurs on government property, and 2) interaction between private
property that makes some feature of the private property into public
features.

We
must also consider the meaning of Kant's points about “convenience,
decency… offenses against the moral sense.” Given Kant's other claims
in the Metaphysics of Morals, I think these points can be
assumed to apply to “public immorality,” and to cases clearly covered
by the Estoppel principle; but not to private acts where force is
not used. –Be that as it may, what of this principle that one's
use of one's property may be limited, insofar as features of one's
property interfere with others' liberty? (I have this summed up
above as “interaction between private property that makes some feature
of the private property into public features.”)

This
interference is typically referred to in the economic literature
in terms of “the problem of externalities” or “spillover effects.”
In the case of pollution and other definite harms to life, limb,
or land, negative spillover effects are addressed by the “Coase
Theorem
,” which suggests that such effects will be minimized
by ending the “tragedy of
the commons
.” But what of harms that are less definite in character?
For example, there are feminists and conservatives who have concluded
that certain forms of speech are harmful – for example, if they “objectify”
the female body. So might one not further argue that, say, prominently
advertising pornographic goods on a store-front counts as “negative
spillover” of essentially the same type as spewing out radon or
pure carbon dioxide, etc.?

Now
in reasoning about the Estoppel principle, I come to the conclusion
that it is up to property owners to set the rules for speech that
stays on their property (at least so long as no minors are allowed
on the property). This isn't a completely obvious conclusion, but
at least if one starts understanding this principle within the context
of the libertarian tradition, it follows fairly readily. If I own
a piece of property, then I can require those adults who enter my
property to agree to limit my liability against any claims that
speech on my property harms them. Indeed, contrary to what Locke
suggests in the Second Treatise, I am able to do this with regards
to any sort of harm. So, for example, if I want to traffic in pornography
on my property, the government et al. cannot not interfere
so long as 1) no minors are involved, and 2) the pornography cannot
be surveyed from property where the owners have not consented to
limit liability against harm from speech. Thus if the pornography
is kept “under wraps,” or trafficked across connected
parcels of property with the correct liability-limitations, one
can participate in a thriving porn trade – even if one allows
that speech can be like radon.

Nonetheless,
this “some speech is pollution” thesis will clearly provide
for a set of strict limits on speech. These should be enough to
satisfy the more reasonable economic libertarians. Similar kinds
of reasoning will apply to prostitution. Following Kant, one might
argue that the government et al. can ban public prostitution
– the speech it involves is pollution for “the moral sense”
– but not private prostitution. And this concession of the
libertarian (or former libertarian?) to decency, propriety, etc.,
will mollify some economic libertarians. (Still, I fear most economic
libertarians have bizarre moralistic compulsions that requires them
to support the devotion of massive amounts of police funding to
combating prostitution, no matter how private. Alas.)

We
get into some trickier issues when it comes to things like regulations
concerning the aesthetics of buildings. You might say that your
neighbor harms you by painting her house bright yellow; and that
you should be able to limit that sort of behavior, since it interferes
with your liberty to make use of your own property (located next
door).

I
can at least appreciate the sentiment involved here, as I have no
doubt that Americans will continue to make many very poor aesthetic
choices – absent either a fascist takeover, or some general cultural
renewal stemming from a more liberty-centered approach. More to
the point, it is not clear why this sort of painterly “speech” can't
be pollution, if the pornographic kind can be counted as such.

There
are clearly some ways around this problem. Imagine that real estate
transaction generally involve private societies (“corporations”)
that buy large swaths of land, and then sells parcels of the land,
all of which have an easement requiring certain aesthetic choices
in building, or revoking the right to bring suit concerning poor
aesthetic choices, or some mix of these. From my perspective: problem
solved, except 'round the edges. The real issue is the various acts
of government interference that keep such private societies from
prominence, and which make it impossible for them to act freely….

Insofar
as one doesn't get around this problem of “aesthetic pollution”
through force-free means, we unfortunately just have to rely upon
human judgment and traditions of liberty. If one takes “aesthetic
pollution” too seriously, this destroys the sense in which
a person can be said to own their property. But what counts as “seriously
enough”? Well, I'd argue probably a lot less seriously than
we currently do in most American communities – but this is
not a view I'd seek to ground simply in philosophical principles
concerning liberty. (In fact, my view has much to do with the experience
of watching my parents battle the “Coastal Commission”
while they were building their architecturally-novel home on California's
Central Coast.)

In
conclusion, I will address an inevitable question. This view that
we ought to accept the basic libertarian reading of what Verhaegh
calls the Estoppel principle, while at the same time accepting that
certain kinds of speech might be properly viewed as force-involving
“pollution” – is it actually a “libertarian” view?

I
am not sure. I think it's my view, anyway. But maybe it needs a
different name: “private libertarianism,” “interactionist libertarianism,”
etc. One thing I will say: although it's not “economic libertarianism”
by a long shot, “private libertarianism” certainly is much closer
to “economic libertarianism” than is robust, the-Bill-of-Rights-encapsulate-eternal-truths,
interactionism-is-socialism libertarianism (yeah, that libertarianism).

July
13, 2004

Marcus
Verhaegh [send him
mail
] will receive his Ph.D. in Philosophy from Emory University
next month. Here is his homepage.

Marcus
Verhaegh Archives

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