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Public and Private Spaces:

My own, perhaps idioyncratic libertarian view, is that because most public spaces (streets, sidewalks, etc.) should actually be private (owned, e.g., by homeowners' association), but are nevertheless public, the government can and should try to mimic the rules for public spaces that private owners would impose. There is no doubt that the vast majority of private owners would prohibit nudity, sex, and urination in public view. Those are easy issues, because the First Amendment is not implicated, but I think the same considerations apply even in situations where the First Amendment is implicated, and I'd argue against allowing picketing in front of someone's home, or protesting funerals, or public obscenity ("fuck the draft") [contrary to some commenters, I don't feel any obligation to defer to the Supreme Court regarding what I define as "obscene"]. I'd make some exceptions for the "public square" when core freedom of speech and association is at issue, but not many. Protecting people in "public" areas from things that would never be permitted on private property strikes me as going to the core of the states' police powers.

UPDATE: Many commenters seem astonished by the idea of private streets. My parents have a house in a private, gated community, where the streets are indeed privately owned. Access to the community is for owners and their guests. The community functions quite well, as far as I can tell, and, among other potential advantages, there is virtually no crime. This may not be everyone's cup of tea, but there is nothing either radical or impractical about streets being privately owned.

David Sucher (mail) (www):
"...most public spaces (streets, sidewalks, etc.) should actually be private (owned, e.g., by homeowners' association)..."

I heard David Friedman offer such a perspective 35 years ago. I was astonished then and I am still more astonished now. How would you handle the practicalities? Would you do away with municipal standards for their improvement? e.g so wide, so thick, etc etc. And how would you handle the transaction costs? i.e. why would someone want to own a street (with its maintanenace costs) if they didn't have the right to exclude? Or more importantly, the transactions costs in establish a road? (I assume you would not allow private use of eminent domain?)

I am more dubious than ever -- having spent so many years in the real estate business and having learned a fair amount of respect for the manner in which things have evolved -- but intrigued to hear you expand.
5.5.2006 12:24pm
Neal R. (mail):
"Fuck the draft" is not obscenity, at least not as obscenity has been defined in First Amendment jurisprudence. Do you mean "public profanity"?
5.5.2006 12:25pm
Seamus (mail):
Neal R.:

It's not profanity either (unless, of course, you think the draft is a sacred thing that's being profaned). All it is is vulgarity.
5.5.2006 12:29pm
frankcross (mail):
This is an intriguing turn to me. I would assume that private associations could make policy by majority rule and in many areas would ban certain political speech and have content restrictions. I gather you would make an exception for the analogy in this case. Why not in all cases?
5.5.2006 12:34pm
Mr. Mandias (mail) (www):
I think Bernstein's principle gets us most of the way there, and it shows some effort to do what purist libertarians hardly ever try and do, which is try and adopt their principles to the fact that we have a society built up around non-libertarian principles.

But I still have questions. Some spaces have to be public even for (non-anarchist) libertarians, right? Do I really want to see a Congressman humping an intern on the steps of the Capitol, or have the couple next to me do a quickie in the police waiting room? The Lincoln Mem-orgy?
5.5.2006 12:36pm
Traveler:
David - you wrote: "because most public spaces should actually be private, but are nevertheless private,"

and I think you mean "because most public spaces should actually be private, but are nevertheless public."
5.5.2006 12:37pm
Preferred Customer:
I haven't done a lot of thinking about it, but given my limited experience with homeowners' associations, I am not sure I see any vast philosophical difference between them and local governments that makes one more palatable to the libertarian than the other. At least as currently implemented, homeowners' associations are often no more voluntary than local government (frequently the only way to avoid them is to move or not buy property in the first instance). In fact, homeowners' associations are often "governments" in everything but name.

IMO, a homeowners' association is far MORE likely to trample liberty interests than a local government, being less bound by the restrictions that we place on the State (as this post nicely illustrates). As a libertarian leaning individual, why would I want that?
5.5.2006 12:47pm
Jack S. (mail) (www):
Seems private ownership could go even further that banning certain speech but also waive other protections granted by the Constitution. No guns, discrimination against {insert class here}, division between haves and have-nots. Maybe they could fence in areas too and close out the undesirable elements. Gentrified areas surrounding the 9th ward of New Orleans seems like a good place to experiment with this idea.
5.5.2006 12:48pm
Steven:
If you think the Constitution is hard to amend, try amending the CCRs of your local homeowners' association.
5.5.2006 1:04pm
Cheburashka (mail):
I agree - I don't think there's any legitimate first amendment interest in letting protestors, or journalist "scrums," persist in residential neighborhoods.

My logic is that the First Amendment does not - and no case suggests otherwise - repeal the common law of nuisance.
5.5.2006 1:06pm
Ari:
Banning public nudity and sex is certainly a topic to debate. However, I don't think many will argue for a right to public urination given the obvious public sanitation/health issues that would otherwise occur should we not have laws against public urination.
5.5.2006 1:08pm
Taimyoboi:
"Protecting people in "public" areas from things that would never be permitted on private property strikes me as going to the core of the states' police powers."

Wait, but isn't sex allowed on private property?
5.5.2006 1:10pm
Steve:
I can't wait until we privatize the traffic lights.
5.5.2006 1:18pm
Ari:
Steve wrote:

"I can't wait until we privatize the traffic lights."

We tried that experiment, with mixed results and legalities, in several jurisdictions.
5.5.2006 1:23pm
Tom Anger (mail) (www):
Public areas -- because they are public and open to all -- should be regulated for the good of all who might use them. That is to say, public areas should be used for the purposes for which they were created (e.g., walking, driving, jogging, picnicking), and for no other purposes. Given that public areas have not (yet) been created for the purposes of having sex, urinating (other than in public restrooms), etc., those activities should not be allowed in public areas.

As for "peaceable assembly," special areas (not streets or sidewalks) should be designated for protests, demonstrations, and the like. Persons who do not use those areas for their protests and demonstrations -- or who use those areas unpeaceably -- should be treated as criminals.
5.5.2006 1:25pm
Timboy (mail) (www):
I'm somewhat astonished at David's belief that many public spaces like residential sidewalks should be privately owned, and that the next best thing would be if the public laws emulated the private ones we would have.

Let's leave aside public sex and urination and the like, and look at a much more basic "crime": trespass.

I like to walk for exercise, and like hiking trails and scenic vistas when I can get there. More often, though, I set off in some random direction in my vast swatch of suburbia and walk along the sidewalks. Every so often I get the feeling (possibly by projection) that a neighbor I encounter doesn't like seeing people that he doesn't recognize. Luckily for me, though, people like that don't own the sidewalk any more than they own the view.

But imagine that homeowners' associations really did own the sidewalks and (like other kinds of gated communities) restricted access - say, via a badge system. This could produce a situation in which there was _no_ direction of a mile or more in which I could walk unrestrictedly from my house.... This would feel to me like restriction of a very basic freedom.

David, is this the kind of private ownership you would want to have?
5.5.2006 1:28pm
Freder Frederson (mail):
Man, I realized that finals drive law students batshit insane, what I didn't realize is that it has the same effect on Law professors. What is it that suddenly has you all pondering public nudity, sex, and now excetory functions? What's next, public vomiting, nose picking, and self flagellation?

You libertarians really crack me up. Private ownership of public spaces is nothing but a recipe for disaster. Private parties simply can't deliver some services efficiently or equitably without government help--transportation infrastructure, the electrical grid, and communications infrastructure are three examples are just three examples where the private sector is not a viable option--never has been in an industrial or even pre-industrial society, never will be.

Unless you want to live like the Amish, you better get used to living with government control of public spaces, the roads, sewers, the airwaves, telecommunications, the airline industry (in eighty years it has yet to make a penny), the electrical grid, etc.
5.5.2006 1:35pm
Hans Bader (mail):
The words "Fuck the draft" aren't obscene, because they doesn't appeal to a prurient in sex. See the Supreme Court's decision so holding in Cohen v. California. Profanity is not obscenity. The words also don't constitute a breach of the peace. See id.

Nor is it even sexual in nature. See, e.g., Walk v. Rubbermaid (supervisor's repeated use of the word "fuck" did not constitute sexual harassment in the legal sense).

I agree with you, though, that public nudity can be banned (it, like sex in public, is too distant from speech to qualify as protected expressive conduct).

I also agree that sex in public can, and should, be prohibited. (Sex in public and nudity in public are two different issues, and the case for banning sex in public is even stronger than the case for banning nudity in public).
5.5.2006 1:46pm
Hans Bader (mail):
The first line in my post above should have read:

"The words "Fuck the draft" aren't obscene, because they don't appeal to a prurient interest in sex."
5.5.2006 1:47pm
Freder Frederson (mail):
If you want a good argument against public urination, visit the French quarter of New Orleans during the summer. Eventhough public urination (and vomiting) is illegal, apparently the police have a hard time enforcing the law. The odor is quite unpleasant on a hot, humid evening.
5.5.2006 1:48pm
lucia (mail) (www):

This could produce a situation in which there was _no_ direction of a mile or more in which I could walk unrestrictedly from my house....


David included streets. Taken to an extreme, making most streets and sidewalks truly private would make it impossible for many to shop for groceries.

I suppose this problem could be eliminated by requiring private property owners to permit public access to their streets. But, in that case, what's the point of saying most streets are private property?
5.5.2006 1:57pm
Freder Frederson (mail):
David included streets. Taken to an extreme, making most streets and sidewalks truly private would make it impossible for many to shop for groceries.

Of course there would be toll booths every couple blocks so only the users of that two block section of street would be burdened with maintaining it. It would be like that episode of Seinfeld where Kramer adopted a mile of road and decided to widen the lanes to give drivers a "first class experience".
5.5.2006 2:01pm
GearDaddy (mail) (www):
When my parents built a new home several years ago, they (and their new neighbors) were building on large lots, with their homes several hundred feet off the main (county road). A gravel drive connected their homes to each other and to the county road, and a necessary condition of converting the gravel drive to a county road was to have it black-topped and to add a cul-de-sac for a school bus to turn around.

There are, of course, numerous advantages to publicly owned roads, not the least of which being the responsibility to maintain them and to keep them passable. Property value could also be a significant issue.
5.5.2006 2:58pm
hey (mail):
This is an exceptionally common occurrence, and I am shocked that people are treating it like such a freakish idea. There are lots of gated communities and townhouse condo developments that have these set-ups. While yes, they could operate like economically ignorant dark ages baonial fiefs in attempting to extract tolls, they don't. But the reserve power is VERY useful in eliminating what the Left has mandated as acceptable public use (sleeping in public, drug use, prostitution, pan handling, accosting the public, etc).

There are very many companies that run toll-highways, and London's VERY Left wing mayor "Red" Ken (the anti-semite) Livingston implemented road tolls in central London using OCR of license plates.

An excellent idea for cities would be to sell off their roads to operating companies that could charge market prices for using the roads, have a financial incentive to maintain them in an excellent condition, and improve the tradeoffs between cars and public transit. Not sure why everyone is getting so worked up. Or maybe you're the peopel that are opposed to privately owned railroads, electrical utilities, water companies...
5.5.2006 3:02pm
AppSocRes (mail):
It's worth remembering that when you make a piece of land private, you increase freedom of action for the owner, but incrementally decrease the freedom of all other human beings who are denied any access to or use of that land. In the extreme case we'd all be emperors of our four or five square mile domains but might be imprisoned within its bounds at the whim of our libertarian neighbors. This is not entirely an absurd hyperbole. There are urban areas in Latin America where gated communities are so ubiquitous that the movements of non-residents are severely constrained and restricted. In this country, because Texas has a large proportion of privately owned land and very strong trespass laws, many hunters in Texas are restricted to renting time on privately owned hunting properties.
5.5.2006 3:06pm
Freder Frederson (mail):
There are very many companies that run toll-highways,

While there may be a lot of toll roads (the concept of a toll road is a very old one, George Washington helped lay out some of the first toll roads in this country when he was in the British Army before the Revolution), very few of them are privately owned--and I doubt any of them were built entirely with private money. While private ownership of roads may work in densely populated areas, they will invevitably fail in less populated areas. Therefore mass privatization of roads will be a disaster.
5.5.2006 3:11pm
Chief Pirate of the United States:
The idea that most roads should be private property is ludicrous. There would be no incentive to buy land because there is no guarantee you could ever visit it without trespassing, or that if you did, you could ever leave again. This may work well in a gated community, where by definition the community's boundaries are so well defined that you can control acess by a gate, but that's only because outside the community there is public access to everything else.
5.5.2006 3:11pm
te (mail):
Privately owned streets and sidewalks? What a jim-dandy idea.

That would allow me to prohibit negroes and freemasons and florists from even walking on the street in front of my house or on my sidewalk. Sign me up.

Oh, and where can I put a bid in on the street that leads up to the gated community that Bernstein's folks live in?
5.5.2006 3:16pm
Ziske68 (mail):
You'll have to forgive me if someone has covered this, I haven't read all the posts and comments in this topic. But it seems to me that one of the basic questions here is : At what level of gov't (if any) lies the moral authority to regulate conduct not prohibited by the constitution? To wit, it is our assumption that the states and the counties,parishes,villages,cities, and town within, are in the most fundamental way voluntary associations, if we believe ourselves to be federalists these voluntary associations at some point MUST have the ability and the moral force to regulate conduct, even if it is due to nothing but the 'yuck factor'. But the question is...at what level?..certainly I do in my home...and certainly a homeowners association can regulate not only conduct, but certain forms of expression....so how,if we are federalists, can we say that townships,counties....,and states do not have that moral force?
5.5.2006 3:20pm
eng:
This idea of a "right to egress" is an interesting one. As I recall... stretching back at least as far as the twelve tables of Rome (449BC). People had a fundamental right to cross another person's land by long-standing routes--the only qualification being that they could cross anywhere if the road was poorly maintained by the land-owner.
5.5.2006 3:24pm
CWuestefeld (mail) (www):
This concept doesn't strike me as Libertarian at all. Rather, you're adding insult to the injury of eminent domain. It looks like a backdoor to tyranny by the majority.

You seem to be proposing that the spiraling incidence of takings be accompanied by a "well, let's just impose the will of the majority, however discordant it might be with the Constitution".

As a Kelo-emboldened government goes its merry way, isn't this a recipe for giving away our freedoms at the same time as our property?
5.5.2006 3:29pm
Jack S. (mail) (www):
I agree that this argument is lacking in Libertarian ideology and seems more like elitism. People who think alike will regroup and create their own private fifedoms. This risks shutting down the diversity of ideas, etc. and allows those with the means to gate themselves in and assume that they are the best because they think they are the best. Isn't that the sort of behavior that the Framer's of the Constitution sought to avoid?
5.5.2006 3:46pm
byomtov (mail):
The streets in a gated community are more like a complicated driveway than city streets or highways. They were put in by the residents (or the developer) for the convenience of the residents, and are not, generally, a route between points not in the community.

In short, privately owned driveways work because they logically are of use only to the resident. Not true of city streets and highways.
5.5.2006 3:51pm
Daniel Chapman (mail):
Ziske68: The police power lies with the States. It hasn't been brought up because it's a rather basic premise. Local governments derive all their authority from the State.
5.5.2006 3:55pm
Steve:
The original statement:

most public spaces (streets, sidewalks, etc.) should actually be private

The update:

there is nothing either radical or impractical about streets being privately owned

Indeed, there is nothing radical or impractical about streets being privately owned. There is plenty radical and impractical about MOST streets being privately owned, which was the initial claim that folks reacted to.
5.5.2006 3:59pm
gramm:
Privately owned streets and sidewalks? What a jim-dandy idea.

That would allow me to prohibit negroes and freemasons and florists from even walking on the street in front of my house or on my sidewalk. Sign me up.

Oh, and where can I put a bid in on the street that leads up to the gated community that Bernstein's folks live in?


------------------------------

Funny, te. but Prof. B. probably thinks such talk is anti-semitic.

editor: Gramm, the inane "Professor Bernstein calls everything anti-Semitic" meme is officially over in the comments. It's obnoxious and insulting. If you want to contribute to this or any other discussion, fine. If not, please leave and don't come back.
5.5.2006 4:25pm
breen (mail):
I don't know where I stand on the relative merits of public vs. private spaces, but I do know that this sentiment:

and I'd argue against allowing picketing in front of someone's home, or protesting funerals, or public obscenity ("fuck the draft")

seems to certainly put Mr. Bernstein at odds with his fellow conspirators and certainly puts him at odds with me. If the idea was to highlight outrages that "implicate" the 1st, why use a singularly political statement ("fuck the draft")?
5.5.2006 4:48pm
SLS 1L:
Steve: and it would be even more impractical for ALL streets to be privately owned, as Prof. Bernstein suggests.

As for Prof. Bernstein's proposal for how the government should manage the commons, what preferences does the imaginary private owner the State should be trying to emulate have? Is it a profit-maximizer? Does it have any religious or political views? Is it prejudiced against racial minorities, fat people, Mormons, or any other group? What does it think about breastfeeding in public? Real private owners' decisions about what counts as legitimate property use are influenced by these sorts of factors: how is the state to decide what the imaginary private owner's views are?
5.5.2006 4:57pm
Brock (mail) (www):
The problem with this line of thought is that the prohibition of public nudity is not (merely) the prohibition of nudity on public property. It also encompasses prohibition of nudity on private property, where that nudity is visible from public property or someone else's private property.

What kind of free country is this, I ask you, when a man can't mow his own back yard in the nude? :)
5.5.2006 6:28pm
Mr. Mandias (mail) (www):
"What kind of free country is this, I ask you, when a man can't mow his own back yard in the nude? :)"

A free country where, apparently, a man can't be bothered to build a fence.
5.5.2006 9:08pm
davidbernstein (mail):
Breen, because "Fuck the draft" is from a Supreme Court case I disagree with.
5.5.2006 9:57pm
Ken Arromdee:
The idea that most roads should be private property is ludicrous. There would be no incentive to buy land because there is no guarantee you could ever visit it without trespassing, or that if you did, you could ever leave again.

If the world were filled with private roads, then whenever you buy property you would do an access search, which would be similar to a title search under the current system. If the access search shows an unacceptable degree of actual or potential lock-in, then you don't buy the property. I imagine that property owners would have to register the minimum access rules for transit of their property in some central location, similarly to how property ownership itself is now registered in some central location. Property owners who want to reduce the access to their property would have to buy out the access rights from everyone who currently has them.
5.6.2006 1:56am
Steve:
That scenario would make real estate into a game of Go, where you can acquire property merely by surrounding it.

You forgot the part of the scenario where the access-search process is privatized too, though. Major libertarian flaw!
5.6.2006 3:56am
byomtov (mail):
If the world were filled with private roads, then whenever you buy property you would do an access search, which would be similar to a title search under the current system.

So you just have to check the property adjacent to the property you're buying, and the property adjacent to that, and...
5.6.2006 1:32pm
markm (mail):
I'm not so libertarian that I'd actually favor privatizing all city and county roads, but the objections I've been seeing are silly:

"So you just have to check the property adjacent to the property you're buying, and the property adjacent to that, and..." All easily computerized - once the data is entered into databases in a consistent format. I do think, however, that we'd need a law making it the property owner's responsibility to ensure that accurate information about access was publicly available in a standardized format.

"You forgot the part of the scenario where the access-search process is privatized too, though." Oh gee, I guess I can't buy a house because there isn't a public database listing houses for sale...

"Toll booths every two blocks": Get with the 21st Century; toll collection can be done electronically as your car continues down the road at full speed. Now, that could be done in a manner that raises privacy concerns worse than most government snooping does, or it could involve both a contractual obligation of the toll processing company to keep your travel information private and the availability of anonymous toll transponders for the really paranoid.
5.7.2006 9:54pm
markm (mail):
Finally: "That scenario would make real estate into a game of Go, where you can acquire property merely by surrounding it."

This is no different from current law concerning parcels of land that do not border on a public road. There is in fact such a parcel just to the north of the 30 acre parcel where I live (and am typing this). There would be no access to that 20 acres except that, when it was split off from my 30 acres and other parcels, an easement for access across my parcel was included. And when new owners decided they would prefer access from a different direction, they apparently did not have much trouble in purchasing another easement from other property owners.
5.7.2006 10:06pm