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Libertarianism and the Regulation of Public Space:

David's recent post raises the interesting suggestion that government regulation of public space should, for the most part, mimic the rules that private owners would establish over a given type of space if it were privatized.

I agree with David's point that we would be better off if much of the land that is currently publicly owned were instead private. But I'm not sure he's right that government should have all or most of the same rights as a private owner would so long as the land remains in public hands. Here are my reservations:

1. Diversity.

David is absolutely right that most private owners would ban public (here, in the sense of visible, rather than in the sense of "on public property") sex and nudity on their own land. However, a minority would permit it, or at least would permit a greater degree of nudity and/or sexual behavior than would be acceptable to majority sentiment. If the government's rules for public land simply mirror those that a majority of private owners would enact, this diversity would be lost. This point applies far beyond the nudity issue. There are many behaviors that the majority dislikes, but that minorities differ about. Notice, as David himself points out, that his approach would permit (and perhaps encourage) government to regulate even many activities where the First Amendment is "implicated."

Unlike private space, public space is supposed to be, in effect, co-owned by everyone in the community. Therefore, it would be unjust, as well as often economically inefficient, for the state to exclude all uses of public space that the average or median private owner would forbid on his private property. At the very least, as I argued in my previous posts, the state should not be able to ban public behavior solely on the ground that the majority finds it "yucky," even though most private owners would ban such activities on their own land.

My rule might still not be as good as the private ownership alternative. But if the law does not ban "yucky" behaviors on public property, but does allow the majority to subject them to social pressure and opprobrium, social norms will end up limiting the incidence of "yuckiness" to something very roughly approximating the levels that would prevail if public spaces had a diverse set of private owners. Only those people with very strong preferences for aberrant behavior are likely to be willing to pay the cost of facing ridicule and social isolation. As some support for this conjecture, I note that I am familiar with communities (e.g. - Northampton, Massachusetts) where the authorities do little or nothing to enforce laws against public nudity and even against more discrete forms of public sex. Yet only relatively small numbers of people actually take advantage of this leniency. One of the commenters to my previous post noted a similar pattern in equally permissive Berkeley.

2. Monopoly Power.

Unlike most privately owned spaces, publicly owned space often involves monopoly power over an important amenity. For example, in most communities, the government is the owner of all or most roads. The local government is also often the owner of the only large public park. This monopoly power might not exist to the same degree if we adopt David's proposal of privatization, but it certainly exists in the status quo under government ownership. Basic economics suggests that monopoly providers of a service (here, access to key public spaces) should not have an absolute power to exclude people or behaviors they dislike. And this is in fact the approach that the law takes even with monopolistic private owners such as common carriers. At the very least, monopolistic government owners should not be given as much discretion in regulating land use as nonmonopolistic private ones.

frankcross (mail):
This seems like scrambling to save a dubious proposition in the first place. David was talking about private associations, like homeowners associations. There's no particular reason why one would expect such associations, in the place of government, to be smaller or less intrusive or monopolistic than governments.

Indeed, I would think it is very hard to distinguish between those private associations and local government in any meaningful way.
5.5.2006 3:48pm
Charles Chapman (mail) (www):
At the very least, monopolistic government owners should not be given as much discretion in regulating land use as nonmonopolistic private ones.
This statement is far too broad. It is also frequently, if not always, wrong.

At the very least, the statement ignores the concept of externalities. I want to "regulate" the use of my private land by putting a open-air, exposed, nuclear waste dump on it. Next to the site for medical waste. Next to the site for waste from the infectious disease lab. Next to the exposed, no trees, no walls, drive in theater featuring "Deep Throat" and "Debbie Does Dallas."

And my ability to unilaterally do so should be *greater* than the ability of "monopolistic owners" to regulate public property?

Perhaps I'm just cranky this morning, but what I see in these posts is a complete disregard, if not disdain, for the very concept of "democracy" in a constitutional democracy or republic -- the right, power and ability of the majority to make rules and set community standards, as long as said rules do not unnecessarily contravene or impinge on a *fundemental* right, simply because it is a majority.

Instead, the *apparent* goal of the argument (and I of course could be wrong) is that everybody has a Libertarian fundemental right to do whatever they want in public and in private unless the majority can make a "rationally" convincing (i.e., convincing to the dissenter) argument why such conduct shouldn't be permitted.

Tradition and societal norms going back thousands of years are for naught. [And yes, traditions change and some societal norms are rejected. There was once a long standing tradition and societal norm accepting slavery. But that does not mean everything should be thrown out all at once.]

Anyone who is familiar with the is-ought problem knows that purely "rational" (i.e., deductive and inductive) arguments are by themselves unavailing. Some questions, like it or not, are irreducible.
5.5.2006 3:53pm
Artemis (mail):
Bravo, Charles Chapman.
5.5.2006 4:13pm
David Sucher (mail) (www):
I agree with Eugene Volokh that it's good to examine the reasons we have rules, even if we like the results.

So I am all for talking about the reasons we have such a thing as "public space" and why privatizing the streets of a city (as one example) has no political momemtum behind it.

Though there are interesting legal arguments which one can tease out of the alternatives, the basic reason we have things as they are is because it works. We had the choice to build our cities with private streets and roads and "for some reason" we chose (and continue to choose) to keep them as public space.

Now, the argument "We've always done it this way" is not a good one -- unless and until one examines the historical reasons why we have settled on our current pattern of private property and public Right-of-Way (ROW) as a reasonable compromise.

In theory one can probably find great reasons why sidewalks and streets should be privatized. So my first question is if it is such a good idea, how did we end up here? Why didn't the capitalists of the 19th century -- firmly in control of their societies -- take over municipal ROWs? What is the historical background for our public/private space pattern?
5.5.2006 4:38pm
Steve in CA (mail):
Charles says: "Instead, the *apparent* goal of the argument (and I of course could be wrong) is that everybody has a Libertarian fundemental right to do whatever they want in public and in private unless the majority can make a "rationally" convincing (i.e., convincing to the dissenter) argument why such conduct shouldn't be permitted."

In fact, that's exactly how I feel, except that "rationally convincing" isn't the same as "convincing to the dissenter." The burden of proof should be on the person who's proposing, or even defending, a restriction of anyone's liberty. Much the way that the Constitution puts the burden of proof on anyone proposing a federal law. That's what a free society is -- unless there's a good reason to ban something, we're allowed to do it.
5.5.2006 5:46pm
Freder Frederson (mail):
I agree with David's point that we would be better off if much of the land that is currently publicly owned were instead private.

I would like to know why you make this outrageous assertion in the first place.
5.5.2006 5:48pm
Clayton E. Cramer (mail) (www):

In theory one can probably find great reasons why sidewalks and streets should be privatized. So my first question is if it is such a good idea, how did we end up here? Why didn't the capitalists of the 19th century -- firmly in control of their societies -- take over municipal ROWs? What is the historical background for our public/private space pattern?
There's a long standing tradition of public roads and public structures. As an example, Plymouth Colony had all sorts of things commonly owned at the beginning, with even the cattle that arrived by ship in 1623 staying as part of the common ownership for several years. Colonial America wasn't quite the individualistic libertarian utopia that many people here imagine. When Pennsylvania referred to itself as a Commonwealth, this reflected a recognition that while many things were privately owned, many things were collectively owned.

There is a burst of what historians call liberalism after the American Revolution--the notion that individuals were out for themselves, and their communal obligations were burdens that might have to be shouldered, but most people increasingly looked for ways to avoid that responsibility. The Militia Act of 1792, which required every able-bodied white citizen 18-45 to own a musket and report for militia musters and duty, is something of the last gasp of this civic republicanism, collective obligation idea.

So it makes it all the more interesting that public streets remained public throughout the 19th century, when private ownership of all sorts of things was becoming more the norm.
5.5.2006 7:18pm
Clayton E. Cramer (mail) (www):

In fact, that's exactly how I feel, except that "rationally convincing" isn't the same as "convincing to the dissenter." The burden of proof should be on the person who's proposing, or even defending, a restriction of anyone's liberty. Much the way that the Constitution puts the burden of proof on anyone proposing a federal law. That's what a free society is -- unless there's a good reason to ban something, we're allowed to do it.
You are conflating several issues, with confusing results.

1. The Constitution does NOT put the burden of proof on anyone proposing a federal law. I don't know where you got that idea, but it is wrong. The Constitution specifies that certain areas are properly within the authority of Congress, and others are not--but that's not the same as what you said. As long as a federal law is in the government's area of defined powers, and does not conflict with a treaty or some other part of the Constitution, even the most rigid constructionist would admit that the law is Constitutional. That does not mean the law makes sense, or is wise.

2. The Constitution was supposed to limit the authority of the federal government to some areas, and leave other powers to the states. There is some serious questiona about how to read the Ninth and Tenth Amendments, but the authority of the states to use their police powers for public health, safety, and welfare, has seldom been questioned. I am not entirely happy about this, because it turned into a situation where all a legislature has to say is the magic password "public health and safety" and courts turn somersaults to allow all sorts of questionably effective laws. But the alternative is the liberal solution, where the courts impose whatever standard they feel like to get the result that they want.

3. Democracy, freedom: pick one. I am generally inclined to accept freedom, unless you can make a pretty strong argument for why a particular law is needed. My biggest objection to this set of discussions is that the crowd arguing for nearly unlimited freedom seldom means it. They want democracy nearly unlimited on matters about which they are concerned (gun control, anti-discrimination laws, economic regulation) but liberty unlimited on things that they want (sex in public, sex with children, sex with animals, broadcast hardcore porn, marijuana).
5.5.2006 7:27pm
Hans Bader (mail):
Permitting sex in public doesn't promote "diversity."

It drives middle class people out of public parks and other public places, which are then taken over by those who engage in such antisocial behavior.

In many public parks in California, for example, the public has effectively been driven out of the park by smelly vagrants and bums, who make peaceful enjoyment of them impossible.

Allowing public sex would be exponentially worse and drive ordinary members of the public out of far more public venues that their tax dollars pay for.

Wealthy law professors who advocate allowing sex in public can generally afford to live in upscale communities that are not overrun with vagrants and bums, and can thus engage in rhetoric about how "diversity" protects the right to engage in seedy and squalid behavior in public. They don't need to use public parks at all, and can live in gated communities if they choose.

But when I was younger and had a quite modest income, one of the few pleasures I could afford was a walk in the park (unlike a movie theater or a restaurant, it was free, although my tax dollars helped pay for it). It is the middle and working classes who suffer when social decay is permitted in public venues. The rich are unaffected. They can pose as champions of "diversity."
5.5.2006 7:41pm
Ship Erect (mail) (www):
liberty unlimited on things that they want (sex in public, sex with children, sex with animals

Who, exactly, is arguing for legalizing these activities while saying that guns should be banned? It's obvious that you are invoking these activities with the intent to shock.
5.6.2006 5:15am
msk (mail):
The government that owns the park can't make rules that would allow the cops to keep the peace?

A hundred years ago, many a fist fight arose because some tobacco chewers never gave a thought to what (or whom) they might hit, spitting in public places. It's not that people were prissier then. No one had automatic washers, and most people had much smaller wardrobes, and it's never easy for the cops to determine which damage was intentional and which was accidental.

The great influenza epidemic at the close of WWI, and a few other epidemics prior to the introduction of antibiotics in the 1940s, emphasized the public health benefits of not letting people spit on the sidewalks or on the floors in public buildings.

Now you want to argue that "Keep your germs to yourself," would be monopolistic, or culturally insensitive?

Have you ever visited extremely poor villages or big-city slums in regions where there are no public sewer systems and hardly any homes have indoor plumbing? I don't care how picturesque they seem in photographs, the smell is overpowering, insects are aggressive, and filth-borne disease is much more common.

It is not morally wrong to use the street when no indoor bathrooms exist for miles around, if local cultural norms allow that -- but while you're being broadminded, realize that in some countries with primitive water supplies outside the highrise district, "bathroom" matters are socially taboo. What is acceptable in some rural areas of Central America may be horribly offensive to most Africans, who are taught to keep such matters unseen.

If the government owns the park, or has responsibility for maintaining order, then the people (through that government) have to decide on a set of clear guidelines so that most people would feel safe and comfortable.

You don't think areas designed especially for roller skating, basketball, or other such special interest divisions are enough for the government to sponsor? You wouldn't even be satisfied with a redlight district to confine high-risk behavior away from elementary schools?

If you have no specific goal, how would you argue compelling state interest? It's hard for an organized government to promote or enforce lawlessness. No rules, for or against anything, sounds more like chaos than diversity.

Good fences make good neighbors. You're advocating erasing all the lane markings, switching off all the traffic signals, and abolishing the speed limit, so everyone can take their chances, and allowing anyone who feels like it to build his house in the middle of the road. What use would we have for law schools then?
5.7.2006 2:59am
Rami1 (mail):
Well, all I know is that the Libertarian Party has adopted Delaware Highway 92. I guess that means everyone is expected to pick up their own trash.
5.7.2006 11:02am
Clayton E. Cramer (mail) (www):


liberty unlimited on things that they want (sex in public, sex with children, sex with animals



Who, exactly, is arguing for legalizing these activities while saying that guns should be banned? It's obvious that you are invoking these activities with the intent to shock.
GLAD (the gay group in Mass.) went to court seeking to block enforcement of the law against sex in public places. In Limon, the ACLU argued that minors had a "due process liberty interest" in having sex with adults. Gun bans? See San Francisco, which has banned ownership of handguns.
5.8.2006 5:44pm
PeterH:
I admit to mostly skimming all the various posts related to this discussion, but one aspect doesn't seem to have been brought up at all, which is "How Public?"

The discussion seems mostly to be about sex in parks or on the street, etc.

Here is a "non-theoretical" example.

Not all that long ago (couple of years), the police were called in and issued citations (no arrests) for public lewdness or some such. Not sure of the actual specific charge. Fines were assessed.

The situation?
In the identified gay section of the city...
In a bar with a doorman checking ID and assessing a cover charge...
The bar is clearly identified as a leather bar...
The area you first enter is a "pub-like" bar without a dress code but is clearly effectively all-male, with a lot of men in leather and soft-core porn playing on the monitors...
Then you go past a second doorman who is enforcing posted "dress-code" to get into the "back bar" which requires leather clothing or similar fetishwear, who also serves as a backup check for age. If you are not thusly dressed, you don't get in. Even this bar is just for drinks and meeting.....
Then there is a door into a darkened space where it is (was, as it is no longer allowed) pretty obvious that, shall we say, "naughtiness" is going on, with clothing on, but not necessarily everything, umm, tucked away neatly....
Which has a restroom....
After midnight on a Saturday.

Where two men were cited for "public" lewd conduct.

All the discussions about the parks and the streets are all very well and good. People shouldn't be subjected to non-consensual exhibitions, and there needs to be discussion about what is and isn't appropriate where.

But there is absolutely no possibility that Grandma and the kids could "stumble across" what was going on in the scenario I described above.

But under the letter of the law, it happened "in public." This wasn't the food court at the mall.

Doesn't this all need to include those considerations as well? Can not a rational society put in place some guidelines for varying types of "public?"
5.9.2006 1:15pm