Monday, June 27, 2005

Slippery Slopes

Free speech. Eminent domain. Why does the slippery slope argument appear in opposite ways in those two areas?

Let me explain. In the recent Kelo decision, the plaintiffs were very sympathetic. Yet they lost. The underlying motivation behind the majority's decision, as well as the reaction from some (note: some) liberal bloggers, seems to be something like this: "This may be a bad outcome in this particular case, but think how awful it would be if courts started protecting property rights with too much vigor! Why, we wouldn't want to risk creating a doctrine that might someday block a beneficial governmental action. So it's better just to take a hands-off approach. The majority can pretty much do what it wants."

But in free speech, the opposite occurs, all the way around. Many of the most famous free speech cases have involved plaintiffs who are not sympathetic at all, but instead who have engaged in speech of the most juvenile, obscene, or useless sort. Even activities that are not speech at all. Thus, we have famous Supreme Court cases that assumed that the First Amendment applies with full vigor to: (1) flag-burning; (2) nude dancing; (3) the production of computer-generated child p**n; (4) the burning of draft cards; (5) the wearing of a jacket that says, "F*** the Draft," (6) cross-burning, and so on. In the free speech arena, the usual thought is, "Well, this may be useless activity that barely qualifies as speech (metaphorically). Nonetheless, we the courts have to bring the full weight of the Constitution to bear here, because once the government starts regulating even the most frivolous speech, it won't be long before the government is restricting actual, valuable speech on one topic or another."

So there you have it. In one area, we have to tolerate the worst sort of private actions because we are too afraid of letting the government have any foothold to regulate. In the other area, we have to tolerate the worst sort of governmental abuses because we are too afraid of the slightest impingement on government power.

If the two areas resembled each other, however, you would see one of two arguments: (1) "We have to allow the government to regulate the most high-minded political speech, because if courts ever started enforcing the Free Speech Clause, pretty soon the government wouldn't be able to do all the valuable work of banning flag burning, nude dancing, etc." Or: (2) "The government can't ban even toxic pollution, because if the courts permitted even the slightest interference with the most harmful exercise of property rights, soon the government would be taking away poor people's houses and giving the land to private corporations."

Interesting that one never sees either of those arguments.


Blogger John Thacker said...

Actually, Mr. Buck, much "high-minded political speech" is banned, under campaign finance reform. So many liberals don't think that that sort of speech is that important.

9:46 AM  
Blogger Stuart Buck said...

Paul: Why? Sure, it's the sort of things that lawyers and professors like to say, but why? (Cynical answer: Because it isn't their own property that's in jeopardy.)

More to the point, your observation is irrelevant. Even if speech is somehow "more important" than property, whatever that is supposed to mean, why does that make the slippery slope run the opposite way? Why, instead, don't the arguments run in parallel?

E.g., imagine a Justice who said: "We have to be vigilant in protecting even frivolous speech, because we don't want to start down the road of allowing the government to regulate speech. When it comes to property, we'll be a little more forgiving of the government's efforts to prevent pollution, protect the environment, etc., but we'll still be relatively vigilant so that we don't end up with the horror of the government seizing people's homes to make room for the Pfizer Corporation."

Instead, with property, the slippery slope runs in reverse. We must allow the most horrible abuses, because if we cracked down in even the slightest way, it might jeopardize the oh-so-precious things that the government does the rest of the time.


10:12 AM  
Anonymous Anonymous said...

Not to be recursive, but law professor Jim Ely makes the argument that property rights underly other rights - in his excellent "The Guardian of Every Other Right: A Constitutional History of Property Rights" (Oxford, 2nd ed. 1997).

7:47 AM  
Blogger Stuart Buck said...

Everyone has speech, not everyone has property in any significant degree.

I'd put it the other way around. Very few people have "speech" in any sense that any government would conceivably be interested in. Most people, after all, don't have blogs; don't write newspaper columns or have radio talk shows; don't appear on television. But they do have a car or a house or a bank account. If you asked them to choose between giving up a theoretical right to burn a flag versus giving up their house, it wouldn't even be a close question.

2:12 PM  
Blogger Brett said...

Except, of course, that human beings, as extended physical objects, have an absolute requirement for space to live in, prior to any possiblity of engaging in speech.

Nor can you, for instance, print a newspaper, if you can't own property.

Property rights are the ground, literally, that speech rights must rest on.

3:39 PM  
Anonymous Anonymous said...

You are right that the Court's positions are inconsistent as far as the logic of their rationales, but, as John Thacker hints, the Court is consistent in a different way. It always decides in a way opposite to traditional morality.

Thus, under traditional (Biblical) morality, political speech should be free, child pornography and fire banned, and private homes secure from seizure. In every case the Court rules the opposite way.

It would seem that the best empirical description of the Court's jurisprudence is that it is anti-Christian. The rationales are not consistent because they do not motivate the rulings; their function is merely to obscure the animus.

3:56 PM  
Blogger David Whitcomb said...

Paul wrote - "If I talk about a beach, other people can talk about it too. If I buy a beach, other people can't go swimming. Hence speech, as a right, is more freedom-facilitative than property. (cf. Jefferson's remarks about intellectual property.)"

Actually, if you buy a beach, other people may be able to go swimming, depending on how much beach under the water you bought. They more clearly can't walk on the beach. This does not change the idea of talking about a beach, but could cause a revision of your argument.

Also, I think both are important, and may or may not overlap. Stuart has a point that while we have free speech, not everyone has voice, especially the poor. Similarly, one of the largest problems I see with the use of Eminent Domain is the people who are forced to sell their homes. They do not appear to be wealthy land owners or large business owners. They appear to be "average Joe and Janes" or poorer people. These people lose their voice because they can't afford high level lawyers that the developers can pay. I see this as a larger problem of justice. Freedom of speech has a plethora of advocates, but low income property owners may soon need to have an organization rallying and lobbying Washington for property protection.

Just a couple of cents,


10:27 AM  
Blogger Brett said...

Paul, can you publish a newspaper, if you can't own a printing press? If you can't buy paper and ink?

And if you don't own a printing press, how can you exercise your right to freedom of the press, if the government can bar you from renting one? Which is essentially what McCain/Feingold does...

And, even if the right to live precludes the government from compressing you into a sigularity, you'll find it pretty difficult to exercise your other rights, if the government can strip you of the right to live in any particular place, and move you about at will.

No, you have to be able to live your life, with some independence and security, free from reprisal, to realistically speak freely. If you are utterly vulnerable, then the right to speak is moot, as you dare not exercise it.

10:10 AM  
Anonymous Anonymous said...

So I have the right to say "NO, NO, PLEASE, NO....THIS IS WRONG! THIS VIOLATES THE CONSTITUTION"! as the Government seizes my home...Why am I not comforted by that?

11:04 AM  
Anonymous Anonymous said...

Let me respond to one of the earlier comments on why property is less important than free speech. As a practical matter this is a silly distinction, both are clearly important. But as a legal matter the answer is because the Constitution says so.

The First Amendment speaks in absolute terms: "Congress SHALL make NO law" abridging free speech. By contrast, the Fifth Amendment references property as a subordinate clause, not in absolute terms, but with qualifiers: "nor shall private property be taken for public use without just compensation."

There is no absolute right to property in the Constitution as there is with speech. Everything you own is subject to the possibility of eminent domain. You may find this inconvenient, but that's the structure the founders created.

Property rights are utilitatian. Speech rights are fundamental. Why then are cases like Kelo so surprising? As Stuart noted in another posting, Kelo is hardly a stretch from current and longstanding precedent.

1:23 PM  

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