Posted on 12/18/2009 11:16:25 AM PST by a fool in paradise
A short-sleeved squabble ended suddenly Thursday when Town East Mall security raided a kiosk and seized a stash of T-shirts that had southeast Dallas business owners up in arms.
Half an hour after the raid, a half-dozen Pleasant Grove business owners gathered at the Southeast Dallas Chamber of Commerce and celebrated a medium-sized victory.
In the center of the room, draped across the back of a chair like a pelt, was one of the vanquished T-shirts:
"Welcome to Pleasant Grove," it read – below a silkscreen image of a man tossing a body into the trunk of an old Buick.
Like everyone in the room, Pleasant Grove pawnshop owner Joy Vosburg praised the Mesquite mall's quick action.
"It's fantastic," she said. "I don't think any city should be portrayed like that."
Vosburg had first spotted the T-shirts during a Monday evening shopping trip.
"It was horrible," she recalled. "I would have bought them just to get rid of them. But I didn't want to give them money."
...it perpetuates a violent stereotype of Pleasant Grove – a blue-collar neighborhood in the heart of southeastern Dallas – that the chamber has been working overtime to abolish.
In October, it kicked off a re-branding campaign, including "GroveFest" and "Hands Across the Grove," when residents linked hands along South Buckner Boulevard.
The chamber will even move out of its old digs above the Diaper Store in a neighborhood strip mall and into the brand-new Eastfield College branch up the road...
The clerk, who said she had not known about the warning, mostly ignored the raid. She stared serenely into her till as mall staff filled a cardboard box with the contraband...
Screws said the kiosk owner could pick up the confiscated shirts later but probably would have to pay a fine...
(Excerpt) Read more at dallasnews.com ...
“See 25, 27 & 29”
I take it you are unable to ‘provide a position regarding your statement “it is instead a property rights issue” using similarly authoritative sources, and addressing property rights from both the “real property” and “personal property” aspects.’
I also take it you can’t “explain why government should not be involved in securing real and personal property rights.”
“BTW- The Declaration of Independence is not a governing document.”
Not at issue.
It’s not being said on their property, it’s the sale of a legal product on their premises by a lessee. Watch what would happen if a mall owner tried to dictate which books Borders Books could sell.
That's ok.
Ever heard of the "castle doctrine"?
Yes, but I've always thought of it as a legal doctrine forming the basis of legal rights, possibly with some basis in inalienable rights, but not purely a statement of inalienable right or an inalienable right itself. And it's not recognized under all governments as indicative of a right, either a legal right or an inalienable right. (Of course, some of what we think of as inalienable rights are not recognized under all governments.) And I thought that in the US it was somewhat different from State to State among the States that do recognize it.
Within certain specific legal boundaries, a property owner has rights while on his property...that he has no where else. Your right to order unwelcome visitors off of your property implies your right to regulate their speech as a condition of remaining on the property.
Would not the "within certain specific legal boundaries" part continue through so that "your right to regulate their speech as a condition of remaining on the property" might be subject to the certain specific legal boundaries (said legal boundaries being variable from one legal district to another)? Which brings us to:
Property rights, of course, do not imply the right to commit criminal offenses on your property, so your sexual assault example is not really relevant to my point.
You wrote:
'Do you feel like you have the inalienable right to tell a guest in your house to shut his mouth if you are offended by what he's saying? This is the principle at stake here. In this case, substitute "tenant" for "guest", and "mall" for "house".'
I thought your point was that one has the inalienable right to tell a guest in one's house to shut his mouth if one is offended by what the guest is saying.
My point is that a guest in one's house sometimes has the inalienable right to say something whether or not it offends the one who owns the house. That I used a criminal offense in my example is incidental. And to continue, the house owner in my example would still have the inalienable right to tell the guest to shut her mouth, the guest would have no obligation to do so, and the owner would have the legal, if not inalienable, right to tell the guest to leave.
Back to the news article...
I don't want to go back to the news article. I want to go back to my request in post 24 which, though not addressed to you, was to "provide a similar position regarding your (the one I was posting to then of course, not you) statement “it is instead a property rights issue” using similarly authoritative sources, and addressing property rights from both the “real property” and “personal property” aspects."
And
"Also, please explain why government should not be involved in securing real and personal property rights."
Since that wasn't addressed to you then, you don't have to respond in support of someone else if you don't want to.
...the fact that the mall owner may end up fining the tenant implies that there was a provision in the lease contract granting the owner the right...
I think that would make it a contract rights issues rather than a property rights issue.
Prove it. Go back and cut and paste my words. Note that a sentence with a question mark at the end is not a statement.
“You neither defended your position nor added to the discussion.”
You made no attack on my position for me to defend. You attacked me.
And I don't know what position you are writing about, so again, go back and cut and paste the position you think I took.
“My analogy was to assist you to understand my post.”
Your “analogy” added nothing.
“As far as the discussion goes, it has been pointed to you that a person can contract away their rights (an earlier contention I made which you did not address, probably because you didn’t understand it).”
I know that. The post I originally responded to raised property rights as the issue, not contract rights. Understand that property rights, not contract rights, were under discussion.
“It is you that is dragging this thread down in your abject ignorance about the law and the USC.”
Lack of comprehension on your part does not constitute ignorance on my part. (In terms that might be more understandable by you: Just because you don't understand doesn't mean that I am the one who is ignorant.)
True. But again I was only using the quote as an argument that the Right to Free Speech is an independent, pre-existing right. That “within our Constitution only the government is limited by the First” makes no difference to the argument at hand which is: Freedom of Speech is among the Rights Governments are instituted to secure therefore arguably the government (which includes Federal, State and Local levels) is (or should be) involved.
“...then book companies have to publish everybody, newspapers can’t fire anybody, non-disclosure agreements can’t exist, and Democrats can put Obama signs in your front yard leaving you with no recourse” does not follow from “If people can’t abridge speech”
A book company declining to publish someone’s work doesn't stop someone from publishing it elsewhere or doing it themselves if they can.
A newspapers firing somebody doesn't prevent that somebody from starting their own newspaper if they can.
If someone signs a non-disclosure agreement, they have promised or contracted to not exercise their free speech rights, which they can do.
A Democrat putting an Obama sign in someone else’s front yard when that someone doesn't want it there can put such a sign on his own property instead.
“You can look at it as you signing it away, but the effect is the same.”
The effect may be the same but the cause is different and that counts. The effect is the same whether someone is murdered or commits suicide. The cause of the effect is different, and that's important.
You’ve actually agreed that the mall is right, you just don’t know it. Right here: “A book company declining to publish someone’s work doesn’t stop someone from publishing it elsewhere or doing it themselves if they can.” It’s the same thing that’s going on with the mall, the store can go somewhere that doesn’t mind those t-shirts being sold.
See the reality is that as long as it’s not an act of Congress nobody is really abridging anybody else’s speech rights. All they’re doing is saying “not on my watch”, you can’t do it on their property, or while you’re on their payroll, or something similar to that. Like I said before, the key is that all of our relationships with anything but our government are voluntary, you can take your book/ business/ employment/ friendship elsewhere.
Did I say otherwise? If so, cut and paste my words.
Go back to my post 24 and see that what I questioned was the statement: “...the government is not involved and it is instead a property rights issue.”, which is from post 9.
I haven't been trying to discuss whether or not the mall is right. I'm trying to discuss whether or not the government is involved and discuss property rights in more detail.
Towards the end of post 24 I wrote:
” Arguably, Freedom of Speech is among the Rights Governments are instituted to secure therefore arguably the government (which includes Federal, State and Local levels) is (or should be) involved.
Now, please provide a similar position regarding your statement “it is instead a property rights issue” using similarly authoritative sources, and addressing property rights from both the “real property” and “personal property” aspects.
Also, please explain why government should not be involved in securing real and personal property rights. “
Nobody has met my request for a position and an explanation. Instead they go off topic.
We had a similar situation outside our football stadium. Vendors were selling offensive T-shirts. The police put their heads together and decided it was a free speech issue but they told the vendors they would have to pay local merchant taxes on the sales. They left. The vendors were ready to go to the mat over free speech but didn’t want to pay taxes.
“The vendors were ready to go to the mat over free speech but didn’t want to pay taxes.”
Hmmm. That almost raises the suspicion that they were only there to instigate a Free Speech controversy.
I was replying to your statement that the “congress” part of the first amendment was the least important part. You’re still wrong on that, none congress can abridge free speech. Sometimes because of property rights (your building your rules) sometimes because of freedom of association (don’t like the rules you can always leave).
In the situation of this story it IS a property rights issue, the mall gets to set their rules, and if their rules abridge the speech of the stores renting space at the mall that’s too damn bad for the stores. The mall belongs to the people that own it first and foremost, they set the overriding rules, they have the full power to say “that’s an offensive shirt and we don’t want it sold, worn or displayed in our mall”.
It is simply not relevant to the point I was making which is that the words “the freedom of speech” indicate the independent pre-existence of the right to free speech. Apparently I should have written: Use of the words “the freedom of speech” in the First Ammendment indicate the independent pre-existence of the right to free speech
That's not to say it's not relevant to what you are saying. We're just stressing different aspects.
“In the situation of this story it IS a property rights issue..”
Did I say otherwise? If so, cut and paste my words.
Again, I'm trying to discuss whether or not the government is involved (in the particular situation at hand) and discuss property rights in more detail. Nobody including you is being responsive to that.
As to your last paragraph, Let's say you and I agree on that. Can you convince someone who disagrees? For such a person: Can you define property, bearing in mind that their are different kinds of property? Can you define property rights? Can you refer to an authoritative statement that acknowledges the existence of property rights? Can you back up what you say as anything other than personal opinion? Remember, that's for the person who disagrees with us, not for me.
Part of the problem here is that you keep talking about what you’re not saying but you’re really not saying very much so it’s hard to figure out what it is you’re actually saying.
Seems like all you really want is a definition and acknowledgment of property rights. Property rights are acknowledged in the Fifth, when it’s outlined that we can’t have our property seized in criminal cases without due process or taken for public use without just compensation. That’s acknowledgment of property rights, and it’s an acknowledgment that they’re pretty strong since property is listed right up there with life and liberty as something that can’t be seized without due process. As for the definition that gets more complicated, because property is a complex concept with many different kinds of property, and many different methods of declaring control you have to dig into the jurisprudence to know what the property rights are for item X in situation Y. At the most basic level property rights are the ability to do what you want with your stuff, so long as you’re not infringing on others.
I am forced to do so by people (not just you) who write that I said things I didn't say.
...but you’re really not saying very much so it’s hard to figure out what it is you’re actually saying.
I'm not saying very much since my post 24 because in that post I requested a position and an explanation and up till now nobody has responded in a way I find useful. So far the responses have pretty much ignored my requests and gone off the track of what I was trying to discuss by way of those requests. There hasn't been a reason for me to go along with that by saying much in response to the attempts to derail me.
Seems like all you really want is a definition and acknowledgment of property rights.
Now that's close enough to be useful. More specifically, I want an authoritative definition and acknowledgment. In my post 24 I cited the First Amendment as an authoritative indication of the existence of the Right to Free Speech (although it does not define it). Absent something authoritative I might accept some chain of logic. For instance I might accept something along the lines of: the Right to Free Speech obviously exists because in a state of nature, with no societal or governmental input, People have the inherent ability to speak.
Property rights are acknowledged in the Fifth, when it’s outlined that we can’t have our property seized in criminal cases without due process or taken for public use without just compensation. That’s acknowledgment of property rights, and it’s an acknowledgment that they’re pretty strong since property is listed right up there with life and liberty as something that can’t be seized without due process.
Hmmmm. The Fifth says: "...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." That's a step in the right direction because even though it doesn't state outright the existence of a right to have property, it indicates the existence of a right to have property by grouping property with life and liberty which are outright called unalienable rights in the Declaration of Independence. (Because of that, some might say that the existence of a right to have property is in the penumbra of the Constitution, but I don't want to go there right now.) On the other hand, it doesn't do a lot to enlighten us on any rights that accompany the right to have property, what we call property rights, unless the right to have property is the only property right and I don't think that's so. It puts life, liberty and property on the same level so why would someone's property rights constrain someone else's liberty rights? Or why would someone's property rights be constrained by someone else's liberty rights? (The answer to that is that one person's rights end where another person's rights begin. The problem is in determining the endings and beginings. Some people say that property rights trump all other rights but I have not seen anyone make a case to support that and I don't believe it.)
Now to continue:
As for the definition that gets more complicated...
That's true. And underlying problem to determining the answers to the questions I asked above is that we don't share good definitions of rights or property or Free Speech or etc.
...because property is a complex concept...
That's true too, at least it's more complex than a lot of people bother with. People throw around the words "Property Rights" as if they are magic and invoking the magic words should be the final solution to disputes. But there are different kinds of property. There's real property (land and such), there's personal property, there's intellectual property (though I think that's only been acknowledged as such for a couple hundred years or so). And there are different kinds of rights. There are unalienable or inalienable or natural rights, there are legal rights, there are contract rights. There are cases where one type of right may supersede another type of right and other cases where the exact opposite may be the situation.
At the most basic level property rights are the ability to do what you want with your stuff, so long as you’re not infringing on others.
Not a bad statement. As I wrote above, one person's rights end where another person's rights begin. So when do one person's property rights infringe on another's Right to Free Speech and when does one person's Right to Free Speech infringe on another's property rights?
Referring back to my post 24, I don't think I've exactly been provided "a similar position regarding ...'it is instead a property rights issue' using similarly authoritative sources, and addressing property rights from both the 'real property' and 'personal property' aspects."
And I haven't been provided an explanation of "why government should not be involved in securing real and personal property rights."
But you did give me more to work with. Did I say enough in return?
This kind of free advertising can be turned into a nice profit!
Well to take it back to this situation you need to keep in mind that the mall owner’s property rights are actually not infringing on the store owner’s speech rights. It’s the mall owner’s SPEECH AND PROPERTY rights that are trumping the store owner’s speech rights alone.
When rights are in conflict with each other it generally just winds up being a bit of simple math to figure out who wins. In this instance it’s good to remember that speech rights include the ability to not talk, that not only does freedom of speech give you the right to wear/ display/ sell t-shirts it also give you the right to NOT wear/ display/ sell t-shirts. So in this situation the mall owner’s speech rights are in direct conflict with the store owner’s, no matter which path you take somebody is going to lose. So when two people’s rights have equal claim in a situation you look to other rights, in this situation the vast majority of other rights are a push or not applicable, they either apply equally or not at all. But there’s one set of rights that don’t apply equally in this, property rights, because in this situation one side is an owner of the property and the other is a renter of the same property. And a long standing piece of of our property rights jurisprudence is that when the conflict is over control of property the owner of that property has more rights than the renter.
So while we say the mall owner’s property rights trump the store owner’s speech rights that’s just an over simplification to avoid a weird sounding sentence. The true sentence is that both party’s speech rights are a push but the owner’s property rights trump the renter’s property right’s and the combination means that the store owner’s speech rights get abridged.
When rights are in conflict with each other it generally just winds up being a bit of simple math to figure out who wins. In this instance it’s good to remember that speech rights include the ability to not talk, that not only does freedom of speech give you the right to wear/ display/ sell t-shirts it also give you the right to NOT wear/ display/ sell t-shirts. So in this situation the mall owner’s speech rights are in direct conflict with the store owner’s, no matter which path you take somebody is going to lose. So when two people’s rights have equal claim in a situation you look to other rights, in this situation the vast majority of other rights are a push or not applicable, they either apply equally or not at all.
Now all that's interesting. I'll have to think about the implications.
But there’s one set of rights that don’t apply equally in this, property rights, because in this situation one side is an owner of the property and the other is a renter of the same property. And a long standing piece of of our property rights jurisprudence is that when the conflict is over control of property the owner of that property has more rights than the renter.
In the directly above, I believe that everywhere you wrote "property" it would be better to write "real property". I believe that because there's another set of property involved in the situation and that is the personal or business property of the vendor who is the renter of the real property. And do "real property rights" prevail over "personal property rights" to the extent that the owner of the real property could just confiscate the personal property of the renter as was done by mall security? Could said owner have confiscated the personal property that was the cash in the renter's cash box? If confiscating personal property that is in the form of cash is theft would not confiscating personal property that is in the form of merchandise be theft? Unless of course there is some contractual arrangement which provides a contract right to confiscate the merchandise, in which case it becomes a matter of contract rights.
You wrote "property rights jurisprudence". That indicates real property rights are a matter of law rather than something more fundamental. Of course just law should have it's basis in something fundamental. Or do you think all property rights are just a matter of law, nothing deeper?
So while we say the mall owner’s property rights trump the store owner’s speech rights that’s just an over simplification to avoid a weird sounding sentence. The true sentence is that both party’s speech rights are a push but the owner’s property rights trump the renter’s property right’s and the combination means that the store owner’s speech rights get abridged.
What if in the above paragraph we substitute "right to life" for "speech rights" to get:
So while we say the mall owner’s property rights trump the store owner’s right to life that’s just an over simplification to avoid a weird sounding sentence. The true sentence is that both party’s right to life are a push but the owner’s property rights trump the renter’s property rights and the combination means that the store owner’s right to life gets abridged.
I only bring that up because some people I have run into seem to think what they call "property rights" when they mean "real property rights" trump the right to life.
It's pretty close to Christmas so don't feel you have to respond to any of this if you have other things to do. For myself, pretty soon I'm going to have to back off complicated posting and take time to mortar in more glass shards on the top of the chimney and apply a fresh coat of roof grease to the shingles.
I don’t think there’s really much difference between real property rights and personal property rights. Certainly when it comes to dealings with the government your home, car and person all get pretty close to the same level of search protection.
The t-shirts got confiscated because they were the center of the conflict. The kiosk owner just couldn’t seem to understand “don’t sell them here” means not to be selling them. And of course keep in mind that the mall owners said they’d give them back.
Jurisprudence doesn’t mean it’s a matter of law rather than something fundamental. It means there’s been legal cases revolving around it. We’ve got a ton of jurisprudence around free speech. The fundamental right is a broad scope concept, jurisprudence is how we define nitty gritty workings of it. There’s a fundamental right to property, but whether or not that right includes action X (which might or might not impinge in some way on somebody else’s rights) tends to get worked out in the courts.
Remember the castle doctrine. In most states now there are laws that outline that you can kill somebody for being illegally on your property because such an action poses a clear enough threat to your safety to warrant deadly response. You can oversimplify the description of that as “my property rights trump your life rights”, and the more proper description is similar to the mall situation, if you’re illegally on my property you probably mean to do me harm, so then it’s my right to life vs your right to life.
Hard for me to tell. I don't recall seeing a comprehensive (or coherent) authoritative statement of real property rights and/or personal property rights. What I see mostly is opinion and unsupported assertion.
Certainly when it comes to dealings with the government your home, car and person all get pretty close to the same level of search protection.
I suppose so but I don't think "search" is where most of the problems seem to arise, although there have been discussions on this forum over whether or not ownership of real property gives the owner the right to search the personal property which is your car when it's in the parking lot that is the owner's property or to check the personal property which is your merchandise when leaving the store that is the owner's property.
The t-shirts got confiscated because they were the center of the conflict. The kiosk owner just couldn’t seem to understand “don’t sell them here” means not to be selling them. And of course keep in mind that the mall owners said they’d give them back.
And there may be contract right issues in that mix, but leaving that aside, if someone takes your car for a joyride without your permission but with the intention of giving it back and in fact does give it back, would your personal property rights be violated or not? I mean they did give your car back.
Jurisprudence doesn’t mean it’s a matter of law rather than something fundamental. It means there’s been legal cases revolving around it. We’ve got a ton of jurisprudence around free speech. The fundamental right is a broad scope concept, jurisprudence is how we define nitty gritty workings of it. There’s a fundamental right to property, but whether or not that right includes action X (which might or might not impinge in some way on somebody else’s rights) tends to get worked out in the courts.
Jurisprudence or the law affects pretty much all our natural rights. That's the result of having a large organized society resulting in the need to make judgments regarding conflicts of rights without those immediately affected resorting to personal force to settle the conflicts. And the effects of the law on the subject of property rights is probably why it's hard to find the statement of real property rights and/or personal property rights I wrote of above. Too many laws in too many jurisdictions. But there ought to be some statement of the fundamentals. A lot of people seem to think they know what the law should be as opposed to what it is and their opinions have to be based on something.
Remember the castle doctrine. In most states now there are laws that outline that you can kill somebody for being illegally on your property because such an action poses a clear enough threat to your safety to warrant deadly response.
I don't know about the "most states" part. Last I checked it was about ten. That could have changed or my source could have been wrong.
About the "you can kill somebody for being illegally on your property" part, that's not true here in Ohio. Here you can only take action to stop them from harming someone. You can't intentionally kill or wound, just stop. If death or wounding results from the effort to stop, well that's just a secondary effect, and you better not tell the police or the prosecutor or the court that you intended to do anything but make them stop.
You can oversimplify the description of that as “my property rights trump your life rights”, and the more proper description is similar to the mall situation, if you’re illegally on my property you probably mean to do me harm, so then it’s my right to life vs your right to life.
Illegality is one thing but what's legal or not may vary from one district to another. At the fundamental level, why should merely being on someone's property constitute intent to do harm justifying a "my right to life vs your right to life" situation?
Why should real property rights always trump? Take a state at random, say Arizona. The United States took that land from Mexico by Force. (I know, they paid but that's like someone taking your car by force and then paying for it.) Mexico took the same land by force from Spain when Mexico revolted and formed the country of Mexico. Spain took it by force from the Indians. Actually, everybody took it by force from the Indians, who probably took it by force from each other before anybody else showed up.
After that chain of theft (the taking by force of something that wasn't yours can be called theft), how can an owner of real property claim the moral high ground based on property rights?
Feel free to poke around in the holes I've left.
Property rights aren’t trumping, nobody is claiming the moral high ground based on property. We’re just working the the situation backwards, you can’t look at these things in exclusion, all situation have background and how you got here is at least as important as here itself. If you and I are standing there with guns pointed at each other if we’re at your house then this whole situation probably started with me breaking the law, and therefore I’m probably presenting a threat to your person, and illegal and undefensable threat, so if you shoot me it’s probably going to be an act of self defense. That’s the logic chain the Castle Doctrine is built around, we know criminals tend to stay criminals, that even if the guy breaking into your home wasn’t planning on harming you when he started once he got caught he probably was, and there’s really no need to wait until he starts swinging. It’s a you or him situation and he broke the law to even get there so F him. The property rights is really just there in so far as it’s “your home”, and property rights give us a definition of that phrase that allow us to distinguish the owner from the criminal.
Maybe nobody on this thread is claiming the moral high ground based on property, but that “property rights trump all” has been claimed elsewhere including in other threads on FR. When I inquire as to the basis of that position (not that I always bother to) I seldom get anything close to a satisfactory answer. You’re right that we can’t look at these things in exclusion and the background has to be considered, but in my experience too few people bother.
I’ll grant you that what you laid out is the logic chain the Castle Doctrine is built around and that it is more or less suitable for the present time and place. But if we talk about fundamental rights, I don’t believe we can limit the discussion to the present time and place. In my opinion, the scope of fundamental rights is broader than that. If we’re talking about legal rights or fundamental rights as altered by legal processes we can’t always limit the discussion to the present time and place either. Sometimes we have to go through the legal history.
The natural right to life ought to be the same for a man living thousands of years ago in the forest absent an organized large scale society as it is for a man living in the modern United States with the caveat that the same natural right may have been altered by legal processes as society developed.
The natural right to property ought to be the same for a man living thousands of years ago in the forest absent an organized large scale society as it is for a man living in the modern United States with the caveat that the same natural right may have been altered by legal processes as society developed.
And the natural rights may have been altered differently by legal processes in societies other than the one we have in the United States.
(I know, you don’t really alter a natural right through a legal process, but I’m not going to straighten out the wording right now. I expect you get the idea.)
I can agree with those who say that absent an organized society a man uses his labor to make something his personal property—he carves a tree branch into a spear or picks some fruit. And I can agree that in a more organized society a man uses his labor to obtain a medium of exchange (like money) and uses the medium of exchange to obtain personal property from someone else, thus making that personal property his.
But when it comes to real property, I can see how the same thing sort of applies and cultivating a piece of land where vegetables grow to increase the vegetable production is putting labor into the land to make it yours, but by what right other than force did the first person to do so stake off that piece of land that everybody had access to and could take wild vegetables from, and deny it to those others? And if done by force, are others wrong to regain access by force? Force is the way land changed hands at the national level for a long time.
Based on all that, how do you get some grand set of fundamental property rights out of ownership of real property? I don’t see that you do, which means property rights are more legal rights than natural rights, (legal rights having been established to avoid the use of force in conflicting claims to real property because that gets messy and detrimental to society) and legal rights are whatever you can convince the legal establishment they should be.
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