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.
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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.
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.
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?
and I think you mean "because most public spaces should actually be private, but are nevertheless public."
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?
My logic is that the First Amendment does not - and no case suggests otherwise - repeal the common law of nuisance.
Wait, but isn't sex allowed on private property?
"I can't wait until we privatize the traffic lights."
We tried that experiment, with mixed results and legalities, in several jurisdictions.
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.
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?
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.
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).
"The words "Fuck the draft" aren't obscene, because they don't appeal to a prurient interest in sex."
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?
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".
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.
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...
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.
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?
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?
In short, privately owned driveways work because they logically are of use only to the resident. Not true of city streets and highways.
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.
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?
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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.
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")?
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?
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.
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.
You forgot the part of the scenario where the access-search process is privatized too, though. Major libertarian flaw!
So you just have to check the property adjacent to the property you're buying, and the property adjacent to that, and...
"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.
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.