Chapter 6. Personal Liberty. Freedom of Speech.
There are, of course, many problems of personal liberty which cannot be subsumed under the category of involuntary servitude.
Freedom of speech and press have long been treasured by those who confine themselves to being civil libertarians.
Civil, meaning that economic freedom and the rights of private property are left out of the equation.
But we have already seen that freedom of speech cannot be upheld as an absolute except as it is subsumed under the general rights of property of the individual, emphatically including property right in his own person.
Thus the man who shouts fire in a crowded theater has no right to do so because he is aggressing against the contractual property rights of the theater owner and of the patrons of the performance.
Aside from invasions of property, however, freedom of speech will necessarily be upheld to the uttermost by every libertarian.
Freedom to say, print and sell any utterance becomes an absolute right in whatever area the speech or expression chooses to cover.
Here, civil libertarians have a generally good record, and in the judiciary, the late Justice Hugo Black
Black was particularly notable in defending freedom of speech from government restriction
on the basis of the First Amendment of the Constitution.
But there are areas in which even the most ardent civil libertarians have been unfortunately
fuzzy.
What for example of incitement to riot, in which the speaker is held guilty of a crime
for whipping up a mob, which then riots and commits various actions and crimes against
Person and Property.
In our view, incitement can only be considered a crime if we deny every man's freedom of
will and of choice, and assume that if A tells B and C, you and him go ahead and riot, that
somehow B and C are then helplessly determined to proceed and commit the wrongful act.
But the libertarian, who believes in freedom of the will, must insist that while it might
It might be immoral or unfortunate for A to advocate a riot that this is strictly in the
realm of advocacy and should not be subject to legal penalty.
Of course, if A also participates in the riot, then he himself becomes a rioter and is equally
subject to punishment.
Furthermore, if A is a boss in a criminal enterprise and, as part of the crime, orders
his henchmen, you and him go and rob such and such a bank.
And of course, A, according to the law of accessories, becomes a participant or even
leader in the criminal enterprise itself.
If advocacy should never be a crime, then neither should conspiracy to advocate.
For in contrast to the unfortunate development of conspiracy law, conspiring, that is, agreeing
to do something, should never be more illegal than the act itself.
How in fact can conspiracy be defined except as an agreement by two or more people to do
something that you, the definer, do not like?
Another difficult zone is the law of libel and slander.
It has generally been held legitimate to restrict freedom of speech if that speech has the effect
of either falsely or maliciously damaging the reputation of another person.
What the law of libel and slander does, in short, is to argue a property right of someone
in his own reputation.
Yet someone's reputation is not and cannot be owned by him, since it is purely a function
of the subjective feelings and attitudes held by other people.
But since no one can ever truly own the mind and attitude of another, this means that no
No one can literally have a property right in his reputation.
A person's reputation fluctuates all the time, in accordance with the attitudes and opinions
of the rest of the population.
Hence, speech attacking someone cannot be an invasion of his property right, and therefore
should not be subject to restriction or legal penalty.
It is, of course, immoral to level false charges against another person.
But once again, the moral and the legal are, for the libertarian, two very different categories.
Furthermore, pragmatically, if there were no laws of libel or slander, people would
be much less willing to credit charges without full documentation than they are now.
Nowadays, if a man is charged with some flaw or misdeed, the general reaction is to believe
it, since if the charge were false, why doesn't he sue for libel?
The law of libel, of course, discriminates in this way against the poor, since a person
with few financial resources is scarcely as ready to carry on a costly libel suit as a
person of affluent means.
Furthermore, wealthy people can now use the libel laws as a club against poorer persons,
restricting perfectly legitimate charges and utterances under the threat of suing their
poorer enemies for libel.
Paradoxically, then, a person of limited resources is more apt to suffer from libel and to have
his own speech restricted in the present system than he would in a world without any laws
against libel or defamation.
Fortunately, in recent years, the laws against libel have been progressively weakened so
that one can now deliver vigorous and trenchant criticisms of public officials and of people
in the Public Eye without fear of being subject to costly legal action or legal punishment.
Another action that should be completely free of restriction is the boycott.
In a boycott, one or more people use their right of speech to urge, for whatever reasons,
important or trivial, that other people cease to buy someone else's product.
For example, several people organize a campaign for whatever reason to urge consumers to stop
buying XYZ beer.
This is again purely advocacy, and furthermore, advocacy of a perfectly legitimate act, not
purchasing the beer.
A successful boycott might be unfortunate for the producers of XYZ beer, but this again
is strictly within the realm of free speech and the rights of private property.
The makers of XYZ beer take their chances with the free choices of consumers, and consumers
are entitled to listen and to be swayed by anyone they choose.
Yet our labor laws have infringed upon the right of labor unions to organize boycotts
against business firms.
It is also illegal under our banking laws to spread rumors about the insolvency of a
bank, an obvious case of the government's extending special privileges to banks by outlawing
A particularly thorny question is the whole matter of picketing and demonstrations.
Freedom of speech implies, of course, freedom of assembly, the freedom to gather together
and express oneself in concert with others.
But the situation becomes more complex when the use of the streets is involved.
It is clear that picketing is illegitimate when it is used, as it often is, to block
It is also clear that sit-ins are an illegitimate invasion of private property, but even peaceful
picketing is not clearly legitimate, for it is part of a wider problem.
Who decides on the use of the streets?
The problem stems from the fact that the streets are almost universally owned by local government,
But the government, not being a private owner, lacks any criterion for allocating the use
of its streets, so that any decision it makes will be arbitrary.
Suppose for example that the Friends of Wisteria wish to demonstrate and parade on behalf of
Wisteria in a public street.
The police ban the demonstration, claiming that it will clog the streets and disrupt
traffic.
Several libertarians will automatically protest and claim that the right of free speech of
the wisteria demonstrators is being unjustly abridged.
But the police, too, may have a perfectly legitimate point.
The streets may well be clogged, and it is the government's responsibility to maintain
the flow of traffic.
How then decide?
Whichever way the government decides, some group of taxpayers will be injured by the
decision.
If the government decides to allow the demonstration, the motorists or pedestrians will be injured.
If it does not, then the friends of wisteria will suffer a loss.
In either case, the very fact of government decision-making generates inevitable conflict
over who shall and who shall not, among the taxpayers and citizens, use the governmental
resource.
It is only the universal fact of government ownership and control of the streets that
makes this problem insoluble and cloaks the true solution to it.
The point is that whoever owns a resource will decide on how that resource is to be
used.
The owner of a press will decide what will be printed on that press, and the owner of
the streets will decide how to allocate their use.
In short, if the streets were privately owned and the friends of Wisteria asked for the
The Theory of Money and Credit
Freedom of Speech or Free Assembly Question at all, but a question of property rights, of the right of a group to offer to rent a street, and of the right of the street owner either to accept or reject the offer.
Freedom of Radio and Television
There is one important area of American life where no effective freedom of speech or the
press does or can exist under the present system.
That is the entire field of radio and television.
In this area, the federal government, in the crucially important Radio Act of 1927, nationalized
the airwaves.
In effect, the federal government took title to ownership of all radio and television channels.
It then presumed to grant licenses at its will or pleasure for use of the channels to
various privately owned stations.
On the one hand, the stations, since they receive the licenses gratis, do not have to
pay for the use of the scarce airwaves, as they would on the free market.
And so these stations receive a huge subsidy, which they are eager to maintain.
But on the other hand, the Federal Government, as the licensor of the airwaves, asserts the
right and the power to regulate the stations minutely and continuously.
Thus, over the head of each station is the club of the threat of non-renewal or even
suspension of its license.
In consequence, the idea of freedom of speech in radio and television is no more than a
mockery.
Every station is grievously restricted and forced to fashion its programming to the dictates
of the Federal Communications Commission.
So every station must have balanced programming, broadcast a certain amount of public service
announcements, grant equal time to every political candidate for the same office and to expressions
of political opinion, censor controversial lyrics in the records it plays, etc.
For many years, no station was allowed to broadcast any editorial opinion at all.
Now every opinion must be balanced by responsible editorial rebuttals.
Because every station and every broadcaster must always look over its shoulder at the
FCC, free expression in broadcasting is a sham.
Is it any wonder that television opinion, when it is expressed at all on controversial
Issues tends to be blandly in favor of the establishment?
The public has only put up with this situation because it has existed since the beginning
of large-scale commercial radio.
But what would we think, for example, if all newspapers were licensed?
The licenses to be renewable by a federal press commission, and with newspapers losing
their licenses if they dare express an unfair editorial opinion, or if they don't give
full weight to public service announcements.
Would not this be an intolerable, not to say unconstitutional, destruction of the right
to a free press?
Or consider if all book publishers had to be licensed, and their licenses were not renewable
if their book lists failed to suit a federal book commission.
Yet, what we would all consider intolerable and totalitarian for the press and the book
Publishers is taken for granted in a medium which is now the most popular vehicle for
expression and education, radio and television, yet the principles in both cases are exactly
the same.
Here we see too one of the fatal flaws in the idea of democratic socialism, that is,
the idea that the government should own all resources and means of production, yet preserve
Reserve and Maintain Freedom of Speech and the Press for all its citizens.
An abstract constitution guaranteeing freedom of the press is meaningless in a socialist
society.
The point is that where the government owns all the newsprint, the paper, the presses,
etc., the government as owner must decide how to allocate the newsprint and the paper,
and what to print on them.
Just as the government as street owner must make a decision how the street will be used,
so a socialist government will have to decide how to allocate newsprint and all other resources
involved in the areas of speech and press, assembly halls, machines, trucks, etc.
Any government may profess its devotion to freedom of the press, yet allocate all of its
newsprint only to its defenders and supporters.
A free press is again a mockery.
Furthermore, why should a socialist government allocate any considerable amount of its scarce
resources to anti-socialists?
The problem of genuine freedom of the press then becomes insoluble.
The solution for radio and television?
Simple.
Treat these media precisely the same way the press and book publishers are treated.
For both the libertarian and the believer in the American Constitution, the government
should withdraw completely from any role or interference in all media of expression.
In short, the federal government should denationalize the airwaves and give or sell the individual
channels to private ownership.
When private stations genuinely own their channels, they will be truly free and independent.
They will be able to put on any programs they wish to produce or that they feel their listeners
want to hear, and they will be able to express themselves in whichever way they wish without
fear of government retaliation.
They will also be able to sell or rent the airwaves to whomever they wish, and in that
way the users of the channels will no longer be artificially subsidized.
Furthermore, if TV channels become free, privately owned and independent, the big networks will no longer be able to put pressure upon the FCC to outlaw the effective competition of pay television.
It is only because the FCC has outlawed pay TV that it has not been able to gain a foothold.
Free TV is of course not truly free.
The programs are paid for by the advertisers, and the consumer pays by covering the advertising costs in the price of the product he buys.
One might ask what difference it makes to the consumer whether he pays the advertising costs indirectly or pays directly for each program he buys.
The difference is that these are not the same consumers for the same products.
The television advertiser, for example, is always interested in a. gaining the
widest possible viewing market and b. in gaining those particular viewers who
will be most susceptible to his message. Hence the programs will all be geared to
the lowest common denominator in the audience and particularly to those
viewers most susceptible to the message, that is, those viewers who do not read
Free TV programs tend to be unimaginative, bland and uniform.
Pay TV would mean that each program would search for its own market, and many specialized
markets for specialized audiences would develop, just as highly lucrative specialized markets
have developed in the magazine and book publishing fields.
The quality of programs would be higher and the offerings far more diverse.
In fact, the menace of potential pay-TV competition must be great for the networks to lobby for
years to keep it suppressed.
But of course, in a truly free market, both forms of television, as well as cable TV and
other forms we cannot yet envision, could and would enter the competition.
One common argument against private ownership of TV channels is that these channels are
scarce and therefore have to be owned and parceled out by the government.
To an economist, this is a silly argument.
All resources are scarce.
In fact, anything that has a price on the market commands that price precisely because
it is scarce.
We have to pay a certain amount for a loaf of bread, for shoes, for dresses, because they
They are all scarce.
If they were not scarce, but superabundant like air, they would be free, and no one would
have to worry about their production or allocation.
In the press area, newsprint is scarce, paper is scarce, printing machinery and trucks are
scarce, etc.
The more scarce they are, the higher the price they will command, and vice versa.
Furthermore, and again pragmatically, there are far more television channels available
than are now in use.
The FCC's early decision to force stations into the VHF instead of the UHF zone created
far more of a scarcity of channels than there needed to be.
Another common objection to private property in the broadcast media is that private stations
would interfere with each other's broadcasts, and that such widespread interference would
virtually prevent any programs from being heard or seen.
But this is as absurd an argument for nationalizing the airwaves as claiming that since people
can drive their cars over other people's land, this means that all cars, or land, must
be nationalized.
The problem in either case is for the courts to demarcate property titles carefully enough
so that any invasion of another's property will be clear cut and subject to prosecution.
In the case of land titles, this process is clear enough.
But the point is that the courts can apply a similar process of staking out property
rights in other areas, whether it be in airwaves, in water, or in oil pools.
In the case of airwaves, the task is to find the technological unit, that is, the place
the place of transmission, the distance of the wave, and the technological width of a clear channel, and then to allocate property rights to this particular technological unit.
If radio station WXYZ, for example, is assigned a property right in broadcasting on 1500 kilocycles, plus or minus a certain width of kilocycles, for 200 miles around Detroit,
Then any station which subsequently beams a program into the Detroit area on this wavelength
would be subject to prosecution for interference with property rights.
If the courts pursue their task of demarking and defending property rights, then there
is no more reason to expect continual invasions of such rights in this area than anywhere else.
Most people believe that this is precisely the reason the airwaves were nationalized,
before the Radio Act of 1927, stations interfered with each other's signals and chaos ensued,
and the federal government was finally forced to step in to bring order and make a radio
industry feasible at last.
But this is historical legend, not fact.
The actual history is precisely the opposite.
For when interference on the same channel began to occur, the injured party took the
Airwave Aggressors into Court, and the courts were beginning to bring order out of the chaos
by very successfully applying the common law theory of property rights, in very many ways
similar to the libertarian theory, to this new technological area. In short, the courts were
beginning to assign property rights in the airwaves to their homesteading users. It was after the
The Federal Government saw the likelihood of this new extension of private property that it rushed in to nationalize the airwaves, using alleged chaos as the excuse.
To describe the picture a bit more fully, radio in the first years of the century was almost wholly a means of communication for ships, either ship-to-ship or ship-to-shore messages.
The Navy Department was interested in regulating radio as a means of ensuring safety at sea,
and the initial Federal Regulation, a 1912 Act, merely provided that any radio station had to have a license issued by the Secretary of Commerce.
No powers to regulate or to decide not to renew licenses were written into the law, however,
and when public broadcasting began in the early 1920s, Secretary of Commerce Herbert Hoover attempted to regulate the stations.
Court decisions in 1923 and 1926, however, struck down the government's power to regulate licenses,
to fail to renew them, or even to decide on which wavelengths the stations should operate.
At about the same time, the courts were working out the concept of homestead private property
rights in the airwaves, notably in the case of Tribune Company vs. Oakleaves Broadcasting
Station, Circuit Court, Cook County, Illinois, 1926.
In this case, the court held that the operator of an existing station had a property right
acquired by prior use, sufficient to enjoin a new station from using a radio frequency
in any way so as to cause interference with the signals of the prior station.
And so, order was being brought out of the chaos by means of the assignment of property
rights.
But it was precisely this development that the government rushed in to forestall.
The 1926 Zenith decision striking down the government's power to regulate or to fail
to renew licenses and forcing the Department of Commerce to issue licenses to any station
that applied produced a great boom in the broadcasting industry.
Over 200 new stations were created in the nine months after the decision.
As a result, Congress rushed through a stopgap measure in July 1926 to prevent any property
Rights in Radio Frequencies, and resolved that all licenses should be limited to 90 days.
By February 1927, the Congress passed the law establishing the Federal Radio Commission,
which nationalized the airwaves and established powers similar to those of the current FCC.
That the aim of the knowledgeable politicians was not to prevent chaos, but to prevent private
that Property in the Airwaves as the Solution to Chaos is demonstrated by the legal historian
H. P. Warner.
Warner states that grave fears were expressed by legislators and those generally charged
with the administration of communications, that government regulation of an effective
sort might be permanently prevented through the accrual of property rights in licenses
Franchises or Means of Access, and that thus franchises of the value of millions of dollars
might be established for all time.
The net result, however, was to establish equally valuable franchises anyway, but in
a monopolistic fashion through the largesse of the Federal Radio Commission, and later
FCC, rather than through competitive homesteading.
Among the numerous direct invasions of freedom of speech exercised by the licensing power
of the FRC and FCC, two cases will suffice.
One was in 1931, when the FRC denied renewal of license to a Mr. Baker, who operated a
radio station in Iowa.
In denying renewal, the commission said,
This commission holds no brief for the medical associations and other parties whom Mr. Baker
does not like.
Their alleged sins may be at times of public importance to be called to the attention of
the public over the air in the right way.
But this record discloses that Mr. Baker does not do so in any high-minded way.
It shows that he continually and erratically over the air rides a personal hobby, his cancer
cure ideas and his likes and dislikes of certain persons and things.
Surely his infliction of all this on the listeners is not the proper use of a broadcasting license.
Many of his utterances are vulgar, if not indeed indecent.
Assuredly, they are not uplifting or entertaining.
Can we imagine the outcry if the Federal Government were to put a newspaper or a book publisher
out of business on similar grounds?
A recent act of the FCC was to threaten non-renewal of license of radio station KTRG in Honolulu,
a major radio station in Hawaii. KTRG had been broadcasting libertarian programs for
several hours a day for approximately two years. Finally, in late 1970, the FCC decided
to open lengthy hearings moving toward non-renewal of license, the threatened cost of which
Pornography
To the libertarian, the arguments between conservatives and liberals over laws prohibiting
pornography are distressingly beside the point.
The conservative position tends to hold that pornography is debasing and immoral and therefore
should be outlawed.
People tend to counter that sex is good and healthy and that therefore pornography will
only have good effects and that depictions of violence, say on television, in movies
or in comic books, should be outlawed instead.
Neither side deals with the crucial point that the good, bad or indifferent consequences
of pornography, while perhaps an interesting problem in its own right, is completely irrelevant
to the question of whether or not it should be outlawed.
The Libertarian holds that it is not the business of the law, the use of retaliatory violence,
to enforce anyone's conception of morality.
It is not the business of the law, even if this were practically possible, which is of
course most unlikely, to make anyone good or reverent or moral or clean or upright.
This is for each individual to decide for himself.
It is only the business of legal violence to defend people against the use of violence,
to defend them from violent invasions of their person or property.
But if the government presumes to outlaw pornography, it itself becomes the genuine outlaw, for
it is invading the property rights of people to produce, sell, buy or possess pornographic
material.
We do not pass laws to make people upright.
We do not pass laws to force people to be kind to their neighbors or not to yell at
the bus driver.
We do not pass laws to force people to be honest with their loved ones.
We do not pass laws to force them to eat X amount of vitamins per day.
Neither is it the business of government nor of any legal agency to pass laws against the
voluntary production or sale of pornography.
Whether pornography is good, bad, or indifferent should be of no interest to the legal authorities.
The same holds true for the liberal bugbear of the pornography of violence.
Whether or not watching violence on television helps lead to actual crimes should not come
under the purview of the state.
To outlaw violent films because they might someday induce someone to commit a crime is
is a denial of man's free will, and a total denial, of course, of the right of those who
will not commit crimes to see the film.
But more important, it is no more justifiable, in fact, less so, to outlaw violent films
for this reason than it would be, as we have noted, to lock up all teenage negro males
because they have a greater tendency to commit crime than the rest of the population.
It should be clear, too, that prohibition of pornography is an invasion of property
right, of the right to produce, sell, buy and own.
Conservatives who call for the outlawing of pornography do not seem to realize that they
are thereby violating the very concept of property rights they profess to champion.
It is also a violation of freedom of the press, which, as we have seen, is really a subset
of the General Right of Private Property.
Sometimes it seems that the beau-idéal of many conservatives, as well as of many liberals,
is to put everyone into a cage and coerce him into doing what the conservatives or liberals
believe to be the moral thing.
They would, of course, be differently styled cages, but they would be cages just the same.
The conservative would ban illicit sex, drugs, gambling, and impiety, and coerce everyone
to act according to his version of moral and religious behavior.
The liberal would ban films of violence, unesthetic advertising, football, and racial discrimination,
and at the extreme, place everyone in a skinner box, to be run by a supposedly benevolent
liberal dictator.
But the effect would be the same, to reduce everyone to a sub-human level, and to deprive
everyone of the most precious part of his or her humanity, the freedom to choose.
The irony, of course, is that by forcing men to be moral, that is, to act morally, the
conservative or liberal jailkeepers would in reality deprive men of the very possibility
of being moral.
The concept of morality makes no sense unless the moral act is freely chosen.
Suppose for example that someone is a devout Muslim who is anxious to have as many people
as possible bow to Mecca three times a day.
To him, let us suppose this is the highest moral act.
But if he wields coercion to force everyone to bow to Mecca, he is thereby depriving everyone
Man of the opportunity to be moral, to choose freely, to bow to Mecca.
Coercion deprives a man of the freedom to choose, and therefore of the possibility of
choosing morally.
The libertarian, in contrast to so many conservatives and liberals, does not want to place man in
any cage.
What he wants for everyone is freedom, the freedom to act, morally or immorally, as each
Which Man Shall Decide?
Sex Laws
In recent years, liberals have fortunately been coming to the conclusion that any act
between two or more consenting adults should be legal.
It is unfortunate that the liberals have not yet widened this criterion from sex to trade
and exchange, for if they ever would, they would be close to becoming full-scale libertarians.
For the libertarian is precisely interested in legalizing all interrelations whatever
between consenting adults.
Liberals have also begun to call for the abolition of victimless crimes, which would be splendid
if victims were defined with greater precision as victims of aggressive violence.
Since sex is a uniquely private aspect of life, it is particularly intolerable that
Governments should presume to regulate and legislate sexual behavior.
Yet, of course, this has been one of the state's favorite pastimes.
Violent acts, such as rape, of course, are to be classed as crimes, in the same way as
any other act of violence against persons.
Oddly enough, while voluntary sexual activities have often been rendered illegal and prosecuted
by the State. Accused rapists have been treated far more gently by the authorities than accused
perpetrators of other forms of bodily assault. In many instances, in fact, the rape victim
has been virtually treated as the guilty party by the law enforcement agencies, an attitude
which is almost never taken toward victims of other crimes. Clearly, an impermissible
sexual double standard has been at work. As the National Board of the American Civil Liberties
Union declared in March 1977, sexual assault victims should be treated no differently from
victims of other crimes. Sexual assault victims are often treated with skepticism and abuse at
the hands of law enforcement and health services personnel. This treatment ranges from official
disbelief and insensitivity to cruel and harsh probes of the victim's lifestyle and motivation.
Education.
Such abrogation of responsibility by institutions meant to assist and protect victims of crime
can only compound the trauma of the victim's original experience.
The double standard imposed by government can be remedied by removing rape as a special
category of legal and judicial treatment, and of subsuming it under the general law
of bodily assault.
Whatever standards are used for judges' instructions to the jury or for the admissibility of evidence
should be applied similarly in all these cases.
If labor and persons in general are to be free, then so should there be freedom for
prostitution.
Prostitution is a voluntary sale of a labor service, and the government has no right to
prohibit or restrict such sales.
It should be noted that many of the grimmer aspects of the streetwalking trade have been
brought about by the outlawing of brothels.
As long-lasting houses of prostitution operated by madams anxious to cultivate goodwill among
customers over a long time span, brothels used to compete to provide high-quality service
and build up their brand name.
The outlawing of brothels has forced prostitution into a black market fly-by-night existence,
with all the dangers and general decline in quality this always entails.
Recently, in New York City, there has been a tendency for the police to crack down on
prostitution with the excuse that the trade is no longer victimless, since many prostitutes
commit crimes against their customers.
To outlaw trades that may attract crime, however, would in the same way justify prohibition,
because many fights take place in bars.
The answer is not to outlaw the voluntary and truly lawful activity, but for the police
to see to it that the genuine crimes do not get committed.
It should be clear that advocacy of freedom for prostitution does not, for the libertarian,
and the least imply advocacy of prostitution itself.
In short, if a particularly puritanical government were to outlaw all cosmetics, the libertarian
would call for legalizing cosmetics, without in any sense implying that he favors, or for
that matter, opposes, the use of cosmetics themselves.
On the contrary, depending upon his personal ethics or aesthetics, he might well agitate
against the use of cosmetics after they become legalized.
His attempt is always to persuade rather than to compel.
If sex should be free, then birth control should, of course, be free as well.
It is unfortunately characteristic of our society, however, that scarcely has birth
control been made legal when people, in this case liberals, arise to agitate for birth
Both control being made compulsory.
It is true, of course, that if my neighbor has a baby, this may well affect me for good
or ill, but then almost everything that anyone does may affect one or more people.
To the libertarian, this is scarcely justification for using force, which may only be used to
combat or restrain force itself.
There is no right more personal, no freedom more precious, than for any woman to decide
to have or not to have a baby.
And it is totalitarian in the extreme for any government to presume to deny her that
right.
Besides, if any family has more children than it can support in comfort, the family itself
will bear the main burden.
Hence, the almost universal result that the wish to preserve a treasured rise in living
This brings us to the more complex case of abortion.
For the libertarian, the Catholic case against abortion, even if finally rejected as invalid,
cannot be dismissed out of hand.
For the essence of that case, not really Catholic at all in a theological sense, is that abortion
Abortion destroys a human life, and is therefore murder, and hence cannot be condoned.
More than that, if abortion is truly murder, then the Catholic, or any other person who
shares this view, cannot just shrug his shoulders and say that Catholic views should not be
imposed upon non-Catholics.
Murder is not an expression of religious preference.
No sect, in the name of freedom of religion, can or should get away with committing murder
with the plea that its religion so commands.
The vital question then becomes, should abortion be considered as murder?
Most discussion of the issue bogs down in minutiae about when human life begins, when
or if the fetus can be considered to be alive, etc.
All this is really irrelevant to the issue of the legality, again, not necessarily the
morality of abortion.
The Catholic anti-abortionist, for example, declares that all he wants for the fetus is
the rights of any human being, that is, the right not to be murdered.
But there is more involved here, and this is the crucial consideration.
If we are to treat the fetus as having the same rights as humans, then let us ask, what
human has the right to remain unbidden as an unwanted parasite within some other human
being's body?
This is the nub of the issue, the absolute right of every person, and hence every woman,
to the ownership of her own body.
What the mother is doing in an abortion is causing an unwanted entity within her body
to be ejected from it.
If the fetus dies, this does not rebut the point that no being has a right to live unbidden
as a parasite within or upon some person's body.
The common retort that the mother either originally wanted or at least was responsible for placing
the fetus within her body is again beside the point.
Even in the stronger case where the mother originally wanted the child, the mother as
the property owner in her own body has the right to change her mind and to eject it.
If the state should not repress voluntary sexual activity, neither should it discriminate
for or against either sex.
Affirmative action decrees are an obvious way of compelling discrimination against males
or other groups in employment, admissions, or wherever this implicit quota system is
applied.
But protective labor laws in regard to women insidiously pretend to favor women when they
really discriminate against them by prohibiting them from working during certain hours or
or in certain occupations.
Women are prevented by law from exercising their individual freedom of choice in deciding
for themselves whether or not to enter these occupations or to work during these supposedly
onerous hours.
In this way, government prevents women from competing freely against men in these areas.
All in all, the 1978 Libertarian Party platform is trenchant and to the point in setting forth
The Libertarian Position on Governmental Sex or Other Discrimination
No individual rights should be denied or abridged by the laws of the United States or any state
or locality on account of sex, race, color, creed, age, national origin, or sexual preference.
Wire Tapping
Wire tapping is a contemptible invasion of privacy and of property right, and of course
should be outlawed as an invasive act.
Few if any people would condone private wire tapping.
The controversy arises with those who maintain that the police should be able to tap the
wires of persons they suspect as criminals.
Otherwise, how would criminals be caught?
In the first place, from the pragmatic viewpoint, it is rare that wiretapping is effective in
such one-shot crimes as bank robbery.
Wiretapping is generally used in cases where the business is set up on a regularized and
continuing basis, such as narcotics and gambling, and is therefore vulnerable to espionage and
bugging.
Secondly, we remain with our contention that it is itself criminal to invade the property
of Anyone Not Yet Convicted of a Crime.
It may well be true, for example, that if the government employed a 10 million man espionage
force to spy upon and tap the wires of the entire population, the total amount of private
crime would be reduced, just as it would if all ghetto residents or teenage males were
promptly incarcerated.
But what would this be compared to the mass crime that would thus be committed, legally
There is one concession we might make to the police argument, but it is doubtful the police
would be happy with the concession.
It is proper to invade the property of a thief, for example, who has himself invaded, to a
far greater extent, the property of others.
Suppose the police decide that John Jones is a jewel thief.
They tap his wires and use this evidence to convict Jones of the crime.
We might say that this tapping is legitimate and should go unpunished, provided, however,
that if Jones should prove not to be a thief, the police and the judges who may have issued
the court order for the tap are now to be adjudged criminals themselves and sent to
jail for their crime of unjust wiretapping.
This reform would have two happy consequences.
No policeman or judge would participate in wiretapping unless he was dead certain the
victim is indeed a criminal.
And the police and judges would at last join everyone else as equally subject to the rule
of the criminal law.
Certainly equality of liberty requires that the law applies to everyone.
Therefore, any invasion of the property of a non-criminal by anyone should be outlawed,
regardless of who committed the deed.
The policeman who guessed wrong and thereby aggressed against a non-criminal should therefore
be considered just as guilty as any private wiretapper.
Gambling There are few laws more absurd and iniquitous
than the laws against gambling.
In the first place, the law, in its broadest sense, is clearly unenforceable.
If every time Jim and Jack made a quiet bet on a football game, or on an election, or
on virtually anything else, this were illegal, an enormous multi-million-man Gestapo would
be required to enforce such a law, and to spy on everyone and ferret out every bet.
Another large super-espionage force would then be needed to spy on the spies, to make
make sure that they have not been bought off.
Conservatives like to retort to such arguments, used against laws outlawing sexual practices,
pornography, drugs, etc., that the prohibition against murder is not fully enforceable either,
but this is no argument for repeal of that law.
This argument, however, ignores a crucial point.
The mass of the public, making an instinctive libertarian distinction, abhors and condemns
was murder and does not engage in it.
Hence the prohibition becomes broadly enforceable.
But the mass of the public is not as convinced of the criminality of gambling, hence continues
to engage in it, and the law, properly, becomes unenforceable.
Since the laws against quiet betting are clearly unenforceable, the authorities decide
to concentrate on certain highly visible forms of gambling and confine their activities to
The Theory of Money and Credit The Theory of Money and Credit
In New York State, a particular form of imbecility developed over the years.
Until recent years, all forms of horse betting were illegal, except those made at the tracks themselves.
Why horse betting at aqueduct or Belmont racetrack should be perfectly moral and legitimate,
while betting on the same race with your friendly neighborhood bookie should be sinful
and bring down the awful majesty of the law, defies the imagination.
Unless, of course, if we consider the point of the law to force bettors to swell the coffers of the tracks.
Recently, a new wrinkle has developed.
The City of New York has itself gone into the horse-betting business, and betting at city-owned stores is perfectly fine and proper,
while betting with competing private bookies continues to be sinful and outlawed.
Clearly the point of the system is first to confer a special privilege upon the racetracks,
and then upon the city's own betting installation.
Various states are also beginning to finance their ever-growing expenditures through lotteries,
which thus become conferred with the cloak of morality and respectability.
A standard argument for outlawing gambling is that if the poor workman is allowed to
To gamble, he will improvidently blow his weekly paycheck and thereby render his family destitute.
Aside from the fact that he can now spend his payroll on friendly betting, this paternalistic
and dictatorial argument is a curious one, for it proves far too much.
If we must outlaw gambling because the masses might spend too much of their substance, why
should we not outlaw many other articles of mass consumption?
After all, if a workman is determined to blow his paycheck, he has many opportunities to
do so.
He can improvidently spend too much on a TV set, a hi-fi, liquor, baseball equipment,
and countless other goodies.
The logic of prohibiting a man from gambling for his own or his family's good leads straight
to that totalitarian cage, the cage in which papa government tells the man exactly what
What to do, how to spend his money, how many vitamins he must ingest, and forces him to
obey the state's dictates.
Narcotics and Other Drugs
The case for outlawing any product or activity is essentially the same two-fold argument
we have seen used to justify the compulsory commitment of mental patients.
It will harm the person involved, or it will lead that person to commit crimes against
It is curious that the general and justified horror of drugs has led the mass of the public
to an irrational enthusiasm for outlawing them.
The case against outlawing narcotic and hallucinogenic drugs is far weaker than the case against
prohibition, an experiment which the grisly era of the 1920s has hopefully discredited
for all time.
For while narcotics are undoubtedly more harmful than is alcohol, the latter can also be harmful,
and outlawing something because it may harm the user leads straight down the logical garden
path to our totalitarian cage, where people are prohibited from eating candy and are forced
to eat yogurt for their own good.
But in the far more imposing argument about harm to others, alcohol is much more likely
to lead to crimes, auto accidents, etc. than narcotics, which render the user preternaturally
peaceful and passive.
There is, of course, a very strong connection between addiction and crime, but the connection
is the reverse of any argument for prohibition.
Crimes are committed by addicts driven to theft by the high price of drugs caused by
the outlawry itself.
If narcotics were legal, the supply would greatly increase, the high costs of black
markets and police payoffs would disappear, and the price would be low enough to eliminate
most addict-caused crime.
This is not to argue, of course, for prohibition of alcohol.
Once again, to outlaw something which might lead to crime is an illegitimate and invasive
assault on the rights of person and property, an assault which, again, would far more justify
by the immediate incarceration of all teenage males.
Only the overt commission of a crime should be illegal,
and the way to combat crimes committed under the influence of alcohol
is to be more diligent about the crimes themselves,
not to outlaw the alcohol. And this would have the further
beneficial effect of reducing crimes not committed
under the influence of alcohol.
Eternalism in this area comes not only from the right.
It is curious that while liberals generally favor legalizing marijuana, and sometimes
of heroin, they seem to yearn to outlaw cigarettes on the ground that cigarette smoking often
causes cancer.
Liberals have already managed to use federal control of television to outlaw cigarette
advertising on that medium, and thereby to level a grave blow against the very freedom
and the system of speech liberals are supposed to cherish.
Once again, every man has the right to choose.
Propagandize against cigarettes as much as you want,
but leave the individual free to run his own life.
Otherwise we may as well outlaw all sorts of possible carcinogenic agents,
including tight shoes, improperly fitting false teeth,
excessive exposure to the sun, as well as excessive
In the fall of 1971, the NAP Commission focused public attention on the problem of widespread
Police Corruption in New York City.
Mids the drama of individual cases, there is a danger of overlooking what is clearly
the central problem, a problem of which the NAP Commission itself was perfectly aware.
In virtually every case of corruption, the policemen were involved in regularly functioning
businesses which by government fiat had been declared illegal.
And yet a vast number of people by demanding these goods and services have shown that they
do not agree that such activities should be placed in the same category as murder, theft,
or assault.
Indeed, in practically no case did the purchase of the police involve these heinous crimes.
In almost all cases, they consisted of the police looking the other way while legitimate
voluntary transactions took place.
The common law makes a vital distinction between a crime that is a malum in se and one that
is merely a malum prohibitum.
A malum in se is an act which the mass of the people instinctively feel is a reprehensible
crime, which should be punished.
This coincides roughly with the libertarian's definition of a crime as an invasion of person
or property, assault, theft, and murder.
Other crimes are activities made into crimes by government edict.
It is in this far more widely tolerated area that police corruption occurs.
In short, police corruption occurs in those areas where entrepreneurs supply voluntary
services to consumers, but where the government has decreed that these services are illegal
People, Narcotics, Prostitution and Gambling.
Where gambling, for example, is outlawed, the law places into the hands of the police
assigned to the gambling detail the power to sell the privilege of engaging in the gambling
business.
In short, it is as if the police were empowered to issue special licenses to engage in these
activities and then proceeded to sell these unofficial but vital licenses at whatever
One policeman testified that if the law were to be fully enforced, not a single construction
site in New York City could continue functioning.
So intricately did the government wrap construction sites in a web of trivial and impossible regulations.
In short, whether consciously or not, the government proceeds as follows.
First, it outlaws a certain activity—drugs, gambling, construction, or whatever.
Then the governmental police sell to would-be entrepreneurs in the field the privilege of
entering and continuing in business.
At best, the result of these actions is the imposition of higher cost and more restricted
output of the activity than would have occurred in a free market.
But the effects are still more pernicious.
In that case, a gambler pays off the police not just to continue in business, but also
to freeze out any competitors who might want to enter the industry.
The consumers are then saddled with privileged monopolists and are barred from enjoying the
advantages of competition.
It is no wonder, then, that when prohibition was finally repealed in the early 1930s, the
main opponents of repeal were, along with fundamentalist and prohibitionist groups,
the organized bootleggers, who had enjoyed special monopolistic privileges from their
special arrangements with the police and other enforcement arms of government.
The way, then, to eliminate police corruption is simple but effective.
Abolish the laws against voluntary business activity and against all victimless crimes.
Not only would corruption be eliminated, but a large number of police would then be freed
to operate against the real criminals, the aggressors against person and property.
This after all is supposed to be the function of the police in the first place.
We should realize then that the problem of police corruption, as well as the broader
The broader question of government corruption in general should be placed in a wider context.
The point is that given the unfortunate and unjust laws prohibiting, regulating and taxing
certain activities, corruption is highly beneficial to society.
In a number of countries, without corruption that nullified government prohibitions, taxes
and exactions, virtually no trade or industry would be carried on at all.
and Greases the Wheels of Trade.
The solution, then, is not to deplore corruption and redouble enforcement against it, but to
abolish the crippling policies and laws of government that make corruption necessary.
Gun Laws
For most of the activities in this chapter, liberals tend to favor freedom of trade and
Activity, while conservatives yearn for rigorous enforcement and maximum crackdown against
violators of the law.
Yet mysteriously, in the drive for gun laws, the positions tend to be reversed.
Every time a gun is used in a violent crime, liberals redouble their agitation for the
severe restriction, if not prohibition, of private ownership of guns, while conservatives
If, as libertarians believe, every individual has the right to own his person and property,
it then follows that he has the right to employ violence to defend himself against the violence
of criminal aggressors.
But for some odd reason, liberals have systematically tried to deprive innocent persons of the means
for defending themselves against aggression.
Despite the fact that the Second Amendment to the Constitution guarantees that the right
of the people to keep and bear arms shall not be infringed, the government has systematically
eroded much of this right.
Thus, in New York State, as in most other states, the Sullivan Law prohibits the carrying
of concealed weapons without a license issued by the authorities.
Not only has the carrying of guns been grievously restricted by this unconstitutional edict,
but the government has extended this prohibition to almost any object that could possibly serve
as a weapon, even those that could only be used for self-defense.
As a result, potential victims of crime have been barred from carrying knives, tear gas
pens or even hat pins, and people who have used such weapons in defending themselves
In the cities, this invasive prohibition against concealed weapons has in effect stripped victims of any possible self-defense against crime.
It is true that there is no official prohibition against carrying an unconcealed weapon,
But a man in New York City who, several years ago, tested the law by walking the streets
carrying a rifle, was promptly arrested for disturbing the peace.
Furthermore, victims are so hamstrung by provisions against undue force in self-defense that the
criminal is automatically handed an enormous built-in advantage by the existing legal system.
It should be clear that no physical object is in itself aggressive.
Any object, whether it be a gun, a knife or a stick, can be used for aggression, for defense
or for numerous other purposes unconnected with crime.
It makes no more sense to outlaw or restrict the purchase and ownership of guns than it
does to outlaw the possession of knives, clubs, hatpins or stones.
But how are all of these objects to be outlawed?
And if outlawed, how is the prohibition to be enforced?
Instead of pursuing innocent people carrying or possessing various objects, then, the law
should be concerned with combating and apprehending real criminals.
There is, moreover, another consideration which reinforces our conclusion.
If guns are restricted or outlawed, there is no reason to expect that determined criminals
are going to pay much attention to the law.
The criminals, then, will always be able to purchase and carry guns.
It will only be their innocent victims who will suffer from the solicitous liberalism
that imposes laws against guns and other weapons.
Just as drugs, gambling and pornography should be made legal, so too should guns, and any
and many other objects that might serve as weapons of self-defense.
In a notable article attacking control of handguns, the type of gun liberals most want
to restrict, St. Louis University law professor Don B. Cates Jr. chides his fellow liberals
for not applying the same logic to guns that they use for marijuana laws.
Thus, he points out that there are over 50 million handgun owners in America today, and
found that, based on polls and past experience, from two-thirds to over 80% of Americans
would fail to comply with a ban on handguns.
The inevitable result, as in the case of sex and marijuana laws, would be harsh penalties
and yet highly selective enforcement, breeding disrespect for the law and law enforcement
agencies.
And the law would be enforced selectively against those people whom the authorities
Lawyers Didn't Like.
Enforcement becomes progressively more haphazard until, at last, the laws are used only against
those who are unpopular with the police.
We hardly need to be reminded of the odious search-and-seizure tactics police and government
agents have often resorted to in order to trap violators of these laws.
Cates adds that, if these arguments seem familiar, it is probably because they parallel the standard
Third Liberal Argument Against Pot Laws
Cates then adds a highly perceptive insight into this curious liberal blind spot.
For gun prohibition is the brainchild of white middle-class liberals who are oblivious to
the situation of poor and minority people living in areas where the police have given
up on crime control.
Such liberals weren't upset about marijuana laws either, in the 50s, when the busts were
confined to the ghettos.
A viewer in well-policed suburbs or high-security apartments guarded by Pinkertons, whom no
one proposes to disarm.
The oblivious liberal derides gun ownership as an anachronism from the Old West.
Cates further points out the demonstrated empirical value of self-defense armed with
guns.
In Chicago, for example, armed civilians justifiably killed three times as many violent criminals
in the past five years, as did the police. And in a study of several hundred violent
confrontations with criminals, Cates found the armed civilians to be more successful
than the police. The civilians defending themselves captured, wounded, killed or scared off criminals
in 75 percent of the confrontations, whereas the police only had a 61 percent success rate.
It is true that victims who resist robbery are more likely to be injured than those who
remain passive, but Cates points out neglected qualifiers, one, that resistance without a
gun has been twice as hazardous to the victim than resistance with one, and two, that the
choice of resistance is up to the victim and his circumstances and values.
Avoiding injury will be paramount to a white liberal academic with a comfortable bank account
It will necessarily be less important to the casual laborer or welfare recipient who is being robbed of the wherewithal to support his family for a month, or to a black shopkeeper who can't get robbery insurance and will be literally run out of business by successive robberies.
And the 1975 National Survey of Handgun Owners by the Decision-Making Information Organization
found that the leading subgroups who own a gun only for self-defense include blacks,
the lowest income groups and senior citizens.
These are the people, Cates eloquently warns, it is proposed we jail because they insist
on keeping the only protection available for their families in areas in which the police
have given up.
What of historical experience?
Have handgun bans really greatly lowered the degree of violence in society, as liberals
claim?
The evidence is precisely to the contrary.
A massive study done at the University of Wisconsin concluded unequivocally in the fall
of 1975 that gun control laws have no individual or collective effect in reducing the rate
of violent crime.
The Wisconsin study, for example, tested the theory that ordinarily peaceful people will
be irresistibly tempted to shoot their guns if available when tempers are being frayed.
The study found no correlation whatever between rates of handgun ownership and rates of homicide
when compared state by state.
Moreover, this finding is reinforced by a 1976 Harvard study of a Massachusetts law
providing a mandatory minimum year in prison for anyone found possessing a handgun without
a government permit.
It turns out that during the year 1975, this 1974 law did indeed considerably reduce the
carrying of firearms and the number of assaults with firearms.
But lo and behold, the Harvard researchers found to their surprise that there was no
No corresponding reduction in any type of violence, that is, as previous criminological
studies have suggested, deprived of a handgun, a momentarily enraged citizen will resort
to the far more deadly long gun. Deprived of all firearms, he will prove almost as deadly
with knives, hammers, etc. And clearly, if reducing handgun ownership does not reduce
Finally, Cates makes another intriguing point, that a society where peaceful citizens are
armed is far more likely to be one where good samaritans who voluntarily go to the aid of
victims of crime will flourish, but take away people's guns and the public disastrously
for the Victims will tend to leave the matter to the police.
Before New York State outlawed handguns, Good Samaritan instances were far more widespread
than now, and in a recent survey of Good Samaritan cases, no less than 81% of the Samaritans
were owners of guns.
If we wish to encourage a society where citizens come to the aid of neighbors in distress,
must not strip them of the actual power to do something about crime.
Surely it is the height of absurdity to disarm the peaceful public, and then, as is quite
common, to denounce them for apathy for failing to rush to the rescue of victims of criminal
assault.