Defense of Liberty: Libertarianism and the Public Square

Free Republic ^ | January 20, 2002 | Annalex

[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:

• Direct insults of passers-by short of threats of violence;
• pornography;
• blasphemy;
• disruptive behavior even without physical obstruction.

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.

[annalex]

I don't see a violation if he merely told you the porn collection exists. If he beams its content into your living room (through whatever technical means as long as you can't turn it off) then I see a violation, yes.

[tpaine]

I think of it as being more akin to pompous assism.

[Entelechy]

My guess was that you evolved into a libertarian after orignally considering yourself a liberal and/or that you come from a liberal family background and later became a libertarian.

A guess which you confirmed was right in post #24.

I don't see why this is upsetting you so much. I'm not claiming clairvoyance here, I'm just pointing out that I thought your rhetoric had the feel of someone who came into libertarianism from the left -- and thus you may be disinclined to view the advances of the cultural left as a power grab.

[annalex]

What I am saying is this: in a fully privatized environment, an entrepreneur will come along and offer a space for unsolicited messaging on his private property, San Marco Square, Inc.. Because there is a market for it, he will strive to allow as much liberty to the messengers as consistent with the individual rights of the messengers and messengees. He doesn't have to do that, but if he doesn't, all the participants will go to his competitor who does. Then, that entrepreneur as well as his competitors will face the same dilemmas the government faces today.

[Entelechy]

Then, that entrepreneur as well as his competitors will face the same dilemmas the government faces today.

I know, I got that part. I'm just arguing that it is inaccurate to say that having a location be open to the public does not grant the public rights to that location. Ownership is retained by the owner no matter how many people are allowed to enter the property.

Furthermore, I'm arguing that a government owned property will be poorly managed because the owner has no incentive to preserve the resource -- why be too concerned with the state of a property you are eventually going to turn over to your political opponents? The only exception to this rule would be if the government owner was a hereditary monarch -- in which case his behavior would be much like that of a private landowner.

[philman_36]

As one the Founders pointed out (perhaps someone can remind me which one), there has never been a Democracy that did not destroy itself.

"Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths."
James Madison, Federalist No. 10, (1787)

[Entelechy]

oops that should be:

I'm just arguing that it is inaccurate to say that having a location be open to the public grants the public rights to that location.

[Entelechy]

Thanks!

The best point is that "democracies . . . have ever been found incompatible with . . . the rights of property"

Never allow others to vote on the extent of your rights.

[annalex]

Agree, particularly to the monarch part.

[annalex]

You commented on the thread that was an impetus for this one. Bump. (Others that commented there are on my regular bump list).

[tpaine]

--------- # 24 [corrected] ------

This one line of yours struck me as sort of defining our constitutional issue here:

"Essentially, those who consider the rights of the minority paramount will have victories until they have purged the culture of any real substance."

I have seen no such decadence, no 'purging of substance' taking place, yet the majority is very busy 'restoring order', and on the road to dictatorship, imo.

Our republic is set up, supposedly, to defend everyones rights against all tyranny, -- even a so-called benign tyranny of the majority. This constitutional principle is being ignored. - 12 posted by tpaine

There are two kinds of libertarians: liberals who rejected socialism and conservatives who rejected Republicans. I'm guessing you're of the former variety.

-- Hmmmm. Should I be flattered that you want to type me? -- Why? - Your 'guess' is not only wrong, but snide in itself. Do you fancy yourself a superior being?

There is an alarming amount of homogeneity in American culture today. Regional differences are minor. America is tied together by the common blanket of faux rights given to us by the EPA, the ADA, etc. People think they share a common culture because they both watched Law and Order the previous night. You may, however, be correct that the restoration of "order" is now in its beginning stages.

Well thats a relief, -- that you think I may be right about something.

Tell me, why did you bother to reply? -- Essentially, you made no response to my points. -- Just 'entelechy' posturings. -- It is now obvious, you really do have a swelled head.

[Entelechy]

All right fine, I retract the statement.

Care to address my more substanitve points: i.e. that common property leads inevitably to a violation of the rights of the users -- either the excluded minority (see also: Jim Crow), or the disregarded majority (see also: multiculturalism). The only solution to the tragedy of the commons is to define an owner.

[tpaine]

I'll pass, thanks.

[Pistias]

thanks for the ping, will read later

[Nebullis]

As you fairly well restrict the definition of the public square to the grounds of city hall, I think private property conversion is out of the question.

However, I agree with your basic conclusion and am interesting in seeing how you would extend this to the public arena which is politics.

[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?

It is naive to think that common law implies a complete absence of state authorities. The fact that customary laws are not made by legislatures does not mean that there are not judges or magistrates or constables acting on governmental authority to execute those traditional laws.

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?

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.

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.

Do I conflate the various senses of the word "public"? I don't think so, but as gated communities become more common it's easy to imagine some of these senses being conflated. While there are distinctions to be drawn, it is possible that some senses of the "public" sphere may be lost if the state were ever to disappear.

[annalex]

restrict the definition of the public square to the grounds of city hall

Not at all, in fact I specifically mention that "it would apply to network television or advertising and not only to cultural expressions tied to a physical street or square."

More over, unlike the libertarian conventional wisdom, I do not see an important distinction in whether those messages originate on private property; the only importand distinction that I see is that they are unsolicited.

extend this to the public arena which is politics

No difference either. In fact, I don't see much justification in the traditional in American jurisprudence distinction between political speech, commercial speech and artistic expression. They are all just messages, covered by the same rules of offensiveness. For example, I do think that some pro-life posters cross the line on these grounds, although I am sympathetic to their message.

[Nebullis]

I agree with your conclusion but I don't think you make a good case that your conclusion is grounded in libertarian rights principles.

People don't have a right not to be offended. Aside from threats of violence or violence (a KKK cross is an expression of violence and not a religious expression, for example) the other points you raise regarding rights don't involve force. Most libertarian or left-leaning mayors go through tremendous contortions trying to separate the religious from the cultural on the basis of the establishment clause. What is left is essentially a banning of cultural expression.

Cultural expression is appropriately regulated according to community standard. The action is a right to free expression, its inhibition is determined by the sensibilities, not the rights, of the community.

[annalex]

My conclusion does not reflect libertarian conventional wisdom or (to the extent it exists) political practice, but the reason for that is that libertarain convention and practice forgot all about their own principles, -- witness the wholesale sellout of the principle of non-initiation of violence in some libertarians' embrace of terrorists.

If I receive an unsolicited message that reasonably offends me, then my individual rights are being violated. 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.

[Nebullis]

If I receive an unsolicited message that reasonably offends me, then my individual rights are being violated.

What rights? And in what way are they violated?