In short: Is there a crucial, fundamental connection between property rights and freedom of speech?
In 1962, novelist-philosopher Ayn Rand observed:
The legal hallmark of a dictatorship [is] preventive law—the concept that a man is guilty until he is proved innocent by the permissive rubber stamp of a commissar or a Gauleiter.
Or of a commissioner, director, or "czar."
No, America does not yet have a dictatorship. Rather, it is governed by myriad satrapies of statist agencies, bureaus, and departments controlling or regulating virtually every realm of human action. Today, virtually every statist law on federal and state books falls into the category of "preventive" law – laws that protect "consumers," laws that protect children, laws that protect investors, laws that protect employees, laws that protect patients. For over a century, as the volume of these laws has swollen to hundreds of thousands of pages of legislation, there have been men of the Left and Right who wish to organize them all under one unified régime: A dictatorship.
The McCain-Feingold law (or the Bipartisan Campaign Reform Act of 2002) that regulates political speech is evidence that, yes, such expropriation or regulation will lead to the regulation or suppression of speech, and ultimately, to across-the-board censorship. Political views expressed by private individuals or organizations through private means (especially in broadcast media) have been barred and later granted limited sanction in court rulings (e.g., Citizens United vs. the FEC). But such suppression is not only blatantly expressed in law, but it also comes in through the back door, as witness the experience of Diana West and the Washington Examiner "spiking" her column. The editor's refusal to run a column by a nationally syndicated writer for unknown, unstated reasons, is not strictly censorship (for the paper is private property), but it does smack of a degree of political correctness that would sanction overt censorship.
The regulation of private property spawned various kinds of mutated offspring. The regulation of political "campaign" speech in which certain entities are prohibited by laws such as the McCain-Feingold law from engaging in "for" or "against" particular candidates or a specific candidate's policies, could be said to be a result of law that regulates advertising.
In the beginning of a slide towards censorship, there may be no speech restrictions on regulated property. The regulation may be intended solely to control product pricing, or sales of certain products to various classes of potential buyers (such as alcohol or cigarettes to "minors"), or places of lawful sale (e.g., of beer in Pennsylvania, and of hard liquor in Virginia).
Mandatory "speech" is another form of censorship or speech regulation, such as on product labels bearing nutritional or compositional information, or restaurant menus that must include calorie information. Cigarette and tobacco packaging must carry warnings about smoking. Medicinal packaging must contain warnings and advisories about dosages. Because of an outrageous settlement from a lawsuit against McDonald's, coffee and other beverage containers served in fast food restaurants carry warnings on the containers that the contents are hot. This is "reverse censorship" because the omission of information has been deemed by a government authority or a court not in the "public interest."
Go to a Wal-Mart and tally up the number of things for sale that carry warning labels. These would include such things as pillows, tools, electrical appliances, toys, and food. While many manufacturers will claim that their warning labels are voluntary for liability reasons, one can be sure that another motive is to preempt government mandatory regulations.
Producers of these products have submitted to regulation as a defensive liability tactic and also to protect themselves from frivolous but expensive lawsuits. Such labels and warnings are ubiquitous in our culture. One wonders why warning labels for books and computer screens have not yet been mandated: "Reading this book or computer screen may lead to impaired vision or blindness."
In 1997, Mary L. Azcuenaga, head of the Federal Trade Commission, was "sorta" for the freedom of speech in advertising, and "sorta" against it:
The Commission has referred to the unfairness doctrine as "the FTC's general law of consumer protection, for which deception is one specific but particularly important application." The concept of unfairness potentially is so expansive that it could include virtually any practice that Commissioners do not like for one reason or another. Because of the potential breadth of unfairness, it is important that the Commission have a well-articulated standard for delineating this authority. Otherwise, the law could result in having the government make choices it thinks are good for consumers, instead of allowing consumers to make decisions for themselves.
The Federal Trade Commission, created in 1914, was another child of President Woodrow Wilson, its statist siblings being the federal income tax and the Federal Reserve Banking System.
Censorship can also take the form of Ad Usum Delphini*, more commonly known as politically correct speech, in which potentially offending terms or phrases are expurgated or substituted with bland or "non-offensive" proxies or euphemisms.
The notions of "hate speech" and "hate crime" are two such offspring of the regulation of political "campaign" speech. One's money – or property – may or may not be used to express one's opinion of a political candidate or his policy, depending on utterly arbitrary rules established by congressmen and at the discretion of policing bureaucrats. Such regulation is the natural result of state regulation of private property (from zoning laws to the composition of your home insulation and electrical wiring). If it was deemed "unfair" or "Illegal" to question a candidate's character and known policies during an election campaign in a privately produced and privately broadcast ad – and depending on the tone of the questioning, it could be deemed "hateful" – it was but a short step to criminalizing "sexist" language, racial epithets, or any other speech considered by the authorities, the courts, and "community standards" as demeaning, discriminatory, defamatory, or just plain "hateful."
Perhaps the most perilous instance of imposing politically correct speech in its own literature is the purging of FBI training documents of all references to Islam and jihad. Minnesota Representative Michele Bachmann – famous for her calling the Obama administration's takeover of General Motors "gangster government" – is also a member of the House Intelligence Committee. She reviewed, under close FBI scrutiny, just what had been done. Creeping Sharia wrote:
“This is truly censorship by our government, the government purging itself of documents,” Bachmann said. “We are not only seeing documents purged. We are seeing trainers purged and we are seeing the FBI library purged.”
The FBI began reviewing all of its counter-terror training materials last September in response to media reports describing controversial statements in documents and lectures, allegedly including the assertion that devout Muslims are more likely to become terrorists.
Islamic and Arab-American groups protested and demanded removal of all references they deemed to be anti-Islamic. Within days, the bureau launched a review to ensure all FBI training materials are factual and do not rely on stereotypes.
To lead its review, the bureau created a five-member advisory panel that includes three outside Islamic experts, whose identities the agency will not disclose publicly. After six months, almost 900 pages of documents were removed from the curriculum. Those are the materials members of Congress have been reviewing, but cannot discuss.
How can a devout Muslim not be "stereotyped"? How can a goose-stepping Nazi not be stereotyped? But stereotyping is not the chief fear of "Islamic experts." The stereotypical Muslim is just a straw man. Rather, it is the education of FBI personnel about the true, barbaric, totalitarian nature of Islam that Islamists and their dhimmi defenders wish to truncate. The FBI is charged with "fighting terrorism," but now is forbidden to identify the terrorists.
The regulation of speech, in our republic, at least in the 19th century, could not have been introduced "cold," that is, without precedents being set in courts, abetted by a co-opted and muckraking press and subtly advanced in incremental stages by a government-dominated education system, both institutions working to inculcate in men's minds the concept of regulated speech as a norm.
Principles of property and speech must first be interpreted in a "populist" vein, reinterpreted, suborned, and ultimately discarded. A nation's citizenry must not be spooked or shocked by overt censorship. It must be "conditioned" to accept it in stages. It must be hypnotized, or anesthetized, slowly introduced to friendly gagging so as not to risk untoward opposition. The citizenry must "educated," that is, indoctrinated with cultural relativism, cultural and moral diversity, subjectivism as a rigid "world view," and reduced to submissive, unquestioning, unexceptional individuals who need the tonic of "self-esteem" to become more productive and contributory members of the collective.
All this would be in conjunction with a number of Supreme Court and other judicial decisions that would serve to obfuscate the "social" purpose of private property and freedom of speech, and ultimately abolish them. (e.g., Oliver Wendell Holmes, Jr. on falsely shouting "fire" in a theater, leaving the government to determine what is a "false" alarm.)
Observers of these phenomena have attributed them to conspiracies, that is, to "master plans" of conquest conceived and carried out by evil geniuses. This is the easiest and least credible explanation of why statism has grown in the U.S. Certainly there are minds in existence that plot against freedom and freedom of speech. George Soros comes to mind. But such "geniuses" are not true geniuses. Theirs is a feral intelligence that can only detect and exploit the perceived faults and weaknesses of their prey. They can only react, not act. This is also the tactic and game plan of the Muslim Brotherhood in its "civilizational jihad".
The agenda of the current administration is copasetic with that of the Muslim Brotherhood, with similarities in means and ends. The Left wishes to impose secular totalitarianism. The Brotherhood and all its organizational offspring in this country wish to impose totalitarian Sharia law, which is more totalitarian than is Communism or Socialism, that is, it prescribes behavior and approved values from head to toe, from morning to night, from diet to sex, from birth to death. Hassidic Jews also live under similar rules, but there is no deadly retaliation against them if they fail to obey such rules, as there is in Islam, nor have Hassidic Jews declared jihad against the Western cultures they live in. Secular totalitarianism wishes to control men's physical existence. Sharia aims to control both his physical and spiritual existence.
And there is this crucial difference between Islam and Hassidic Judaism: The members of the latter wish to remain as insular as possible, while obeying secular law. Islam also encourages an insular policy, but its intolerable nature impels it to suborn and conquer the very secular society in which it may exist.
Evil, however, is inherently impotent. Why? It derives its alleged strength from its enemy's actual and demonstrable weaknesses. Evil is not self-sustainable. Its basic nature is nihilistic; as a parasite, it does not strive to live, per se, but merely to exist effortlessly for as long as its host is able to survive. If a host perishes from having to sustain a parasite, the parasite will perish with it or seek another host.
The teleological means and end of evil is not life, but negation, in other words – death, or non-existence, or existence without cause – which, in stricter terms, means non-existence, because existence without effort or cause is a metaphysical impossibility.
The United States has left itself vulnerable to the inroads and the debilitating and corrupting cancers of statism and Islam. One can trace this vulnerability all the way back to John Marshall era of the Supreme Court. Many of Marshall's decisions began a long succession of Court rulings that were concessions to statist power and controls over freedom of speech. Aristotle was a philosophical cofounder of the United States, but in virtually no time the philosophical termites of statism began eating away at that foundation.
Upon America's declaration of war against Germany in 1917, the Espionage and Seditions Acts of 1917 and 1918 contained provisions for censoring mail, newspapers, pamphlets and public speaking that directly questioned the war effort or that could be interpreted as materially frustrating or obstructing the war effort.
From that era we traversed to the Obama administration and the reign of Cass Sunstein, the "Regulatory Czar," who has announced his resignation from the administration. Among other things, he wished to criminalize politically incorrect speech and thought:
WND first reported in 2008 Sunstein’s proposal that the government ban “conspiracy theorizing,” including by sending agents to infiltrate websites and chat rooms. Among the beliefs Sunstein would ban, is that the theory of global warming is a deliberate fraud.
WND reported that in his 2009 book, “On Rumors,” he argued websites should be obliged to remove “false rumors” while libel laws should be altered to make it easier to sue for spreading such “rumors.” In the book, Sunstein cited as a primary example of “absurd” and “hateful” remarks, reports by “right-wing websites” alleging an association between President Obama and Weather Underground terrorist William Ayers.
Ostensively, Sunstein is leaving because of new "family obligations" and a chance to oversee a new Harvard Law School program. But it is only fair to speculate that he is leaving because it has been decided that he is a reelection liability. Back at Harvard, however, he will be up to his old tricks. The Washington Post reported:
Sunstein will depart by the end of the month, officials said. He is returning to the job he left, a professorship at Harvard Law School. In addition, Sunstein will head a new Harvard program on “behavioral economics and public policy.” Scholars who study Obama say that Sunstein had a major influence on Obama’s view of government — stressing pragmatism over ideology.
Sunstein’s work emphasizes the importance of consensus, social equality and broad political participation in American democracy. These themes are often echoed in Obama’s speeches.
Also, as a member of the Harvard Law Review editorial board in 1989, Obama helped oversee the publication of one of Sunstein’s most important essays. Titled "Interpreting Statutes in the Regulatory State," it argued that regulations are always open to interpretation based on “culture and context.”
One thing the author of the Post got wrong, as did the Obama scholars: Barack Obama is no pragmatist, but is an ideologue down to his golf clubs.
Remember that in totalitarian countries there is no private property through which citizens may protest or criticize government policies. All means of communications are owned or dominated by the state. This includes such countries as the former Soviet Union (and now Putin's fascist Russia, where successful businessmen are jailed and their property expropriated, and where journalists risk death for reporting the truth), Red China, Iran, Saudi Arabia, Vietnam, North Korea, and even Venezuela. In Nazi Germany and Fascist Italy, the press was nominally private (as was much private property, including banks), but controlled by the parties in power. Their editors dared not contradict the Party line in the least without risking arrest or a state take-over of the paper, or its simple dissolution.
American institutions are surrendering to de facto censorship with little or no such threat of force or government retaliation. Freedom of speech is intimately tied to the status of property. If a government can license and tax one's soapbox, prescribe what materials it can be made of, what times and where it may be used and when, and what may be said from it, it is only a matter of time before one is compelled to relinquish ownership of it altogether.
*"At the court of the king of France Louis XIV the education of the crown prince (Delphinus) was also pursued by streamlined [i.e., Bowdlerized] versions of classical Latin writers. These versions were written ad usum Delphini, that is, 'for the use of the crown prince,' and they were later adopted as textbooks in French schools."
Well done essay, Ed. Law, being a pre-requisite for a free, rational society, the dangers of destroying it with preventive law is a real danger. You show how the US is marching towards a totalitarian society, by default, by accepting preventive law, fascist regulation on business that preempts freedom. And you show how censorship can be wormed into a society in seemingly innocuous ways. Thanks for the warnings.
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