Free Speech and Property Rights: Censorship in the Arts
Although many people, artists included, think of free speech as a concept under the heading “person”, the constitution makes no such distinction. In fact the issue of personhood was not established until 1857 in the Dred Scott case where Chief Justice Roger Taney infamously ruled that black persons could never be citizens of the United States and therefore had no right to constitutional protection.[3] In this decision, personhood helped establish the status of citizen, who had constitutional rights and who didn’t, rights such as free speech. But the constitution otherwise considers rights in terms of property. Accordingly, there is no difference between a person as a “real” human being, and a corporation, both have free speech protection. And this is where we find in the minds of many the mixing of philosophical and legal constructions. In fact, Property Rights has been the basis of the argument made by some that it was proper for the Smithsonian and MOCA to limit speech. They claim that these museums are not arms of the government, who in fact can punish speech by making it illegal. Thus the idea of property made it possible to give personhood status to both a human being and an institution without distinction. Regulation is expressed through property, not through being a person (Dred Scott notwithstanding). For example, discrimination laws were enacted through the Commerce Clause of the Constitution where we find a limit to free speech. The government can regulate private agencies in order to keep them from discriminating against blacks, women, etc. Thus a private agency can be regulated based on interstate commerce, not based on human rights alone. However, in the minds of artists, their free speech protection should be based on human rights and morality. Nevertheless, the difference between human rights and property rights remain muddled for many. And in spite of their commitment to the ideas of human rights, they seek redress through law and property rights.
Speech is linked to property rights law because speech and property are both protected by the Constitution in both the 1st and 5th amendment respectively. Speech and property fall under “persons” in the constitution probably because of the founding fathers’ experience with the British: they determined that one of our freedoms was the right to own property. About 150 years later we find that this idea of private property collides with the Universal Declaration of Human Rights (1948) which says that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” [4]
In the American Constitution we find such frontiers (or limits) to speech, among those is property. Is this a case where a capitalist doctrine conflicts with a democratic one? There is no right to use one’s speech to prevent the speech of others. The only location that such a conflict can occur is between the right to free speech and the right to own property. We can see that the issue of free speech is actually determined by the public/private debate in the Constitution where the property wherein the individual acts can or cannot be regulated depending upon whether it’s public or private. Does a person have an inherent right to free speech? Actually, the Constitution gives this right to its citizens but finds it necessary to regulate it, not just to protect it. In general, a person’s right to free speech is not inherent but given in law. And since governments pass laws, it can protect or regulate speech as a right in situations over which it has jurisdiction. It appears that this regulation and protection can only happen in the public sphere, the government has no jurisdiction over the private sphere and can neither regulate or protect speech there. But jurisdiction is a matter under some debate, making the public/private distinction messier. (A good example of this is found in lawsuits to protect academic freedom)[5] In most cases, the law tries to determine who the owner of that speech is and whether it is a public or private location (a company, club, institution, organization, etc.). An expression of an individual is not just speech but a matter of ownership; that expression may be the property of the expresser or an institution that, for example, she may work for. The law tries to determine whether this ownership is public or private in order to determine jurisdiction. In this way the public/private divide plays a major role in fuzzying the distinction between individual speech and property (the conflation of speech rights and property rights).
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