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The Essence of Libety



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Liberty knows no compromise


A Condensed Version of For a New Liberty: The Libertarian Manifesto by Murray N. Rothbard

Compiled by

Dr. Jimmy T. (Gunny) LaBaume

Chapter 6: Personal Liberty

Freedom of Speech

"Freedom of speech" cannot be upheld as an absolute except under the rights of property. Under that condition, the freedom to say, print, and sell any utterance is an absolute right. But there are fuzzy areas, for example, "incitement to riot." "Incitement" can only be a crime if we deny every man's freedom of will and of choice. Although it might be immoral to advocate a riot, if all men are endowed with free will, then advocacy should not be subject to legal penalty. Also, if advocacy should never be a crime, then neither should "conspiracy to advocate" because "conspiring" (agreeing) to do something should never be more illegal than the act itself.

Another difficult area of the law is libel and slander. Essentially, this law holds that someone has a "property right" in his own reputation. But, since someone's "reputation" is strictly a function of the subjective feelings and attitudes held by other people, it cannot be "owned" by him. So, since no one can "own" the mind and attitude of another, speech attacking someone should not be legally restricted or penalized. Once again, it may be immoral to level false charges against someone, but moral and the legal are two different things.

If there were no laws of libel or slander, people would be less willing to give credit to charges made by others. As it is now is contrary to that—if someone is charged with a misdeed, the general reaction is to believe it since, if the charge is false, "Why doesn't he sue for libel?" Furthermore, the law discriminates against the poor who are not able to afford a costly libel suit In this same vein, wealthy people use the libel laws as a club against the poorer which serves to restrict legitimate charges under the threat of being sued.

The boycott is another action that should be free of restriction. Boycott is the use of the right of speech to encourage other people to stop buying someone's product. A boycott might be unfortunate for the producers of the product in question, but again, this is well within the realm of free speech and private property rights.

Freedom of speech implies freedom of assembly. But, picketing and demonstrations become more complex when streets are involved . In the first place, picketing is always illegitimate when used to block access to a private building or threaten violence. In the same way, sit-ins are an invasion of private property. But even "peaceful picketing" is not clearly legitimate when the streets are involved. Who decides how the streets should be used? The problem is that they are owned by government, which lacks any criterion for allocating their use. Any decision it makes will be arbitrary. No matter which way the government decides some group of taxpayers will be injured. So, government ownership of the streets makes the problem insoluble.

Whoever owns a resource will decide on how that resource is to be used. If the streets were privately owned, the owner would decide whether to rent his street for demonstrations or keep it clear for traffic, whom to rent it to, and what price to charge. So, it is clear that this is not a "freedom of speech or assembly" question. It is a question of property rights.

Freedom of Radio and Television

No effective freedom of speech or the press in the field of radio and television can exist under the present system in America . The federal government, nationalized the airwaves in 1927 and, in effect, took ownership title to all radio and television channels. It then presumed to grant licenses at its pleasure to privately owned stations.

On the one hand, the stations receive a huge subsidy that they wish to maintain. But on the other, federal government regulation and the threat of non-renewal or suspension hangs ominously over their heads. Consequently, freedom of speech is a mockery. Every station must have "balanced" programming, broadcast "public service" announcements, grant equal time to political opinions, censor "controversial" lyrics, etc., etc. As a result, free expression in broadcasting is a sham. It is not surprising that, if any opinion is expressed at all, it blandly favors the "establishment."

One of the fatal flaws in "democratic socialism" is the idea that the government should own the means of production yet preserve freedom of speech. An abstract constitution guaranteeing "freedom of the press" is meaningless in a socialist society where the government owns all the newsprint, the paper, the presses, etc.

The solution is simple. Treat these media the same as the press and book publishers are treated. The government should withdraw completely from any role in media, denationalize the airwaves and give or sell the individual channels to private interests. Only in that way, will the media be able to express themselves without fear of government retaliation and, at the same time, the users of the channels will no longer be artificially subsidized.

If TV channels were privately owned, the big networks would no longer be able to pressure the FCC to outlaw the competition from pay television. "Free TV" is not truly "free." It is paid for by advertisers and the consumer pays the advertising costs in the price of the product. What difference would it make to the consumer whether he pays directly or indirectly? The difference is that these are not the same consumers for the same products. The advertiser is interested in the widest possible viewing market and those particular viewers most susceptible to his message. As a result, the programs are all geared to the lowest common denominator in the audience. This explains why free-TV programs are unimaginative, bland, and uniform. With Pay-TV specialized markets would develop, quality would be higher and the program diversity would be much greater.

A common argument against private ownership of channels is that they are "scarce." To an economist this is silly. All resources are scarce. Anything that has a price does so precisely because it is scarce. In addition, there are far more channels available than are now in use.

Another objection is that private stations would interfere with each other. This is as absurd as claiming that, since people can drive their cars over other people's land, then all cars (or land) must be nationalized. In either case, the solution is for the courts to demarcate property titles carefully enough so that any invasion of another's property will be clear-cut and subject to prosecution.

Most people believe that this is the reason the airwaves were nationalized to begin with. But this is legend, not fact. History reveals precisely the opposite. When interference began to occur, the injured party took the aggressor to court where the courts applied the common law theory of property rights to the airwaves. Order was being brought out of chaos by the assignment of property rights. But it was exactly this development that the government rushed in to kill. It was not until after it realized the gravity of this new extension of private property, that it nationalized the airwaves using “chaos” as the excuse. Simply stated, the aim of the politicians was not to prevent chaos but to prevent private property in the airwaves.

Pornography

The arguments between conservatives and liberals about pornography are beside the point. To the conservative, pornography is debasing. Liberals counter that sex is healthy and, therefore pornography has good effects, and that depictions of violence (on TV, in the movies, etc.) should be outlawed instead. Neither argument deals with the crucial point. The consequences of pornography are completely irrelevant to whether or not it should be outlawed. It is not the business of the law (the use of retaliatory violence) to enforce anyone's conception of morality. It is not the business of law to make anyone good or reverent or moral or clean or upright. These are things that individuals must decide for themselves. The only purpose for legal violence is to defend people against violent invasions of their person or property. Whether pornography is good, bad, or indifferent should be of no interest to the legal authorities.

The same holds for "the pornography of violence." To outlaw violent films because they might induce someone to commit a crime is a denial of man's free will. Outlawing violent films is no more justifiable than it would be to lock up all teenage Negro males because of their higher than normal tendency to commit crime.

Also, prohibition of pornography is an invasion of a property right—to produce, sell, buy, and own. Thus, in advocating the outlawing of pornography, conservatives violate the very concept of property rights they profess to champion.

Finally, the idea of "morality" makes no sense unless the moral act can be freely chosen, thus the irony. By forcing men to be "moral," the jail keepers deprive them of the very possibility of being moral.

Sex Laws

Due to its uniquely private nature, it is intolerable that one of the State's favorite pastimes has been to regulate sexual behavior.

It seems odd that, while voluntary sexual activities have been illegal, rapists have been treated far more gently and many times the rape victim is treated as the guilty party. This is obviously a sexual double standard. Removing rape from its special category and placing it under the general law of bodily assault would eliminate this double standard. By the same token, the standards for the admissibility of evidence should be similarly applied.

If labor and people are to be free, then so should prostitution because it is nothing but a voluntary sale of labor services. Many of the grimmer aspects of the trade have been brought about by the outlawing of brothels which forces prostitution onto a "black-market" with all the dangers and general decline in quality these always entail. The answer is not to outlaw the voluntary and lawful activity. Instead, the answer is for the police to see to it that the genuine crimes are not committed. Finally, it should be noted that advocacy of freedom for prostitution does not imply advocacy of prostitution itself.

Furthermore, if the State should not interfere with voluntary sexual activity, neither should it discriminate between the sexes. "Affirmative action" is compulsory discrimination against males. On the other side of the coin, "protective" labor laws (with regard to women) pretend to favor women when they really discriminate against them by prohibiting them from working during certain hours or in certain occupations.

In this same vein, birth control should be free as well. As is characteristic of our society, birth control had scarcely been made legal when agitation began for it to be made compulsory. True, if my neighbor has a baby it may affect me. But, everything that anyone does affects other people which hardly justifies using force which may only be used to combat or restrain force itself.

Now we come to the complex issue of abortion. The essence of the “pro-life” argument is that abortion destroys a human life and is therefore murder. Discussion of the issue usually bogs down in minutiae about when human life begins. But, this is irrelevant to the issue of the legality (again, not the morality) of abortion.

On the one hand, the antiabortionist claims that all he wants for the fetus is the right of any human being not to be murdered. But if we treat the fetus as having the same rights as humans, we must ask, “What human has the right to live as an unwanted parasite within some other human being's body?” No being has any such right. The common retort that the mother was responsible for placing the fetus within her body is beside the point. The mother, as the property owner in her own body, has the right to change her mind and to eject it.

(Editor's Note: This is the one and only place that I have found Rothbard's approach to be inconsistent with the fundamentals of his philosophy of liberty. He refers to “natural law” or the “nature of man” as being fundamental to libertarian philosophy. But, his view of abortion seems not to take into consideration that, like all other living organisms, the urge to reproduce is very much a part of man's “nature.” In addition, with reference to young children, he holds that parents have a “fiduciary” interest in [and responsibility for] the upbringing of the child until it is of an age where it is capable of full self-ownership. Yet, he never clearly addresses when [at what point in the child's life] does this “fiduciary” responsibility begin. So, once again, he leaves us back at the issue of when human life begins. This is a fundamental flaw that needs to be addressed in the libertarian literature.)

Wiretapping

Wiretapping is an invasion of privacy and of property rights. There are some who maintain that the police should be able to tap the wires of persons they suspect .

In the first place, it is rare that wiretapping is effective in such "one-shot" crimes as bank robbery. It is usually used where the "business" is set up on a continuing basis such as with narcotics and gambling. Secondly, it is itself criminal to invade the property of anyone not yet convicted of a crime. We might make one concession. It would be proper to invade the property of a thief who has invaded to a far greater extent the property of others.

Suppose the police decide that Jones is a thief, tap his wires, and use this evidence to convict him. This might be legitimate and go unpunished. However, if Jones is able to prove that he is not the thief, then the police and the judges would be adjudged criminals and sent to jail. This would have two positive consequences: (1) no cop or judge would participate unless he was dead certain the victim is a criminal; and (2) the cops and judges would be as equally subject to the rule of criminal law as everyone else. Equality of liberty requires that the law apply to everyone. Therefore any invasion of the property of a non-criminal by anyone should be outlawed.

Gambling

There are few laws more absurd. In the first place, the law is essentially unenforceable. It would take a multimillion-man Gestapo to enforce such a law. Conservatives retort that the prohibition against murder is not fully enforceable either. But this ignores that the mass of the public instinctively distinguish between the two. It abhors and condemns murder and therefore the prohibition becomes enforceable. But the mass is not as convinced that gambling is a crime therefore the law becomes unenforceable.

Since laws against quiet betting are unenforceable, the authorities concentrate on highly visible forms of gambling—roulette, bookies, "numbers," etc. But this is a totally unsupportable ethical judgment. How can roulette, horse betting, etc be morally evil while quiet betting is morally legitimate?

Until recently all forms of horse betting were illegal in the state of New York except those made at the tracks. In other words, track betting was moral and legitimate but betting on the same race with your bookie was sinful and would bring down the awesome wrath of the law. This would appear to be imbecility, unless we consider that the purpose of the law was to force betters to swell the coffers of the tracks. Now, New York City has itself gone into the horse-betting business. Betting at city-owned stores is proper but betting with a bookie is a sin and against the law. Clearly, the point is to confer special privilege upon the tracks and the City's own stores.

In addition, more and more states are financing their ever-growing expenditures through lotteries cloaked in morality and respectability.

One standard argument against gambling is that the poor workman will blow his pay-check. But, this argument proves way too much. If that be the case, then why should we not outlaw other articles of mass consumption like TV sets, hi-fis, liquor and baseball equipment, for example? Such logic leads straight to the totalitarian cage where Papa Government tells us exactly what to do and forces us to obey.

Narcotics and Other Drugs

The case for outlawing any activity is the same argument used to justify the compulsory commitment of mental patients—it will either harm the person or lead him to commit crimes against others. The case against outlawing drugs is far weaker than the case against Prohibition. While it is true that narcotics are more harmful than alcohol, outlawing anything because it may harm the user leads logically straight to the totalitarian cage. But in the far more imposing argument about harm to others, alcohol is much more likely to lead to crimes, auto accidents, etc. There is a strong connection between addiction and crime, but it is the reverse of any argument for prohibition. “Crimes are committed by addicts driven to theft by the high price of drugs caused by the outlawry itself! If narcotics were legal, the supply would greatly increase, the high costs of black markets and police payoffs would disappear, and the price would be low enough to eliminate most addict-caused crime.”

Again, to outlaw anything that might lead to crime is an illegitimate and invasive assault on the rights of person and property. Using this same “crime control” logic, the immediate incarceration of all teenage males would be far more justified. The way to combat crimes involving alcohol is to be more diligent about the crimes themselves.

It is curious that, while liberals favor legalizing marijuana, they have a burning desire to outlaw cigarettes. They have already managed to solicit federal control of television to outlaw tobacco advertising. And, in so doing, they have delivered a blow to the freedom of speech that they supposedly cherish.

Every man has the right to choose. Propagandize all you want but leave the individual free to choose. Otherwise, we might as well outlaw all sorts of possible carcinogenic and heart disease causing agents—anything and everything from tight shoes to ice cream.

Police Corruption

An investigation of police corruption revealed that virtually every case involved a functioning business, which had been declared illegal by government fiat. The vast demand for these goods and services shows that a large number of people do not place such activities in the same category as murder, theft, or assault. In no case did the "purchase" of the police involve heinous crimes.

The common law distinguishes between a crime that is a malum in se and one that is malum prohibitum. A malum in se crime is an act that the mass of the people instinctively feels is reprehensible and should be punished—e.g. an invasion of person or property: assault, theft, and murder. Other crimes are activities made into crimes by government edict. These are the areas in which police corruption occurs—areas where entrepreneurs supply voluntary services to consumers that the government has decreed to be illegal, for example, narcotics, prostitution, and gambling.

The outlawing of such businesses provides the police the power to sell the privilege of engaging in that business. It empowers them to issue and sell “unofficial” licenses. On the testimony of one witness, if the law were to be fully enforced, not a single construction site in New York City could continue functioning because the regulations are so intricate.

At best, the result is higher cost and restricted output. Often what the policemen sell is, in effect, the monopoly privilege, which the buyer uses to freeze out competitors thereby barring consumers from the advantages of competition. History affirms this in the fact that the main opponents of the repeal of Prohibition were the organized bootleggers.

The way to eliminate police corruption is to simply abolish the laws against voluntary business activity and "victimless crimes." Then, the police would be freed to operate against the real criminals, which is supposed to be the only legitimate function of the police in the first place.

Placing government corruption in a wider context, given unjust laws that prohibit, regulate and tax activities, corruption is actually beneficial to society. In fact, in some countries there would be virtually no industry without corruption. Corruption greases the wheels of trade. So, the solution is not to deplore corruption but to abolish the laws that make it necessary.

Gun Laws

For most of the activities discussed in Chapter 6, liberals favor freedom and conservatives rigorous enforcement of the law. But, for some mysterious reason, the positions are reversed when it comes to gun laws.

If the individual owns his person and property, it follows that he has the right to use violence to defend himself against violence. But government has systematically eroded this right and the carrying of guns has been restricted by unconstitutional edict. As a result, potential victims of crime have been prosecuted. Furthermore, victims are so hamstrung by provisions against "undue" force that the criminal has an enormous built-in advantage.

No physical object is in itself aggressive. Any object can be used aggressively. Instead of pursuing innocent people possessing various objects, the law should be combating real criminals.

If guns are outlawed there is no reason to expect that criminals are going to pay attention to the law. Only their innocent victims will suffer.

Furthermore, of the over fifty million handgun owners in America , polls and experience indicate that over eighty percent would refuse to comply with a handgun ban. The inevitable result would be harsh penalties and highly selective enforcement against people the authorities didn't like. Haphazard enforcement would lead to the laws being used only against those who are unpopular with the police. Quoting Don Kates, “If these arguments sound familiar, it is probably because they parallel the standard liberal argument against pot laws.”

Kates adds that gun prohibition is the brainchild of white middle-class liberals who are oblivious to the situation in areas where the police have given up on crime control. He further points out the demonstrated empirical value of self-defense with guns. For example, civilians justifiably killed three times as many violent criminals in five years as did the police.

It is true that victims who resist are more likely to be injured. Also, avoiding injury will be paramount to a white, liberal academic with a comfortable bank account. However, it will be less important to the laborer being robbed of the wherewithal to support his family for a month. The leading subgroups who own a gun only for self-defense include blacks, the lowest income groups, and senior citizens. These are the people we propose to jail.

The evidence is that handgun bans have lowered the degree of violence in society. Numerous studies have shown that gun control laws have no effect in reducing violent crime and that there is no correlation whatever between rates of handgun ownership and rates of homicide. While a Massachusetts law providing a mandatory year in prison for possessing a handgun without a government permit did indeed reduce the carrying of firearms, there was no corresponding reduction in any type of violence.

A handgun ban is just one more diversion of police resources from real crime to victimless crime.

Furthermore, “a society where peaceful citizens are armed is far more likely to be one where Good Samaritans who voluntarily go to the aid of victims of crime will flourish. But take away people's guns, and the public—disastrously for the victims—will tend to leave the matter to the police.” It is absurd to disarm the peaceful public and then denounce them for "apathy" when they fail to rush to rescue victims of crime.

Continue to the next chapter...


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