Skip to comments.Defense of Liberty: Libertarianism and the Public Square
Posted on 01/20/2002 2:12:45 PM PST by annalex
Libertarianism and the Public Square
A city has areas of unrestricted common access: streets, parks, squares, and sidewalks. Presently they are publicly owned and the City Hall has control over events that people stage there. Let's call all such areas public square and let's call the events in question cultural expressions. They may be religious or secular in nature, permanent or temporary: Christmas trees and menorahs, flags, statues, crosses, Stars of David, and walking Darwin fish, musical or theater performances, parades, signs, billboards, graffiti, people with boom boxes, sidewalk art exhibitions. Some of it may offend others for a variety of reasons: poor quality, obscene, vulgar, blasphemous, direct insult of passers-by.
A related category is cultural expressions that are stationed on private property but project publicly: loud speech or music, billboards, store windows. Presently, they are regulated by the city hall just the same. I would count those cultural expressions as part of the public square. Clearly, no meaningful distinction exist between a street musician who owns himself as he projects his music onto the passers-by, and a business that owns a store and projects its content through signs and store windows.
Another related category is museums or schools that receive public funds. I would not include those in the definition of the public square, in order to limit the discussion to expressions that reach the general public without being solicited by it. I also believe that there is little to discuss about publicly funded schools and museums since no reasonable argument exists for the continuation of the practice.
I will speak in terms of "city government" in order to keep the "public square" metaphor intact, although the discourse would really apply to government on any level, just like it would apply to network television or advertising and not only to cultural expressions tied to a physical street or square.
What should be the proper libertarian position with regard to the city government's cultural policy in the public square?
Let me outline the present policy that prevails in America: traditional cultural expressions are generally allowed; particularly offensive or disruptive expressions are generally not allowed; there is a noticeable bias against the white Christian cultural expressions and in favor of exotic, either in terms of geography or in terms of tradition, expressions. The bias is particularly strong when the government owns the venue of the expression. Thus a Christian message on a privately owned billboard is tolerated by the government, but Christian messages on the city property are tolerated only in their most secularized form, if at all. Christmas trees are still on the public squares; nativity scenes are becoming rare; a cross has been completely driven off the square. Whenever a watered-down Christian message is allowed to stand, the city makes sure that a similar in character non-Christian message (e.g. a menorah on Chanukah) is equally prominent.
At the same time, the public decency standards are gradually relaxed. While the trend seems to be driven by the public will more than by cultural policy, whenever the government has a chance to tighten the standard through regulation of mass media or vagrancy laws, it fails to do so. This entire complex of laws, policies and attitudes goes by the name of "multiculturalism".
The standard libertarian response to the cultural policy issues is culturally blind. It rests on two principles: that the government should not be making any value judgment when dealing with culture, and that the public square should be privatized, at which point the cultural issues would be to the individuals to sort out.
I believe that this libertarian response is inadequate. It doesn't explain how the cultural blindness principle follows form the core libertarian belief that the proper function of government is protection of individual rights. The dismissal of cultural issues as another negative effect of the commons often looks like plain evasion. It doesn't offer any guidance to a present-day libertarian politician in a non-libertarian world; since the public increasingly views the cultural issues as pivotal in determining how it votes, it is no wonder that libertarians win so few elections. The proper answer should come form the perspective of a libertarian mayor or a libertarian commentator who can influence the cultural policy but cannot accomplish his true preference, privatization. Moreover, it is not immediately clear why privatization should be able to solve any of these issues, since the essence of cultural exchange is in unsolicited messages crossing property lines.
This article reviews the policies of the public square from the perspective of individual rights; it makes an assumption that it is proper for the government to protect individual rights regardless of the magnitude of the violation. I would acknowledge that in practicality it would be wiser to keep the government out when the rights violation, albeit real, is negligible. However, the passion evoked by public cultural policy discussion, as well as the existence of very real armed conflicts today that cannot be understood apart from the cultural identity of the combatants, point to the fact that rights violations inherent is some cultural expressions are not necessarily small in magnitude.
The quintessential issue is this.
Imagine a public square in an American town with a libertarian in charge of the town government. Let us get past the fact that the libertarian mayor would prefer there to be no public square at all, -- its existence is a given within the available time frame.
Christmas comes along and the Christians in town want to erect a Christmas tree and a Nativity scene for the season. The mayor sees no violation of rights in that: the non-Christians can ignore the display if they don't like it.
Chanukah comes along and the Jews erect a menorah. Again, no problem. (Or a solvable placement and scheduling problem).
Now a Satanist wants to display a Satanic message in the public square. What would the libertarian mayor say?
A culturally blind libertarian mayor would not see the difference between the Satanist and the others and would allow the satanic display. If some town residents prevent the Satanist from doing his display, the culturally blind libertarian mayor would use force to protect the Satanist, just as he would protect any other cultural messenger. At that point, traditional American pluralism is dead and multiculturalism prevails in that town.
In order to realize that the mayor is wrong we need to notice that a satanic display is offensive to Jews and Christians in a different way than religious displays can be: due to its blasphemous nature it cannot be ignored by them. But this judgment is only possible if one is aware of the cultural realities in today's America, where Jewish and Christian cultures coexisted for centuries and learned to be mutually inoffensive. But our libertarian is schooled to think that culture doesn't matter, it is an individual affair to which government should be blind. Hence, while the libertarian principles do not contain an endorsement of government-imposed multiculturalism, they can be easily corrupted so that the libertarian practice would in fact lead to it.
The conservative critique of multiculturalism centers around the concept of community standard, which is often confused with majority rule. In fact, community standard is based on the Golden Rule. To realize that, one has to be cognizant of the cultural view: what cultural expression offends whom and in what way. In this simplified example, it so happens that Jewish cultural display doesn't offend a Christian, but a Satanic cultural display does; hence one is consistent with (a) the libertarian principle of the Golden Rule, (b) community standards prevailing in most American cities, and (c) American national character as a pluralist society of certain racial and ethnic stock that is an amalgamation of Western cultures, by a historical circumstance inclusive of virtually any Christian culture, Jewish culture and of African slave culture, but not of Muslim, Oriental or atavistic cultures.
Of course, other examples could be built, where, depending on venue and context, Jewish expression or even a different Christian denomination's expression would offend, or when an exotic cultural expression, including a Satanic display, would be welcome.
Libertarians would typically focus on the statist aspects of multiculturalism. As a solution to cultural disputes that involve government property, libertarians would recommend privatization; to the extent that privatization is not possible, either one of the two logically possible culturally-blind approaches would be recommended: (A) banning all cultural expressions in the public square (a completely illogical but popular flavor of this suggests banning only "religious" ones); or (B) lack of government involvement beyond vandalism, physical obstruction or assault. The latter, of course, translates into offering government protection against vandalism, physical obstruction and assault for all kinds of cultural expression regardless of content. Another popular cop-out is to recommend putting each cultural expression to a referendum and require universal consent -- policy A in disguise.
I believe that both those approaches, with all their weasely flavors, are unjust and such government would fall short in its mission to protect individual rights. That is because even though no physical damage may accompany a cultural message, it may still violate rights of the spectators, passers-by, or other messengers. Here are examples:
- Direct insults of passers-by short of threats of violence;
- disruptive behavior even without physical obstruction.
A just disposition of cultural grievances by the government is part of its legitimate as per libertarianism function. Such disposition is not possible without looking into two factors: the content of the offensive message and tradition. In other words, the town hall must take on a cultural outlook. Let us revisit the scenario with the satanist. A satanic display would be inoffensive in some contexts, for example, as part of an exhibition on religions of the world, or to those who choose to view it (that is, behind closed doors). However, in proximity to a Christian display it would cancel out the Christian message by its very nature of defying the existence or the power of God. It would then violate the expression rights of the Christian messenger. (Note that I am not speaking of cute little devils that are mascots of some sport teams or FreeBSD operating system). Because satanism is not part of our tradition, the passers-by don't expect it; what was planned as a pleasant stroll in the public space may turn out to be a frightening or disturbing experience. Thus it would violate the rights of passers-by. Could a Christian or other traditional for the locale religious message be a violation of rights of an atheist or a non-Christian? Not in a public square, because Christian messages are traditional and should be expected in public space. In America today, Jewish religious display is not offensive to Christians and Christian religious display is not offensive to Jews. As long as they are not intended to threaten or ridicule another religion they are not offensive to anyone, including a Satanist, simply because we (including Satanists among us) are used to them.
Another example of a cultural message that violates rights while not involving initiation of physical force. Free Republic had its (or Jim Robinson's to be more precise) rights violated by some disruptors. The nature of an Internet forum is such that one can easily defy a ban, keep re-registering and disrupt threads with inane, rude or bandwidth-heavy messages. Jim ended up suing one such character. No matter how the case ended up, you would agree that it was a reasonable lawsuit, -- Jim had no recourse of his own to protect his rights as the forum owner. Well, if it was a reasonable lawsuit, there must be a reasonable law that regulates cultural disruptions, even though no physical obstruction or use of force accompanied the disruption. The restrictions that governments place on cultural messages, even those messages that originate in privately owned space, that can be potentially disruptive are a legitimate attempt to formulate such law. While we can dispute every such law on its merits, we should realize that cultural policy is a proper arena of government regulation in a free society.
Let us generalize thusly: a cultural expression is unrightful with respect to its recipient if it offends him over the sensitivity threshold that exists in the community. That standard shifts with time and geography. Sloppy attire was considered a serious offense not that long time ago in America. Today's standards are extremely relaxed, however, a direct insult or gross indecency are a violation of rights if they are unanticipated. Thus flashing or verbal abuse are considered a form of assault.
A cultural expression can also be unrightful with respect to other messengers if it cancels out (or partially cancels out) their rightful message. It may cancel out the message even when no physical obstruction takes place. For example, a condom distribution event outside of a church destroys the pious mood that the church service worked to create; it is therefore unrightful even though it takes place off the church grounds and the service attendees are not physically touched or threatened.
So, is there a general rule to legislate against offensive content? Several principles suggest themselves.
First, when looking for violation of rights, it is not sufficient to only look for physical obstruction or harm. We all recognize that the release of some messages is unrightful even though no proximate physical harm results form the message. For example, if I were to publish a plausibly-looking scientific paper that would make a bogus claim in fundamental natural science, that would be fraud even if no measurable physical harm would proximately result from people reading it. We should then allow for the possibility that some cultural (and so not falsifiable) messages also can violate rights.
Secondly, let us disabuse ourselves of the notion that unanimous consent to cultural content must be sought. The unanimity standard only makes sense when a right is being relinquished to a legislation, and even then it only can be applied to the legislative process, but not to a specific legislative outcome. In an overwhelming number of cases no one's right is being violated by cultural expressions, even when a cultural expression is not welcomed by some and would fail in a referendum. It is therefore bogus to apply the unanimity standard to cultural disputes. The proper standard is to analyze the expression and see if it objectively violates the rights of other messengers or the recipients.
Another misconception is that private property rights are sufficient to resolve cultural issues. While privatization of commons is generally desirable for a number of reasons, it doesn't resolve all cultural disputes. That is because a society needs areas of open access where various cultural players can project messages across property lines. It is therefore irrelevant how those property lines are drawn. For example, it is often said that it is up to the store owner to allow or ban cultural expressions inside the store. That is only half accurate: he can ban cultural expressions at will, but he cannot allow a cultural expression which violates rights any more than he can allow a murder to happen in his store.
On the other hand, both local majority and local tradition have a role to play in determining a rightfulness of a message. That is because tradition and majority have the ability to make a message expected, thus giving a person who would rather avoid the message to take steps toward avoidance. For example, I know that traditionally a menorah is erected at our shopping mall each Chanukah (the owners are Jewish). If I wanted to avoid Jewish cultural expressions I could schedule my shopping around it, or be ready with answers if my children ask me why don't we have a menorah (we are Christian). Similarly, if I were a Jew who wanted to avoid the majority-Christian culture I could move to an area where Jews are in majority. In contrast to that, a unanimity principle wouldn't allow a formation of cultural enclaves and lead to a true cultural tyranny. Does it mean that equally inoffensive cultural messages should receive equal treatment? Yes, usually, but there is one exception: when a message is placed in a context when it becomes a symbol of the entire nation, only an message reflective of the absolute majority will do. American tradition uses Masonic or irreligious imagery for its currency and various seals of office; Christian symbolism is also present (e.g. as a Christian Bible or a Christian prayer at official ceremonies); Jewish symbolism would not be equally permissible if used in a way as to identify the entire American nation.
In conclusion: any cultural expression in the public square that does not require special resource from the government, causes no physical obstruction of traffic or other cultural expressions, is rightful even in absence of unanimous consent, as long as it does not violate the community standard of offensiveness and does not cancel out other messages by its content. The form of expression is irrelevant, and so is the private ownership of the origin of the expression. Permanence (that is, the distinction between a statue and a Christmas tree) is relevant inasmuch as a permanent display may forever cancel out another rightful message. Thus an overtly religious message may become questionable if displayed permanently in a way that dominated the entire public square. Offensiveness matters very much, thus pornographic, violent, or blasphemous messages in excess of the community standard are unrightful anywhere when they are not expected (that is, they should be off the public square). Religious content doesn't matter per se, although traditional religious perceptions of the locale define the community standard and therefore will be perceived as dominating it. It is a common fallacy (advanced by both liberals and libertarians) to detect a religious underpinning in a cultural bias of a community, and reject the bias on that ground. The truth is that the dominant religion or religions dictate the community standard of offensiveness, and the standard, with all its inherent biases, rules.
It is notable that the proper perspective of individual rights in cultural policy that I just outlined yielded no surprises and vindicated the traditional American cultural policies that prevailed in this country through the early Sixties.
All rights reserved. Reproduction is authorized with attribution to Annalex and the Free Republic.
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This article is a rehash of the comments I made on this thread: Year Ahead: The future of multiculturalism.
Another article of mine devoted to critique of libertarian approach to cultural issues is Pursuit of Liberty: The Culture War and Individualism.
Canaletto (1697-1768). San Marco Square.
It is a common fallacy that libertarians try to detect a religious underpinning in a cultural bias of a community, and reject the bias on that ground.
-- It is, in most cases, forced on them.
The truth is that the dominant religion or religions attempt, all to often, -- to dictate the community standard of offensiveness, and the standard, with all its inherent biases, then rules. - Virtually without local appeal. -- This is not how a republican form of government works, -- or should work.
States or localities do have the power to set & regulate community standards. --- But these standards cannot violate the individuals rights to life, liberty, and property without due process.
- Thus, when an individual is charged with violating a community 'standard', or regulation to any more than a minor offense, a misdemenor, s/he must be given a trial by jury.
Such a jury must be able to judge both the law & facts of the case, and be so instructed.
This is not being done under our present system.
Although I disagree with several points of this article, this statement is extremely perceptive. The Libertarian Party cannot succeed in a democratic government, period. Democracy, by its nature, collectivizes property and moves everything into the public square. The failure of the Libertarian Party to take a firm stance on issues of culture makes them a party with no issues stance at all.
On the other hand, the libertarian is quite correct that the controversy surrounding cultural issues is a direct outgrowth of the existence of the commons. Obviously, it is a tragedy if the community is balkanized by a holiday display that contains a sap to every philosophy under the sun. No meaningful community can come from a "celebration of diversity" -- for that is a celebration of disagreement, of un-likeness. But if only the dominant members of a community are given a voice, the minority is now supporting a commons that does nothing for them. Neither of these situations is just and arguing over which view of the commons is "less unjust" is worthless.
Minority groups were able to flee a poorly run commons in the past. But as America's frontier closed, the cost of moving away from bad government began to exceed the gain. Since secession is unavailable as an option, the underrepresented minorities now began to agitate for more say in how the commons was used. The civil rights movement can be seen as a direct result of the closed frontier combined with the perceived illegitimacy of secession. The ongoing culture wars are part of this process.
As one the Founders pointed out (perhaps someone can remind me which one), there has never been a Democracy that did not destroy itself. Modern America is in the process of proving that. Essentially, those who consider the rights of the minority paramount will have victories until they have purged the culture of any real substance. Then those who consider the rights of the majority to have been disregarded will "restore order." Decadence will be followed by Dictatorship.
Anyone wanting to break this cycle will first have to admit that society does not need "areas of open access where various cultural players can project messages across property lines." Property defines boundaries, it makes the distinction between what is respectful and what is disrespectful clear.
Free Republic itself is a clear example of this ideal. FR is a forum of ideas, but it has rules of decorum and clear standards. This is precisely because FR is not a commons. The fact that FR is privately owned doesn't diminish its capacity to be a place where "cultural players can project messages" but it does allow for a just means of regulating how those messages are projected -- a feat which a commons in fundamentally incapable of producing.
Many forms of theft entail no initiation of physical force, yet libertarians claim to oppose these on principle. The above example though perhaps involves fraud, and so we could declare it covered by our opposition to the "initiation of force or fraud". I see the above as an example of theft, and not simply one of cultural disruption. Jim's house, and he need offer no reason for excluding anyone.
The idea that one could completely do without public institutions reflects a departure from the "back to the founders" idea that many identified with libertarianism. The founders don't seem to be anti-statist enough for some libertarians. The problem is that societies with no sense of the public may find it hard to defend themselves against foreign or domestic enemies. They may also find it difficult to rise above the rivalries of clans, factions, or tribes to the kind of impartial sense of rights, duties and obligations that characterize freedom and modernity.
With regard to the specific question you address, it seems to have a lot to do with the modern concept of the public square and with contemporary patterns of migration. Prior to the 1960s a public square would likely contain a war memorial or other monument. It might well have contained a temporary creche or candle display sponsored by some non-governmental institution. It would probably would not have contained individual artists' self-expressions. This is I think something new. The older idea was that such sculptures were representative of the community's ideals.
If the idea of "the community" having ideas of its own has disappeared, one reason is that affluence has made us more individualistic. Another is that totalitarianism has made us more distrustful of such singlemindedness and more determined to assert that individualism.
The third reason is that recent immigration has done away with the idea that we could have any single "culture" -- though technology, media, and economics do a lot to make us more uniform. An earlier America or an earlier West could proclaim the naked public square because it was presumed that society was Christian anyway. In a more "ethnically diverse" land, rivalries between groups do tend to become disputes over the public square.
Libertarian societies tend to be successful at attracting people from many different cultural backgrounds. The problem is that once groups reach a certain critical mass, they want society to reflect their own group norms, or at least give more weight to them. This is the downfall of libertarian polities, and one saw such developments in Britain, Austria-Hungary and elsewhere at the beginning of the last century, after decades of relatively liberal (in the classical sense of the word) economic and political policies.
BTW, William Ebenstein's classic introductory work Today's Isms has been revised and reprinted by his son with a chapter on libertarianism.
Good essay. And you nicely brought out the problems inherent in a public square. But your proviso about "offensiveness" opens up an almost infinite source of disputes. Which we're living with now. I dislike having government be the instrument for deciding these things. But I haven't figured out another way.
Seems to me that on the local level, in a democratic system such as ours, it is somewhat more managable. We recently survived a high school mascot (indians) controversy. The larger the government, the larger the problem. However, I also think the larger the government involved, tne less value that is derived from the "public" square in the first place. A local town square has value, IMO, which is worth the occasional grief.
"Essentially, those who consider the rights of the minority paramount will have victories until they have purged the culture of any real substance."
I have seen no such decadence, no 'purging of substance' taking place, yet the majority is very busy 'restoring order', and on the road to dictatorship, imo.
Our republic is set up, supposedly, to defend everyones rights against all tyranny, -- even a so-called benign tyranny of the majority. This constitutional principle is being ignored.
The missing 'way' of deciding these things is by restoring the power of jury nullification. Government hates this power, and has effectively removed it from our system by judicial decree.
Judges are actually instructing juries that they cannot factor the justness of a law in making their decisions as to the facts of a specific case. This is a travesty of justice.
There are two kinds of libertarians: liberals who rejected socialism and conservatives who rejected Republicans. I'm guessing you're of the former variety.
There is an alarming amount of homogeneity in American culture today. Regional differences are minor. America is tied together by the common blanket of faux rights given to us by the EPA, the ADA, etc. People think they share a common culture because they both watched Law and Order the previous night.
You may, however, be correct that the restoration of "order" is now in its beginning stages.
The word public has a number of senses. First is public in the sense of "open to just about everyone." Second is public in the sense of state-owned. Third is public in the sense of common property. It seems to me you're conflating these meanings. Just because a property is privately owned does not exclude it from being public in the first sense.
Also the notion of law as a creature of tradition rather than a product of legislation seems foreign to you. This is unsurprising given the gutting of common law in recent decades. It is difficult for me to see how criminal justice requires property that is public in the second sense (state-owned) in order to function. Do we really require politicians in order to have law?
And what exactly do you mean by a double burden? Are you saying that you think a person could not purchase police services without the existence of state-owned property?! This seems so odd as to verge on non-sequitur. Perhaps I'm misunderstanding your point.
Next, laws will be passed that ban what the majority thinks is offensive.
Next, a minority that is uncomfortable with that should sue to repeal or correctly interpret these laws. A jury will then decide if the offensiveness is objectively there or if the majority simply doesn't like the minority cultural expression, but cannot be offended.
At this point the standard is objectified through the tests in court and rules.
The present system stands all this on its head. The jury,. for most part, is out of the picture, supplanted by the executive branch. Instead of proposing a standard, looking for a court challenge, then seeking to adapt the standard, the government simply assumes that all expressions are rightful as long as they are minority, because they bring diversity. The government doesn't go to bat for extreme offensiveness, such as public pornography, not because it understands that pornography is offensive, but because it knows it can't win, not yet.
Free people in a free society will quickly make a public square out of nothing, because they will attempt to make conversations, exchange messages and do commerce. Regardless of who owns the physical square, the issues of cultural offence will not go away. For example, shopping malls (even the areas between individual stores) are private property. What does it change in terms of what is and what isn't allowed in those passageways? Precisely nothing. If a mall restricts some expressions -- for example, a political demonstration or an art show -- people just go somewhere else to do those things, and the owner of that place will face the same dilemmas of cultural policy the city government faces today.
For example, shopping malls (even the areas between individual stores) are private property. What does it change in terms of what is and what isn't allowed in those passageways? Precisely nothing. If a mall restricts some expressions -- for example, a political demonstration or an art show -- people just go somewhere else to do those things, and the owner of that place will face the same dilemmas of cultural policy the city government faces today.
Except that in the private property instance no rights are violated by the exclusion of certain solicitors. In a public square, everyone is presumed to have an equal say in what goes on there. An act of exclusion cleary says otherwise and transforms the commons into state-owned property governed by the mayor, town council or whatever political body has assumed de-facto ownership.
Furthermore, since you have now asserted that cultural conflicts will exist regardless of the ownership of the public space one has to wonder what the benefit of a commons is. In fact, the privately owned public space has advantages over the commons -- once the owner says "no" to Satanist holiday displays, the issue is dead. The ownership paradigm you support leaves this a permanent point of contention.
Still at the root of it it is a cultural disruption, not theft. Jim framed his forum so that disruptions can be resolved through the mechanism of private property, which is to his credit. Someone else would make a forum where, by contractual promise, anyone is allowed to post anything, so there is no mechanism to reduce disruption to the owner's will. Disruptive posts would stil violate the rights of other posters.
Jim, I am just using your past predicament to illustrate a theoretical point, no judgement on your policies is intended.
Entelechy in 18: one has to wonder what the benefit of a commons is.
My contention is that if the commons is somehow prevented from happening (e.g. forbidden by the constitution), a private commons will be created to fill the need for unsolicited exchange; the owner of such private commons will have to resolve cultural disputes based on whether they actually disrupt, and not based on "because-I-say-so".