''The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.''James Madison
Annals of Congress 434 (1789).
Testing the Limits of Free Speech
by Christopher Mayer
Is the right to free speech, as Madison wrote, "inviolable"? If it is indeed inviolable, then supporting the right to free speech can mean supporting the right to publish or disseminate unpopular ideas, ideas that one may find morally decadent or even offensive. Or should some attempt be made to establish limits to free speech, based on some sense of morality? These are again important questions as the recent case of Paladin Press illustrates.
Paladin Press, a Colorado company, published a 130-page book titled Hit Man: A Technical Manual for Independent Contractors. This book contained detailed information on how to pick locks, how to torture someone in order to acquire information, how to use a variety of methods to kill someone and how to dispose of the body. On May 24, 199, the company settled a federal civil case for millions of dollars filed by the relatives of three murdered victims who were killed by a contract killer who allegedly relied on the book. Against the publisher's wishes, the book is no longer offered by its catalog.
A Washington Post article covering the story related that "several scholars and lawyers suggested that finding a sympathetic jury would have been difficult in the wake of the Littleton, Colo., high school shootings and the decision by a Michigan jury to order a television talk show host to pay $25 million to the family of a gay man murdered by a fellow guest."1
The company's concession in this matter has caused a bit of a stir over the right of freedom of speech. Floyd Abrams, a prominent First Amendment lawyer noted that the case "has always been one of the most dangerous and anger-provoking of any involving the publication of a book."
Interestingly, a federal judge originally threw out the case on First Amendment grounds. An appeals court reinstated the case because, the court reasoned, the book had no purpose other than to promote murder and hence, the book did not enjoy First Amendment rights.
According to an article by The Economist, this line of reasoning was similarly used against the makers of the film "Natural Born Killers." The Economist wrote, "The makers of the film have been sued by a family of a convenience store assistant who was shot by a couple on a violent shooting spree, said to be in imitation of the film." This represents another similar case, where the deterministic view that human beings lack free will prevailed and the First Amendment failed.
The plaintiffs in the Paladin case asserted their belief and support in the First Amendment. Howard Siegel, the prosecuting attorney, said "We are not interested in censorship." Yet their actions, and the court's willingness to hear the case, have weakened the freedom of speech.
Wendy Myers, president of the Society of Professional Journalists, who said that the outcome "will have a long-term, negative effect on the First Amendment, especially when it applies to books and Web sites," echoed this sentiment. According to the Post article, no lawsuit blaming an act of violence on a book had ever succeeded.
These recent cases illustrate a definite weakening of the First Amendment right. Moreover, it points to the confusion surrounding the nature of the right of freedom of speech itself and its limits. How can we better define this right and understand its limits? The answers can be found by focusing on the fundamental freedom on which the whole free market system is built: the right to property.
The Right to Property A persuasive theory of property rights has been systematically articulated and defended by Murray Rothbard in his book The Ethics of Liberty. Rothbard was a staunch defender of the ideal of natural law principles. What are these principles and how are they discovered? Rothbard quotes Professor Patterson's definition of natural law (which Rothbard describes as cogent and concise): "Principles of human conduct that are discoverable by 'reason' from the basic inclinations of human nature, and that are absolute, immutable and of universal validity for all time and places" (p. 3).
This definition is important, because natural law theorists differ considerably in their views, just as economists vary widely on their policy recommendations and methodology. Rothbard's political philosophy embraces the tradition of John Locke, Lysander Spooner, Herbert Spencer and others who have laid the foundation of their theories on the absolute natural rights of the individual.
Rothbard fits squarely in the natural rights tradition, by asserting that man has an inalienable right to his own mind and body, and as an extension, those things which he justly acquires through the use of his labor (in other words, excluding property acquired by theft or violence). These principles provide an indispensable standard by which to judge the actions of the state and were influential in the thinking of the founding fathers of this country.
Rothbard made several crucial points in the course of his book, two of which will serve us well in understanding this case: (1) that freedom of speech stems only from a human being's right to property and (2) that there is a definite distinction between legal rights and moral obligations.
First, there is no such stand-alone right as the right to free speech. Clearly, no one has the right to stand on my property and deliver a rousing sermon if I do not wish him or her to be there. If this right were granted, my property rights as a landowner would clearly be violated. In order to understand the right to free speech, one must understand that the notion of freedom of speech is strictly derived from one's property rights.
As Rothbard states, "There is no extra ‘right to free speech' or free press beyond the property rights that a person may have in any given case" (p.114). Rothbard draws on the famous example propounded by Justice Holmes that no one has the right to yell "fire!" falsely in a crowded theater. While many believe that the right to free speech must be tempered by considerations of the public good, Rothbard will have none of that. Instead, he focuses on the property rights of each particular case and demonstrates that no one can be disorderly in a theater because he aggresses against the theater owner's property and the property of the other patrons who have paid to see the show. In this way, the right to free speech is in no way compromised or weakened, but is properly grounded in the idea of property rights.
Applied to the Paladin case, then, we must ask whose property is this book? Paladin Press was not coercively forced to print the book and they did not force others to purchase it. They used their own resources to print the book. The book is their property, and as such, they are free to sell it to whoever will purchase it. It seems clear here, that no one has a property right in the book other than the publisher and author, and those who have obtained a copy peacefully in the market.
One may be tempted to argue here that the book constitutes a threat to one's property. Rothbard responds here by writing "It is important to insist, however, that the threat of aggression be palpable, immediate and direct; in short, that it be embodied in the initiation of an overt act."
To allow vague and future threats to be punishable is to introduce a host of gray area liabilities. Rothbard relates that one of the major arguments in favor of the prohibition of alcohol in the 1920s was that imbibing alcohol caused people to commit various crimes. However, alcohol itself is property and is not a direct immediate threat to the property of another and hence prohibition was a gross violation of property rights. Insisting on protection from ill-defined fuzzy threats opens the doors for a host of potential tyrannical prohibitions.
In addition to tying the freedom of speech with one's right to property, in many examples throughout Rothbard's treatise, he also consistently makes the point that there is a crucial distinction between legal rights and moral obligations. For example, in discussing the issue of promises, he writes "It may be considered more moral to keep promises than to break them, but any coercive enforcement of such a moral code, since it goes beyond the prohibition of theft or assault, is itself an invasion of …property rights… and [is] therefore impermissible..." (p. 138).
This essential point can be used to cover a wide range of actions and can be summed up by saying one cannot legislate or coercively enforce morality, unless that action is an invasion in the property of another. I am reminded of Bentham's apt analogy of a circle representing morality that shares the same center as legality but that also has a wider circumference.
Otherwise, to attempt to coercively enforce morality creates a tangled mess of potential problems and gray areas. For example, consuming alcohol or eating meat is immoral to some people. The key question in regards to whether or not to enforce morality is "Who's morality shall be enforced?" Those who advocate coercive enforcement of morality assume that it is their morality that will be enforced.
These arguments are also independent of what the First Amendment actually says, or how it may be interpreted. So often, we read about how various Amendments are being interpreted. The Constitution is subject to change, of course, by the government itself. As a result, to rely solely on the Constitution as the foundation of one's argument for freedom of speech leaves one open to bureaucrats who can change the rules of the game midstream. There are plenty of things the government does now that are in violation of the Constitution anyway. For example, there is no provision for Social Security, yet we have it. Thus, the argument presented by Rothbard is independent of the Constitution, but instead is built on the foundation of just property rights.
Part of the challenge in reading Rothbard is represented in this essay. He was willing to systematically build a political philosophy, grounded in the theory of property rights, and had the courage to follow it logically to its conclusion, no matter how unpopular or shocking.
Supporting property rights means supporting the right of Paladin Press to publish a book such as "Hit Man," as unpopular as that may be. People can, however, condemn the publication of this book, they can abstain from buying it, they can try to convince others not to buy the book, they can express moral outrage in the appropriate forums. In short, they can do whatever they can as long as it is peaceful and not invasive of another's right to property. One's sense of morality, as long as it does not infringe on the property rights of others, is a matter of personal choice.
Christopher W. Mayer is an MBA student at the University of Maryland.