Free Speech and Property Rights: Censorship in the Arts
The conflict between Human Rights and Property Rights that we see in comparing the American Constitution and the Declaration lies originally in Miltonian ethics where he argued that the government should not limit speech by licensing institutions of speech (not individuals). Such licensing would give the government the authority to punish speech. Milton was arguing against the licensing of printers (publishers), he was not offering a defense of property rights. However, this conflation found its way into the American Constitution. In part, the first amendment says, “Congress shall make no law […] prohibiting […] freedom of speech, or of the press; or the right of the people peaceably to assemble….” The unintended legacy of Milton may be the idea that the ownership of property constitutes expression.
This legacy allows, for example, the New York Times to censor speech through its editorial practices, or the Larry Gagosian Gallery to forcefully remove peaceful demonstrators. The right by the Times and the gallery to constrain speech cannot itself be constrained by the government because that would be tantamount to the constraint of speech through the takeover of private property. Even thought the driving principle in the case of the Times is property, the idea of the press in the 17th century was not the same as the idea of property. A fuzzying of the difference between speech and property perhaps began with Milton but, as we have argued, continued in the American Constitution under the banner of “persons.” Accordingly, The New York Times is a private institution that has the right to protect its property under property rights. Does it also have the right as a “person” to protect its speech under speech rights? And under which is the Times allowed to limit the speech of others? Is speech property? Are they separate rights? The idea here is that speech and property create an indissociable space that the idea of unprotected speech does not settle. The conflict between these two principles goes unnoticed by many who have written about art and free speech.
Mat Gleason is lost in the fog of this difference between speech and property as he tries to argue that the Smithsonian’s decision to remove the Wojnarowicz work cannot be compared with MOCA’s paint-over of Blu’s mural.[5] Gleason argues that the Smithsonian, as a public institution can be defunded by the government for political expression, but MOCA cannot. MOCA is not a case of censorship because property rights law trumps the free expression of individuals. This should demonstrate the difference between the two. But Gleason argues that the Smithsonian is a case of constraints upon “curatorial freedom.” His argument seems to be based on the idea of “persons” and not property since government has authorized the Smithsonian through funding, this makes it a government agency, and the old Miltonian principle should be applied to constrain government because some people might see funding as a form of licensing of personal expression. He is possibly trying to make the Miltonian argument that government should be neutral in its funding, not partisan in the 1st amendment area of speech. (see Finley).
He misses the point by using the “persons” argument because although he used it to defend the supporters of Wojnarowicz, he couldn’t do it by defending the institution’s right to free expression, since the institution expressed itself freely in the removal of the work. He probably saw a complication in using the property rights argument since the Smithsonian is government property, not private. The question today is what can we do about the continued abuse of the Miltonian idea by those who believe that the property rights and human rights (as defined by the Declaration) are the same?
A case against this abuse can be made based on the effect that a new and unconsidered concept, the corporation, has on these ideas. This is a concept that the founding fathers could not have even imagined. Since, according to them, the corporation could not have been what they meant by person, this is enough to reconsider the saliency of the “persons” argument used to settle the difference between speech and property. The corporation can restrict expression in the same way that the government can, not by laws but by the removal of the agencies of expression, which it controls. In addition, we have the new partnership of government the corporation. Under these considerations it is difficult to make the argument that there is a separation between government and private property, which, if private property interests control government policy, aren’t we, as Chris Hedges argues, becoming an oligarchy? And in this case, the interests of government and the interests of corporate America are identical. And who is left out of this equation? The person.
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