21 February 2010

Privacy vs Freedom

It's a commonplace of conservative and libertarian ideology that private property is a necessary bulwark of freedom. A person who is essentially independent by virtue of his private property, the assumption is, is more likely to assert his rights against an encroaching government or any other power than someone who is dependent for his life and livelihood upon the state or an employer. I've always disagreed with this idea because I believe the sole prerequisite of freedom is courage, but for those who do believe, the Appellate Division of the New York State Supreme Court has chilling news: freedom does not exist on private property.

The Third Division has rejected an appeal by Stephen Downs of his 2003 arrest for wearing an antiwar T-shirt in Crossgates Mall. The court unanimously held that the First Amendment only constrains government, and that its protection doesn't extend to privately-owned retail spaces. While noting that other states have recognized that malls constitute a kind of public space and that people who enter may still enjoy their constitutional rights, the New Yorkers don't agree. Marketplaces are not public spaces and no freedom of speech or assembly exists there that state or federal governments are bound to recognize.

Private property, then, is where you are free but no one else is unless you say so. And here you thought all those freedoms enumerated in the Bill or Rights were natural rights of some sort. Maybe they are, but once someone draws a line around nature and says it's his, you're SOL. That's what worries me about what I perceive as an accelerating privatization of the public sphere as a whole. In the absence of any kind of "commons," what becomes of our freedoms if they conflict with a property owner's right to not be bothered by them? Wouldn't it be more sensible to argue that any property used for a corporate purpose, corporations existing at the state's sufferance for the accomplishment of some public good, is public in nature, and that the prohibition against infringing constitutional rights in the public sphere should be extended to corporate property owners as well as the government? If there's no room for this sort of argument it may prove true after all that freedom depends on property, since only those with property will be free.

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