Many people seem to think that the freedom of some to express their opinions is more important than the freedom of others to peacefully go about their daily activities; that free speech by blocking a road or an air terminal takes precedence over the freedom of somebody else to catch a flight to visit a loved one, to take a vacation, or just simply to earn a living. Wall Street Journal columnist Jason Riley raises this issue when criticizing pro-Palestinian protestors who recently blocked access to bridges, roads, and air terminals in order to draw attention to their cause (“If Police Won’t Back Up ‘Mr. Brooklyn,’ Maybe a Lawyer Will,” January 23).
Except if one favors conflicting and unequal freedoms among individuals, free speech does not entail my freedom to go and speak in your living room nor arguably to block a road supposed to belong equally to everybody. What free speech means is the equal freedom to express one’s opinions on one’s property, or on property one has leased such as a convention hall, or on public property provided that other users are not excluded, or on a piece of property whose owner welcomes the speaker such as the pages of a newspaper. Paradoxically, those who block roads or organize or inspire protests typically have the best access to the media. What would they say if a mob blocked the printing presses of the New York Times or the Washington Post? Freedom of speech is closely related to private property, which explains why it does not exist under collectivist regimes of the left or the right—the regimes protesters often defend.
Many on the left show a logical incoherence that Donald Trump, certainly not handicapped in this department, could envy them.
Anthony de Jasay, the economist and political philosopher who was both a classical liberal and an anarchist (portrayed in the featured image of this post), often becomes an iconoclast when he follows the logical implications of his theories. He labels “freedom-talk” or “rightsism” the political theories that favor conflicting rights picked up from thin philosophical space. In his view, liberties simply but wholly consist of everything that does not cause an actual tort to somebody exercising his own equal liberty; and a right is nothing but a benefit obtained from another party through a voluntary contract (generally against consideration). Protesters, newspapers, and travelers have the same liberties to do anything that does not interfere with the equal liberty of others and anything within their contractual and property rights. As usual, public property raises special problems, but why would one group have the power to deliberately exclude another group of individuals who have supposedly the same liberty to access it? (On “freedom-talk” and “rightsism,” see de Jasay’s book Social Justice and the Indian Rope Trick, especially Chapters 3 and 4 of Part 1; and the chapter “Before Resorting to Politics” in his Against Politics. Expect to be challenged.)
READER COMMENTS
Joseph Vega
Jan 25 2024 at 12:01pm
https://www.aclu.org/know-your-rights/protesters-rights#im-organizing-a-protest
Your rights are strongest in what are known as “traditional public forums,” such as streets, sidewalks, and parks. You also likely have the right to speak out on other public property, like plazas in front of government buildings, as long as you are not blocking access to the government building or interfering with other purposes the property was designed for.
You don’t need a permit to march in the streets or on sidewalks, as long as marchers don’t obstruct car or pedestrian traffic. If you don’t have a permit, police officers can ask you to move to the side of a street or sidewalk to let others pass or for safety reasons.
steve
Jan 25 2024 at 12:50pm
Mostly agree. I do think protest is an important part of free speech and I think we can tolerate some inconvenience to allow it. So the Canadian truckers could have a day or two. After that, they get towed. When you find out they got all of the tow trucks to agree not to tow, you move on to other methods to remove them. Same for the crazies in Portland. My caveat that I would let local officials decide how long the period should be and decide if they need help from the state or feds. With very large scale protests you need to balance the risks/costs of escalation vs lower levels of intervention.
Steve
Pierre Lemieux
Jan 25 2024 at 3:09pm
Steve: I also mostly agree, with a caveat though. There is no way, even in theory, to measure and compare over individuals the costs over time of different alternatives. (The smallest problem–the smallest by far–would be the discount rate to use.) There is no cost-benefit analysis that can do that, and anybody who proposes a number is just expressing somebody’s say-so. Economists and political philosophers who have understood this crucial point propose much more general and abstract (but at least feasible in theory) such as the maintenance of a system of rules that can meet the consent of all individuals (James Buchanan et al.) or the maintenance of a free spontaneous order (Friedrich Hayek and an old tradition of liberal political economy). De Jasay would say that liberty and property are what need to be maintained.
David Seltzer
Jan 25 2024 at 6:03pm
Pierre: You make clear the problems of collective cost-benefit. If a public road is blocked by protestors, it is no longer non-excludable and non-rivalrous. Blocking is a negative externality imposed on those attempting to move. How are those harmed, compensated via tort law? Would a Coasian solution apply?
Pierre Lemieux
Jan 26 2024 at 3:02pm
David: I wouldn’t say it’s an externality; it’s a tort. If I throw my garbage over your fence, it’s not an externality. I think a common law court would indeed try to find a Coasean solution, but Andrea Mays knows more than me on that.
David Seltzer
Jan 26 2024 at 4:23pm
Pierre: After I commented, I had second thoughts as to whether it was an externality. The Coasian example is a cattle ranch next to a farm. Thanks.
Andrea Mays
Jan 25 2024 at 12:59pm
Speaking in my living room? How about keeping me prisoner there while you speak. this goes beyond speech to behavior.
Preventing people from legally going about their business is tortious behavior, false imprisonment— leaving the protestors (or their institutional organizers who tweet to organize these events) liable for damages.
Ted Frank’s Law firm is interviewing potential plaintiffs right now”
Andrea Mays
CSULB/Economics
Pierre Lemieux
Jan 25 2024 at 3:12pm
Andrea: Thanks for this comment. Anthony de Jasay would agree. In his theory, the notion of torts, even in anarchy, attaches to the action of preventing one of many individuals from exercising their own liberties.
Craig
Jan 25 2024 at 2:29pm
Someday somewhere a road will be blocked and somebody will die because they were delayed getting medical attention. Its very forseeable.
Pierre Lemieux
Jan 25 2024 at 3:14pm
Craig: And that would only be a visible consequence. (See above my rejoinder to Steve.)
robc
Jan 25 2024 at 4:16pm
It happens every marathon in a major city.
IIRC, more people die every year during the Boston Marathon due to delayed medical care than were killed in the Boston Marathon bombing. There was an econtalk discussing this recently (late 2023).
Monte
Jan 25 2024 at 7:20pm
I agree with this. We know the social contract (and every form of democratic government upon which it is founded) contains the seeds of its own destruction. The state, endowed with the power to enforce constitutionally protected rights, is like a mogwai – a harmless, furry little pet that, once watered and fed, metamorphoses into a malevolent gremlin. Haven’t we, in the same way, unwittingly nutured our so-called democracy into Leviathan? Thus, the impossibility of a desirable minimal state.
And those constraints are constantly under assault and consistently ignored by the growing administrative state, where we’re witnessing all three branches of government conspiring to undermine the separation of powers.
Mactoul
Jan 25 2024 at 10:17pm
Question why equal?
In reality, it isn’t often equal. Fir example, foreigners and noncitizens have many unequal liberties. But even among citizens, is equality really necessary?
Pierre Lemieux
Jan 26 2024 at 3:13pm
Mactoul: The liberal ideal is clearly and emphatically an equal formal liberty. Foreigners raise a special problem for immigration, but it did not stop some liberals from arguing against discrimination. For example, in a 1932 article, “The Pursuit of Economic Freedom,” John Hicks wrote:
Jon Murphy
Jan 27 2024 at 10:20am
In a liberal society, foreigners and noncitizens have equal liberties. They have unequal rights, but equal liberties.
Ahmed Fares
Jan 26 2024 at 1:41am
Pierre’s article is really a discussion not about free speech but rather civil disobedience, which has its own arguments. Note especially the third paragraph below.
[selected quotes]
Civil Disobedience – Stanford Encyclopedia of Philosophy
Pierre Lemieux
Jan 26 2024 at 3:20pm
Ahmed: I agree that, as you say, civil disobedience has its own arguments. But these relate to disobeying the government, not taking hostages among unrelated or innocent members of the public.
Knut P. Heen
Jan 26 2024 at 7:43am
This is not about free speech at all. It is about free publicity. The protesters could have paid for a campaign to spread their speech. They are blocking infrastructure to spread their speech for free. There is a difference between free speech and speaking for free.
Pierre Lemieux
Jan 26 2024 at 3:27pm
Knut: You are right. And, as I suggested, if they want free and coerced publicity, why bully innocent ordinary people? They could instead stop the New York Times presses and they would be in the whole press (including the NYT) the day after. But they probably don’t want to coerce their ideological supporters.
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