Liberty and Property; D. Kelley

Libertyand Property DAVID KELLEY MODERN LIBERALS, for years, have had a selective love of liberty. In the realm of ideas, they de fend the individual's right to free dom of thought, to freedom of ex pression, and his right to choose the values he will live by. They reject state censorship, as well as "the enforcement of morals." Their approach is from the point of view of the individual, pitted against a state that tends toward oppression. In the realm of mate rial production and exchange, how ever, they identify with the state, repudiating individual property rights, sponsoring economic regu lations that cover the entire course Dr. Kelley is Assistant Professor in the Philos ophy Department at Vassar College. of production, from the capital markets to the consumer's hands. In a word, they advocate free dom in intellectual, but not in eco nomic matters. But this distinc tion among realms· is artificial; the doctrine based upon it is false; and its consequences in reality are self-destroying.

The source of rights, of man's moral claim to freedom, is his ra tional nature. Reason is man's tool of survival, his means of living. Human action by nature is ra tional action,proceeding from the mind of an individual. And free dom from coercion is a· require ment for such action. A man can not acton the basis of his mind if the will of another is interposed 617 618 THE FREEMAN Oc'tober between his mind and his actions. Man has, therefore, a moral claim - a right - to freedom of action. 1 Because freedom isa condition of human action as such, it is a condition for all human action. Indeed, the different rights, in cluding the right to property and the right to liberty, merelyspe cify different aspects of free ac tion. The right to property is a recognition that man is not a dis embodied spirit, that he lives in a material world and needs to make use of physical objects. The right to liberty is a recognition that man is not an automaton or an animal, that he must act on the basis of his reason, translating his ideas into reality. But the use of property and the use of the mind are not two different types of action; they are two different aspects of one type of action human action. Each implies the other.

The Uses of Property On the one hand, any exercise of liberty involves the use of prop erty: a thought cannot be trans lated into reality without the physical means of doing so. And this applies to the expression of ideas as much as to any other sort of activity. The expression of an 1 Ayn Rand, "Man's Rights," The Vir tue of Selfishness (New York: New American Library, 1964). idea requires a physical medium - printing presses, airwaves, lec ture halls. The right to express oneself must then include the right to acquire and use these media. A government which owned or controlled all the media, there by abrogating individual property rights in them, would violate the right of expression. It is not merely that this government would be likely to restrict freedom of speech by restricting access to the media. Even if it allowed access to anyone who wished it, it could not recognize their right to access, since it owns the media. Freedom of access would be a privilege, on which the state could place any conditions it wanted. The same may be said for the moral choices that the liberal says we have a right to make freely, all of which involve the use of material goods.

On the other hand, any use of property is an exercise of liberty. The physical plant of a newspaper, publisher or university is an ob vious example: its use is deter mined by the ideas which its own ers wish to communicate. But the same is true of a steel mill, a bank, or the family plot of land these too are used by their owners to realize their ideas. It is true that the latter are not expressing ideas; they have goals other than the communication of knowledge or opinion. But communicating an 1975 LIBERTY AND PROPERTY 619 idea is only one form of acting on it. The industrialist, the financier, and the homeowner are acting on their judgment in using their property; they are expressing their •ideas in action. The Power of an Idea Liberal intellectuals have shown a narrow insularity in restricting the concept of liberty to intellec tual freedom, as if their own spe cialty were the only possible out let for the mind. .It is not. The discovery and communication of knowledge is one branch of 'pro duction; but all production, re gardless of the product, is an in tellectual process requiring the producer to act consistently on his reason.

Correspondingly, freedom of speech and of the press are spe cific forms of liberty, with special relevance for the work of intellec tuals; but there is no valid dis tinction in importance between these and other forms of liberty. Intellectual freedom is necessary because man needs knowledge of reality, and such knowledge is the product of independent minds. But material goods are no less impor tant, and they too are the products of independent minds. An intel lectual properly objects when he is prevented from speaking because someone else does not like the content of his thought. But exactly the same injustice occurs when a businessman is prevented from offering a new product, or completing a merger, or firing a worker. He is being prevented from translating an idea into real ity because someone else does not like the content of his thought; he is being prevented from' using his mind freely.

Thus liberal theory, in separat ing liberty and property, separates the insepa:rable. For this reason, liberal practice backfires: the reg ulation of the economy spawned by liberalism entails the regula tion of ideas as well. Consider, for example, the Fed eral Communications Commission. Under its power to regulate the broadcast media, it sets eriteria that stations must meet to obtain and renew FCC licenses. These criteria' include regulations on the content of what is broadcast. The Commission enforces the "fair ness doctrine," for example, which requires broadcasters to give air time to opponents of views and politicians they have presented. The FCC also hears petitions from people who object to material pre sented on the air, and it has the power to revoke the licenses of offending stations. These powers are based on the liberal doctrine that the airwaves are a material resource that should be used in "the public interest." But the con620 TH,E FREEMAN October sequence is a substantial control over the ideas presented through this medium.

Medical Controls Another obvious example is the regulation of medicine, which has mushroomed in recent years. The New York Times, noting "the in creasing bureaucratization of medicine," points out that ''today the Federal Register, with its daily avalanche of new rules and regulations, is, the highest author ity in Americanmedicine."2 Among other regulations, doctors are told how, where and at what cost they may treat patients, as well as which patients they must treat. The liberal justification for this is the material well-being of the patients. They overlook the fact that they are destroying the free dom of doctors to use their own minds, to disagree with'the regu lators, to try new products and techniques, in treating patients. In short, doctors are losing their intellectual freedom, just as if journalists were told by the gov ernment how they must write ar ticles, where they may publish them and for what fee.

A' more gruesome constraint threatens to arise over the issue of' abortion. The Supreme Court recen fly ruled that a woman has 2 New York Times, June 24, 1975. Edi torial. the right to terminate a pregnancy if she wishes, and that the state may not prevent her from doing so. In my opinion, the Court was right in this decision., But of course it does not mean that doc tors and hospitals are legally ob liged to provide abortions. Yet there are signs ofa movement to enforce such an "obligation."Ac cording to the liberal doctrine of "economic rights," everyone has rights to have - not to acquire by voluntary exchange, but, to, have provided them - various economic goods that are considered necessi ties. If abortions move into that category of goods, liberals will doubtless argue that doctors and hospitals may not refuse this "right" to women desiring abor tions. This would all be in the name of purely economic welfare, of course. But consider the viola tion of liberty involved. Some doc tors are morally opposed to abor tion, regarding it as murder. One may disagree with them entirely, but surely there is no more hide ous form of tyranny than forcing someone to commit what he re gards as' murder. Yet this is the implication of an "economic right"

to abortion. 3 A final example is the subsidies 3 Most liberals, fortunately, would not carry their principles this far, but cf. Lucy Komisar's "My Turn" column, Newsweek, June 9, 1975.

1975 LIBERTY AND PROPERTY 621 to artists, writers and academics granted by such government agen cies as the National Endowment for the Humanities or the various state councils on the arts. These subsidies constitute an establish ment of ideas and artistic trends; and they should be prohibited for the same reason that the state is prohibited from establishing reli gion. Liberal proponents of the grants argue that they are de signed to support the artist or the intellectual, not to support. his art or his ideas. They are supposed to be a specialized form of welfare. But why are such grants felt to be necessary? Because the bene ficiaries could not otherwise sup port themselves by their work. And why is. that? Because the public, exercising its judgment about their work,. will not volun tarily support them by buying their products or contributing money to them directly .. The gov ernment policy of subsidies is a way of reversing these judgments by force (through taxation). The taxpayers have tastes, standards, and values ; they express them through purchases of art-works, books and theater tickets; their money is their means of expres sion. By confiscating the means, the government violates their free dom of expression.

So far as one can tell, the .lib eral sponsors of these regulations were not aiming at thought con trol. Liberals generally place them selves on the side of reason and the indi vid ual' s freedom to use his mind, and they seem genuinely outraged at any violation of that freedom. This in itself is an inter esting comment on the liberal phi losophy. It implies that in their view the use of property does not require the use of the mind; that there is an utter gulf between. an intellectual world of ideas and a material world of commerce. De spite its alleged modernity, .lib eralism is caught up in a mind body dichotomy with which Plato or Augustine would have felt quite at home. Nevertheless,. industry and commerce are works of the mind, requiring as much disci plined, rational thought as a scien tific discovery. The liberal bureauc racy that regulates this work is regulating the minds of men.

A Systematic Attack Beyond these actual violations of liberty, moreover, the liberal doctrine has opened the door to precisely the sort of conscious, systematic attack on liberty from which liberals .themselves would recoiI.Many extreme leftists have lost any attachment to intellectual liberty; they are prepared to sup press the opinions of those who disagree with them. But no West ern country would· yet tolerate an 622 THE FREEMAN October explicit censorship of ideas. The left must therefore proceed by indirection, covering its tracks as it seeks control. The liberals have offered them the' perfect device. Because of the connection between liberty and property, government controls over the expression of ideas can' be disguised as common and familiar controls on property. Modifications of established eco nomic controls can be used to si lence dissent. Thus the liberal precedent of a regulated economy may help bring about the regula tion of ideas as well.

Canada and Britain have re cently furnished examples of how this works. In Britain, the issue is one of labor law. Under the Conservative government of Ed ward Heath, the closed shop" had been banned; but the Labor Party, returned to power' last year, is moving to restore it. If they are successful, the government would back the closing of a shop, making union membership a condition for employment. This in itself is a fairly typical form of labor law. But it is being put to a new use. The National Union of Journal ists, "an increasingly militant un ion,"4 insists that a closed shop in a newspaper must include edi tors and writers as well as other staff: the former must join the 4 Brian Wicker, "Unionizing the Edi tors," Commonweal, April 11, 1975. union, .take part in union-author ized strikes, and refuse to publish nonunion writers. (This could even prevent publication of letters to the editor from nonunion writ ers.) And part of the reason for the union's 'militancy on the issue, it seems' clear, is a desire for con trol over editorial content. In a country where the social issue is the power of the unions over the economy, this would give one par ty to the dispute control over what may be said on the issue.

The Canadian case involves a technicalma tter of' tax policy. The cost of advertising in the print media can normally be deducte? as a business cost for tax pur poses. Ten years ago, Canadare stricted this deduction to advertis .. ing in Canadian publications, but allowed the Canadian .editions of Reader's Digest and Time (and a few smaller magazines) the same conditions as their Canadian com petitors. A bill has· recently been introduced in the Parliament, however, that would terminate this allowance. If passed, the cost of advertising in the American magazines would 'not be deducti ble, .thus effectively doubling that cost. Spokesmen for Time and Reader's Digest say they could not continue in business. Never theless, the bill is expected to pass. The' new legislation appears to be nothing more than a modifi·ca1975 LIBERTY AND PROPERTY 623 tion of established policy. That is the point. An established prece den t serves as the vehicle for a new intent: to regulate ideas. The nationalist sponsors of the bill re sent the American "cultural influ ence" represented by these maga zines. In regard to Time, the nationalists object that it "gives Canadian readers a view of the United States and the world through the eyes of American ed itors writing in New Y ork."5 Thus the government's tax policy is to be used to censor views that certain groups disagree· with. The intention is to keep from the eyes of Time's large Canadian reader ship a set of. opinions that their government finds unsuitable. This is an open, explicit attack on the freedom of the press - on the right of liberty - but it is masked as a simple matter of taxes.

Advocacy Advertising A similar restriction on free dom of speech has been attempted within the United States govern ment. Like the foreign cases, it seems minor in scope, but its im plications as precedent are enor mous. It concerns the recent phe nomenon of "advocacy advertis ing." The oil shortage of· 1973 and 1974 brought with it an hysterical 5 New York Times, March 21, 1975. barrage of attacks on the oil and power companies, who were charged with causing the shortage in order to increase profits. To defend themselves, many of these companies used paid advertising space to explain the causes of the shortage and their own actions in regard to it. Some of them went further, to defend free enterprise, the legitimacy of profits, and the evils of government regulation. These advertisements provoked a new wave of criticism from liberal columnists, who argued that the companies were wrong .on all counts.

In January, 1974, however, a group of three Senators and three Congressmen 6 tried to go beyond m.ere argument. The Federal Trade Commisison requires that commercial advertisers must be prepared to document any claims they make about their products a rule many liberals endorse as a protection of the consumer. The legislators petitioned the FTC to extend this rule to advocacy ad vertising. Citing advertisements by Exxon, Mobil, Shell, General Electric, and the American Elec tric Power System, among others, the petitioners claimed that the ads made "misleading claims 6 Senators Thomas J. McIntyre, Frank E.Moss, and Birch Bayh; Representa tives Les· Aspin, Benjamin Rosenthal, and Andrew Young.

624 THE FREEMAN October about energy crISIS causes and environmental effects of corporate activities."7 The companies, they said, should be compelled to prove these claims or else withdraw them. Implications in Economics, Technology, Politics, Ethics Consider the implications of this petition. The issues it men tions 8 are among the most con troversial of the· day. They involve abstract questions of economics, technology, politics and ethics. And the petitioners want to pre vent the expression of non-liberal opinions on these issues. They are saying, in effect: before a viewpoint may be· published, the government must be convinced of its truth; if an advocate dis agrees with the regulators, he must either change their minds or remain silent .. This is censor ship~ an explicit attempt to sup press dissenting opinion. Even worse, the censorship was directed at the victims of government reg ulation, who were taking their case to the public. The petition was thus ·an attempt to prevent the victims of coercion from stand ing up for· their rights.

7 Advertising Age, May 5, 1975. 8 According to a story in the New York Times, May 1, 1975, the petition men tioned "environmental, political and pub lic policy issues." The fact that the censorship was proposed only for advertise ments is irrelevant. Other federal agencies have control over the other· media of expression; the universities, because they receive federal aid, are increasingly com ing under federal control; the precedent could easily be extend ed to all forms of expression. In deed, if freedom of speech does ever die in this country, it is likely to happen in just this way: not choked off dramatically by jack booted censors, merely smothered in a blanket of the sort of regula tions we have grown used to. It is the more important, therefore, to recognize that this is censorship. Fortunately, the FTC rejected the petition, arguing that advo cacy advertising is protected by the First Amendment. According to Advertising Age, however, the Commission reserved the right to take action against such adver tisements "if they are 'unfair or deceptive,' and their .commercial effect outweighs First Amend ment considerations."9 This means that the government claims the right to pass judgment on fair ness and deception -Le., on truth - in the discussion of controver sial ideas. This constitutes a con trol over ideas. For this reason, at least one of the petitioners, Repre.;.

9 Advertising Age, May 5, 1975.

1975 LIBERTY AND PROPERTY 625 sentative Benjamin Rosenthal, re garded the FTC decision as a par tial victory. These recent events. represent a quantum step along the road to serfdom. Violations of property rights, which have become quite common, are implicitly violations of the right to liberty; and they are 'wrong not least because of that. But a restriction of the free dom of speech and press is an explicit violation of the right to liberty; and that is much worse. It is an open, naked attack on the source of human values, the source of independence, and the source of property - man's mind. A cam paign against man's ability to act on the basis of his own reason is the crucial step in the collectivist assault on the individual. And it should be resisted as such. Advo cates of capitalism should defend freedom of speech and press, and the right to liberty generally, above and beyond the issue of property rights.

Control of Persons But in the end the individual's right to use his mind cannot be implemented, and certainly will not be safe, until his right to ac quire and use property is acknowl edged and protected by a limited government. For it is precisely the disregard of property rights that has opened the door to suppres sion of ideas. Human freedom is an integrated whole; no part of it may be destroyed without en dangering it all. Communist total itarians understand this: a guide to taking over a Western democ racy, purportedly written by a Soviet Central Committee member, asserted that "The destruction of the private sector [of the econ omy] is the first step toward elim inating an independent press."lO It is time that American liberals learned the same lesson. ~ 10 The document was printed in space g-iven by Le Quotidien de Paris to the editors of Republica, the Lisbon news paper that has been closed by the left wing-Portug-uese government.

IDEAS ON LIBERTY BEFORE THE GOVERNMENT can control the land and its produce, it must first control the man who lives and works upon the land. That means control over his mind and spirit. That is exactly what the Soviet leaders found when they decided to collectivize the Russian farms; they had to collectivize first the minds and spirits of those who had been independent kulak farmers. RUSSELL J. CLINCHY, "Two Paths to Collectivism"