The Freedom of Speech and Symbolic Expression:

I have an op-ed on the subject in the Wall Street Journal this morning, based on my Georgetown Law Journal article.


"How Far the Courts Have Moved Away from Defending Property Rights"?

David Henderson (EconLog) writes:

Law professor Eugene Volokh has a recent piece in the Wall Street Journal defending the right to burn the American flag as an exercise of free speech. It's good reasoning, and there's nothing in it that I disagree with. But he omits a much better argument based on property rights. If you burn my flag without my consent, I don't care how much you're exercising your right to free expression. Free expression does not guarantee you the right to other people's property any more than it guarantees you a working larynx. But if you burn your flag, you're simply exercising your right to use your property as you wish. It's a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case.

I agree with Prof. Henderson that people should be free to use their property so long as they don't harm others in certain fairly well-defined ways; and I agree that burning a flag does not cause any such harm. I'm not certain that the Constitution authorizes courts to enforce this rule through provisions outside the First Amendment — but that's a story for another day and for another author. But I do want to speak briefly about the "how far the courts have moved away from defending property" line, because I think it exemplifies a common claim about how once upon a time we had broad — and judicially enforced — property rights and today we don't.

The fact is that throughout American history, courts have upheld a vast range of restrictions on private property, including many restrictions that libertarians would find reprehensible. And that is true even during the heyday of constitutional economic rights protection during the Lochner era.

In fact, even when courts were "defending property" around the time of Lochner, the Supreme Court expressly rejected the property rights argument as to use of the flag. The case was Halter v. Nebraska (1907), decided two years after Lochner. Halter upheld a law that outlawed the selling of "any article of merchandise upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States." This was, of course, a ban on advertising and sales rather than on the use of the flag as a political symbol, which might be relevant to a free speech claim. But no free speech claim reached the Supreme Court; rather, the Court dealt with a claim about the rights to property and general liberty of conduct — a claim that would equally apply to commercial use of the flag as to political burning of the flag.

And the Court rejected the argument, by an 8-1 vote (the only dissenter was Justice Peckham, who wrote the Lochner majority opinion). Here's an excerpt (some paragraph breaks added):

[W]e cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer. It is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good.

Nor can we hold that anyone has a right of property which is violated by such an enactment as the one in question. If it be said that there is a right of property in the tangible thing upon which a representation of the flag has been placed, the answer is that such representation — which, in itself, cannot belong, as property, to an individual — has been placed on such thing in violation of law, and subject to the power of government to prohibit its use for purposes of advertisement.

Looking, then, at the provision relating to the placing of representations of the flag upon articles of merchandise for purposes of advertising, we are of opinion that those who enacted the statute knew, what is known of all, that to every true American the flag is the symbol of the nation's power, — the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.

As the statute in question evidently had its origin in a purpose to cultivate a feeling of patriotism among the people of Nebraska, we are unwilling to adjudge that in legislation for that purpose the state erred in duty or has infringed the constitutional right of anyone. On the contrary, it may reasonably be affirmed that a duty rests upon each state in every legal way to encourage its people to love the Union with which the state is indissolubly connected.

The Court did point to two state supreme court cases that had indeed held similar statutes at least partly unconstitutional. But even those cases were limited in their reasoning. People ex rel. McPike v. Van De Carr, 178 N.Y. 425, held only that the ban was unconstitutional as to existing material depicting the flag, and would be constitutional in banning production of new such material. (In the flagburning context, this would mean that people would have the right to burn flags made before the statute limited the property rights in flags, but the government could prospectively announce that any flags made in the future could not be burned.) And even Ruhstrat v. People, 185 Ill. 133, which had the more broadly liberty-protecting reasoning of the two cases, suggested that the result might be different if the federal government — to which the care of national symbols, in the Illinois Supreme Court's view, was exclusively entrusted — asserted its interests in preventing misuse of the flag.

My point here is simply that there was no Golden Age of constitutional property rights in which the Supreme Court adopted anything close to libertarianism as a constitutional rule. Past legal regimes may have been more property-protective (though less protective of other aspects of liberty, such as free speech, sexual autonomy, and the like). They included, for instance, moderately strong enforcement of the Contracts Clause, and some protection for liberty of contract and the liberty to enter one's chosen profession. But there was always a very great deal of room for the government to restrict people's behavior, including in ways that modern libertarians would roundly condemn. That's true as to the example in the EconLog post — use of the flag — but it's also true of a wide range of other unlibertarian restrictions, which were upheld under "police power" principles during the Lochner era.

So it's not "a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case." It's a sign that the American judiciary has never taken a very broad view of property rights, and in particular has never taken a view broad enough to protect alleged misuse of the flag. Say what you will about what you think courts should do in the future; but acknowledge that they were never terribly protective of property and of general liberty of conduct even when such protections were at their maximum.

Thanks to Wesley Gorman for the pointer.


Judicial Protection for Property Rights Really Did Decline:

Eugene correctly points out that American courts have never protected property rights as much as many libertarian scholars would want. However, he goes too far in suggesting that "The American judiciary has never taken a very broad view of property rights." To the contrary, prior to the triumph of statist judicial and economic ideology during the New Deal period, American courts at both the state and federal level provided far stronger protection for property rights than they do today.

Today's Supreme Court allows the government to condemn property for virtually any reason, and almost never declares a regulation to be a taking requiring compensation unless the regulation involves physical "occupation" of property or permanently wipes out 100% of the property's economic value; wiping out a mere 98% is not enough (see this article for a discussion of the relevant modern precedents). In the 19th and early 20th century, by contrast, the Supreme Court made clear in the 1896 Gettysburg case that a taking transferring property from one private individual to another would be considered suspect under the Public Use Clause of the Fifth Amendment (I discuss Gettysburg in more detail in this article, pp. 242-43). The early 20th century Court also gave property owners broader protection against regulatory takings than exists today, in cases such as Pennsylvania Coal v. Mahon (1922), a decision written by Justice Oliver Wendell Holmes, one of the justices of that era least willing to use judicial review to protect property owners (or anyone else). It is also worth noting that, in 1917, the Supreme Court relied partly on property rights analysis in striking down racially restrictive zoning in Buchanan v. Warley, a case that helped save the United States from becoming vastly more segregated than we already were.

To be sure, judicial protection for property rights in the 1800s and early 1900s was somewhat weakened by the fact that the Supreme Court did not consider the Bill of Rights to have been incorporated against the states. Thus, takings by state and local governments could be challenged only under the Due Process Clause of the Fourteenth Amendment, under which the Court was more deferential to the state than when it applied the Fifth Amendment's Takings Clause. This led to some relatively permissive Due Process Clause precedents that were later misleadingly cited by the majority in Kelo v. City of New London as "a century" of precedent supposedly justifying their decision (despite the fact that these decisions had nothing to do with the Takings Clause, a point I discussed here, pp. 240-42). Halter v. Nebraska, the 1907 case upholding a state law banning the use of the American flag in advertisements cited by Eugene, was also a Fourteenth Amendment case (neither the Takings Clause nor the First Amendment is even mentioned in the Court's opinion).

However, this relative neglect of state government infringements on property rights by federal courts was balanced by the active role of many state courts in protecting property rights under state constitutions. As my colleague Eric Claeys described in a series of articles, nineteenth century state courts often enforced a narrow definition of public use that prevented condemnation similar to that upheld in Kelo v. City of New London, and also regularly required government to compensate property owners for regulatory takings that would likely be ruled noncompensable today. Eugene himself points out that some state courts protected property rights in flags against the type of restriction upheld by the Supreme Court in Halter; that despite the fact that a ban on the use of American flag images in advertising is actually a relatively minor infringement of property rights (though perhaps a greater infringement on free expression).

Most importantly, nineteenth and early twentieth century courts generally protected property rights as much or more strongly than other constitutional rights. The defense of property rights was widely regarded as one of the central objectives of constitutional law and judicial review, a point documented at length in James Ely's book, The Guardian of Every Other Right, probably the leading history of constitutional property rights. To the extent that judicial protection for property rights fell short, it was in part because of the general weakness of judicial review as an institution as compared to today. All of this is in sharp contrast to the "poor relation" status to which property rights are relegated by today's federal courts.

In recent years, some state courts have begun to protect property rights more than before; for example, eleven state supreme courts have ruled that Kelo-style "economic development" takings are forbidden under their state constitutions. But both federal and most state courts protect property rights far less than in the pre-New Deal era.

It is indeed true, as Eugene says, that there was "no Golden Age of constitutional property rights." Courts rarely, if ever, protect any right fully; and pre-New Deal property rights jurisprudence was no exception. Nonetheless, this is one field where protection for constitutional rights drastically declined during the period from the 1930s to roughly the 1970s and has seen only a modest recovery since then. We should not idealize nineteenth and early twentieth century courts, whose jurisprudence had numerous well-documented flaws such as the relative neglect of freedom of speech described by Eugene. In the field of property rights, however, things really did change for the worse during the twentieth century.


"The American Judiciary Has Never Taken a Very Broad View of Property Rights":

Ilya argues that this statement of mine "goes too far," and says that "prior to the triumph of statist judicial and economic ideology during the New Deal period, American courts at both the state and federal level provided far stronger protection for property rights than they do today." There's much in Ilya's post with which I agree; certainly, to quote his post title, "judicial protection for property rights really did decline" starting with the New Deal, and hasn't substantially rebounded.

But it still seems to me that the protection offered property rights during that era was not "very broad," though it was broader than it is now. To give some examples: The Lochner-era Court upheld zoning laws. It upheld billboard bans. It upheld alcohol bans (even before the Eighteenth Amendment) and bans on lotteries. It upheld bans on pool halls. Though it struck down maximum hours laws in Lochner, it upheld them for women, surely a restriction on liberty of contract (even setting aside the equal-treatment-for-women arguments that obviously wouldn't have been appealing then). Though it struck down price controls and other highly burdensome economic regulations in various contexts, it also upheld rent controls, usury laws, time-and-half overtime laws, and other regulations. Among other things, the notion of a police power to regulate conduct and the use of property in order to protect the public's health, morals, safety, and welfare was often read quite broadly, which kept the protection of property rights from being very broad.

As Ilya points out, some state courts at times provided more protections to property, contract, and general liberty of conduct. For instance, some state courts did strike down alcohol bans. But the dominant trend in state courts, to my knowledge, was in favor of upholding alcohol bans. And I don't think that the bulk of state courts provided "very broad" protection to property rights during that era, even if some sometimes provided somewhat more than the Supreme Court did.

Finally, I agree with Ilya that "nineteenth and early twentieth century courts generally protected property rights as much or more strongly than other constitutional rights." But this doesn't mean courts took a very broad view of property rights, since they generally didn't take a very broad view of other rights — they certainly didn't take such a broad view of free speech rights, for instance (as Ilya agrees). My point was, and is, simply that property rights protections were not "very broad" at the time — not broad enough to secure a right to burn a flag that one owns (the example that triggered the post), and generally speaking not very broad in many other ways as well.


More on the Decline in Judicial Protection for Property Rights:

In his most recent post on our debate, Eugene agrees with my view that judicial protection for property rights has declined substantially since the New Deal period, but claims that judicial protection for property rights was "not very broad" even before then.

It is true that pre-New Deal courts did not protect property rights as much as many libertarians would want. However, they did provide quite extensive protections for property rights that went far beyond what we have today. Certainly, cases such as Berman v. Parker, Kelo, Poletown, and various modern regulatory takings decisions would probably have come out the other way before the New Deal. Under pre-New Deal jurisprudence, hundreds of thousands of people would not have been expelled from their homes by "economic development," blight, and "urban renewal" takings. This alone shows that the difference between pre-New Deal and modern property rights jurisprudence was both stark and laden with important real-world consequences.

It is certainly true that pre-New Deal courts did not provide absolute protection for property rights. No constitutional right ever gets complete protection from judges, and none is totally immune to being overriden by competing considerations. On the other hand, many of the cases Eugene cites as upholding limits on property rights actually involved restrictions on economic liberties with little or no connection to property ownership. That is true of the examples he gives involving freedom of contract, maximum hours laws, restrictions on the sale of alcohol, bans on lotteries, and others. Pre-New Deal courts generally gave stronger protection for property rights (which were specifically enumerated in federal and state constitutions) than other economic liberties (most of which were implied from the Due Process Clause of the Fourteenth Amendment). The Supreme Court's endorsement of zoning in Village of Euclid v. Ambler Realty (1926) really did lead to substantial infringements on property rights. But this case came near the very end of the pre-New Deal era, and the Court's opinion did not extend the kind of categorical blank check for zoning that later decisions provided. Rather, the Euclid majority opinion emphasized that its decision was limited to the specific type of zoning considered in that case, and that other forms of zoning might still be constitutionally suspect.

Ultimately, the disagreement between us may not be that great. We seem to agree that there was a significant decline in judicial protection for property rights after the 1930s. We also agree that pre-New Deal courts upheld various restrictions on property. Perhaps we differ only on what counts as "broad protection." In my view, there is a huge difference between courts that allow thousands of people to be forcibly expelled from their homes so that the land can be transferred to private parties, and ones that would forbid such takings because they are not for a "public use" as required by the Fifth Amendment. There is also a huge difference between a jurisprudence that denies compensation for nearly all regulatory takings and one that provides it for a fairly wide range of them. Banning such practices (along with a number of other restrictions on property rights) falls far short of a property rights utopia. But it certainly counts as "very broad protection" in my book - especially compared to the modern alternative. In my view, protection that is far better than nothing can reasonably be considered "very broad." Perhaps Eugene meant to say that the term "very broad" applies only to near-absolute protection for a right. If so, however, he is attacking a straw man, since no serious commentator argues that the courts have ever provided such near-absolute protection for property (or any other right). In the blog post that touched off this debate, David Henderson claimed only that Eugene's analysis of flag burning shows "how far the courts have moved away from defending property rights." Henderson did not say that the courts ever protected property rights absolutely, or even came close to doing so.

In any event, my main purpose was to show that pre-New Deal Courts provided far greater protection for property rights than exists today, and that the difference between the two has major real world effects. Whether the term "very broad protection" applies is less important.