Freedom of Speech
THERE ARE, OF COURSE, many problems of personal liberty which cannot be subsumed under the category of "involuntary servitude." Freedom of speech and press have long been treasured by those who confine themselves to being "civil libertarians"—"civil" meaning that economic freedom and the rights of private property are left out of the equation. But we have already seen that "freedom of speech" cannot be upheld as an absolute except as it is subsumed under the general rights of property of the individual (emphatically including property right in his own person). Thus, the man who shouts "fire" in a crowded theater has no right to do so because he is aggressing against the contractual property rights of the theater owner and of the patrons of the performance.
Aside from invasions of property, however, freedom of speech will necessarily be upheld to the uttermost by every libertarian. Freedom to say, print, and sell any utterance becomes an absolute right, in whatever area the speech or expression chooses to cover. Here, civil libertarians have a generally good record, and in the judiciary the late Justice Hugo Black was particularly notable in defending freedom of speech from government restriction on the basis of the First Amendment of the Constitution.
But there are areas in which even the most ardent civil libertarians have been unfortunately fuzzy. What, for example, of "incitement to riot," in which the speaker is held guilty of a crime for whipping up a mob, which then riots and commits various actions and crimes against person and property? In our view, "incitement" can only be considered a crime if we deny every man's freedom of will and of choice, and assume that if A tells B and C: "You and him go ahead and riot!" that somehow B and C are then helplessly determined to proceed and commit the wrongful act. But the libertarian, who believes in freedom of the will, must insist that while it might be immoral or unfortunate for A to advocate a riot, that this is strictly in the realm of advocacy and should not be subject to legal penalty. Of course, if A also participates in the riot, then he himself becomes a rioter and is equally subject to punishment. Furthermore, if A is a boss in a criminal enterprise, and, as part of the crime, orders his henchmen: "You and him go and rob such and such a bank," then of course A, according to the law of accessories, becomes a participant or even leader in the criminal enterprise itself.
If advocacy should never be a crime, then neither should "conspiracy to advocate," for, in contrast to the unfortunate development of conspiracy law, "conspiring" (i.e., agreeing) to do something should never be more illegal than the act itself (How, in fact, can "conspiracy" be defined except as an agreement by two or more people to do something that you, the definer, do not like?)1
Another difficult zone is the law of libel and slander. It has generally been held legitimate to restrict freedom of speech if that speech has the effect of either falsely or maliciously damaging the reputation of another person. What the law of libel and slander does, in short, is to argue a "property right" of someone in his own reputation. Yet someone's "reputation" is not and cannot be "owned" by him, since it is purely a function of the subjective feelings and attitudes held by other people. But since no one can ever truly "own the mind and attitude of another, this means that no one can literally have a property right in his "reputation." A person's reputation fluctuates all the time, in accordance with the attitudes and opinions of the rest of the population. Hence, speech attacking someone cannot be an invasion of his property right and therefore should not be subject to restriction or legal penalty.
Furthermore, pragmatically, if there were no laws of libel or slander, people would be much less willing to credit charges without full documentation than they are now. Nowadays, if a man is charged with some flaw or misdeed, the general reaction is to believe it, since if the charge were false, "Why doesn't he sue for libel?" The law of libel, of course, discriminates in this way against the poor, since a person with few financial resources is scarcely as ready to carry on a costly libel suit as a person of affluent means. Furthermore, wealthy people can now use the libel laws as a club against poorer persons, restricting perfectly legitimate charges and utterances under the threat of sueing their poorer enemies for libel. Paradoxically, then, a person of limited resources is more apt to suffer from libel—and to have his own speech restricted—in the present system than he would in a world without any laws against libel or defamation.
Fortunately, in recent years the laws against libel have been progressively weakened, so that one can now deliver vigorous and trenchant criticisms of public officials and of people in the public eye without fear of being subject to costly legal action or legal punishment.
Another action that should be completely free of restriction is the boycott. In a boycott, one or more people use their right of speech to urge, for whatever reasons—important or trivial—that other people cease to buy someone else's product. If, for example, several people organize a campaign—for whatever reason—to urge consumers to stop buying XYZ Beer, this is again purely advocacy, and, furthermore, advocacy of a perfectly legitimate act—not purchasing the beer. A successful boycott might be unfortunate for the producers of XYZ Beer, but this, again, is strictly within the realm of free speech and the rights of private property. The makers of XYZ Beer take their chances with the free choices of consumers, and consumers are entitled to listen and to be swayed by anyone they choose. Yet our labor laws have infringed upon the right of labor unions to organize boycotts against business firms. It is also illegal, under our banking laws, to spread rumors about the insolvency of a bank—an obvious case of the government's extending special privileges to banks by outlawing freedom of speech in opposition to their use.
A particularly thorny question is the whole matter of picketing and demonstrations. Freedom of speech implies, of course, freedom of assembly—the freedom to gather together and express oneself in concert with others. But the situation becomes more complex when the use of the streets is involved. It is clear that picketing is illegitimate when it is used—as it often is—to block access to a private building or factory, or when the pickets threaten violence against those who cross the picket line. It is also clear that sit-ins are an illegitimate invasion of private property. But even "peaceful picketing" is not clearly legitimate, for it is part of a wider problem: Who decides on the use of the streets? The problem stems from the fact that the streets are almost universally owned by (local) government. But the government, not being a private owner, lacks any criterion for allocating the use of its streets, so that any decision it makes will be arbitrary.
Suppose, for example, that the Friends of Wisteria wish to demonstrate and parade on behalf of Wisteria in a public street. The police ban the demonstration, claiming that it will clog the streets and disrupt traffic. Civil libertarians will automatically protest and claim that the "right of free speech" of the Wisteria demonstrators is being unjustly abridged. But the police, too, may have a perfectly legitimate point: the streets may well be clogged, and it is the government's responsibility to maintain the flow of traffic. How then decide? Whichever way the government decides, some group of taxpayers will be injured by the decision. If the government decides to allow the demonstration, the motorists or pedestrians will be injured; if it does not, then the Friends of Wisteria will suffer a loss. In either case, the very fact of government decision-making generates inevitable conflict over who shall, and who shall not among the taxpayers and citizens, use the governmental resource.
It is only the universal fact of government ownership and control of the streets that makes this problem insoluble and cloaks the true solution to it. The point is that whoever owns a resource will decide on how that resource is to be used. The owner of a press will decide what will be printed on that press. And the owner of the streets will decide how to allocate their use. In short, if the streets were privately owned and the Friends of Wisteria asked for the use of Fifth Avenue to demonstrate, it will be up to the owner of Fifth Avenue to decide whether to rent the street for demonstration use or to keep it clear for traffic. In a purely libertarian world, where all streets are privately owned, the various street owners will decide, at any given time, whether to rent out the street for demonstrations, whom to rent it to, and what price to charge. It would then be clear that what is involved is not a "free speech" or "free assembly" question at all, but a question of property rights: of the right of a group to offer to rent a street, and of the right of the street owner either to accept or reject the offer.
Freedom of Radio and Television
There is one important area of American life where no effective freedom of speech or the press does or can exist under the present system. That is the entire field of radio and television. In this area, the federal government, in the crucially important Radio Act of 1927, nationalized the airwaves. In effect, the federal government took title to ownership of all radio and television channels. It then presumed to grant licenses, at its will or pleasure, for use of the channels to various privately owned stations. On the one hand, the stations, since they receive the licenses gratis, do not have to pay for the use of the scarce airwaves, as they would on the free market. And so these stations receive a huge subsidy, which they are eager to maintain. But on the other hand, the federal government, as the licensor of the airwaves, asserts the right and the power to regulate the stations minutely and continuously. Thus, over the head of each station is the club of the threat of nonrenewal, or even suspension, of its license. In consequence, the idea of freedom of speech in radio and television is no more than a mockery. Every station is grievously restricted, and forced to fashion its programming to the dictates of the Federal Communications Commission. So every station must have "balanced" programming, broadcast a certain amount of "public service" announcements, grant equal time to every political candidate for the same office and to expressions of political opinion, censor "controversial" lyrics in the records it plays, etc. For many years, no station was allowed to broadcast any editorial opinion at all; now, every opinion must be balanced by "responsible" editorial rebuttals.
Because every station and every broadcaster must always look over its shoulder at the FCC, free expression in broadcasting is a sham. Is it any wonder that television opinion, when it is expressed at all on controversial issues, tends to be blandly in favor of the "Establishment"?
The public has only put up with this situation because it has existed since the beginning of large-scale commercial radio. But what would we think, for example, if all newspapers were licensed, the licenses to be renewable by a Federal Press Commission, and with newspapers losing their licenses if they dare express an "unfair" editorial opinion, or if they don't give full weight to public service announcements? Would not this be an intolerable, not to say unconstitutional, destruction of the right to a free press? Or consider if all book publishers had to be licensed, and their licenses were not renewable if their book lists failed to suit a Federal Book Commission? Yet what we would all consider intolerable and totalitarian for the press and the book publishers is taken for granted in a medium which is now the most popular vehicle for expression and education: radio and television. Yet the principles in both cases are exactly the same.
Here we see, too, one of the fatal flaws in the idea of "democratic socialism," i.e., the idea that the government should own all resources and means of production yet preserve and maintain freedom of speech and the press for all its citizens. An abstract constitution guaranteeing "freedom of the press" is meaningless in a socialist society. The point is that where the government owns all the newsprint, the paper, the presses, etc., the government—as owner—must decide how to allocate the newsprint and the paper, and what to print on them. Just as the government as street owner must make a decision how the street will be used, so a socialist government will have to decide how to allocate newsprint and all other resources involved in the areas of speech and press: assembly halls, machines, trucks, etc. Any government may profess its devotion to freedom of the press, yet allocate all of its newsprint only to its defenders and supporters. A free press is again a mockery; furthermore, why should a socialist government allocate any considerable amount of its scarce resources to antisocialists? The problem of genuine freedom of the press then becomes insoluble.
The solution for radio and television? Simple: Treat these media precisely the same way the press and book publishers are treated. For both the libertarian and the believer in the American Constitution the government should withdraw completely from any role or interference in all media of expression. In short, the federal government should denationalize the airwaves and give or sell the individual channels to private ownership. When private stations genuinely own their channels, they will be truly free and independent; they will be able to put on any programs they wish to produce, or that they feel their listeners want to hear; and they will be able to express themselves in whichever way they wish without fear of government retaliation. They will also be able to sell or rent the airwaves to whomever they wish, and in that way the users of the channels will no longer be artificially subsidized.
Furthermore, if TV channels become free, privately owned, and independent, the big networks will no longer be able to put pressure upon the FCC to outlaw the effective competition of pay-television. It is only because the FCC has outlawed pay-TV that it has not been able to gain a foothold. "Free TV" is, of course, not truly "free"; the programs are paid for by the advertisers, and the consumer pays by covering the advertising costs in the price of the product he buys. One might ask what difference it makes to the consumer whether he pays the advertising costs indirectly or pays directly for each program he buys. The difference is that these are not the same consumers for the same products. The television advertiser, for example, is always interested in (a) gaining the widest possible viewing market; and (b) in gaining those particular viewers who will be most susceptible to his message. Hence, the programs will all be geared to the lowest common denominator in the audience, and particularly to those viewers most susceptible to the message; that is, those viewers who do not read newspapers or magazines, so that the message will not duplicate the ads he sees there. As a result, free-TV programs tend to be unimaginative, bland, and uniform. Pay-TV would mean that each program would search for its own market, and many specialized markets for specialized audiences would develop—just as highly lucrative specialized markets have developed in the magazine and book publishing fields. The quality of programs would be higher and the offerings far more diverse. In fact, the menace of potential pay-TV competition must be great for the networks to lobby for years to keep it suppressed. But, of course, in a truly free market, both forms of television, as well as cable-TV and other forms we cannot yet envision, could and would enter the competition.
One common argument against private ownership of TV channels is that these channels are "scarce," and therefore have to be owned and parcelled out by the government. To an economist, this is a silly argument; all resources are scarce, in fact anything that has a price on the market commands that price precisely because it is scarce. We have to pay a certain amount for a loaf of bread, for shoes, for dresses because they are all scarce. If they were not scarce but superabundant like air, they would be free, and no one would have to worry about their production or allocation. In the press area, newsprint is scarce, paper is scarce, printing machinery and trucks are scarce, etc. The more scarce they are the higher the price they will command, and vice versa. Furthermore, and again pragmatically, there are far more television channels available than are now in use. The FCC's early decision to force stations into the VHF instead of the UHF zone created far more of a scarcity of channels than there needed to be.
Another common objection to private property in the broadcast media is that private stations would interfere with each other's broadcasts, and that such widespread interference would virtually prevent any programs from being heard or seen. But this is as absurd an argument for nationalizing the airwaves as claiming that since people can drive their cars over other people's land this means that all cars—or land— must be nationalized. The problem, in either case, is for the courts to demarcate property titles carefully enough so that any invasion of another's property will be clear-cut and subject to prosecution. In the case of land titles, this process is clear enough. But the point is that the courts can apply a similar process of staking out property rights in other areas—whether it be in airwaves, in water, or in oil pools. In the case of airwaves, the task is to find the technological unit—i.e., the place of transmission, the distance of the wave, and the technological width of a clear channel—and then to allocate property rights to this particular technological unit. If radio station WXYZ, for example, is assigned a property right in broadcasting on 1500 kilocycles, plus or minus a certain width of kilocycles, for 200 miles around Detroit, then any station which subsequently beams a program into the Detroit area on this wavelength would be subject to prosecution for interference with property rights. If the courts pursue their task of demarking and defending property rights, then there is no more reason to expect continual invasions of such rights in this area than anywhere else.
Most people believe that this is precisely the reason the airwaves were nationalized; that before the Radio Act of 1927, stations interfered with each other's signals and chaos ensued, and the federal government was finally forced to step in to bring order and make a radio industry feasible at last. But this is historical legend, not fact. The actual history is precisely the opposite. For when interference on the same channel began to occur, the injured party took the airwave aggressors into court, and the courts were beginning to bring order out of the chaos by very successfully applying the common law theory of property rights—in very many ways similar to the libertarian theory—to this new technological area. In short, the courts were beginning to assign property rights in the airwaves to their "homesteading" users. It was after the federal government saw the likelihood of this new extension of private property that it rushed in to nationalize the airwaves, using alleged chaos as the excuse.
To describe the picture a bit more fully, radio in the first years of the century was almost wholly a means of communication for ships—either ship-to-ship or ship-to-shore messages. The Navy Department was interested in regulating radio as a means of ensuring safety at sea, and the initial federal regulation, a 1912 act, merely provided that any radio station had to have a license issued by the Secretary of Commerce. No powers to regulate or to decide not to renew licenses were written into the law, however, and when public broadcasting began in the early 1920s, Secretary of Commerce Herbert Hoover attempted to regulate the stations. Court decisions in 1923 and 1926, however, struck down the governments power to regulate licenses, to fail to renew them, or even to decide on which wavelengths the stations should operate.2 At about the same time, the courts were working out the concept of "homestead" private property rights in the airwaves, notably in the case of Tribune Co. v. Oak Leaves Broadcasting Station (Circuit Court, Cook County, Illinois, 1926). In this case the court held that the operator of an existing station had a property right, acquired by prior use, sufficient to enjoin a new station from using a radio frequency in any way so as to cause interference with the signals of the prior station.3 And so order was being brought out of the chaos by means of the assignment of property rights. But it was precisely this development that the government rushed in to forestall.
The 1926 Zenith decision striking down the government's power to regulate or to fail to renew licenses, and forcing the Department of Commerce to issue licenses to any station that applied, produced a great boom in the broadcasting industry. Over two hundred new stations were created in the nine months after the decision. As a result, Congress rushed through a stopgap measure in July 1926 to prevent any property rights in radio frequencies, and resolved that all licenses should be limited to ninety days. By February 1927 the Congress passed the law establishing the Federal Radio Commission, which nationalized the airwaves and established powers similar to those of the current FCC. That the aim of the knowledgeable politicians was not to prevent chaos but to prevent private property in the airwaves as the solution to chaos is demonstrated by the legal historian H. P. Warner. Warner states that "grave fears were expressed by legislators, and those generally charged with the administration of communications... that government regulation of an effective sort might be permanently prevented through the accrual of property rights in licenses or means of access, and that thus franchises of the value of millions of dollars might be established for all time."4 The net result, however, was to establish equally valuable franchises anyway, but in a monopolistic fashion through the largesse of the Federal Radio Commission and later FCC rather than through competitive homesteading.
Among the numerous direct invasions of freedom of speech exercised by the licensing power of the FRC and FCC, two cases will suffice. One was in 1931, when the FRC denied renewal of license to a Mr. Baker, who operated a radio station in Iowa. In denying renewal, the Commission said:
This Commission holds no brief for the Medical Associations and other parties whom Mr. Baker does not like. Their alleged sins may be at times of public importance, to be called to the attention of the public over the air in the right way. But this record discloses that Mr. Baker does not do so in any high-minded way. It shows that he continually and erratically over the air rides a personal hobby, his cancer cure ideas and his likes and dislikes of certain persons and things. Surely his infliction of all this on the listeners is not the proper use of a broadcasting license. Many of his utterances are vulgar, if not indeed indecent. Assuredly they are not uplifting or entertaining.5
Can we imagine the outcry if the federal government were to put a newspaper or a book publisher out of business on similar grounds?
A recent act of the FCC was to threaten nonrenewal of license of radio station KTRG in Honolulu, a major radio station in Hawaii. KTRG had been broadcasting libertarian programs for several hours a day for approximately two years. Finally, in late 1970, the FCC decided to open lengthy hearings moving toward nonrenewal of license, the threatened cost of which forced the owners to shut down the station permanently.6
To the libertarian, the arguments between conservatives and liberals over laws prohibiting pornography are distressingly beside the point. The conservative position tends to hold that pornography is debasing and immoral and therefore should be outlawed. Liberals tend to counter that sex is good and healthy and that therefore pornography will only have good effects, and that depictions of violence—say on television, in movies, or in comic books—should be outlawed instead. Neither side deals with the crucial point: that the good, bad, or indifferent consequences of pornography, while perhaps an interesting problem in its own right, is completely irrelevant to the question of whether or not it should be outlawed. The libertarian holds that it is not the business of the law—the use of retaliatory violence—to enforce anyone's conception of morality. It is not the business of the law—even if this were practically possible, which is, of course, most unlikely—to make anyone good or reverent or moral or clean or upright. This is for each individual to decide for himself. It is only the business of legal violence to defend people against the use of violence, to defend them from violent invasions of their person or property. But if the government presumes to outlaw pornography, it itself becomes the genuine outlaw—for it is invading the property rights of people to produce, sell, buy, or possess pornographic material.
We do not pass laws to make people upright; we do not pass laws to force people to be kind to their neighbors or not to yell at the bus driver; we do not pass laws to force people to be honest with their loved ones. We do not pass laws to force them to eat X amount of vitamins per day. Neither is it the business of government, nor of any legal agency, to pass laws against the voluntary production or sale of pornography. Whether pornography is good, bad, or indifferent should be of no interest to the legal authorities.
The same holds true for the liberal bugbear of "the pornography of violence." Whether or not watching violence on television helps lead to actual crimes should not come under the purview of the State. To outlaw violent films because they might someday induce someone to commit a crime is a denial of man's free will, and a total denial, of course, of the right of those who will not commit crimes to see the film. But more important, it is no more justifiable—in fact, less so—to outlaw violent films for this reason than it would be, as we have noted, to lock up all teenage Negro males because they have a greater tendency to commit crime than the rest of the population.
It should be clear, too, that prohibition of pornography is an invasion of property rights, of the right to produce, sell, buy, and own. Conservatives who call for the outlawing of pornography do not seem to realize that they are thereby violating the very concept of property rights they profess to champion. It is also a violation of freedom of the press, which, as we have seen, is really a subset of the general right of private property.
Sometimes it seems that the beau ideal of many conservatives, as well as of many liberals, is to put everyone into a cage and coerce him into doing what the conservatives or liberals believe to be the moral thing. They would of course be differently styled cages, but they would be cages just the same. The conservative would ban illicit sex, drugs, gambling, and impiety, and coerce everyone to act according to his version of moral and religious behavior. The liberal would ban films of violence, unesthetic advertising, football, and racial discrimination, and, at the extreme, place everyone in a "Skinner box" to be run by a supposedly benevolent liberal dictator. But the effect would be the same: to reduce everyone to a subhuman level and to deprive everyone of the most precious part of his or her humanity—the freedom to choose.
The irony, of course, is that by forcing men to be "moral"—i.e., to act morally—the conservative or liberal jailkeepers would in reality deprive men of the very possibility of being moral. The concept of "morality" makes no sense unless the moral act is freely chosen. Suppose, for example, that someone is a devout Muslim who is anxious to have as many people as possible bow to Mecca three times a day; to him let us suppose this is the highest moral act. But if he wields coercion to force everyone to bow to Mecca, he is thereby depriving everyone of the opportunity to be moral—to choose freely to bow to Mecca. Coercion deprives a man of the freedom to choose and, therefore, of the possibility of choosing morally.
The libertarian, in contrast to so many conservatives and liberals, does not want to place man in any cage. What he wants for everyone is freedom, the freedom to act morally or immorally, as each man shall decide.
In recent years, liberals have fortunately been coming to the conclusion that "any act between two (or more) consenting adults" should be legal. It is unfortunate that the liberals have not yet widened this criterion from sex to trade and exchange, for if they ever would, they would be close to becoming full-scale libertarians. For the libertarian is precisely interested in legalizing all interrelations whatever between "consenting adults." Liberals have also begun to call for the abolition of "victimless crimes," which would be splendid if "victims" were defined with greater precision as victims of aggressive violence.
Since sex is a uniquely private aspect of life, it is particularly intolerable that governments should presume to regulate and legislate sexual behavior, yet of course this has been one of the State's favorite pastimes. Violent acts such as rape, of course, are to be classed as crimes in the same way as any other act of violence against persons.
Oddly enough, while voluntary sexual activities have often been rendered illegal and prosecuted by the State, accused rapists have been treated far more gently by the authorities than accused perpetrators of other forms of bodily assault. In many instances, in fact, the rape victim has been virtually treated as the guilty party by the law enforcement agencies—an attitude which is almost never taken toward victims of other crimes. Clearly, an impermissible sexual double standard has been at work. As the National Board of the American Civil Liberties Union declared in March 1977:
Sexual assault victims should he treated no differently from victims of other crimes. Sexual assault victims are often treated with skepticism and abuse at the hands of law enforcement and health services personnel. This treatment ranges from official disbelief and insensitivity to cruel and harsh probes of the victim's lifestyle and motivation. Such abrogation of responsibility by institutions meant to assist and protect victims of crime can only compound the trauma of the victim's original experience.
The double standard imposed by government can be remedied by removing rape as a special category of legal and judicial treatment, and of subsuming it under the general law of bodily assault. Whatever standards are used for judges' instructions to the jury, or for the admissibility of evidence, should be applied similarly in all these cases.
If labor and persons in general are to be free, then so should there be freedom for prostitution. Prostitution is a voluntary sale of a labor service, and the government has no right to prohibit or restrict such sales. It should be noted that many of the grimmer aspects of the streetwalking trade have been brought about by the outlawing of brothels. As long-lasting houses of prostitution operated by madams anxious to cultivate goodwill among customers over a long time span, brothels used to compete to provide high-quality service and build up their "brand name." The outlawing of brothels has forced prostitution into a "black-market," fly-by-night existence, with all the dangers and general decline in quality this always entails. Recently, in New York City, there has been a tendency for the police to crack down on prostitution with the excuse that the trade is no longer "victimless," since many prostitutes commit crimes against their customers. To outlaw trades that may attract crime, however, would in the same way justify prohibition because many fights take place in bars. The answer is not to outlaw the voluntary and truly lawful activity, but for the police to see to it that the genuine crimes do not get committed. It should be clear that advocacy of freedom for prostitution does not, for the libertarian, in the least imply advocacy of prostitution itself. In short, if a particularly puritanical government were to outlaw all cosmetics, the libertarian would call for legalizing cosmetics without in any sense implying that he favors—or for that matter, opposes—the use of cosmetics themselves. On the contrary, depending upon his personal ethics or esthetics, he might well agitate against the use of cosmetics after they become legalized; his attempt is always to persuade rather than to compel.
If sex should be free, then birth control should, of course, be free as well. It is unfortunately characteristic of our society, however, that scarcely has birth control been made legal when people—in this case liberals—arise to agitate for birth control being made compulsory. It is true, of course, that if my neighbor has a baby this may well affect me for good or ill. But, then, almost everything that anyone does may affect one or more people. To the libertarian, this is scarcely justification for using force, which may only be used to combat or restrain force itself. There is no right more personal, no freedom more precious, than for any woman to decide to have, or not to have, a baby, and it is totalitarian in the extreme for any government to presume to deny her that right. Besides, if any family has more children than it can support in comfort, the family itself will bear the main burden; hence, the almost universal result that the wish to preserve a treasured rise in living standards will induce a voluntary reduction of births by the families themselves.
This brings us to the more complex case of abortion. For the libertarian, the "Catholic" case against abortion, even if finally rejected as invalid, cannot be dismissed out of hand. For the essence of that case—not really "Catholic" at all in a theological sense—is that abortion destroys a human life and is therefore murder, and hence cannot be condoned. More than that, if abortion is truly murder, then the Catholic—or any other person who shares this view—cannot just shrug his shoulders and say that "Catholic" views should not be imposed upon non-Catholics. Murder is not an expression of religious preference; no sect, in the name of "freedom of religion," can or should get away with committing murder with the plea that its religion so commands. The vital question then becomes: Should abortion be considered as murder?
Most discussion of the issue bogs down in minutiae about when human life begins, when or if the fetus can be considered to be alive, etc. All this is really irrelevant to the issue of the legality (again, not necessarily the morality) of abortion. The Catholic antiabortionist, for example, declares that all that he wants for the fetus is the rights of any human being—i.e., the right not to be murdered. But there is more involved here, and this is the crucial consideration. If we are to treat the fetus as having the same rights as humans, then let us ask: What human has the right to remain, unbidden, as an unwanted parasite within some other human being's body? This is the nub of the issue: the absolute right of every person and hence every woman, to the ownership of her own body. What the mother is doing in an abortion is causing an unwanted entity within her body to be ejected from it: If the fetus dies, this does not rebut the point that no being has a right to live, unbidden, as a parasite within or upon some person's body.
The common retort that the mother either originally wanted or at least was responsible for placing the fetus within her body is, again, beside the point. Even in the stronger case where the mother originally wanted the child, the mother, as the property owner in her own body, has the right to change her mind and to eject it.
If the State should not repress voluntary sexual activity, neither should it discriminate for or against either sex. "Affirmative action" decrees are an obvious way of compelling discrimination against males or other groups in employment, admissions, or wherever this implicit quota system is applied. But "protective" labor laws in regard to women insidiously pretend to favor women when they really discriminate against them by prohibiting them from working during certain hours or in certain occupations. Women are prevented by law from exercising their individual freedom of choice in deciding for themselves whether or not to enter these occupations or to work during these supposedly onerous hours. In this way, government prevents women from competing freely against men in these areas.
All in all, the 1978 Libertarian Party platform is trenchant and to the point in setting forth the libertarian position on governmental sex or other discrimination: "No individual rights should be denied or abridged by the laws of the United States or any state or locality on account of sex, race, color, creed, age, national origin, or sexual preference."
Wiretapping is a contemptible invasion of privacy and of property right, and of course should be outlawed as an invasive act. Few, if any, people would condone private wiretapping. The controversy arises with those who maintain that the police should be able to tap the wires of persons they suspect as criminals. Otherwise, how would criminals be caught?
In the first place, from the pragmatic viewpoint, it is rare that wiretapping is effective in such "one-shot" crimes as bank robbery. Wiretapping is generally used in cases where the "business" is set up on a regularized and continuing basis—such as narcotics and gambling—and is therefore vulnerable to espionage and "bugging." Secondly, we remain with our contention that it is itself criminal to invade the property of anyone not yet convicted of a crime. It may well be true, for example, that if the government employed a ten-million man espionage force to spy upon and tap the wires of the entire population, the total amount of private crime would be reduced—just as it would if all ghetto residents or teenage males were promptly incarcerated. But what would this be compared to the mass crime that would thus be committed, legally and without shame, by the government itself?
There is one concession we might make to the police argument, but it is doubtful the police would be happy with the concession. It is proper to invade the property of a thief, for example, who has himself invaded to a far greater extent the property of others. Suppose the police decide that John Jones is a jewel thief. They tap his wires, and use this evidence to convict Jones of the crime. We might say that this tapping is legitimate, and should go unpunished: provided, however, that if Jones should prove not to be a thief, the police and the judges who may have issued the court order for the tap are now to be adjudged criminals themselves and sent to jail for their crime of unjust wiretapping. This reform would have two happy consequences: no policeman or judge would participate in wiretapping unless he was dead certain the victim is indeed a criminal; and the police and judges would at last join everyone else as equally subject to the rule of the criminal law. Certainly equality of liberty requires that the law applies to everyone; therefore any invasion of the property of a noncriminal by anyone should be outlawed, regardless of who committed the deed. The policeman who guessed wrong and thereby aggressed against a noncriminal should therefore be considered just as guilty as any "private" wiretapper.
There are few laws more absurd and iniquitous than the laws against gambling. In the first place, the law, in its broadest sense, is clearly unenforceable. If every time Jim and Jack made a quiet bet on a football game, or on an election, or on virtually anything else, this were illegal, an enormous multimillion-man gestapo would be required to enforce such a law and to spy on everyone and ferret out every bet. Another large super-espionage force would then be needed to spy on the spies to make sure that they have not been bought off. Conservatives like to retort to such arguments—used against laws outlawing sexual practices, pornography, drugs, etc.—that the prohibition against murder is not fully enforceable either, but this is no argument for repeal of that law. This argument, however, ignores a crucial point: the mass of the public, making an instinctive libertarian distinction, abhors and condemns murder and does not engage in it; hence, the prohibition becomes broadly enforceable. But the mass of the public is not as convinced of the criminality of gambling, hence continues to engage in it, and the law—properly—becomes unenforceable.
Since the laws against quiet betting are clearly unenforceable, the authorities decide to concentrate on certain highly visible forms of gambling, and confine their activities to them: roulette, bookies, "numbers" betting—in short, on those areas where gambling is a fairly regularized activity. But then we have a peculiar and surely totally unsupportable kind of ethical judgment: roulette, horse betting, etc., are somehow morally evil and must be cracked down upon by the massed might of the police, whereas quiet betting is morally legitimate and need not be bothered.
In New York State, a particular form of imbecility developed over the years: until recent years, all forms of horse betting were illegal except those made at the tracks themselves. Why horse betting at Aqueduct or Belmont race track should be perfectly moral and legitimate while betting on the same race with your friendly neighborhood bookie should be sinful and bring down the awful majesty of the law defies the imagination. Unless, of course, if we consider the point of the law to force betters to swell the coffers of the tracks. Recently, a new wrinkle has developed. The City of New York has itself gone into the horse-betting business, and betting at city-owned stores is perfectly fine and proper, while betting with competing private bookies continues to be sinful and outlawed. Clearly, the point of the system is first to confer a special privilege upon the race tracks, and then upon the city's own betting installation. Various states are also beginning to finance their ever-growing expenditures through lotteries, which thus become conferred with the cloak of morality and respectability.
A standard argument for outlawing gambling is that, if the poor workman is allowed to gamble, he will improvidently blow his weekly paycheck and thereby render his family destitute. Aside from the fact that he can now spend his payroll on friendly betting, this paternalistic and dictatorial argument is a curious one. For it proves far too much: If we must outlaw gambling because the masses might spend too much of their substance, why should we not outlaw many other articles of mass consumption? After all, if a workman is determined to blow his paycheck, he has many opportunities to do so: he can improvidently spend too much on a TV set, a hi-fi, liquor, baseball equipment, and countless other goodies. The logic of prohibiting a man from gambling for his own or his family's good leads straight to that totalitarian cage, the cage in which Pappa Government tells the man exactly what to do, how to spend his money, how many vitamins he must ingest, and forces him to obey the State's dictates.
Narcotics and Other Drugs
The case for outlawing any product or activity is essentially the same twofold argument we have seen used to justify the compulsory commitment of mental patients: it will harm the person involved, or it will lead that person to commit crimes against others. It is curious that the general—and justified—horror of drugs has led the mass of the public to an irrational enthusiasm for outlawing them. The case against outlawing narcotic and hallucinogenic drugs is far weaker than the case against Prohibition, an experiment which the grisly era of the 1920s has hopefully discredited for all time. For while narcotics are undoubtedly more harmful than is alcohol, the latter can also be harmful, and outlawing something because it may harm the user leads straight down the logical garden path to our totalitarian cage, where people are prohibited from eating candy and are forced to eat yogurt "for their own good." But in the far more imposing argument about harm to others, alcohol is much more likely to lead to crimes, auto accidents, etc., than narcotics, which render the user preternaturally peaceful and passive. There is, of course, a very strong connection between addiction and crime, but the connection is the reverse of any argument for prohibition. Crimes are committed by addicts driven to theft by the high price of drugs caused by the outlawry itself! If narcotics were legal, the supply would greatly increase, the high costs of black markets and police payoffs would disappear, and the price would be low enough to eliminate most addict-caused crime.
This is not to argue, of course, for prohibition of alcohol; once again, to outlaw something which might lead to crime is an illegitimate and invasive assault on the rights of person and property, an assault which, again, would far more justify the immediate incarceration of all teenage males. Only the overt commission of a crime should be illegal, and the way to combat crimes committed under the influence of alcohol is to be more diligent about the crimes themselves, not to outlaw the alcohol. And this would have the further beneficial effect of reducing crimes not committed under the influence of alcohol.
Paternalism in this area comes not only from the right; it is curious that while liberals generally favor legalizing marijuana and sometimes of heroin, they seem to yearn to outlaw cigarettes, on the ground that cigarette smoking often causes cancer. Liberals have already managed to use federal control of television to outlaw cigarette advertising on that medium—and thereby to level a grave blow against the very freedom of speech liberals are supposed to cherish.
Once again: Every man has the right to choose. Propagandize against cigarettes as much as you want, but leave the individual free to run his own life. Otherwise, we may as well outlaw all sorts of possible carcinogenic agents—including tight shoes, improperly fitting false teeth, excessive exposure to the sun, as well as excessive intake of ice cream, eggs, and butter which might lead to heart disease. And, if such prohibitions prove unenforceable, again the logic is to place people in cages so that they will receive the proper amount of sun, the correct diet, properly fitting shoes, and so on.
In the fall of 1971, the Knapp Commission focussed public attention on the problem of widespread police corruption in New York City. Midst the drama of individual cases, there is a danger of overlooking what is clearly the central problem, a problem of which the Knapp Commission itself was perfectly aware. In virtually every case of corruption, the policemen were involved in regularly functioning businesses which, by government fiat, had been declared illegal. And yet a vast number of people, by demanding these goods and services, have shown that they do not agree that such activities should be placed in the same category as murder, theft, or assault. Indeed, in practically no case did the "purchase" of the police involve these heinous crimes. In almost all cases, they consisted of the police looking the other way while legitimate, voluntary transactions took place.
The common law makes a vital distinction between a crime that is a malum in se and one that is merely a malum prohibitum. A malum in se is an act which the mass of the people instinctively feel is a reprehensible crime which should be punished. This coincides roughly with the libertarians definition of a crime as an invasion of person or property: assault, theft, and murder. Other crimes are activities made into crimes by government edict: it is in this far more widely tolerated area that police corruption occurs.
In short, police corruption occurs in those areas where entrepreneurs supply voluntary services to consumers, but where the government has decreed that these services are illegal: narcotics, prostitution, and gambling. Where gambling, for example, is outlawed, the law places into the hands of the police assigned to the gambling detail the power to sell the privilege of engaging in the gambling business. In short, it is as if the police were empowered to issue special licenses to engage in these activities, and then proceeded to sell these unofficial but vital licenses at whatever price the traffic will bear. One policeman testified that, if the law were to be fully enforced, not a single construction site in New York City could continue functioning, so intricately did the government wrap construction sites in a web of trivial and impossible regulations. In short, whether consciously or not, the government proceeds as follows: first it outlaws a certain activity—drugs, gambling, construction, or whatever—then the governmental police sell to would be entrepreneurs in the field the privilege of entering and continuing in business.
At best, the result of these actions is the imposition of higher cost, and more restricted output, of the activity than would have occurred in a free market. But the effects are still more pernicious. Often, what the policemen sell is not just permission to function, but what is in effect a privileged monopoly. In that case, a gambler pays off the police not just to continue in business but also to freeze out any competitors who might want to enter the industry. The consumers are then saddled with privileged monopolists, and are barred from enjoying the advantages of competition. It is no wonder, then, that when Prohibition was finally repealed in the early 1930s, the main opponents of repeal were, along with fundamentalist and Prohibitionist groups, the organized bootleggers, who had enjoyed special monopolistic privileges from their special arrangements with the police and other enforcement arms of government.
The way, then, to eliminate police corruption is simple but effective: abolish the laws against voluntary business activity and against all "victimless crimes." Not only would corruption be eliminated, but a large number of police would then be freed to operate against the real criminals, the aggressors against person and property. This, after all, is supposed to be the function of the police in the first place.
We should realize, then, that the problem of police corruption, as well as the broader question of government corruption in general, should be placed in a wider context. The point is that given the unfortunate and unjust laws prohibiting, regulating, and taxing certain activities, corruption is highly beneficial to society. In a number of countries, without corruption that nullified government prohibitions, taxes, and exactions, virtually no trade or industry would be carried on at all. Corruption greases the wheels of trade. The solution, then, is not to deplore corruption and redouble enforcement against it, but to abolish the crippling policies and laws of government that make corruption necessary.
For most of the activities in this chapter, liberals tend to favor freedom of trade and activity while conservatives yearn for rigorous enforcement and maximum crackdowns against violators of the law. Yet, mysteriously, in the drive for gun laws the positions tend to be reversed. Every time a gun is used in a violent crime, liberals redouble their agitation for the severe restriction, if not prohibition of private ownership of guns, while conservatives oppose such restrictions on behalf of individual freedom.
If, as libertarians believe, every individual has the right to own his person and property, it then follows that he has the right to employ violence to defend himself against the violence of criminal aggressors. But for some odd reason, liberals have systematically tried to deprive innocent persons of the means for defending themselves against aggression. Despite the fact that the Second Amendment to the Constitution guarantees that "the right of the people to keep and bear arms shall not be infringed," the government has systematically eroded much of this right. Thus, in New York State, as in most other states, the Sullivan Law prohibits the carrying of "concealed weapons" without a license issued by the authorities. Not only has the carrying of guns been grievously restricted by this unconstitutional edict, but the government has extended this prohibition to almost any object that could possibly serve as a weapon—even those that could only be used for self-defense. As a result, potential victims of crime have been barred from carrying knives, tear-gas pens, or even hatpins, and people who have used such weapons in defending themselves against assault have themselves been prosecuted by the authorities. In the cities, this invasive prohibition against concealed weapons has in effect stripped victims of any possible self-defense against crime. (It is true that there is no official prohibition against carrying an unconcealed weapon, but a man in New York City who, several years ago, tested the law by walking the streets carrying a rifle was promptly arrested for "disturbing the peace.") Furthermore, victims are so hamstrung by provisions against "undue" force in self-defense that the criminal is automatically handed an enormous built-in advantage by the existing legal system.
It should be clear that no physical object is in itself aggressive; any object, whether it be a gun, a knife, or a stick, can be used for aggression, for defense, or for numerous other purposes unconnected with crime. It makes no more sense to outlaw or restrict the purchase and ownership of guns than it does to outlaw the possession of knives, clubs, hat-pins, or stones. And how are all of these objects to be outlawed, and if outlawed, how is the prohibition to be enforced? Instead of pursuing innocent people carrying or possessing various objects, then, the law should be concerned with combatting and apprehending real criminals.
There is, moreover, another consideration which reinforces our conclusion. If guns are restricted or outlawed, there is no reason to expect that determined criminals are going to pay much attention to the law. The criminals, then, will always be able to purchase and carry guns; it will only be their innocent victims who will suffer from the solicitous liberalism that imposes laws against guns and other weapons. Just as drugs, gambling, and pornography should be made legal, so too should guns and any other objects that might serve as weapons of self-defense.
In a notable article attacking control of handguns (the type of gun liberals most want to restrict), St. Louis University law professor Don B. Kates, Jr., chides his fellow liberals for not applying the same logic to guns that they use for marijuana laws. Thus, he points out that there are over fifty million handgun owners in America today, and that, based on polls and past experience, from two-thirds to over eighty percent of Americans would fail to comply with a ban on handguns. The inevitable result, as in the case of sex and marijuana laws, would be harsh penalties and yet highly selective enforcement—breeding disrespect for the law and law enforcement agencies. And the law would be enforced selectively against those people whom the authorities didn't like: "Enforcement becomes progressively more haphazard until at last the laws are used only against those who are unpopular with the police. We hardly need to be reminded of the odious search and seizure tactics police and government agents have often resorted to in order to trap violators of these laws." Kates adds that "if these arguments seem familiar, it is probably because they parallel the standard liberal argument against pot laws."7
Kates then adds a highly perceptive insight into this curious liberal blind spot. For:
Gun prohibition is the brainchild of white middle-class liberals who are oblivious to the situation of poor and minority people living in areas where the police have given up on crime control. Such liberals weren't upset about marijuana laws, either, in the fifties when the busts were confined to the ghettos. Secure in well-policed suburbs or high-security apartments guarded by Pinkertons (whom no one proposes to disarm), the oblivious liberal derides gun ownership as "an anachronism from the Old West."8
Kates further points out the demonstrated empirical value of self-defense armed with guns; in Chicago, for example, armed civilians justifiably killed three times as many violent criminals in the past five years as did the police. And, in a study of several hundred violent confrontations with criminals, Kates found the armed civilians to be more successful than the police: the civilians defending themselves captured, wounded, killed, or scared off criminals in 75% of the confrontations, whereas the police only had a 61% success rate. It is true that victims who resist robbery are more likely to be injured than those who remain passive. But Kates points out neglected qualifiers: (1) that resistance without a gun has been twice as hazardous to the victim than resistance with one, and (2) that the choice of resistance is up to the victim and his circumstances and values.
Avoiding injury will be paramount to a white, liberal academic with a comfortable bank account. It will necessarily be less important to the casual laborer or welfare recipient who is being robbed of the wherewithal to support his family for a month—or to a black shopkeeper who can't get robbery insurance and will be literally run out of business by successive robberies.
And the 1975 national survey of handgun owners by the Decision Making Information organization found that the leading subgroups who own a gun only for self-defense include blacks, the lowest income groups, and senior citizens. "These are the people," Kates eloquently warns, "it is proposed we jail because they insist on keeping the only protection available for their families in areas in which the police have given up."9
What of historical experience? Have handgun bans really greatly lowered the degree of violence in society, as liberals claim? The evidence is precisely to the contrary. A massive study done at the University of Wisconsin concluded unequivocally in the fall of 1975 that "gun control laws have no individual or collective effect in reducing the rate of violent crime." The Wisconsin study, for example, tested the theory that ordinarily peaceful people will be irresistibly tempted to shoot their guns if available when tempers are being frayed. The study found no correlation whatever between rates of handgun ownership and rates of homicide when compared, state by state. Moreover, this finding is reinforced by a 1976 Harvard study of a Massachusetts law providing a mandatory minimum year in prison for anyone found possessing a handgun without a government permit. It turns out that, during the year 1975, this 1974 law did indeed considerably reduce the carrying of firearms and the number of assaults with firearms. But, lo and behold! the Harvard researchers found to their surprise that there was no corresponding reduction in any type of violence. That is,
As previous criminological studies have suggested, deprived of a handgun, a momentarily enraged citizen will resort to the far more deadly long gun. Deprived of all firearms, he will prove almost as deadly with knives, hammers, etc.
And clearly, "if reducing handgun ownership does not reduce homicide or other violence, a handgun ban is just one more diversion of police resources from real crime to victimless crime."10
Finally, Kates makes another intriguing point: that a society where peaceful citizens are armed is far more likely to be one where Good Samaritans who voluntarily go to the aid of victims of crime will flourish. But take away people's guns, and the public—disastrously for the victims—will tend to leave the matter to the police. Before New York State outlawed handguns, Good Samaritan instances were far more widespread than now. And, in a recent survey of Good Samaritan cases no less than 81% of the Samaritans were owners of guns. If we wish to encourage a society where citizens come to the aid of neighbors in distress, we must not strip them of the actual power to do something about crime. Surely, it is the height of absurdity to disarm the peaceful public and then, as is quite common, to denounce them for "apathy" for failing to rush to the rescue of victims of criminal assault.
For a critique of the "clear and present danger" criterion as insufficient for drawing a clear line between advocacy and overt act, see Alexander Meiklejohn, Political Freedom (New York: Harper & Bros., 1960), pp. 29-50;; and O. John Rogge, The First and the Fifth (New York: Thomas Nelson and Sons, 1960), pp. 88ff. ↩︎
In the decisions Hoover v. Intercity Radio Co., 286 Fed. 1003 (Appeals D.C., 1923); and United States v. Zenith Radio Corp., 12 F. 2d 614 (ND. Ill., 1926). See the excellent article by Ronald H. Coase, "The Federal Communications Commission," Journal of Law and Economics (October 1959), pp. 4-5. ↩︎
Coase, ibid., p. 31n. ↩︎
Harry P. Warner, Radio and Television Law (1958), p. 540. Quoted in Coase, op. cit., p. 32. ↩︎
Decisions of the FRC, Docket No. 967, June 5,1931. Quoted in Coase, op. cit., p. 9. ↩︎
The best and most fully elaborated portrayal of how private property rights could be assigned in radio and television is in A. DeVany et al., "A Property System for Market Allocation of the Electromagnetic Spectrum: A Legal-Economic-Engineering Study," Stanford Law Review (June 1969). See also William H. Meckling, "National Communications Policy: Discussion," American Economic Review, Papers and Proceedings (May 1970), pp. 222-23. Since the DeVany article, the growth of community and cable television has further diminished the scarcity of frequencies and expanded the range of potential competition. ↩︎
Don B. Kates, Jr., "Handgun Control: Prohibition Revisited," Inquiry (December 5, 1977), p. 21. This escalation of harsh enforcement and despotic search-and-seizure methods is already here. Not only in Britain and numerous other countries, where indiscriminate searches for guns take place; in Malaysia, Rhodesia, Taiwan, and the Philippines, which impose the death penalty for possession of guns; but also in Missouri, where St. Louis police have conducted literally thousands of searches of blacks in recent years on the theory that any black person driving a recent-model car must have an illegal gun; and in Michigan, where nearly 70% of all firearms prosecutions have been thrown out by the appellate courts on grounds of illegal search procedures. And already a Detroit police official has advocated abolition of the Fourth Amendment so as to permit indiscriminate general searches for violations of a future handgun prohibition. Ibid., p. 23. ↩︎
Ibid., p. 21. ↩︎
Ibid. The extremely harsh idea of jailing people for mere possession of handguns is not a farfetched straw man, but precisely the beau ideal of the liberal: the Massachusetts constitutional amendment, fortunately defeated overwhelmingly by the voters in 1977, provided for a mandatory minimum sentence of a year in prison for any person caught possessing a handgun. ↩︎
Ibid., p. 22. Similarly in Britain, a 1971 Cambridge University study found that the British homicide rate, with handgun prohibition, has doubled in the last fifteen years. Furthermore, before the adoption of the handgun ban in 1920, the use of firearms in crime (when there were no gun restrictions at all) was far less than now. ↩︎