Thoughts on the right of free speech
June 17, 2016
I’m interested in adding to what Murray Rothbard had to say about free speech. Suppose I own my property and while I’m on that property I use my flashing ticker tape or simply my voice to make some statement that the government condemns and has made into a crime. Assume that if I had kept quiet, the government would have left me alone.
When I’m tried and sent to prison for my speech, what rights of mine have been violated? The government violated my property right in myself, my self-ownership, by shipping me off to prison. It did this because I used that property to speak. Speaking freely is a derivative right that accompanies being able to exercise self-ownership; the exercise of self-ownership is sufficient to exercise free speech. But identifying a free speech right separately is sensible, as I now will show.
One reason is that even if I did not own myself, that is, if I were a slave, I might be allowed to speak freely. A slave who can speak freely indicates that two rights are involved. Self-ownership is not necessary to be able to exercise free speech.
A second reason is that I didn’t get put into prison because I owned myself per se. We know this because when I was quiet, the government left me alone. My trouble arose only when I spoke. Speaking so as to break the government’s law was necessary to get me sent to jail, and so violation of that subsidiary right becomes a cause. And being a separate cause qualifies it as being considered as a separate right that can be violated.
What’s our status as a citizen? We do not have complete property rights in ourselves. The government taxes and regulates us to a considerable extent. Free speech is treated separately in our jurisprudence. It is as if we were slaves that were allowed to speak freely, or failing complete freedom of speech, we were allowed to speak within bounds set by our masters. Free speech in this context means being able to speak on many subjects without being persecuted by government or losing our broader right of self-ownership by being tried and jailed for what we said. In particular, we can speak against government policies. We certainly do not want to lose that right. There can be no hope for bringing about a condition of freedom more generally, i.e., the free exercise of self-ownership, without that right to speak. That’s a third reason for identifying freedom of speech separately. In fact, having one’s speech and ideas recorded and transmitted to others for generations to come is more important in some respects than living out one’s mortal life. Death means that physical self-ownership loses its meaning for us and others, while the recorded remnants of our being may go on indefinitely.
It’s certainly true that examining free speech through the lens of property or self-ownership affords a valuable perspective and simplification as compared with much First Amendment jurisprudence. Courts can and have reached appropriate decisions that would have been reached by considering the property rights involved, but the reasoning can involve arcane and irrelevant considerations. That’s dangerous; it allows arbitrary and faulty decisions in some circumstances. It’s important for free speech to be protected, but it’s also very important that it be protected for the right reasons that go back to the basic idea of self-ownership and freedom of the person. It’s not at all comforting to find free speech cases that are decided by 5-4 decisions, one way or another. The judges evidently are not steering by Rothbard’s rudder. Rothbard’s approach shows its value by emphasizing the basic rights that the U.S. Constitution fails to mention or that have been circumscribed by Supreme Court decisions.
Rothbard says “The human right of free speech is simply the property right to hire an assembly hall from the owners, or to own one oneself; the human right of a free press is the property right to buy materials and then print leaflets or books and to sell them to those who are willing to buy.” But the right of speech entails more than this. It entails the right to speak and not be punished for what one says or to have one’s other freedoms curtailed or infringed upon because of what one says; or to have one’s family or associates invaded because of what one has said. If speaking freely with and on one’s own property brings aggression against the speaker, his property or his associates, and this is done by government or allowed by government, that speech is no longer free.
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