Free speech is under assault in the U.S. today as it has not been in a long time. Although a great many voices are engaged in the effort to preserve it, very few are speaking up for property rights. But if we fail to restore property rights to their
Without secure rights of private property, no other rights are possible. Consider: I may erect a Christmas creche in my own front yard, but not in the town square. I may carry a concealed gun on my own land, but not on the public streets of most American cities. I may smoke in my own home, but not in a "public" restaurant in most states.
Free speech, at first glance, seems to belie this principle. On our public sidewalks and town squares freedom of speech is as secure as it has ever been. But in a country of 320 million souls, a speech given in a town square is insignificant unless its contents can be transmitted to a wider audience. And that is where private property comes in.
The moment he stepped onto Google property, Mr. Damore temporarily surrendered his right of free speech
Newspapers have long been an indispensable means of transmitting ideas to a wider audience. And, as privately owned entities, they have rarely been subject to government efforts to censor their content. It helps, of course, that freedom of the press is explicitly protected by the Bill of Rights. But freedom of the press ought, in principle, to apply to radio and television news reporting as well. Yet radio and television stations must operate under the regulatory control of the Federal Communications Commission--because they broadcast over the "public" airwaves.
Recall the Fairness Doctrine, which, from 1949 to 1987 required broadcasters to report both sides of any issue they covered. Most radio and TV stations simply avoided controversial issues altogether. It was the repeal of the doctrine during the Reagan Administration that made Rush Limbaugh and talk radio possible. Well, the Fairness Doctrine has never been found unconstitutional; it could be reinstated at any time, and talk radio would be snuffed out at the stroke of a pen--again, because radio relies on the public airwaves.
If you doubt that free speech depends on private property rights, consider the case of James Damore. Last August, Google fired the software engineer for an email he sent to an internal discussion group at Google. The subject of the piece was why there are fewer female than male software engineers at Google, and what, if anything, Google ought to do about it. Mr. Damore argued that the disparity is due, at least in part, to inherent differences between men and women. So Google fired him.
But Google's dismissal of Mr. Damore was not an act of censorship. The moment he stepped onto Google property, Mr. Damore temporarily surrendered his right of free speech. Just as any homeowner sets the standards of acceptable speech in his home, so Google sets the standards on their campuses and in their email groups. However justified Mr. Damore's criticism of Google's "diversity" policies might have been, their firing him was a valid exercise of their rights as a property owner.
But now comes news of genuine censorship in the case. Jayme L. Sophir, associate general counsel for the "Division of Advice" at the National Labor Relations Board, has written in an internal memo that Mr. Damore's "statements about immutable traits linked to sex--such as women's heightened neuroticism and men's prevalence at the top of the IQ distribution--were discriminatory and constituted sexual harassment." In other words, according to Ms. Sophir, Mr. Damore's ideas, when shared with a private email discussion group on private property, constituted a violation of the law. The NLRB's position on this matter has not been tested in court, but were it to take effect as law--already it appears to have caused Mr. Damore to drop his suit against Google, and it undoubtedly will cause future James Damores to keep unpopular ideas to themselves in the workplace--it would constitute a dangerous extension of the government's power to censor speech.
The government already censors speech--in the workplace, among other places, because the workplace, even in a privately owned company, is now treated as a form of public property
The government already censors speech--in the workplace, among other places, because the workplace, even in a privately owned company, is now treated as a form of public property. If Google, as a property owner, is free to determine which forms of speech to prohibit on its campuses, then it should also be free to determine which forms of speech to permit. But no company has been entirely free to do this since the Equal Employment Opportunity Commission invented the offense of "sexual harassment" in the 1980s.
The origins of sexual harassment lie in the radical sixties, when feminists began to push for women to enter the workplace. Congress aided them with the Civil Rights Act of 1964, which prohibited employers (of fifteen or more persons) from discriminating against women in their hiring. The U.S. Supreme Court upheld this extinguishing of the rights of private employers to hire whomever they chose as an exercise of Congress's power to regulate commerce.
Next came the overhauling of the workplace to accommodate the sensibilities of the newly-arrived women. In the early 1980s, the EEOC interpreted the Civil Rights Act of 1964 as prohibiting sexual harassment, and the Supreme Court agreed in 1986. And so the federal government extinguished the rights of business owners to set the standards of acceptable behavior in their own businesses, and, in the process, it brought censorship to the workplace.
Now, thanks to the countless additional ways in which the EEOC, the NLRB, OSHA, the EPA, and other agencies micro-manage American businesses, we have become so used to thinking of the workplace as a species of public rather than private property and so inured to the government's censoring speech there that most Americans probably will see nothing amiss in the NLRB's expansion of sexual harassment to include the communication of ideas that a woman might find objectionable. But that expansion constitutes genuine censorship, and it sets a dangerous precedent.
Free speech is under assault in the U.S. today as it has not been in a long time. Although a great many voices are engaged in the effort to preserve it, very few are speaking up for property rights. But if we fail to restore property rights to their proper place in our constitutional scheme, any effort to preserve free speech will be in vain.
Without secure rights of private property, no other rights are possible. Consider: I may erect a Christmas creche in my own front yard, but not in the town square. I may carry a concealed gun on my own land, but not on the public streets of most American cities. I may smoke in my own home, but not in a "public" restaurant in most states.
Free speech, at first glance, seems to belie this principle. On our public sidewalks and town squares freedom of speech is as secure as it has ever been. But in a country of 320 million souls, a speech given in a town square is insignificant unless its contents can be transmitted to a wider audience. And that is where private property comes in.
