In fact, then, there is no such thing as a separate "right to free speech"; there is only a man's property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.

Mises Institute

Tags Legal SystemPhilosophy and MethodologyPrivate Property

Murray N. Rothbard

[This article is excerpted from chapter 15 of The Ethics of Liberty. Listen to this article in MP3.]

Liberals generally wish to preserve the concept of "rights" for such "human" rights as freedom of speech, while denying the concept to private property.1 And yet, on the contrary the concept of "rights" only makes sense as property rights. For not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.

In the first place, there are two senses in which property rights are identical with human rights: one, that property can only accrue to humans, so that their rights to property are rights that belong to human beings; and two, that the person's right to his own body, his personal liberty, is a property right in his own person as well as a "human right." But more importantly for our discussion, human rights, when not put in terms of property rights, turn out to be vague and contradictory, causing liberals to weaken those rights on behalf of "public policy" or the "public good." As I wrote in another work:

Take, for example, the "human right" of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate "right to free speech"; there is only a man's property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.2

In short, a person does not have a "right to freedom of speech"; what he does have is the right to hire a hall and address the people who enter the premises. He does not have a "right to freedom of the press"; what he does have is the right to write or publish a pamphlet, and to sell that pamphlet to those who are willing to buy it (or to give it away to those who are willing to accept it). Thus, what he has in each of these cases is property rights, including the right of free contract and transfer which form a part of such rights of ownership. There is no extra "right of free speech" or free press beyond the property rights that a person may have in any given case.

Furthermore, couching the analysis in terms of a "right to free speech" instead of property rights leads to confusion and the weakening of the very concept of rights. The most famous example is Justice Holmes's contention that no one has the right to shout "Fire" falsely in a crowded theater, and therefore that the right to freedom of speech cannot be absolute, but must be weakened and tempered by considerations of "public policy."3 And yet, if we analyze the problem in terms of property rights we will see that no weakening of the absoluteness of rights is necessary.4

For, logically, the shouter is either a patron or the theater owner. If he is the theater owner, he is violating the property rights of the patrons in quiet enjoyment of the performance, for which he took their money in the first place. If he is another patron, then he is violating both the property right of the patrons to watching the performance and the property right of the owner, for he is violating the terms of his being there. For those terms surely include not violating the owner's property by disrupting the performance he is putting on. In either case, he may be prosecuted as a violator of property rights; therefore, when we concentrate on the property rights involved, we see that the Holmes case implies no need for the law to weaken the absolute nature of rights.

Indeed, Justice Hugo Black, a well-known "absolutist" on behalf of "freedom of speech," made it clear, in a trenchant critique of the Holmes "shouting 'fire' in a crowded theater" argument, that Black's advocacy of freedom of speech was grounded in the rights of private property. Thus Black stated:

I went to a theater last night with you. I have an idea if you and I had gotten up and marched around that theater, whether we said anything or not, we would have been arrested. Nobody has ever said that the First Amendment gives people a right to go anywhere in the world they want to go or say anything in the world they want to say. Buying the theater tickets did not buy the opportunity to make a speech there. We have a system of property in this country which is also protected by the Constitution. We have a system of property, which means that a man does not have a right to do anything he wants anywhere he wants to do it. For instance, I would feel a little badly if somebody were to try to come into my house and tell me that he had a constitutional right to come in there because he wanted to make a speech against the Supreme Court. I realize the freedom of people to make a speech against the Supreme Court, but I do not want him to make it in my house.

That is a wonderful aphorism about shouting "fire" in a crowded theater. But you do not have to shout "fire" to get arrested. If a person creates a disorder in a theater, they would get him there not because of what he hollered but because he hollered. They would get him not because of any views he had but because they thought he did not have any views that they wanted to hear there. That is the way I would answer not because of what he shouted but because he shouted.5

Some years ago, the French political theorist Bertrand de Jouvenel similarly called for the weakening of free speech and assembly rights in what he called the "chairman's problem" — the problem of allocating time or space in an assembly hall or newspaper, or in front of a microphone, where the writers or speakers believe that they have a "right" of free speech to the use of the resource.6 What de Jouvenel overlooked was our solution to the "chairman's problem" — recasting the concept of rights in terms of private property rather than in terms of freedom of speech or assembly.

In the first place, we may notice that in each of de Jouvenel's examples — a man attending an assembly, a person writing to a letters-to-the-editor column, and a man applying for discussion time on the radio — the scarce time or space being offered is free, in the sense of costless. We are in the midst of what economics calls "the rationing problem." A valuable, scarce resource has to be allocated: whether it be time at the podium, time in front of the microphone, or space in a newspaper. But since the use of the resource is free (costless), the demand for obtaining this time or space is bound greatly to exceed the supply, and hence a perceived "shortage" of the resource is bound to develop. As in all cases of shortages and of queueing up caused by low or nonexistent prices, the unsatisfied demanders are left with a feeling of frustration and resentment at not obtaining the use of the resource they believe they deserve.

A scarce resource, if not allocated by prices, must be allocated in some other way by its owner. It should be noted that the de Jouvenel cases could all be allocated by a price system, if the owner so desired. The chairman of an assembly could ask for price bids for scarce places at the podium and then award the places to the highest bidders. The radio producer could do the same with discussants on his program. (In effect, this is what producers do when they sell time to individual sponsors.) There would then be no shortages, and no feelings of resentment at a promise ("equal access" of the public to the column, podium, or microphone) reneged.

But beyond the question of prices, there is a deeper matter involved, for whether by prices or by some other criterion, the resource must, in all cases, be allocated by its owner. The owner of the radio station or the program (or his agent) rents, or donates, radio time in a way that he decides; the owner of the newspaper, or his editor-agent, allocates space for letters in any way that he chooses; the "owner" of the assembly, and his designated agent the chairman, allocates the space at the podium in any way he decides.

The fact that ownership is the ultimate allocator gives us the clue to the property solution of de Jouvenel's "chairman's problem." For the fellow who writes a letter to a newspaper is not the owner of the paper; he therefore has no right to, but only a request for, newspaper space, a request which it is the absolute right of the owner to grant or to deny. The man who asks to speak at an assembly has no right to speak, but only a request that the owner or his representative, the chairman, must decide upon. The solution is to recast the meaning of the "right to freedom of speech" or "assembly"; instead of using the vague, and, as de Jouvenel demonstrates, unworkable concept of some sort of equal right to space or time, we should focus on the right of private property. Only when the "right to free speech" is treated simply as a subdivision of property right does it become valid, workable, and absolute.

This can be seen in de Jouvenel's proposed "right to buttonhole." De Jouvenel says that there is a "sense in which the right of speech can be exercised by each and everyone; it is the right to buttonhole," to talk and to try to convince the people one meets, and then to collect these people in a hall, and thus to "constitute a congregation" of one's own. Here de Jouvenel approaches the proper solution without firmly attaining it. For what he is really saying is that "the right to free speech" is only valid and workable when used in the sense of the right to talk to people, to try to convince them, to hire a hall to address people who wish to attend, etc. But this sense of the right to free speech is, in fact, part of a person' s general right to his property. (Provided, of course, we remember the right of another person not to be buttonholed if he doesn't want to, i.e., his right not to listen.) For property right includes the right to one's property and to make mutually agreed-upon contracts and exchanges with the owners of other properties. De Jouvenel's "buttonholer," who hires a hall and addresses his congregation, is exercising not a vague "right of free speech," but a part of his general right of property. De Jouvenel almost recognizes this when he considers the case of two men, "Primus" and "Secundus":

Primus …has collected through toil and trouble a congregation of his own doing. An outsider, Secundus, comes in and claims the right to address this congregation on grounds of the right of free speech. Is Primus bound to give him the floor? I doubt it. He can reply to Secundus: "I have made up this congregation. Go thou and do likewise."

Precisely. In short, Primus owns the meeting; he has hired the hall, has called the meeting, and has laid down its conditions; and those who don't like these conditions are free not to attend or to leave. Primus has a property right in the meeting that permits him to speak at will; Secundus has no property right whatever, and therefore no right to speak at the meeting.

In general, those problems where rights seem to require weakening are ones where the locus of ownership is not precisely defined, in short where property rights are muddled. Many problems of "freedom of speech," for example, occur in the government-owned streets: e.g., should a government permit a political meeting which it claims will disrupt traffic, or litter streets with handbills? But all of such problems which seemingly require "freedom of speech" to be less than absolute, are actually problems due to the failure to define property rights. For the streets are generally owned by government; the government in these cases is "the chairman." And then government, like any other property owner, is faced with the problem of how to allocate its scarce resources. A political meeting on the streets will, let us say, block traffic; therefore, the decision of government involves not so much a right to freedom of speech as it involves the allocation of street space by its owner.

The whole problem would not arise, it should be noted, if the streets were owned by private individuals and firms — as they all would be in a libertarian society; for then the streets, like all other private property, could be rented by or donated to other private individuals or groups for the purpose of assembly. One would, in a fully libertarian society, have no more "right" to use someone else's street than he would have the "right" to preempt someone else's assembly hall; in both cases, the only right would be the property right to use one's money to rent the resource, if the landlord is willing. Of course, so long as the streets continue to be government-owned, the problem and the conflict remain insoluble; for government ownership of the streets means that all of one's other property rights, including speech, assembly distribution of leaflets, etc., will be hampered and restricted by the ever-present necessity to traverse and use government-owned streets, which government may decide to block or restrict in any way. If the government allows the street meeting, it will restrict traffic; if it blocks the meeting in behalf of the flow of traffic, it will block the freedom of access to the government streets. In either case, and whichever way it chooses, the "rights" of some taxpayers will have to be curtailed.

The other place where the rights and locus of ownership are ill-defined and hence where conflicts are insoluble is the case of government assemblies (and their "chairmen"). For, as we have pointed out, where one man or group hires a hall, and appoints a chairman, the locus of ownership is clear and Primus has his way. But what of governmental assemblies? Who owns them? No one really knows, and therefore there is no satisfactory or non-arbitrary way to resolve who shall speak and who shall not, what shall be decided and what shall not. True, the government assembly forms itself under its own rules, but then what if these rules are not agreeable to a large body of the citizenry? There is no satisfactory way to resolve this question because there is no clear locus of property right involved. To put it another way: in the case of the newspaper or radio program, it is clear that the letter writer or would-be discussant is the petitioner, and the publisher or producer the owner who makes the decision. But in the case of the governmental assembly, we do not know who the owner may be. The man who demands to be heard at a town meeting claims to be a part owner, and yet he has not established any sort of property right through purchase, inheritance, or discovery, as have property owners in all other areas.

To return to the streets, there are other vexed problems which would be quickly cleared up in a libertarian society where all property is private and clearly owned. In the current society for example, there is continuing conflict between the "right" of taxpayers to have access to government-owned streets, as against the desire of residents of a neighborhood to be free of people whom they consider "undesirable" gathering in the streets.

In New York City, for example, there are now hysterical pressures by residents of various neighborhoods to prevent McDonald's food stores from opening in their area, and in many cases they have been able to use the power of local government to prevent the stores from moving in. These, of course, are clear violations of the right of McDonald's to the property which they have purchased. But the residents do have a point: the litter, and the attraction of "undesirable" elements who would be "attracted" to McDonald's and gather in front of it — on the streets.

In short, what the residents are really complaining about is not so much the property right of McDonald's as what they consider the "bad" use of the government streets. They are, in brief, complaining about the "human right" of certain people to walk at will on the government streets. But as taxpayers and citizens, these "undesirables" surely have the "right" to walk on the streets, and of course they could gather on the spot, if they so desired, without the attraction of McDonald's. In the libertarian society, however, where the streets would all be privately owned, the entire conflict could be resolved without violating anyone's property rights: for then the owners of the streets would have the right to decide who shall have access to those streets, and they could then keep out "undesirables" if they so wished.

Of course, those street-owners who decided to keep out "undesirables" would have to pay the price — both the actual costs of policing as well as the loss of business to the merchants on their street and the diminished flow of visitors to their homes. Undoubtedly in the free society there would result a diverse pattern of access, with some streets (and therefore neighborhoods) open to all, and others with varying degrees of restricted access.

Similarly, the private ownership of all streets would resolve the problem of the "human right" to freedom of immigration. There is no question about the fact that current immigration barriers restrict not so much a "human right" to immigrate, but the right of property owners to rent or sell property to immigrants. There can be no human right to immigrate, for on whose property does someone else have the right to trample? In short, if "Primus" wishes to migrate now from some other country to the United States, we cannot say that he has the absolute right to immigrate to this land area; for what of those property owners who don't want him on their property? On the other hand, there may be, and undoubtedly are, other property owners who would jump at the chance to rent or sell property to Primus, and the current laws now invade their property rights by preventing them from doing so.

The libertarian society would resolve the entire "immigration question" within the matrix of absolute property rights. For people only have the right to move to those properties and lands where the owners desire to rent or sell to them. In the free society, they would, in first instance, have the right to travel only on those streets whose owners agree to have them there, and then to rent or buy housing from willing owners. Again, just as in the case of daily movement on streets, a diverse and varying pattern of access of migration would undoubtedly arise.

  • 1. A particularly stark and self-contradictory example is Professor Peter Singer, who explicitly calls for preserving the concept of rights for personal liberty, while shifting over to utilitarianism in economic affairs and in the realm of property. Peter Singer, "The Right to Be Rich or Poor," New York Review of Books (6 March 1975).
  • 2. Murray N. Rothbard, Power and Market, 2nd ed. (Kansas City: Sheed Andrews and McMeel, 1977), pp. 238–39.
  • 3. On the Holmes dictum, see Murray N. Rothbard, For A New Liberty, rev. ed. (New York: MacMillan, 1978), pp. 43–44; and Rothbard, Power and Market, pp. 239–40. For a devastating critique of Holmes's unwarranted reputation as a civil libertarian, see H.L. Mencken, A Mencken Chrestomathy (New York: Alfred A. Knopf, 1947), pp. 258–64.
  • 4. Furthermore, the view that the shout of "fire" causes a panic is deterministic and is another version of the "incitement to riot" fallacy discussed above. It is up to the people in the theater to assess information coming to them. If this were not so, why wouldn't correctly warning people of an actual fire in a theater be a crime, since it too might incite a panic? The disruption involved in falsely yelling "fire" is actionable only as a violation of property rights in the manner explained in the text below. I am indebted to Dr. David Gordon for this point.
  • 5. Irving Dillard, ed., One Man's Stand for Freedom (New York: Alfred A. Knopf, 1963), pp. 489–91.
  • 6. Bertrand de Jouvenel, "The Chairman's Problem," American Political Science Review (June 1961): 305–32; The essence of this critique of de Jouvenel appeared in Italian in Murray N. Rothbard, "Bertrand de Jouvenel e i diritti di proprietá," Biblioteca della Liberta, no. 2 (1966): 41–45.
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