Property Rights and the First Amendment; L. Lamberton

How is it that such a seemingly straightforward and articulate statement of this most basic freedom has become so mired in controversy? To answer this question, and to find a way out of the perplexing confusion which sur rounds the First Amendment, it is necessary to determine the proper philosophical underpin nings upon which it is based. The First Amend ment, as with all political institutions and ideas, does not exist within a void. It is based upon a view that freedom of expression is a positive good; that without it citizens are de fenseless against capricious and tyrannical acts of government-which by having a monopoly on the legal exercise of force-will be able to stifle dissent against actions which violate the rights of its citizens. So in essence, freedom of speech exists to enable the exercise of rights which the founding fathers regard as unalien able; the rights to "life, liberty and the pursuit of happiness. ' , In the course of human history, the idea that Mr. Lamberton is a public relations manager for a New Jersey-based corporation, and was the Deputy Director of the White House Office of Policy Information during Presi dent Reagan's first term.

citizens have the unfettered right to express themselves is relatively new, owing its genesis to Age of Enlightenment philosophers. Prior to that, it was generally assumed that either the state or the church had ultimate sovereignty over one's life, liberty, and property, and that the individual had no a priori claim over such rights. Thus, the great struggles which bloodied the pages of history before the Age of Enlight enment were between the conflicting claims of church and state over the soul and property of man. It was the English philosopher John Locke who first made popular the idea that it was nei ther the church nor the crown who had first claim upon the life and property of man, but that those rights resided in the individual him self. In laying the foundation for his startling theories, he maintained that private property rights are the cornerstone of all other rights. By "mixing one's labor" with the soil the indi vidual obtained a property in the product of his labor. Thus, any state or religion which abro gated that property was engaged in theft and violation of the conditions necessary for life to have meaning, fulfillment, and efficacy. To the extent that the individual was not free to enjoy the fruits of his labor, he was unfree and a slave.

Property Rights Antecedent to Free Speech It was out of this philosophical heritage that America's founders created a new nation, based on the principle that each individual is a sovereign within his own right, free to enjoy the blessings of liberty, and free to realize his true potential without interference from church or state. Property rights then became the ac knowledged foundation upon which other con stitutional freedoms rested, including freedom of speech. It was not until this century, when private property came under relentless ideolog ical assault, that the First Amendment was sub jected to ambiguous and convoluted conten tion. Indeed, it is the failure to recognize property rights as the antecedent of free speech that has led to uneven, conditional application of the First Amendment in the twentieth century. Why is this so? First we need to look again at what "life, liberty and the pursuit of happi ness" really means. By having the right to "life," we own, from the moment of birth, our life, which no one has the right to take away.

Since infants and children cannot sustain their lives without support from adults, parents and/ or guardians have an obligation to sustain that life with their labor. That does not mean, as it would with inanimate objects and animals, that adults, by mixing their labor for the mainte nance of children, have a "property" in the child. That would make children slaves, and would deny them their unalienable adult rights to liberty and the pursuit of happiness. How ever, it does give parents and guardians the right to restrict a child's freedom until the child reaches sufficient maturity where it is possible for him to make decisions about his own wel fare and where he at least has the potential to be self-supporting. Once a child evolves to maturity, he can then exercise his "liberty"; meaning he can be free to take whatever actions he deems appropriate for his happiness and well-being, provided in so doing he does not restrict the rights of others to exercise their liberty. John Stuart Mill, the nineteenth-century utilitarian philosopher, put it succinctly when he wrote: "The right to swing my arms in any direction ends where your nose begins. ' , So by "life" man is free from the right of another to take that life without consent, and "liberty" is freedom of action. Unfortunately, many civil libertarians who appear to be in the forefront of defending the First Amendment are content to rest their case for free speech on life and liberty precepts, and look no further, ig245 noring the significance that the "pursuit of hap piness" plays in protecting and preserving freedom. For once an individual has liberty of action, it is essential, if that freedom is to have meaning, that he be able to realize the fruit of his liberty. It is a shallow liberty indeed if he is not free to exchange voluntarily with others the product of his efforts on terms that are mutually agreeable.