A Kantian Proposal for Regulating Speech

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