Freedom of Speech Presupposes Private Property Rights

The right to free speech does not mean you can say or write anything anytime, anywhere. Private property rights have primacy over speech rights.
 
This means you may not say anything in my house if I dislike it. I may ask you to leave and if you don’t, I can have you arrested for trespass. If you make a vocal fuss, say, on my front lawn, I can press the additional charge of disturbing the peace. Your speech right has not been violated. My property right has.
 
What did Ayn Rand say? “Without property rights, no others are possible.” Why don’t we hear about property rights in today’s environment? Because leftists—socialists—deny the right to property. Free speech has been hung in the air, so to speak, without connection to its foundation in property.
 
After all, “Property is theft,” said the nineteenth century socialist Proudhon.
 
When free speech is disconnected from property rights, what is left? The irrational assertion that anyone who prevents me from talking or writing is violating my free speech rights.
 
Let us take a few problems.
 
Falsely yelling “fire” in a crowded theater is not free speech. It is criminal assault. Epistemologically, assault is the fundamental concept providing the dividing line between free speech and criminality.
 
Practically speaking, unfortunately, assault laws vary from state to state, but epistemologically it means an overt verbal threat to harm you—“I’m going to hurt or kill you.”* It does not require touching—that would be battery. Thus, hate speech, “I hate you,” is not a verbal threat, and is protected speech.
 
The problem today is that we do not have a lot of private property. Streets, sidewalks, universities, and the White House press room, for example, are either completely or partially owned by a government entity.
 
The adage, “whoever pays the bills calls the shots,” is relevant here. It means the city, state, and federal government can impose rules on what can be done or said on their property, provided the rules do not violate other rights. So, a city can control parade rights on its streets by requiring permits, but if you lie down in the street to block traffic or stage your own, unpermitted parade (protest), you are breaking the law, violating the rights of the other citizens, their rights of free passage. The same is true with blocking students’ entry to class and shouting down speakers. The acts are criminal, and arrest is called for. **
 
The refusal to clear the streets and protect the rights of students and audiences is governmental assault on person and property and de facto censorship of speech.
 
In 1977, the Nazi Party of America was allowed by the US Supreme Court to march in the city streets of the heavily Jewish Skokie, IL, on grounds that they were expressing their right to free speech. I disagree, because streets are made for driving and walking, as sidewalks are made for walking, not for giving speeches (protests alleged to being a form of speech). If the city does not provide a specific location for such speeches, then the Nazi Party should be obliged to rent its own venue from a private party or buy its own venue.***
 
Protests on city streets are essentially free advertising for an ideology. To allow it is to say that I must allow interlopers on my front lawn to preach ideas I disagree with.

 
Current “Hot” Issues
 
The White House Press Corps. The Foundation for Individual Rights and Expression (FIRE) has said that once any members of the press are invited into the White House briefing room, the First Amendment walks in also, meaning the White House cannot exclude any media organization on the basis of its viewpoint. The White House can dictate decorum and protocol for visitors, but not content of speech.
 
Visa and green card holders (1, 2). Both have the same rights as citizens, with certain restrictions, and do not have to take an oath of allegiance to the United States. Green card holders who seek citizenship must take the oath. Both, however, are subject to immigration and other laws, such as the one representing threats to US foreign policy. This last is particularly fuzzy, striking me as falling into the vague and overly broad category, though the US government is the “owner.” Students expressing disagreement with US foreign policy are not posing a threat. Blocking Jewish students from attending their classes, interrupting classes, shouting down speakers, and physically threatening and striking other students are acts of assault and battery, a deporting offense for visa and green card holders.
 
Israel. A note on the Jewish state of Israel and the recent toleration of antisemitism. The current climate is about as disgusting as one can think, far worse than most of the actions of the left in the 1960s. Apologists use the moral equivalence argument, saying that Israel is no better morally than the terrorists. And many actually insinuate, or state explicitly, that Israel is worse. Israel, however, is the most civilized state in the area, with many Arab people willing to live in Israel rather than anywhere else. By far, Israel is morally superior to the terrorists who hide behind women and children. See philosopher Jason Hill on the disingenuous accusations of genocide that are made against Israel.
 
Yes, the conservatives should not pass laws forbidding speech criticizing Israel. That is censorship.
 
Universities. If universities do not like having the US government telling them what to do, they should be obliged to adopt the policies of Hillsdale College in Michigan. In 1984, Hillsdale stopped accepting federal student loans and in 2007 stopped all Michigan state aid. Private universities today, because of the federal and state aid they receive, are hybrid institutions. Whoever pays the bills, calls the shots, and, as far as I am concerned, no so-called non-profit institution should be tax exempt. This is not an issue of free speech. If you make a deal with the devil—the government, federal or state—you must accept the consequences.
 
The fact that certain prestigious universities with multi-, multi-billion dollar endowments are whining over the government’s withdrawal of a couple of billion dollars, claiming it is a free-speech issue, is beyond farce.
 
 
* You can advocate the violent overthrow of the US government, as did the Communist Party of America in the 1950s, but you cannot talk about and recommend specific methods of doing so. The Smith Act, governing this was amended several times before it became more aligned with the “overt act” notion of the First Amendment.
 
** This does not differ from the 1960s students who staged an alleged protest by sitting down in the registrar’s office. The better chancellors and presidents, such as mine at the University of Denver, expelled and arrested the students.

*** Ayn Rand discusses this in the June 1977 issue of “The Objectivist Calendar” and says it is a “complex issue.” She addresses and dismisses as nonsense the notion, popular at the time, of “symbolic speech,” but more importantly, points out that advocacy of genocide of the Jewish people, as the Nazi Party advocates, is not a violation of free speech. The content of speech, she says, is irrelevant when discussing the right of free speech. Freedom of assembly, however, presupposes private property rights. (Excerpt here.)

Personality and Style versus Honesty and Justice

Here is a statement sometimes heard, sometimes vociferously: “I can’t stand that person’s personality or style.” The person referenced might by a client, a coworker, a relative—or a former US president.
 
Is the person referred to immoral? That is, dishonest or unjust?
 
Sometimes an elaboration follows about a business or personal relationship: “It’s a personality conflict. We just clash too much and can’t get along!”
 
At my midtown Manhattan job several decades ago, it was clients who were said to have those “bad” personalities and, therefore, were impossible to get along with. Somehow I ended up with three such clients with one each abandoned by my two coworkers and boss. After working with the clients for a short time, I concluded, “There’s nothing wrong with these people. They are quite nice!”
 
On the surface, getting upset over a “personality conflict” or “style difference” seems bizarre. After all, personality or style may mean that one person likes to talk a lot and the other is quiet. These two personalities cannot get along?? Admittedly, the talker may have to ask a few questions to draw the quiet person out. But seriously?
 
Without saying so explicitly, one person in the personality or style conflict—probably both—think the other is immoral, requiring the ending of the relationship.
 
Let us define our terms. As I wrote in Independent Judgment and Introspection (pp. 55-56), personality

is our distinctive method of thinking and acting; it includes all of our beliefs and values—the moral ones, as well as the ones that form our psychologies, that is, beliefs and values about who we are as a person, beliefs and values about other people, and beliefs and values about the environment in which we live. The outward behavioral manifestation of beliefs and values are called traits and the traits that stand out, the distinctive ones, define our personality.

Moral character, then, is a part of personality but must not be confused with our psychologies or our other traits that might be moral or immoral. Gregariousness and shyness are not immoral.
 
The outward behavioral traits define our style, or as the unabridged dictionary says, “an individual’s typical way of life.”
 
Personality and style are obviously related, but not identical. “Style” can be called the acting part of personality. The thinking part is what gives us mental habits that guide our choices and actions.
 
Two more terms to define: honesty means telling the truth, though not always. Exceptions would occur when someone is pointing a gun at you or threatening your privacy, or when the truth might unnecessarily hurt the other person. Justice means correctly judging a person as good or bad or somewhere in between and responding appropriately (1, 2).
 
Judging how honest or just a person is can be challenging in everyday situations, especially if you are not aware of, or allow for, the influence of psychology operating in the other person. Subconscious defensive habits often cancel free will to such an extent that the acting person, the one with the “style,” is not aware of what he or she is doing, such as talking too much or hyperbolizing or feeling afraid to speak up. None of these traits is immoral, or dishonest or unjust in any way.
 
The so-called difficult clients in my experience may have been demanding or even pedantic or confused and unclear about what they wanted. They may have been distrustful and angry over poor service in the past and wanted to be assured that this time everything will go smoothly.
 
My conclusion was that patience and anticipation of possible problems was key to keeping clients happy, and my coworkers and boss did not always indulge such patience, which apparently I did. I believed that my clients just needed to be listened to and that I had to practice that old business-as-usual adage, “promise only what you can deliver and deliver what you promise.”
 
No BS or hyperbole, in other words. Our clients were not dishonest or unjust, though they certainly exhibited many different personalities!
 
So what about the “style,” let’s say, of a former US president? One that called the country’s press the enemy of the people or expressed harsh criticism of anyone who did not do a good job or who criticized him. And was also known to hyperbolize.
 
I heard all of the above types of statements, sometimes with elevated volume, in my years living and working in New York City. Our former president was simply a New York businessman. And that is precisely what his naysayers did not like. He got things done and called his critics names. They declared his personality and style inappropriate, meaning immoral.
 
After all, he did not believe in turning the other cheek, and that was intolerable to anyone who believes self-sacrifice is the highest virtue in personal and professional life. And the “anyone” in this statement is bipartisan, as the doctrine of self-sacrifice is practiced by both leftists and conservatives.
 
Our former US president was not an altruist. He was an egoist who expressed, though not always articulately, the American sense of life. His constituents who also represent the American sense of life responded by electing him president. (See 1, 2, 3.) He was a rare and unusually strong supporter of the US’s national self-interest. Unfortunately, he leaned toward mercantilistic ideas when it came to international trade, but he also used tariffs as bargaining chips in his negotiations.
 
What is essential about our former president is that his “personality” and “style” expressed what is uniquely American by producing significant accomplishments and keeping us out of war for four years.
 
The appropriate response to all of the above types of statements, whether from a coworker or a president, is: “So what?”
 
Get back to work and on with your life.
 
A final note about the mainstream press. We now know how biased, not to mention dishonest and unjust, they were during the previous presidential administration and how eager they are today to silence alternative points of view.
 
Media that advocate censorship are indeed enemies of the people. They are the ones who will welcome a dictatorship to our country (1, 2).
 
See “How Free Speech Dies,” by Wall Street Journal columnist Mary Anastasia O’Grady and my post on the same issue.

Censorship—Direct and “Pre-"

Although censorship is always a government action, it does not always occur through an official “ministry of truth” or “department of truth and social justice.”

Free speech dies in many ways and the ways all support one another. I addressed the process in two previous posts (1, 2) and called some of the ways “pre-censorship,” meaning they are not explicitly or directly actions of the government.

Let me clarify the continuum of attacks on free speech, starting with direct government involvement. (There is likely to be some overlap.)

1. The Government Bureau. The worst, of course, would be the establishment of a “Department of Truth and Social Justice”  at the cabinet level. Such an action would increase the deep state’s control over what we can and cannot say or do, and would be the last stake in the heart of our free society.

2. Congressional or Other Government Threat. I did not include this in my previous posts but the Supreme Court has made it clear that de facto government censorship occurs by turning private firms into state actors. Threats of fine or imprisonment or antitrust lawsuits, or the revocation of Section 230 of the 1996 Communications Decency Act, enable Congress and other Governnent agencies to coerce businesses to do the government’s bidding.

Recent congressional committees that have grilled social media executives about their publication of alleged “mis-” and “dis-” information are the most recent examples. Ramaswamy and Rubenfeld in a Wall Street Journal op-ed cite several Supreme Court cases, including Norwood v. Harrison (1973). The court in this case said the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish” (quoted in the op-ed).

The authors go on to say that this court holding would cover Section 230 that allows private firms not just to censor speech, but also exempts them from liability.

The removal of books from libraries and retail stores, or the refusal to publish manuscripts, at the behest of Congress and other agents of the government is tantamount to book burning.

In a truly free, laissez-faire society, of course, none of these acts, agencies, or laws—a Section 230, a “Decency Act,” a Federal Communications Commission, or antitrust laws—would exist.

The next two attacks on free speech may be described as pre-censorship, as I did in my earlier post, but the government involvement is still quite direct. Let me call these two a middle range between outright censorship and pre-censorship.

3. Nonobjective Law. This third attack on free speech is nonobjective law and its consequence, scapegoating. An excessive number of laws, especially those that are vague and overly broad, allow prosecutors, whether federal, state or local, to go after anyone they dislike or disagree with. This leads to the Levrenti Beria claim (1, p. 70; 2): “Show me the man and I’ll find you the crime” and is dangerous for a free society, as government censors actively can use the legal system to control thought and speech. The fluidity of nonobjective law makes it easier to criticize and blame disliked persons and groups, and ultimately to conduct purges and pogroms against them.

4. Government Education. The fourth form of “mid-range” censorship is government-run education, whether K through 12 or colleges and universities. The purpose historically of having the government run education has always been to control thought and speech—this is the meaning of “national” education, as in conforming to the national government’s values. And this education, at least in the K-12 years, or most of those years, is compulsory. At the university level, the control is maintained through the government’s approved accreditation agencies.

I also include in this mid-range private schools and universities that pay lip service to upholding the First Amendment, but do not. Such schools usually enjoy substantial government-granted privileges, such as massive amounts of research money, student loans, and are anointed by the government’s accreditation standard bearers.

Private schools that have statements in their charters upholding certain precepts of a religion or philosophy and stating that teachers and students are expected to abide by those precepts are not government censors. Freedom of speech presupposes property rights, which means any private business (or homeowner) who does not enjoy government-granted privileges may kick out or prevent from entering anyone the owner dislikes or disagrees with.

The difficulty in today’s badly mixed society of freedom and government interventions is to sort out and find the interventions. Those businesses that enjoy major interventions are in fact “state actors.”

The final two forms of censorship that I think are properly called “pre-” censorship were identified by philosopher Bertrand Russell and novelist George Orwell, with edits and additions by me. “Pre” means no apparent government involvement, but the silencing of dissent that results softens the populace by letting them know they must be careful about what, when, and where they say whatever might be attacked. Pre-censorship chills speech, paving the way for the acceptance of direct and indirect government involvement.

5. Economic Penalties. This is cancel culture that demotes or fires, or works hard to have demoted or fired, anyone who does not toe the party line. Tactics can include blacklisting, disinvitation, and intimidation and violence by street thugs, especially the destruction of property. As the culture moves more and more toward dictatorship, violence to person becomes common. The primary aim is to prevent the victim from earning a living. Ultimately, it means imprisonment or execution.

6. Distortion of Evidence. Smears and propaganda, libels, double standards, suppression of criticism, sins of omission. These are all practiced by the intelligentsia: media, teachers, professors, entertainers, and business leaders all of whom toe the party line. The mainstream media leads the way—as it did in Fidel Castro’s Cuba, forcefully described by Mary Anastasia O’Grady in her WSJ Column October 25, 2020. The mainstream press paves the way for the dictator by preaching the gospel of the party and censuring those they disagree with using these tactics of evidence distortion. Facts and truth are out in the media. Fictions, aka “narratives,” as in “you have your truth and we have ours,” are created to destroy their opponents.*

News commentator Bill O’Reilly recently asked, “How long can a nation remain free if its press is dishonest?” Answer, not long unless something changes.**

One final note about congressional threats and Section 230 as it relates to social media. I have several times urged the repeal of Section 230 and the FCC on moral and constitutional grounds. Ramaswamy and Rubenfeld make an interesting practical argument at the conclusion of their column. Yes, they acknowledge that social media companies have grown large by their privileged exemption from liability, but to repeal 230 now probably would not affect them. Repeal, however, would make it difficult for startups to grow. They suggest lawsuits against social media, citing the case law that they mention in their article.

The issues concerning today’s social media are legal, moral, and practical. Ramaswamy and Rubenfeld prefer the practical route, which may work in the near future. The longer term solution requires repeal.


* The print media in the US today are generally thought to be free of government regulation, control, or privileges, in contrast to broadcast that are in the hands of the Federal Communications Commission. But print media were given significant privileges in two Supreme Court cases, in 1964 and 1967. The cases greatly delimited the ability of public figures to sue the media for defamation. This enabled all media to practice libel without fear of reproach.

** See journalist Glenn Greenwald for a detailed presentation of how thinking in principles is absent from today’s mainstream media, replaced by judgment based on personality and ideology. Also see Alex Berenson’s book Pandemia for a fact-filled demonstration of how journalism used to be performed—a breath of fresh air in our recent climate of covid totalitarianism. As I have said before, the mainstream media are fools and useful idiots for thinking they will be protected when the real dictator takes over our country.

All It Takes Is Guts

A president from the American past stated this about his previous four years:

During this course of administration, and in order to disturb it, the artillery of the press has been levelled against us, charged with whatsoever its licentiousness could devise or dare.

No, this is not a statement of our most recent former president. The words are from Thomas Jefferson’s second inaugural on March 4, 1805, in which Jefferson endorses and praises the American experiment in a free press. He continues:

The experiment is noted, to prove that, since truth and reason have maintained their ground against false opinions in league with false facts, the press, confined to truth, needs no other legal restraint; the public judgment will correct false reasonings and opinions, on a full hearing of all parties; and no other definite line can be drawn between the inestimable liberty of the press and its demoralizing licentiousness. If there be still improprieties which this rule would not restrain, its supplement must be sought in the censorship of public opinion.

“Censorship of public opinion,” does not mean government censorship. As Jefferson clarifies, it means “punishment in the public indignation.” He continues, “Truth and reason” will prevail, as “facts are piercing through the veil drawn over them.”

Jefferson was a man of the Enlightenment, so he trusted all voters to exercise their reasoning capacity to speak up against the falsehoods of a “licentious” press. Do voters today do so? And will they in the future?

Edmund Burke, another man of the Enlightenment, supposedly said, “The only thing necessary for the triumph of evil is for good men to do nothing.” These words, though, do not appear in his writings. Ayn Rand, however, did write that evil is impotent and succeeds only from the sanction of its victims, that is, the victims’ willingness, due to ignorance or choice, to suffer silently, for example, through today’s covid totalitarianism.

Our culture’s intelligentsia, which includes the corrupt press, has eagerly promoted, and continues to promote, this total control of our personal and professional lives.

The solution, as it is with any bully, is to stand up to the communist-fascist left that is attempting to destroy civilization. “Stand up” means to speak out and write against the Goebbelsian propaganda (1, 2), to name names and never back down, especially if and when the “cancel culture” comes after you. This means, as I wrote in a previous post, no compromise of principle, no collaboration with the left, no concessions to them.

“All it takes is guts,” said Walter Williams in the title of his 1987 book of newspaper columns. “I have no shame in admitting my uncompromising bias for the sanctity of personal freedom,” he said in his preface, “and freely admit that as economist qua columnist I try to sell Americans on the moral superiority of individual freedom” (second emphasis added).

Conservative radio show host Rush Limbaugh displayed a similar intestinal fortitude with many courageous examples of standing up to the cancel crowd. Normally, Rush ignored whatever the intelligentsia, especially the “drive-by” media as he called them, threw his way. The following incident, however, required a major offensive.

Rush’s primary rule, according to his spokesman and strategist, Brian Glicklich, was “no faux apologies for fake transgressions.” A letter signed by 40-plus Democratic senators, sent to Rush’s syndicator, demanded an apology from Rush for a discussion he had with a listener. The subject of the discussion was “phony soldiers,” fraudulent people who claimed to have served heroically in the military, but did not. The letter claimed that Rush was denigrating these “heroes.”

Not only did Rush not apologize, nor would the apology have been accepted by the Democrats (as Glicklich points out), Rush sold the letter for $2.1 million, matching the sum from his own checkbook, and donated all of it “to scholarships for the children of fallen service members and police officers.”

Rush’s sponsors were then viciously attacked in the usual leftist manner of what looked like thousands of people sending thousands of emails threatening to stop patronizing the sponsors’ businesses. Rush did not just not back down; he provided research showing his sponsors “that 80% or more of all online boycott messages came from a group of people so small as to ‘fit into the elevator we used to come to your office for this meeting.’”

Finally, Rush realized that the handful of aggressors against his sponsors preferred to remain anonymous and unaccountable, so he named them on his website. Like all bullies, they ran.

Not apologizing, compromising, or backing down, Rush instead went on the offensive. “The Limbaugh doctrine against the suppression of speech,” as Glicklich put it, “was to offer more speech.” Rush often aggressively “fished for liberals’ outrage” and tweaked it, doing so with glee, or rather, in his words, “with half his brain tied behind his back, just to keep it fair.”

Rush Limbaugh, as did our previous president, taught many of us how to have guts and to display that intestinal fortitude.

Alan Dershowitz, a moderate Democrat, is an uncompromising First Amendment lawyer who, as victim of the cancel culture himself, has courageously and aggressively stood his ground. When falsely accused of sexual misconduct, he offered mounds of evidence in his defense, filed a defamation lawsuit, and wrote the book Guilt by Accusation.

More recently, Dershowitz wrote Cancel Culture: the Latest Attack on Free Speech and Due Process, in which he exposes the Stalinist and McCarthyite origins of such suppression of free speech. He also produced a video podcast “Cancel Culture Must Be Canceled.”

Dershowitz is very much aware of the need for more people to speak up. In an earlier video podcast he asked “Where are the libertarian Democrats?” The two words together likely mean Bill-of-Rights moderate Democrats, often called “liberals,” who have been far too silent over the past several years.*

In our postmodern age of the “Un-Enlightenment,” an age of untruth and unreason, will there be enough Jeffersonians to courageously counter the Goebbelsian propaganda that is spewed ceaselessly and ubiquitously?

As Rush said, to counter the suppression of free speech, more speech is needed—spoken and written without compromise or concession.

It just takes guts!


* Moderate Democrats, such as Dershowitz, are mixed-economy-Democrats who see some role for the government to regulate business. Far left or leftist Democrats today want the government to control every aspect of our lives, social and economic, which makes them totalitarians, whether of the communist, socialist, or fascist variety. The usual meaning of libertarian is classical liberalism or laissez-faire capitalism.
 

How Free Speech Dies: Follow the Government Intervention—Beyond Section 230

In a previous post I quoted George Orwell on the non-governmental silencing of dissent during World War II England:

Hardly anyone will print an attack on Stalin, but it is quite safe to attack Churchill. . . . Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness.

Wall Street Journal writer Mary Anastasia O’Grady, in a column titled “How Free Speech Dies,” offers more detail on this prelude to government censorship.

Writing about today’s “hyper-intolerance,” and providing examples from Latin America, O’Grady points out the role of “public intellectuals”—upper classes, academics, and media—“intelligentsia” for short, in suppressing disagreement and paving the way for an incoming dictator. O’Grady writes:

Fidel Castro didn’t become dictator for life in Cuba without help from island artists, writers and reporters, many of whom were later jailed or exiled. . . . In his first months in power [Castro] continued to pay lip service to democracy and knew better than to march into newsrooms with bayonets and jackboots. At his disposal were useful journalists ready to do his dirty work by attacking their own colleagues.

“Useful idiots” would be other words to describe the intelligentsia. It’s the “jailed or exiled” (or shot) part that today does not seem to be talked about or acknowledged, as that is often what happens to aiders and abettors of dictatorship. (Remember what happened to the capitalists who sold Lenin rope? Which Lenin then used to hang them??)

O’Grady quotes a 1985 book that says Cuban journalists agreed to write “clarifications or footnotes [and] criticisms of editorials or news items that were not in accord with the official government line.” Ah! Sound familiar to today’s social media? Substitute “party” for “government,” O’Grady says, and you describe what we have now.

But is this cancelling and silencing really non-governmental? Do the self-appointed critics enjoy a government intervention and therefore a privilege that others do not?

This is why I say, “follow the government intervention” (not the money) to find harm to consumers and competitors, though the intervention can be a challenge to find.

Let’s look beyond or behind Section 230 of the 1996 Communications Decency Act. The act itself is an intervention that allows social media to provide platforms for political discourse but also be exempt from liability for their posters’ defamation. Publishers are not so exempt from the frauds of their authors.*

More interventions: The Communications Decency Act is part of the Telecommunications Act of 1996, which itself is a revised version of the Communications Act of 1934, from which we got the Federal Communications Commission (FCC). And that act incorporated regulations from the Radio Act of 1927.

Government, in others words, has its hands all over radio, television, and, today, the internet. What part of “stay out of our personal and professional lives” is not understood by today’s politicians and commentators when promoting and endorsing the silencing actions of social media? These elites, of course, are Progressive experts who, for the past 130 or so years, have encouraged greater and greater government encroachment on our personal and professional lives.

Let’s now take a look at two practical consequences of regulatory intervention and then the constitutional issue.

First, a proper understanding of libel and defamation as established in common law fraud, or the law of deceit, requires proof of several stringent actions before the frauds can be concluded: a false material fact asserted by the deceiver, knowledge of its falsity, intention to deceive, reliance on the assertion’s truth by the deceiver’s audience, and objective injury or damages to the victim.

These requirements, for example, exempt most advertisers from charges of deception—except when their ads are reviewed by the very regulatory Federal Trade Commission. The FTC, depending on its inclinations and presidential administration, have in the past charged advertisers with “misleading and deceptive” advertising by dispensing with the knowledge and intent requirements and assuming injury if a consumer feels mislead or deceived.

The law of regulatory agencies is decidedly nonobjective, in the sense of being overly broad, vague, and often arbitrary.

As second consequence of regulatory intervention, let’s look at television. From the 1950s to the ‘80s, there were three, and only three, nationwide private, profit-making networks: CBS, NBC, and ABC. A fourth, the Dumont network, tried but failed to compete. Why?

The FCC controlled everything in television, from number of television stations allowed to exist in a given community to the number a network could own. The FCC controlled and allocated the number of channels that could exist, where they could exist, and, again, how many a network could have. Finally, entrepreneurs who wanted to run FM radio stations were competing for air waves with the television entrepreneurs, but the FCC decided who got what, where and when. Only three networks could survive such interventions. (See Laissez Parler: Freedom in the Electronic Media, pp. 16-18.)

Why do regulatory agencies have such power? Don’t these agencies violate the separation of powers clause of the US Constitution? After all, they combine the legislative, executive, and judicial functions in one agency: the commissioners write the rules, then execute and adjudicate them (with no jury). Progressives and the Supreme Court from the 1920s on have relied on the rationalization that regulatory agencies are a delegation of power by Congress, a “specification” of Congressional legislation.

Regulatory powers, however, do violate the separation of powers clause and are therefore violations of individual rights. They are, as Ward Lattin wrote in 1938, the “union [not separation] of powers,” the “precise thing that the framers of the Constitution quite unanimously agreed was the very definition of tyranny.”**

Conclusion? Free speech dies, most fundamentally, due to such government interventions. Getting the government out of our personal and professional lives means digging beneath the tip of the iceberg to find interventions, then repealing them. It is these interventions, especially those practiced by the FCC and FTC, that infringe our freedoms of speech and press.

Band aids—revisions of the existing interventions or amendments to them—are not the solution. They exacerbate the problems.

Political action required? Repeal, repeal, repeal!


* Why should social media be exempt from liability? The excuse given is that social media businesses would never be able to grow because they would be spending all their time and money fending off lawsuits. I doubt it. Strict enforcement of the common law requirements for fraud—in a fully free society—would make it difficult for frivolous lawsuits to arise. (The 1996 law, in addition, is also a quagmire attempt to deal with Justice Potter Stewart’s “I know it when I see it” test for obscenity—a paean, one might say, to nonobjective law and alleged and arbitrary “community standards.”) Let the free market decide. Absent government interventions, social media would likely look quite different than it does today—all to the better for both consumers and competitors. Contrary to how Progressives think and view themselves, there is no omniscient deity or crystal ball in Washington, DC, that can predict what the market would or should look like. Only the market—that is, the free choices of consumers and competitors—can decide.

** Ward E. Lattin, Federal Administrative Regulatory Agencies and the Doctrine of the Separation of Powers (Washington, DC: Georgetown University Press, 1938), 27. The book, unfortunately, is not listed either at Amazon.com or ABEbooks.com. See also The Administrative Threat, passim, by Philip Hamburger and Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era, pp. 42-45, by Thomas C. Leonard. The 1985 book cited by O’Grady is Harnessing the Intellectuals: Censoring Writers and Artists in Today's Cuba by Carlos Ripoll.
 

Independence and Certainty

In our age of post-Kantian skepticism and relativism, it follows, according to the skeptics and relativists, that anyone claiming epistemological or ethical certainty is either a deluded fundamentalist or a wannabe or actual dictator.

Inquisitors and jihadis are certain of their convictions and maim and kill those who do not agree with them. Hitler was certain and viciously imposed his will on his own citizens and the world and, of course, the Jewish people. The implication is that Inquisitors, jihadis, and Hitlers are selfish, independent personalities.

The argument often does not go this far, though it is implied, and some, including Holocaust scholars, have said as much.* After all, this train of thought continues, no one is omniscient, and because of our inherent fallibility, we must allow freedom of speech. This is what makes a society free.

Lack of omniscience means inability to be certain, which means we must invite and relish criticism to clarify our thoughts, and perhaps gradually get closer and closer to the truth, though absolute truth can never be attained.

This is what logical positivism and its offspring have taught us. Claims of certainty are dangerous. We have to talk things over and aim for consensus, sometimes through voting. This in essence is the epistemological justification of democracy.**

In other words, anyone who believes in absolutes believes in absolute authority. The independent personality is one who asserts facts as absolutely true, and that is what is dangerous.

So does this mean the boy in the story of the Emperor’s New Clothes should request a vote before speaking up, assuming the emperor is tolerant of critics(!)? In addition to the self-contradictions of skepticism and relativism, this question is a reductio ad absurdum.***

It does not follow from human fallibility that absolute certainty is authoritarian or that strong, independent personalities are actual or wannabe dictators. Nor is the argument from fallibility the fundamental defense of freedom of speech and the free society.

In a single sentence, the answer to the issue is a sound, objective theory of universals that allows the identification of sound, objective values, which in turn defines social relationships in terms of individual rights, that is, freedoms to take action without coercion, including the freedom to express oneself on one’s own property or on that of someone else with whom one has contracted to make that expression.

Freedom of speech presupposes property rights, and democracy, if it is not to be a form of dictatorship—democracy, remember, killed Socrates—presupposes and is restrained by all individual rights, which therefore means democracy in a free society is demoted to the relatively minor function of selecting our leaders, along with other non-rights-violating details.

Democracy is not the arbiter of truth (or “approximate” truth) or of ethical or legal behavior.

The sound theory of universals is Ayn Rand’s (1; Applying Principles, pp. 322-24). It is a theory based on the contextual nature of knowledge that allows certain truth to be asserted as absolute within a specified context. Because knowledge grows over time, adjustments to earlier absolute certainties may have to be made, as Newton’s theories were adjusted by Einstein’s.

Incidentally, something over the years must have been right, true, and certain about Newton’s and Einstein’s ideas, because in the use of both theories, spaceships have gone to the moon and back.

Truth and certainty—by peaceful, independent-minded, non-authoritarian scientists—do seem possible.

Yes, we are fallible and not omniscient, which means we must submit our expressions to evaluation and criticism and be prepared to defend them, but this is not a justification of freedom of speech.

In order to survive and flourish, humans must exercise their inborn, volitional capacity to reason. Because this exercise of reason is not activated by our genes or environment (Applying Principles, pp. 315-18), we must be left free to choose—that is, it is right or moral for us to be free from the coercion of others, especially the government—to allow each of us as individuals to generate and sustain action to achieve our chosen values. Trade is our means of social cooperation.

The source and justification of individual rights is our nature as rational beings. It is right and moral to be free of any initiation against us of the use of physical force.

Thus, whatever we say or write, either on our own property or on that of the others cooperating with us, is, at least sometimes, an assertion of truth and certainty. It is right and moral for us to make these assertions, first, because our freedom of expression is consonant with and required by our human nature and, second, because our speech, writing, and expressions derive from our rights to life, liberty and property.

Inquisitors, jihadis, and Hitlers of the world, in contrast, do also make assertions of truth and certainty, but they back up their assertions with a gun. Their expressions are not open to evaluation and criticism because they tolerate no disagreement.

They are the authoritarians, the dictators, who at root, as Stanton Samenow demonstrates, are criminal personalities. As liars and cheaters, they are not the least bit interested in perceiving and asserting facts as facts. They most certainly are not independent personalities; they are among the worst of the dependent.

Brandishing and using guns, as they do, is anathema to our rational nature. Their goals and accomplishments are to silence our reason. Their “truth” and “certainty” lead to wanton destruction of humankind and civilization.

Talking and voting does not make any individual more or less independent, and it is not the means of preventing another Holocaust. Lack of certainty may indicate insecurity or insufficient knowledge to make a decision with confidence.

To link certainty to dictatorship is the red herring of all red herrings, brought to us by post-Kantian agnosticism, both in epistemology and ethics.

It is time to restore certainty to its proper place in knowledge and values.


* Years ago, I heard a Holocaust scholar say that the Nazis were certain of their convictions; therefore, it is good that we not be.

** The argument is John Stuart Mill’s utilitarian defense of free speech, restated in Jonathan Rauch, Kindly Inquisitors: The New Attacks on Free Thought. Rauch in 1993 was responding to an early wave of censorship by political correctness.

*** Here are the self-contradictions: skeptics assert as an absolute certainty that certainty is impossible and the relativists claim absolutely that all claims are relative. Cratylus, the Greek skeptic who stopped talking, is another reductio.

Further Comment on Galileo’s Middle Finger

My previous post did not do justice to the Alice Dreger book Galileo’s Middle Finger. Here are a few additional comments.

Intersex people. Intersex infants, children, and adults, formerly referred to by the pejorative “hermaphrodite,” are born with ambiguous genitalia—for example, with external penis and vagina, usually of different sizes, or with an external vagina and internal testes but no uterus or ovaries.

Dreger’s doctoral dissertation focused on late nineteenth and early twentieth century hermaphroditism. Because such sexual differences were seldom ever talked about, most intersex people in that period lived relatively normal lives, presumably because they assumed that everyone else was built the same way. As Dreger put it, perhaps a little surprise on the doctor’s face when examining the patient was the only awareness anyone had of the medical issue!

Sometime during the twentieth century, doctors decided they should do something about the “shameful” condition. They decided, usually only telling the parents that some infant surgery was necessary, to play God and change intersex infants into boys or girls, based entirely on their judgment of which way the infant should go.

In recent times, it seems doctors have become more transparent by telling parents what they are doing . . . but rarely, even today, have doctors or parents told their patients and children what was done to them as infants.

“Shame, secrecy, and lies” is how Dreger describes the attitudes and behavior of doctors and parents. And it is this shame, secrecy, and lying that has incensed the human sexual identity activists. Intersex people are individuals with rights just like everyone else, but they have been denied honesty, have been discriminated against, and even denied choice—over which way they want to go, or whether to go at all.

Several early chapters of Dreger’s book detail her own activism to get the medical profession to fess up and change its ways. The stone wall she hit is part of the reason she felt the depression mentioned in my previous post.*

Congenital adrenal hyperplasia. Another stone wall was hit and described in the latter chapters of Dreger’s book. A doctor in New York City has made a career of administering dexamethasone, a powerful steroid, to in utero fetuses to prevent the formation of ambiguous genitalia and other sexual anomalies that can result from this inherited disease.

Dreger tallied a number of problems with this medical practice and lobbied hard, but failed, to stop it. The off-label drug—many drugs are so used—must be administered before there is any evidence the fetus is developing in an anomalous manner.

Dreger’s math found that only one out of ten such treated fetuses stood to benefit from the drug. On the other hand, the risks? Only one study—and only one—has been conducted to discern long-term consequences. The findings of that study indicated a significant minority of the sample suffered retardation, memory difficulties, and growth disorders; as a result, the study was shut down.

The controversy centered around informed consent, much of which seems not to have been given, and bureaucratic approval to proceed with such a treatment.

At one point, charges of fraud for phantom research projects were brought up, but the whistleblower, like many operating in bureaucratic environments, was attacked and threatened with psychiatric treatment. The Feds, responsible for protecting the public from risky medical practice, did little to stop a prestigious and well-established doctor.

Dreger lost the battle.

Social justice. Dr. Dreger views herself as an activist fighting for social justice. This has pushed me to clarify in my mind the difference between social and individual justice. “Social justice” has a long history, so it is not unique to Karl Marx, but today’s advocates use it in a distinctively Marxian flavor.

Is Dreger an advocate of social justice? Not really, though I’m sure she would disagree with my interpretation of her work.

Social justice, as I define it using today’s Marxian flavor, is the virtue of fairly and accurately judging oppressed classes as underprivileged and granting them restitution in the form of additional wealth, education, employment, along with other favors that they otherwise have not been able to attain. The underprivileged include anyone who is deemed unsuccessful, but especially African Americans, women, and LGBTs. This is the collectivist definition.

Individual justice is the virtue of fairly and accurately judging individuals—oneself and others—according to the standards of honesty, integrity, courage, independence, and especially productiveness. This is the individualist definition.

I think Dr. Dreger, because of her uncompromising commitment to facts, is closer to practicing the latter form of justice than the former. This, I would say, is why she could not accept her Marxist colleagues’ epistemological relativism. Yes, African Americans, women, and LGBTs have been badly discriminated against, even enslaved, but each individual must be judged on his or her own merits. No “class,” to use Marx’s terminology, owes any other “class” anything, especially when restitution is made at the point of a gun.

To use a reductio argument against the Marxists one might say this: Ayn Rand wrote that the individual is the smallest minority on earth. Turning the thought around, can we not say that the group or “class” of individuals is the largest “class” on earth? And therefore the largest “class” on earth that has been discriminated against and oppressed??

Individuals of the world should unite! And fight off their oppressers!!

Marxists should be advocates of individualism if they are seriously concerned about justice for the oppressed.

Free speech at Northwestern. An unwavering defender of First Amendment rights, Dreger has, since the publication of her book, performed a little flipping off herself. She has resigned from the Northwestern University Medical School over her dean’s attempts to censor the content of a faculty magazine she edited. The content? About sex, of course, but also possibly “offensive” content—to the hospital’s brand name!

Sigh! As a marketing prof, I have to make one last comment. Bureaucrats, whether in academia or government, have no clue what sound marketing, including branding, means. They think the usual BS that marketing is just that and that a brand image is something made up and pawned off on the helpless, unsuspecting public. This is just good Marxist thinking about business.

Sound branding—that is, product identification—of a first class hospital should run something like this.

We use the latest, most advanced knowledge and techniques to treat and cure our patients. In the process we entertain and examine all ideas—the wilder and more offensive the better.

The better because we will then know that we have left no stone unturned in order to come up with treatments and cures to do justice [there’s that word again!] for our patients.

*To the sheltered, like yours truly, this was an eye-opening read. It also struck me as the perfect “borderline case” in the philosophical problem of universals. The existence of intersex people (and animals) demonstrates that there is no intrinsic maleness or femaleness “out there, in the thing” as the intrinsic theory of essences claims. It also took my teenage daughter to explain the difference between gender, which is social (actually, psychological), and sex, which is biological. Now I understand!

Challenging the New McCarthyism

Assaults on free speech in academia are not new. As Ludwig von Mises pointed out seventy years ago, academic freedom in European universities meant freedom to teach and agree with the government’s viewpoint (Bureaucracy, pp. 81-83).

It has always been a little risky for students to disagree with their professors’ ideas, unless the disagreement is done within the narrow confines, defined by the professors, of what is considered “reasoned debate.” This is what happens when the government is in charge of education; the government’s agents dictate what is acceptable speech, leaving its customers little choice or opportunity to take their business elsewhere.