Freedom of Speech?

By Madhusudan Raj

A couple of months ago there were clashes between the students of ABVP, a student union body backed by the ruling BJP party, and AISA, a student union body backed by the communist/left parties of India, in the Ramjas College of Delhi University. The reason of this clash was an invitation by the Ramjas college to two JNU (Jawaharlal Nehru University, New Delhi) students Umar Khalid and Shehla Rashid, whom ABVP students were calling anti-national, for public speeches in their campus. ABVP students resorted to violence to force the university administration to cancel this event.

Is this a ‘freedom of speech’ or ‘right to free speech’ issue?

This clash has again given boost to the discussion of issue of ‘freedom of speech’ or ‘right to free speech’ in the country. The president of India Mr. Pranab Mukherjee said, there should be no room in India for the intolerant Indian. India has been since ancient times a bastion of free thought, speech and expression. Our society has always been characterised by the open contestation of diverse schools of thought and debate as well as discussion. Freedom of speech and expression is one of the most important fundamental rights guaranteed by our Constitution. The Princeton University President Christopher L. Eisgruber, who was at that time in India, said, I think free speech, and I will talk here about American campuses and our campus in particular, is fundamental to what a university campus is and does. While the finance minister of India Mr. Arun Jaitley said, if you believe you have free speech then you have to be ready to concede free speech to counter your view. Freedom of speech did not extend to assaulting a country’s sovereignty.

But the real question here that no one is asking or debating is whether this is a ‘freedom of speech’ or ‘right to free speech’ issue at all? The answer is, no, it is not. This issue is not an issue of ‘freedom of speech’ or ‘right to free speech’ issue because there is no such right to begin with; and there is no such freedom to begin with. This issue is fundamentally an issue of “property rights”, and hardly anyone in India right now are discussing this issue from this important perspective of ‘property rights’. One of the great political theorists of the twentieth century Murray Rothbard analyzed the issue of ‘freedom of speech (right to free speech)’ in great detail in his various works. Here I am reproducing his analysis in brief to make you all understand the real issues involved in that DU/JNU clash.

Rothbard in his book, The Ethics of Liberty said this about ‘freedom of speech”:

In the first place, there are two senses in which property rights are identical with human rights: one, that property can only accrue to humans, so that their rights to property are rights that belong to human beings; and two, that the person’s right to his own body, his personal liberty, is a property right in his own person as well as a “human right.” But more importantly for our discussion, human rights, when not put in terms of property rights, turn out to be vague and contradictory, causing liberals to weaken those rights on behalf of “public policy” or the “public good.” As I wrote in another work:

Take, for example, the “human right” of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate “right to free speech”; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.

In short, a person does not have a “right to freedom of speech”; what he does have is the right to hire a hall and address the people who enter the premises. He does not have a “right to freedom of the press”; what he does have is the right to write or publish a pamphlet, and to sell that pamphlet to those who are willing to buy it (or to give it away to those who are willing to accept it). Thus, what he has in each of these cases is property rights, including the right of free contract and transfer which form a part of such rights of ownership. There is no extra “right of free speech” or free press beyond the property rights that a person may have in any given case. 

Furthermore, couching the analysis in terms of a “right to free speech” instead of property rights leads to confusion and the weakening of the very concept of rights. The most famous example is Justice Holmes’s contention that no one has the right to shout “Fire” falsely in a crowded theater, and therefore that the right to freedom of speech cannot be absolute, but must be weakened and tempered by considerations of “public policy.” And yet, if we analyze the problem in terms of property rights we will see that no weakening of the absoluteness of rights is necessary.

(Anyone who wants to understand this matter in full is advised to carefully study the source article of Murray Rothbard by following this link.)

So the DU/JNU clash issue is of ‘property rights’ and not ‘freedom of speech (right to free speech)’. The real question that we all must ponder is, who owns the Delhi University where those clashes took place? If Delhi University is privately owned then it is the choice of the owner to invite whomsoever he wants to in his campus to deliver a lecture. No one has any right of physically stopping him from doing so. In that case ABVP students are in wrong and they should be physically removed from the university campus for violating university owner’s property right.

But if the Delhi University is a public university, which it is, then the issue is of immediately privatizing it and not debating whether or how much should the freedom of speech be on its campus! I again quote Rothbard from the same article as cited above to make this point clear. Here Rothbard talks about public streets, but the analysis equally applies to public universities too,

In general, those problems where rights seem to require weakening are ones where the locus of ownership is not precisely defined, in short where property rights are muddled. Many problems of “freedom of speech,” for example, occur in the government-owned streets: e.g., should a government permit a political meeting which it claims will disrupt traffic, or litter streets with handbills? But all of such problems which seemingly require “freedom of speech” to be less than absolute, are actually problems due to the failure to define property rights. For the streets are generally owned by government; the government in these cases is “the chairman.” And then government, like any other property owner, is faced with the problem of how to allocate its scarce resources. A political meeting on the streets will, let us say, block traffic; therefore, the decision of government involves not so much a right to freedom of speech as it involves the allocation of street space by its owner.

The whole problem would not arise, it should be noted, if the streets were owned by private individuals and firms — as they all would be in a libertarian society; for then the streets, like all other private property, could be rented by or donated to other private individuals or groups for the purpose of assembly. One would, in a fully libertarian society, have no more “right” to use someone else’s street than he would have the “right” to preempt someone else’s assembly hall; in both cases, the only right would be the property right to use one’s money to rent the resource, if the landlord is willing. Of course, so long as the streets continue to be government-owned, the problem and the conflict remain insoluble; for government ownership of the streets means that all of one’s other property rights, including speech, assembly distribution of leaflets, etc., will be hampered and restricted by the ever-present necessity to traverse and use government-owned streets, which government may decide to block or restrict in any way. If the government allows the street meeting, it will restrict traffic; if it blocks the meeting in behalf of the flow of traffic, it will block the freedom of access to the government streets. In either case, and whichever way it chooses, the “rights” of some taxpayers will have to be curtailed.

So the real solution of DU/JNU fight between ABVP and AISA is to privatize both universities, and everything else in India. As Dr. Walter Block says, if it moves, privatize it; if it doesn’t move, privatize it. Since everything either moves or doesn’t move, privatize everything. This country needs the institution of ‘private property rights’ more than any bogus ‘freedom of speech’ or ‘right to free speech’. That institution will solve all its conflict issues including the issue of who can or cannot speak in DU campus. But do not expect the government or its so-called implicit contract (sic) “constitution” to make this institution a reality or to protect it. The State (aka government) is the biggest violator of property rights in the history of mankind and its constitutions are designed to plunder the public, so trusting it to protect peoples’ life, liberty and property will be like letting a goat guard a cabbage patch!

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