The Ludwig von Mises Institute
(The LVMI is a research and educational center devoted to classical liberalism -- often known as libertarianism -- and the Austrian School of economics. LVMI seeks a radical shift in the intellectual climate by promoting the market economy, private property, sound money and peaceful international relations, while opposing government intervention.)
AUBURN, Ala.-- Cross burnings and property rights
By Adam B. Summers
The Supreme Court's recent 6-3 ruling that a 1952 Virginia law banning cross burning does not violate the protection of free speech under the Constitution pleased many who would like to stick it to racists and bigots, but it certainly was not a victory for the First Amendment.
In its decision, the court demonstrated not only that it does not consistently protect those freedoms -- whether utilized responsibly or not -- contained in the Bill of Rights, but that it lacks a fundamental understanding of the principles on which those rights are based. Those rights that we are entitled to enjoy were not plucked from thin air, but rather were based on a system of property rights.
What is interesting about the decision is that it upholds a law that bans the burning of a cross "with the intent of intimidating any person or group of persons" irrespective of whether the burning takes place on public or private property. This is a key distinction that the court misses, choosing instead to focus on devising a suitable model for determining an alleged perpetrator's intent. So long as property rights are protected, though, there is no need to try to discern or prove one's intent.
The court's ruling covers two cases prosecuted under the Virginia law in 1998. One involved two white men who had placed a 4-foot cross in the backyard of a black neighbor and attempted to burn it. The other concerned the organizer of a Ku Klux Klan rally, where a 30-foot cross was burned on private property with the permission of the owner. The two cases are quite different, and the court erred in not recognizing them as such.
The first case clearly involves a crime, as the two men trespassed on their neighbor's property -- thus causing a threat to him and his family -- and defaced his property. Their intent is irrelevant, except to the extent that the property owner's perception of their intentions will guide his actions in response. If he thinks they are just causing a disturbance, for example, he may yell at them to get off his lawn or go call the police. If he thinks they intend to put his life or the lives of his family in jeopardy, he may call the cops and then come out on the front porch with a shotgun.
The behavior of the Klansmen in the second case, however, should not be considered a criminal act. While their rally may have been detestable, and they may have said some really nasty, racist things, they did not infringe upon the rights (property or otherwise) of anyone else.
It is surprising that the court would consider it as such, given its 1992 ruling that struck down a St. Paul, Minn., law that prohibited cross burning that was intended to incite anger in people based on "race, color, creed, religion or gender" and numerous other rulings that have protected the rights to burn flags and display swastikas at rallies. The court is thus throwing jurisprudence and objectivity out the window in favor of rendering a politically popular outcome.
Justice Clarence Thomas, who was outspoken in condemning cross burning and the "reign of terror" imposed by the Ku Klux Klan during arguments heard in December, wrote a separate opinion concurring in part with the other five members of the majority but calling for an even stricter interpretation that would recognize the mere act of burning a cross as suitable evidence of an intent to intimidate.
Writes Thomas, "Just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point."
But this completely misses the point. One cannot burn down another's house because it is a crime to destroy someone else's property and it is a crime to attempt to deprive someone of his life because we each own our bodies and our right to protect them from harm.
Thomas and the other majority members -- Chief Justice William Rehnquist and Justices Sandra Day O'Connor, John Paul Stevens, Antonin Scalia and Stephen Breyer -- simply fail to understand that the First Amendment, and the other amendments that make up the Bill of Rights, is rooted in the protection of property. The Founding Fathers understood this. And so did Murray Rothbard.
Rothbard's "For a New Liberty: The Libertarian Manifesto" says:
"If a man has the right to self-ownership, to the control of his life, then in the real world he must also have the right to sustain his life by grappling with and transforming resources; he must be able to own the ground and the resources on which he stands and which he must use. In short, to sustain his "human right" -- or his property rights in his own person -- he must also have the property right in the material world, in the objects which he produces."
In other words, you can have the freedom of speech, but what good is it if you are unable to own a printing press or the paper on which to write your ideas? You can have the freedom to practice any religion you want (or none at all), but what good is it if you are not permitted the opportunity to own the land on which to build the church or temple or mosque? You can have the right to keep and bear arms, but what good is it if you are not allowed to own any place to keep them?
The return to a property-rights theory of justice would eliminate the prosecution of those engaged in so called victimless crimes and return the right of each to pursue his own happiness free of the violations of the State. This may irk the busybody, conservative do-gooders as well as the liberals in the politically correct crowd, but that is not necessarily a bad thing. It is the challenge and the triumph of a free society.
( Adam B. Summers is a visiting policy analyst at the Reason Foundation.)
The Independent Institute
(II is an independent public policy research organization whose goal is to transcend the political and partisan interests that influence debate about public policy. II aims to redefine the debate over public issues, and foster new and effective directions for government reform, by adhering to the highest standards of independent scholarly inquiry, without regard to political or social biases.)
OAKLAND, Calif. -- Ivan Eland assails war threat against Syria
Ivan Eland, senior fellow for foreign policy at the Independent Institute and director of the Institute's Center on Peace and Liberty, issued the following statement today regarding America's potential action against Syria for harboring Iraqi officials:
"Before the war with Iraq began, Secretary of Defense Donald Rumsfeld, one of the most hard-line administration officials on policy toward Iraq, repeatedly offered Saddam Hussein himself one last chance to flee to a foreign country so that the United States could avoid an invasion to achieve 'regime change.' In the wake of that invasion, standards have changed -- the supremely confident U.S. government is now criticizing Syria for doing what the administration would have loved that country to do before the war started -- give refuge to Iraqi officials.
"The United States is using its invasion of Iraq to begin demonizing another of the countries that our Middle East allies are uncomfortable with. This administration policy has already had an effect. A major American newspaper has already lumped Syria -- not originally in President Bush's 'Axis of Evil' -- in with the other two members of that club. Like Iraq prior to the invasion, Syria has an authoritarian government but poses little threat to the United States. Syria -- having lost its main military patron, the Soviet
Union -- has not modernized its military and has been, therefore, diminished as a threat to Israel and other U.S. allies in the Middle East."
The Competitive Enterprise Institute
(CEI is a conservative, free-market think tank that supports principles of free enterprise and limited government, opposes government regulation, and actively engages in public policy debate.)
WASHINGTON -- C:\SPIN: Paypal meets the Patriot Act
By Solveig Singleton
Paypal has been in the news lately. In this case, a Missouri prosecutor sent eBay a letter insisting that the company's recent acquisition, Paypal, was violating the USA Patriot Act by processing payments from Internet gambling operations.
Internet gambling is illegal in the United States, but about 5 million Americans use overseas sites; eBay discontinued Paypal's gambling operations last fall. This comes on top of troubles Paypal has had with the New York attorney general and authorities in other states.
So what's up with Paypal? Is something sinister going on there? Far from it. Prosecutors may get paid by the public, but they don't always serve the public.
Paypal is a prime example of the amazing innovation one sees in unregulated markets responding to consumer demand. Back in the mid-1990's, everyone was speculating about digital cash. Digital cash would be stored on plastic cards carried in our wallets; it would enable "micro-payments" for goods and services on the Internet. It could be made traceable in varying degrees to control fraud, or untraceable, to become a law enforcement nightmare.
As it was, digital cash has not really caught on in the United States; cash cards did much better in Europe. The most probable reason is that in the United States long distance communications are cheaper and credit cards much more widely available than in many parts of Europe. So it was easier and more efficient to come up with a payment system that piggybacks on existing credit and banking institutions than to come up with a digital cash infrastructure from scratch.
Enter Paypal, which hooks up to your bank account or existing credit card to let you make a payment to anyone else with an email address and a Paypal account. It satisfied the consumer desire to make micropayments. But it also solved a more serious problem -- how to quickly make payments for an Internet auction without sending cash in the mail or sending a total stranger your credit card number or a check. From the standpoint of sellers, it solved the problem of how to accept payments without taking a check from a total stranger or dealing with the expensive apparatus of credit card acceptance.
And Paypal offers a money-back guarantee against fraud or disappointment in the purchase of goods for just a few dollars per transaction. Paypal is not a perfect solution to the problem of fraud online; people still get ripped off in online auctions. But they are far more secure using Paypal than checks, cash, or credit cards, while enjoying substantial net savings on goods bought through Ebay. (One of the reasons I am so enthusiastic about Paypal is that I'm a huge fan of online auctions, despite the occasional disappointment).
And Paypal's or eBay's guarantee option may be the only real remedy for online auction fraud out there. Most of the fraud involves amounts less than $500, with a substantial amount being for less than $200 or even smaller amounts. Prosecutors and police rarely pursue cases involving such small amounts, and seldom track electronic offenders over state lines.
But police are interested in pursuing larger amounts of money, especially when they can seize it and keep it. And this may well be what is underlying state prosecutor's interest in Paypal's past role in gambling.
The Patriot Act provisions that Paypal allegedly violated bar the transmission of funds known to have come from criminal activity. And they also provide for civil forfeiture. Whether Paypal could actually be convicted is questionable; Ebay argues that they acted in good faith. The Missouri prosecutors sent a settlement offer along with their letter.
Maybe Paypal broke the law, and maybe they didn't. Assume, for a moment, that our law against gambling is justified it and those that are breaking it are doing something wrong (an assumption that probably wouldn't stand close examination). Paypal is certainly less involved in the wrongful transaction than those who actually gambled. But civil forfeiture means that prosecutorial discretion will be directed not at the actual wrongdoers (under our assumption, gamblers or gambling businesses), but businesses caught up with them because they offer services to everyone without inquiries into the exact nature of their business.
So again the weight of the law comes down on Paypal, despite the amazing service they offer at extraordinarily low cost. And with every layer of litigation and regulation comes costs that they must eventually pass on to consumers, and also a little less courage to experiment next time.
Will this zeal for prosecutions only stop when every computer company is as staid and cautious as the phone company? It would be one thing if the law served consumers, or targeted dangerous criminals. But as long as prosecutors and police are tempted by forfeiture laws, law enforcement will remain divorced from ordinary concepts of individual responsibility and the civil servant's duty to the public. And it will begin to look a lot more like legalized extortion.
(Solveig Singleton is a senior policy analyst for the Project on Technology and Innovation at the Competitive Enterprise Institute.)