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Defense of Liberty: Libertarianism and the Public Square
Free Republic ^ | January 20, 2002 | Annalex

Posted on 01/20/2002 2:12:45 PM PST by annalex

Libertarianism and the Public Square

by Annalex

A city has areas of unrestricted common access: streets, parks, squares, and sidewalks. Presently they are publicly owned and the City Hall has control over events that people stage there. Let's call all such areas public square and let's call the events in question cultural expressions. They may be religious or secular in nature, permanent or temporary: Christmas trees and menorahs, flags, statues, crosses, Stars of David, and walking Darwin fish, musical or theater performances, parades, signs, billboards, graffiti, people with boom boxes, sidewalk art exhibitions. Some of it may offend others for a variety of reasons: poor quality, obscene, vulgar, blasphemous, direct insult of passers-by.

A related category is cultural expressions that are stationed on private property but project publicly: loud speech or music, billboards, store windows. Presently, they are regulated by the city hall just the same. I would count those cultural expressions as part of the public square. Clearly, no meaningful distinction exist between a street musician who owns himself as he projects his music onto the passers-by, and a business that owns a store and projects its content through signs and store windows.

Another related category is museums or schools that receive public funds. I would not include those in the definition of the public square, in order to limit the discussion to expressions that reach the general public without being solicited by it. I also believe that there is little to discuss about publicly funded schools and museums since no reasonable argument exists for the continuation of the practice.

I will speak in terms of "city government" in order to keep the "public square" metaphor intact, although the discourse would really apply to government on any level, just like it would apply to network television or advertising and not only to cultural expressions tied to a physical street or square.

What should be the proper libertarian position with regard to the city government's cultural policy in the public square?

Let me outline the present policy that prevails in America: traditional cultural expressions are generally allowed; particularly offensive or disruptive expressions are generally not allowed; there is a noticeable bias against the white Christian cultural expressions and in favor of exotic, either in terms of geography or in terms of tradition, expressions. The bias is particularly strong when the government owns the venue of the expression. Thus a Christian message on a privately owned billboard is tolerated by the government, but Christian messages on the city property are tolerated only in their most secularized form, if at all. Christmas trees are still on the public squares; nativity scenes are becoming rare; a cross has been completely driven off the square. Whenever a watered-down Christian message is allowed to stand, the city makes sure that a similar in character non-Christian message (e.g. a menorah on Chanukah) is equally prominent.

At the same time, the public decency standards are gradually relaxed. While the trend seems to be driven by the public will more than by cultural policy, whenever the government has a chance to tighten the standard through regulation of mass media or vagrancy laws, it fails to do so. This entire complex of laws, policies and attitudes goes by the name of "multiculturalism".

The standard libertarian response to the cultural policy issues is culturally blind. It rests on two principles: that the government should not be making any value judgment when dealing with culture, and that the public square should be privatized, at which point the cultural issues would be to the individuals to sort out.

I believe that this libertarian response is inadequate. It doesn't explain how the cultural blindness principle follows form the core libertarian belief that the proper function of government is protection of individual rights. The dismissal of cultural issues as another negative effect of the commons often looks like plain evasion. It doesn't offer any guidance to a present-day libertarian politician in a non-libertarian world; since the public increasingly views the cultural issues as pivotal in determining how it votes, it is no wonder that libertarians win so few elections. The proper answer should come form the perspective of a libertarian mayor or a libertarian commentator who can influence the cultural policy but cannot accomplish his true preference, privatization. Moreover, it is not immediately clear why privatization should be able to solve any of these issues, since the essence of cultural exchange is in unsolicited messages crossing property lines.

This article reviews the policies of the public square from the perspective of individual rights; it makes an assumption that it is proper for the government to protect individual rights regardless of the magnitude of the violation. I would acknowledge that in practicality it would be wiser to keep the government out when the rights violation, albeit real, is negligible. However, the passion evoked by public cultural policy discussion, as well as the existence of very real armed conflicts today that cannot be understood apart from the cultural identity of the combatants, point to the fact that rights violations inherent is some cultural expressions are not necessarily small in magnitude.

The quintessential issue is this.

Imagine a public square in an American town with a libertarian in charge of the town government. Let us get past the fact that the libertarian mayor would prefer there to be no public square at all, -- its existence is a given within the available time frame.

Christmas comes along and the Christians in town want to erect a Christmas tree and a Nativity scene for the season. The mayor sees no violation of rights in that: the non-Christians can ignore the display if they don't like it.

Chanukah comes along and the Jews erect a menorah. Again, no problem. (Or a solvable placement and scheduling problem).

Now a Satanist wants to display a Satanic message in the public square. What would the libertarian mayor say?

A culturally blind libertarian mayor would not see the difference between the Satanist and the others and would allow the satanic display. If some town residents prevent the Satanist from doing his display, the culturally blind libertarian mayor would use force to protect the Satanist, just as he would protect any other cultural messenger. At that point, traditional American pluralism is dead and multiculturalism prevails in that town.

In order to realize that the mayor is wrong we need to notice that a satanic display is offensive to Jews and Christians in a different way than religious displays can be: due to its blasphemous nature it cannot be ignored by them. But this judgment is only possible if one is aware of the cultural realities in today's America, where Jewish and Christian cultures coexisted for centuries and learned to be mutually inoffensive. But our libertarian is schooled to think that culture doesn't matter, it is an individual affair to which government should be blind. Hence, while the libertarian principles do not contain an endorsement of government-imposed multiculturalism, they can be easily corrupted so that the libertarian practice would in fact lead to it.

The conservative critique of multiculturalism centers around the concept of community standard, which is often confused with majority rule. In fact, community standard is based on the Golden Rule. To realize that, one has to be cognizant of the cultural view: what cultural expression offends whom and in what way. In this simplified example, it so happens that Jewish cultural display doesn't offend a Christian, but a Satanic cultural display does; hence one is consistent with (a) the libertarian principle of the Golden Rule, (b) community standards prevailing in most American cities, and (c) American national character as a pluralist society of certain racial and ethnic stock that is an amalgamation of Western cultures, by a historical circumstance inclusive of virtually any Christian culture, Jewish culture and of African slave culture, but not of Muslim, Oriental or atavistic cultures.

Of course, other examples could be built, where, depending on venue and context, Jewish expression or even a different Christian denomination's expression would offend, or when an exotic cultural expression, including a Satanic display, would be welcome.

Libertarians would typically focus on the statist aspects of multiculturalism. As a solution to cultural disputes that involve government property, libertarians would recommend privatization; to the extent that privatization is not possible, either one of the two logically possible culturally-blind approaches would be recommended: (A) banning all cultural expressions in the public square (a completely illogical but popular flavor of this suggests banning only "religious" ones); or (B) lack of government involvement beyond vandalism, physical obstruction or assault. The latter, of course, translates into offering government protection against vandalism, physical obstruction and assault for all kinds of cultural expression regardless of content. Another popular cop-out is to recommend putting each cultural expression to a referendum and require universal consent -- policy A in disguise.

I believe that both those approaches, with all their weasely flavors, are unjust and such government would fall short in its mission to protect individual rights. That is because even though no physical damage may accompany a cultural message, it may still violate rights of the spectators, passers-by, or other messengers. Here are examples:

A just disposition of cultural grievances by the government is part of its legitimate as per libertarianism function. Such disposition is not possible without looking into two factors: the content of the offensive message and tradition. In other words, the town hall must take on a cultural outlook. Let us revisit the scenario with the satanist. A satanic display would be inoffensive in some contexts, for example, as part of an exhibition on religions of the world, or to those who choose to view it (that is, behind closed doors). However, in proximity to a Christian display it would cancel out the Christian message by its very nature of defying the existence or the power of God. It would then violate the expression rights of the Christian messenger. (Note that I am not speaking of cute little devils that are mascots of some sport teams or FreeBSD operating system). Because satanism is not part of our tradition, the passers-by don't expect it; what was planned as a pleasant stroll in the public space may turn out to be a frightening or disturbing experience. Thus it would violate the rights of passers-by. Could a Christian or other traditional for the locale religious message be a violation of rights of an atheist or a non-Christian? Not in a public square, because Christian messages are traditional and should be expected in public space. In America today, Jewish religious display is not offensive to Christians and Christian religious display is not offensive to Jews. As long as they are not intended to threaten or ridicule another religion they are not offensive to anyone, including a Satanist, simply because we (including Satanists among us) are used to them.

Another example of a cultural message that violates rights while not involving initiation of physical force. Free Republic had its (or Jim Robinson's to be more precise) rights violated by some disruptors. The nature of an Internet forum is such that one can easily defy a ban, keep re-registering and disrupt threads with inane, rude or bandwidth-heavy messages. Jim ended up suing one such character. No matter how the case ended up, you would agree that it was a reasonable lawsuit, -- Jim had no recourse of his own to protect his rights as the forum owner. Well, if it was a reasonable lawsuit, there must be a reasonable law that regulates cultural disruptions, even though no physical obstruction or use of force accompanied the disruption. The restrictions that governments place on cultural messages, even those messages that originate in privately owned space, that can be potentially disruptive are a legitimate attempt to formulate such law. While we can dispute every such law on its merits, we should realize that cultural policy is a proper arena of government regulation in a free society.

Let us generalize thusly: a cultural expression is unrightful with respect to its recipient if it offends him over the sensitivity threshold that exists in the community. That standard shifts with time and geography. Sloppy attire was considered a serious offense not that long time ago in America. Today's standards are extremely relaxed, however, a direct insult or gross indecency are a violation of rights if they are unanticipated. Thus flashing or verbal abuse are considered a form of assault.

A cultural expression can also be unrightful with respect to other messengers if it cancels out (or partially cancels out) their rightful message. It may cancel out the message even when no physical obstruction takes place. For example, a condom distribution event outside of a church destroys the pious mood that the church service worked to create; it is therefore unrightful even though it takes place off the church grounds and the service attendees are not physically touched or threatened.

So, is there a general rule to legislate against offensive content? Several principles suggest themselves.

First, when looking for violation of rights, it is not sufficient to only look for physical obstruction or harm. We all recognize that the release of some messages is unrightful even though no proximate physical harm results form the message. For example, if I were to publish a plausibly-looking scientific paper that would make a bogus claim in fundamental natural science, that would be fraud even if no measurable physical harm would proximately result from people reading it. We should then allow for the possibility that some cultural (and so not falsifiable) messages also can violate rights.

Secondly, let us disabuse ourselves of the notion that unanimous consent to cultural content must be sought. The unanimity standard only makes sense when a right is being relinquished to a legislation, and even then it only can be applied to the legislative process, but not to a specific legislative outcome. In an overwhelming number of cases no one's right is being violated by cultural expressions, even when a cultural expression is not welcomed by some and would fail in a referendum. It is therefore bogus to apply the unanimity standard to cultural disputes. The proper standard is to analyze the expression and see if it objectively violates the rights of other messengers or the recipients.

Another misconception is that private property rights are sufficient to resolve cultural issues. While privatization of commons is generally desirable for a number of reasons, it doesn't resolve all cultural disputes. That is because a society needs areas of open access where various cultural players can project messages across property lines. It is therefore irrelevant how those property lines are drawn. For example, it is often said that it is up to the store owner to allow or ban cultural expressions inside the store. That is only half accurate: he can ban cultural expressions at will, but he cannot allow a cultural expression which violates rights any more than he can allow a murder to happen in his store.

On the other hand, both local majority and local tradition have a role to play in determining a rightfulness of a message. That is because tradition and majority have the ability to make a message expected, thus giving a person who would rather avoid the message to take steps toward avoidance. For example, I know that traditionally a menorah is erected at our shopping mall each Chanukah (the owners are Jewish). If I wanted to avoid Jewish cultural expressions I could schedule my shopping around it, or be ready with answers if my children ask me why don't we have a menorah (we are Christian). Similarly, if I were a Jew who wanted to avoid the majority-Christian culture I could move to an area where Jews are in majority. In contrast to that, a unanimity principle wouldn't allow a formation of cultural enclaves and lead to a true cultural tyranny. Does it mean that equally inoffensive cultural messages should receive equal treatment? Yes, usually, but there is one exception: when a message is placed in a context when it becomes a symbol of the entire nation, only an message reflective of the absolute majority will do. American tradition uses Masonic or irreligious imagery for its currency and various seals of office; Christian symbolism is also present (e.g. as a Christian Bible or a Christian prayer at official ceremonies); Jewish symbolism would not be equally permissible if used in a way as to identify the entire American nation.

In conclusion: any cultural expression in the public square that does not require special resource from the government, causes no physical obstruction of traffic or other cultural expressions, is rightful even in absence of unanimous consent, as long as it does not violate the community standard of offensiveness and does not cancel out other messages by its content. The form of expression is irrelevant, and so is the private ownership of the origin of the expression. Permanence (that is, the distinction between a statue and a Christmas tree) is relevant inasmuch as a permanent display may forever cancel out another rightful message. Thus an overtly religious message may become questionable if displayed permanently in a way that dominated the entire public square. Offensiveness matters very much, thus pornographic, violent, or blasphemous messages in excess of the community standard are unrightful anywhere when they are not expected (that is, they should be off the public square). Religious content doesn't matter per se, although traditional religious perceptions of the locale define the community standard and therefore will be perceived as dominating it. It is a common fallacy (advanced by both liberals and libertarians) to detect a religious underpinning in a cultural bias of a community, and reject the bias on that ground. The truth is that the dominant religion or religions dictate the community standard of offensiveness, and the standard, with all its inherent biases, rules.

It is notable that the proper perspective of individual rights in cultural policy that I just outlined yielded no surprises and vindicated the traditional American cultural policies that prevailed in this country through the early Sixties.

All rights reserved. Reproduction is authorized with attribution to Annalex and the Free Republic.


TOPICS: Constitution/Conservatism; Editorial
KEYWORDS: libertarians
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To: annalex
Community standard is a integral outcome of the cultural interactions between individual members in the community; while it is a factor in determining violations of individual rights, it is not a community right, because no collective right can possibly be.

Of course, it isn't a right. It's a community agreement. A community policy.

61 posted on 01/22/2002 6:46:19 AM PST by Nebullis
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To: annalex
Going back to the FR disruptor problem: you said you saw it as cultural disruption at root, and here I'll disagree. JimRob has suffered trespass, a form of theft, in that it robs JR of his time and effort to make the site whole. It matters not the cultural makeup or motive of the disruptor, FR still gets vandalized.
62 posted on 01/22/2002 7:09:56 AM PST by secretagent
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To: Nebullis
What rights?

Depends, what offense: a rightful message may get canceled out, or an unexpected disturbing message may arrive. There are several examples in the article.

63 posted on 01/22/2002 7:42:55 AM PST by annalex
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To: secretagent
It is true that all rights violations can be construed as property violations since we own ourselves. In Jim's case though, he invited some (most) messages and disinvited disruptive ones. How does he tell disruptive from non-disruptive? By looking at content, there is no other way. So the content, not Jim's bandwidth and time, is at the root of the violation.
64 posted on 01/22/2002 7:46:48 AM PST by annalex
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To: annalex
Depends, what offense: a rightful message may get canceled out, or an unexpected disturbing message may arrive. There are several examples in the article.

I'm unaware of rights which cover these conditions.

Is there a right to a certain ensured exposure of my message? Is there a right to be heard/seen by a certain number of people? Is there a right not to be offended by disturbing messages?

65 posted on 01/22/2002 7:50:45 AM PST by Nebullis
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To: Nebullis
A right describes to an action that does not prevent others from doing anything rightful.

If I wish to talk over a certain available to me medium, adressign myself to those who agreed to listen, that is rightful, as long as others can talk over media available to them (my talking cannot possibly prevent any other, unrelated to talking, action of others). If someone invades that medium I chose and cancels out the messages I send, he prevents me from doing that rightful thing. He is, therefore, violating my right. Disruption of speech is violation of rights. Nondisruptive speech is a right.

If you wish to listen to me talk, and have access to the same medium, your action doesn't prevent others from talking non-disruptively or from listening. But a disruptor prevents you from listening.

If you wish not to receive a message and so block it on your property, that doesn't prevent others from talking, listening, or blocking messages directed to them. Blocking messages as they enter your personal space is then a right. If the message is nevertheless penetrating your personal space and is sent wilfully, the sending of that message is a violation of your right not to receive it.

66 posted on 01/22/2002 8:35:38 AM PST by annalex
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To: x
Private laws by which people agree to be bound sound like a good idea, but there will always be those who do not agree to be bound by such laws, and who either refuse to use the courts or refuse to be bound by the decisions of the courts. What sanctions would you impose, and by what authority?

By what authority do we do this now? Doesn't our right of self defense exist regardless of the existence of a State? And aren't our notions of due process an extension of self defense?

It is naive to think that common law implies a complete absence of state authorities.

Really? Despite the fact that numerous legal systems including the original English common law itself have operated without state-appointed judges, public prosecutors or any of the trappings of modern "justice"? These courts were not established by the government, they arose naturally.

By what right would you deprive someone of their liberty? You may say this is justified if one violates the rights of another, but on what authority are you acting? If someone refuses to accept the principles of your society, what authority do you have over them?

On what authority do government courts act? How do they attain this mystical "authority" that normal people supposedly do not posess? C'mon, x, even our Founders (who supported the State) recognized that rights derive from the people not from the government.

(Your last question, about someone who refuses to accept the society, is cogent. I address the problem of dissent below.)

The question of the double burden: in a society with out public legal institutions, if I am completely plundered of all my possessions, I would not be able to get justice unless I can pay for it. That is quite an imposition.

As opposed to the absolutely free justice I get today? The proportion of my tax dollars that currently go to law enforcement could easily go to some kind of "legal insurance" fund. This is not a double burden, this is the same burden paid in a different way.

It looks like having public entities to administer justice is not too high price to pay -- a form of insurance -- to avoid that double burden. Does the state -- and thus the taxpayer -- then bear the burden? Yes, but if the system works it will be cheaper in the end than relying on private enforcement.

Cheaper? You sure? Basic economics: A monopoly maintained by force will produce worse product at higher cost.

To go back to an earlier point, you asked whether a legal decision could be imposed on someone who dissents from the legal system I advocate. As with all issues, this is a question of property and contracts. There are a few possibilities:

1) The accused is a transient who enters the community from without. He is trespassing, thus his legal theories are moot.

2) The accused is from the community and has pre-existing "legal insurance." He is contractually obligated to stand trial. He may attempt to persuade the court to his point of view, of course.

3) The accused is from the community and has no insurance. He pays legal fees out-of-pocket.

4) The accused refuses to go to trial. Any legal claims he brings against others will be ignored by the community until he resolves the pre-existing dispute.

67 posted on 01/22/2002 9:38:52 AM PST by Entelechy
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To: annalex
A right describes to an action that does not prevent others from doing anything rightful.

I don't think this applies at all. You don't have a right to be heard in a specific way. Nor do you have a right to select the message that others send. But... a group of people such as a community will set up rules for cooperation in order to make equal or open access system workable. This has nothing to do with rights. This has to do with sensibilities, sustainability, decency, manageability, and general happiness.

Neither does it matter if this concerns a public square or private property. Any group of people with access to a shared resource will find ways to make that sharing possible.

You trot out the disruptive bully but let me give you an example more to the point. What if everybody in a town decided to put up a winter solstice display on the grounds of city hall. There has to be no particular bully display drowning yours out, the sheer volume of individual displays will drown yours out very adequately.

What if you posted one of your FR threads at the same time that a major sex scandal broke out. That will take traffic away from your thread!

Equitable sharing of common spaces has to follow rules determined by the group that is sharing the space. If the space is the ground at city hall, the people of that community come to a decision. In the case of the winter solstice display, the community takes a vote on the presence, size, and theme of the display. If the shared space is a resource, such as air, which is affected by and affects a greater number of people, then wider reaches of policy decisions come into play. If the space is private, the decision is made top-down.

In all cases, there will be some individuals unhappy about the decision. The goal is the greatest amount of happiness for the greatest numbers of individuals.

68 posted on 01/22/2002 11:01:21 AM PST by Nebullis
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To: Nebullis
I don't think this applies at all. You don't have a right to be heard in a specific way. Nor do you have a right to select the message that others send.

In #66 I showed how it applies, and I did not assert a right to be heard nor a right to select messages for others to send. Did you read it?

It should not matter if a collective or an individual drowns out a rightful message. But yes, if the community standard includes a winter solstice and excludes Christmas, then Winter Solstice rules; but that standard needs to develop organically out of individual preferences and expectations -- it needs to become a tradition.

If a message is being squeezed out by lack of bandwidth, that is not disruption. Disruption that is of interest to us is when the content of the message disrupts. For example, those distributing condoms outside the church have plenty of room to do so elsewhere, but their proximity to the church disrupts the message put out by the church. That is cultural disruption, not technical limitation of bandwidth.

69 posted on 01/22/2002 11:46:18 AM PST by annalex
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To: annalex
In #66 I showed how it applies, and I did not assert a right to be heard nor a right to select messages for others to send. Did you read it?

I did read it. But I disagree that it applies, even if you can make it work for isolated cases. The general problem is one of sharing coordination. You can't fit the general problem into a rights issue.

70 posted on 01/22/2002 3:49:40 PM PST by Nebullis
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To: Nebullis
I disagree that it applies, even if you can make it work for isolated cases

Well, can you point out a case it does not apply?

71 posted on 01/22/2002 6:27:21 PM PST by annalex
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To: annalex
It should not matter if a collective or an individual drowns out a rightful message.

The collective drowns it out because of bandwidth limitations. See my example of muliple displays above. There is no specific action by any one individual to drown out a message.

If a message is being squeezed out by lack of bandwidth, that is not disruption.

It's a disruption of the message, of course, but I agree that it isn't always the type of cultural/religious disturbance that you are talking about. It can be, however, when the disruption results in no message or so much noise. A lack of message (see lack of school prayer) can be very culturally/religiously disturbing to some.

Disruption that is of interest to us is when the content of the message disrupts.

You seem to be trying to use rights principles to make a case that disruption of access to message with a particular content warrants special protection and that speech of a particular offensive content has greater disruptive effect. I think there is a case to be made for this on the basis of community standards, but I don't see a basis in rights principles.

72 posted on 01/22/2002 6:27:31 PM PST by Nebullis
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To: annalex
Well, can you point out a case it does not apply?

I'm trying to find a good example where it does apply. Your example is a special case because it includes a peaceable assembly factor: For example, those distributing condoms outside the church have plenty of room to do so elsewhere, but their proximity to the church disrupts the message put out by the church.

Another of your examples seems to apply for certain conditions:

If I wish to talk over a certain available to me medium, adressign myself to those who agreed to listen, that is rightful, as long as others can talk over media available to them (my talking cannot possibly prevent any other, unrelated to talking, action of others). If someone invades that medium I chose and cancels out the messages I send, he prevents me from doing that rightful thing. He is, therefore, violating my right.

When a disrupting bully cancels out your messages it seems to apply. But if your message doesn't get out because multiple people are typing at the same time trying in the same way you are to get your message out, and the medium is limited, they would not be violating your right, would they? So your case applies to a situation where rules in the group have already been established. You and others have agreed on a forum and a medium and a particular audience. Someone not abiding by those rules is disturbing your chosen method of communication. But your point is how to establish rules in the public square to begin with.

73 posted on 01/22/2002 6:51:36 PM PST by Nebullis
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To: annalex
It is true that all rights violations can be construed as property violations since we own ourselves. In Jim's case though, he invited some (most) messages and disinvited disruptive ones. How does he tell disruptive from non-disruptive? By looking at content, there is no other way. So the content, not Jim's bandwidth and time, is at the root of the violation.

We could say JR's reaction to the content goes to the root of the violation, or a combination of content and JR's reaction. This gets into the motivation of the site holder, and the court should hold that as irrelevant, I say.

Many of us see the analogy to a houseower and his house. We'd prefer the courts not consider the psychology, ideology, religion, race, or economic class of the owner when he decides to evict someone or disinvite them to his party. At root, as far as concerns the court, the owner made the decision - end of story. He need not even find a poster disruptive at all, he might have a "random poster booter" program to instill urgency ("perhaps my last post, better make it good").

74 posted on 01/23/2002 3:40:23 AM PST by secretagent
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To: Nebullis
I agree that when the messages can't go through because of the limited bandwidth, then no one rights are violated, and the users of the medium would adopt a collective regulatory policy, thus limiting their access to the medium contractually. Those scenarios were beyond the scope of the article.

My contention with you is that when it is content that causes disruption, then individual rights are at the root of it, and that a community policy (of the type "no porn before 10pm") will stand or fall based on how well it adheres to the individual rights. I do not dispute that a community policy will emerge, and I even say that it is the proper function of government to come up with one. You seem to suggest that rights have nothing to do with the policy formation and it all starts with a policy produced ex nihilo. But some policies are good and some aren't. So a policy cannot be self-justified. If further, you opinion is that the policy is negotiated through the democratic process by individuals, then I'd say that it is true, but it is not a justification, and if the negotiation consists of simply taking Christmas trees and menorahs to a vote, then it won't be a just policy. Individual rights are the only justification.

75 posted on 01/23/2002 7:35:34 AM PST by annalex
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To: secretagent
The forum owner can rightfully establish such purely voluntaristic rules. Similarly, an exhibition hall owner can exhibit anything as long as the visitors implicitly agree to be disturbed by the messages by entering the hall.

My point was that messages offensive by content exist, not that there is no way to rightfully transmit them, and not that the owner of the medium can't set up arbitrary rules. If a forum owner wanted to develop an ideal forum, where the freedom to communicate were maximized for the largest group of posters, he would have to ban posters by content, and because that is what Jim, more or less, wants, he does ban by content.

76 posted on 01/23/2002 7:49:33 AM PST by annalex
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To: annalex
I generally view the promotion and preservation of rights and liberties as a foundation for rightful law. My contention with your argument is that I do not agree that you have demonstrated that 1) a reduction in propaganda value of a message constitutes a disruption of free speech rights, and 2) offensive content in a message constitutes an act of force. That is as I understand your thesis and I would dare say, this is in contrast to common libertarian understanding of rights principles. I am not a libertarian and the justifications you seek are foreign to me. Understand that all governments are founded on the relinquishment of personal individual rights to a certain degree. But the power of governments is conferred by those governed, not by rights.

As I’ve explained to you on other threads, proximal and distal effects are treated differently. Libertarians focus only on proximal issues. It’s commonly understood that libertarians oppose all government interference in the areas of voluntary relations between individuals. I admire you for understanding that, in real life, voluntary relations in the public square can lead to chaos without government interference. Public policy, rather than produced ex nihilo are produced in the interest of tranquility in the public square and maximum liberty for the individuals who use it. We need look no further to find a rights violation at the proximal level of interaction between two individuals.

The liberty of one depends on the due restraint on the liberty of others. It’s a straightforward maximization problem.

By using counter-examples, I have tried to show that your extrapolation from the particular does not hold for all cases, and that what you consider a scaling issue is actually a comparison of events that are fundamentally different. Your generalizations of instances of fraud, vandalism, and removing messages do not apply to content that may be offensive. Let me give you another example, which places the difference between the nature of free speech and moral sensibilities in sharper relief. Two candidates who are given equal public airwave access may both be deeply offended at the other’s moral/cultural/religious message. But neither was deprived of their right to free speech. Offensive content disrupts tranquility, leads to social unrest, maybe even violence, but it does not deprive one of free speech.

Further, free speech rights do not protect the propaganda value of a message. If your winter display message gets “drowned” out by the content display of another, or as I demonstrated posts above, by a critical mass of perfectly innocent displays, it may lead to problems of social disorder, but it does not deprive you of free exercise of speech. Likewise, publications of books may coincide with other publications, which reduce the effectiveness of your message. You are not deprived of free expression.

I agree with you that private property rights are insufficient to resolve cultural discord. Also that unanimous consent to resolve this is not necessary. But I fail to see that content can be judged on an individual free speech rights basis. Rather, in the interest of maximizing free speech for everyone, and minimizing cultural discord, ground rules for civil behavior in speech and content based on community standards are perfectly justified.

77 posted on 01/24/2002 10:52:14 AM PST by Nebullis
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To: Nebullis
Again, we agree more than disagree, but as I look into why one community policy is better than another, I see individual rights.

There is a Saturday Night Live skit where Will Ferrell is a politician whose aggressive deeply personal attack ads continue after the election. "John Peters, the loser. Loser. Look at him. He lost." He ends up chasing his hapless former opponent in parking lots driving him to tears.

The reality is that political speech is a message aimed at the voter. The politician subject of an attack ad is like a boxer subject to an uppercut: his participation is voluntary. If, in an inimaginable (?) scenario, political ads become offensive to the voter: "All you Senator Peters supporters are sexual perverts", then perhaps they should be pulled.

I agree that drowning out because of limited bandwidth (there are only so many weeks in late December, or only so many books that fit on shelves) is not per se an offense of individual rights. I cannot see a scenario where a content of a book may offend because a book is not an unsolicited message. The scope of my article is unsolicited messages when bandwidth is sufficient for all able messengers.

78 posted on 01/24/2002 2:01:01 PM PST by annalex
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To: annalex
The scope of my article is unsolicited messages when bandwidth is sufficient for all able messengers.

A message that offends is by its very nature unsolicited.

I understood that the scope of your article was expression in the public square with application for expression in general.

Oh, well, I'm out for a few days. But I hope to meet again on another thread.

79 posted on 01/25/2002 5:45:27 AM PST by Nebullis
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To: Nebullis
A message that offends is by its very nature unsolicited.

I would say that modern art, in particular, has offensiveness as its major attraction, and when people attend a modern art event they solicit messages that may offend them (rightfully). Another example is buying a book by an ideological opponent: a Christian buying a book on Satanism. I think that offensiveness is an attribute of a message with respect ot a class of recipients, while solicitation may or may not precede its transmission.

I will continue the Defense of Liberty at a slower pace, but your comments are always welcome.

80 posted on 01/25/2002 8:06:45 AM PST by annalex
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