Tate Fegley – September 17, 2020
“Your right to swing your arms ends where another person’s nose begins.” While this widely attributed quote sounds ostensibly libertarian in terms of respecting self-ownership, it’s actually quite misleading. One need not abide some lunatic swinging his arms about near one’s face, being forced to tolerate it as long as no physical contact is made. Rather, property owners may establish rules regarding the conduct of those who choose to enter their property, including prohibitions against swinging arms near other people’s faces. Individuals may then decide what rules they are willing to tolerate when they enter another’s property, and competition between property owners enables them to determine what bundle of rules various consumers prefer.
This is not the case on so-called public property—that is, land areas controlled by the state such as streets, roads, parks, government buildings—even if that state were perfectly constrained by a written constitution. In The Structure of Liberty, Randy Barnett articulates this problem well:
A society that includes extensive public property holdings is faced with what might be called a dilemma of vulnerability. Since governments enjoy privileges denied their citizens and are subject to few of the economic constraints of private institutions, their citizens are forever vulnerable to governmental tyranny. Therefore, freedom can only be preserved by denying government police agencies that right to regulate public property with the same discretion accorded private property owners. Yet steps to protect society from the government also serve to make citizens more vulnerable to criminally inclined persons by providing such persons with a greater opportunity for a safe haven on the public streets and sidewalks and in the public parks. (p. 220)
Barnett further notes that no one can be barred from public space controlled by the state; there is free access for everyone, even convicted criminals as long as they have served their sentences. Anyone must be tolerated up until the point they violate the criminal code. Some libertarians may think this is well and good since it limits the police’s authority to intervene. However, as Barnett explains, this leads to a tradeoff: we may be more free from arbitrary police enforcement, but we are also more vulnerable to victimization. Such constitutional constraints are not only restrictions on the police, but on everyone else as well: rules that would be enforced if public property were in the private domain cannot be enforced by private actors.
In this sense, on public property the rules of conduct are socialized. The unpleasantries of witnessing activities that might otherwise be prohibited on private property (depending on the intended purpose of that property), such as solicitation, panhandling, or protesting, must be tolerated on public property. The police are legally constrained in enforcing rules against such activities, as they are constitutionally protected or laws prohibiting them have been voided for vagueness by the US Supreme Court.
The manifestations of this problem are viscerally illustrated in the ongoing mostly peaceful protests/riots. While the US Supreme Court has opined that local governments can constitutionally impose some restrictions, such as requiring a permit if certain conditions are met, protestors are to be otherwise free to assemble, hold their signs, and chant. They are not free, however, to engage in the acts associated with rioting, such as vandalism, looting, and arson, among other crimes.
As such, protesting on public property is analogous to the supposed right of someone to swing their arms as long as they don’t hit someone in the face—it must be tolerated up to the point it becomes a riot. This presents a problem for police—they are prohibited from interfering with masses of people apparently peacefully assembling, but once those masses are assembled they are difficult to contain after they decide they want to hit another person’s nose by rioting.
Owners of shops and small businesses adjacent to the state-owned streets where mobs are allowed to gather are simply out of luck in terms of preventing such assemblies or receiving compensation from the state for failing to prevent such foreseeable consequences (though the lack of compensation may change if lawsuits in Seattle, among other cities, are successful). If violent mobs were allowed to assemble on private property with the similarly predictable outcome of the destruction of neighbors’ property, would we not consider the property owner who allowed it to be at least partially liable? Would it not also be reasonable for neighboring property owners to seek an injunction if this behavior continued night after night? A private property owner is not bound by the First Amendment to the US Constitution: they may exclude protestors no matter how peaceful they are.
In light of these considerations, the fact that riots are able to continue month after month would likely be impossible but for the institution of “public property.” If the streets where the mobs assemble were privately owned, assemblies that would likely result in property damage or even inconvenience for everyday people would be prevented from gathering together in the first place. Protestors blocking the streets, as well as the vehicle-protestor collisions resulting from them, would become a thing of the past. Property owners would be able to nip riots in the bud by preventing masses of people intent on rioting from assembling. There would be little need for masses of riot police, flanked by armored vehicles from war zones, staring down mobs of protestors, waiting for them to cross the line so that pepper spray, rubber bullets, and batons can legally be unleashed on them.
This is yet another example of why the privatization of streets is of interest for reasons of police reform alone. (Indeed, riots themselves are partly responsible for the militarization of police.) The failure of government policing to secure the streets not only leaves us more vulnerable to criminal victimization, but government is worse than useless when they criminalize the private defense of property. “Taking back the streets” ought to mean privatizing them and enabling property owners to defend their property. This would be the surest way to end the riots.
Image source: Getty