Posted by Eugene Volokh:
"How Far the Courts Have Moved Away from Defending Property Rights":
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1246948821
[1]David Henderson (EconLog) writes:
Law professor Eugene Volokh has a [2]recent piece in the Wall
Street Journal defending the right to burn the American flag as an
exercise of free speech. It's good reasoning, and there's nothing
in it that I disagree with. But he omits a much better argument
based on property rights. If you burn my flag without my consent, I
don't care how much you're exercising your right to free
expression. Free expression does not guarantee you the right to
other people's property any more than it guarantees you a working
larynx. But if you burn your flag, you're simply exercising your
right to use your property as you wish. It's a sign of how far the
courts have moved away from defending property rights that Eugene
Volokh, a pro-freedom, pre-property rights lawyer, does not make
the property rights case.
I agree with Prof. Henderson that people should be free to use their
property so long as they don't harm others in certain fairly
well-defined ways; and I agree that burning a flag does not cause any
such harm. I'm not certain that the Constitution authorizes courts to
enforce this rule through provisions outside the First Amendment --
but that's a story for another day and for another author. But I do
want to speak briefly about the "how far the courts have moved away
from defending property" line, because I think it exemplifies a common
claim about how once upon a time we had broad -- and judicially
enforced -- property rights and today we don't.
The fact is that throughout American history, courts have upheld a
vast range of restrictions on private property, including many
restrictions that libertarians would find reprehensible. And that is
true even during the heyday of constitutional economic rights
protection during the Lochner era.
In fact, even when courts were "defending property" around the time of
Lochner, the Supreme Court expressly rejected the property rights
argument as to use of the flag. The case was [3]Halter v. Nebraska
(1907), decided two years after Lochner. Halter upheld a law that
outlawed the selling of "any article of merchandise upon which shall
have been printed or placed, for purposes of advertisement, a
representation of the flag of the United States." This was, of course,
a ban on advertising and sales rather than on the use of the flag as a
political symbol, which might be relevant to a free speech claim. But
no free speech claim reached the Supreme Court; rather, the Court
dealt with a claim about the rights to property and general liberty of
conduct -- a claim that would equally apply to commercial use of the
flag as to political burning of the flag.
And the Court rejected the argument, by an 8-1 vote (the only
dissenter was Justice Peckham, who wrote the Lochner majority
opinion). Here's an excerpt (some paragraph breaks added):
[W]e cannot hold that any privilege of American citizenship or that
any right of personal liberty is violated by a state enactment
forbidding the flag to be used as an advertisement on a bottle of
beer. It is familiar law that even the privileges of citizenship
and the rights inhering in personal liberty are subject, in their
enjoyment, to such reasonable restraints as may be required for the
general good.
Nor can we hold that anyone has a right of property which is
violated by such an enactment as the one in question. If it be said
that there is a right of property in the tangible thing upon which
a representation of the flag has been placed, the answer is that
such representation -- which, in itself, cannot belong, as
property, to an individual -- has been placed on such thing in
violation of law, and subject to the power of government to
prohibit its use for purposes of advertisement.
Looking, then, at the provision relating to the placing of
representations of the flag upon articles of merchandise for
purposes of advertising, we are of opinion that those who enacted
the statute knew, what is known of all, that to every true American
the flag is the symbol of the nation's power, -- the emblem of
freedom in its truest, best sense. It is not extravagant to say
that to all lovers of the country it signifies government resting
on the consent of the governed; liberty regulated by law; the
protection of the weak against the strong; security against the
exercise of arbitrary power; and absolute safety for free
institutions against foreign aggression.
As the statute in question evidently had its origin in a purpose to
cultivate a feeling of patriotism among the people of Nebraska, we
are unwilling to adjudge that in legislation for that purpose the
state erred in duty or has infringed the constitutional right of
anyone. On the contrary, it may reasonably be affirmed that a duty
rests upon each state in every legal way to encourage its people to
love the Union with which the state is indissolubly connected.
The Court did point to two state supreme court cases that had indeed
held similar statutes at least partly unconstitutional. But even those
cases were limited in their reasoning. People ex rel. McPike v. Van De
Carr, 178 N.Y. 425, held only that the ban was unconstitutional as to
existing material depicting the flag, and would be constitutional in
banning production of new such material. (In the flagburning context,
this would mean that people would have the right to burn flags made
before the statute limited the property rights in flags, but the
government could prospectively announce that any flags made in the
future could not be burned.) And even Ruhstrat v. People, 185 Ill.
133, which had the more broadly liberty-protecting reasoning of the
two cases, suggested that the result might be different if the federal
government -- to which the care of national symbols, in the Illinois
Supreme Court's view, was exclusively entrusted -- asserted its
interests in preventing misuse of the flag.
My point here is simply that there was no Golden Age of constitutional
property rights in which libertarians would have been happy with the
Supreme Court's position. Past legal regimes may have been more
property-protective (though less protective of other aspects of
liberty, such as free speech, sexual autonomy, and the like). They
included, for instance, moderately strong enforcement of the Contracts
Clause, and some protection for liberty of contract and the liberty to
enter one's chosen profession. But there was always a very great deal
of room for the government to restrict people's behavior, including in
ways that modern libertarians would roundly condemn. That's true as to
the example in the EconLog post -- use of the flag -- but it's also
true of a wide range of other unlibertarian restrictions, which were
upheld under "police power" principles during the Lochner era.
So it's not "a sign of how far the courts have moved away from
defending property rights that Eugene Volokh, a pro-freedom,
pre-property rights lawyer, does not make the property rights case."
It's a sign that the American judiciary has never taken a very broad
view of property rights, and in particular has never taken a view
broad enough to protect alleged misuse of the flag. Say what you will
about what you think courts should do in the future; but acknowledge
that they were never terribly protective of property and of general
liberty of conduct even when such protections were at their maximum.
Thanks to Wesley Gorman for the pointer.
References
1. http://econlog.econlib.org/archives/2009/07/flags_free_spee.html
2. http://online.wsj.com/article/SB124657642816289111.html
3. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=205&invol=34
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