Let's Talk About Freedom of Speech

In March, 2004, Elizabeth Book was arrested for going topless in protest of a Daytona Beach, Florida, law prohibiting women from exposing their breasts in public. On appeal, a Florida appeals court ruled that Book had a right to bare her breasts because she did so in protest. While many would consider this a victory for 1st amendment rights, I feel that it's disingenuous, and that it further muddles the issue of what, exactly, "freedom of speech" really means.

There are two things at issue here. First, the ruling reinforces the belief that only certain kinds of speech are protected by the 1st amendment. Because Book bared her breasts in protest her actions were permissible. Had she done it just for fun or to even out her tan, she would have remained guilty of violating the law. Again, this brings up two questions: First, is speech only protected under The Constitution if it's done in protest or meets some other arbitrary and necessarily subjective set of conditions, or is all speech protected? Second, is any activity protected so long as it meets that same set of conditions? As one commenter to the afore-linked-to article so aptly put it, "So then in Florida car jacking someone in protest of a law making car jacking illegal is exercising their rights?" By this logic anything is permissible so long as it's done for the right reasons.

The second issue is one of property rights, and there are a couple of facets to this as well. First, and most obvious, is that Elizabeth Book's breasts are her property, as are all of her body parts. As such, in a society that respects the right to private property she would have the right to do with them as she pleases, so long as she's not violating someone else's rights in the process. Unfortunately, American society largely does NOT respect the right to private property, so others are able to dictate what Elizabeth is and is not allowed to do with her breasts.

The other facet of property rights in this case deals with the question of on whose property Book bared her breasts and whether or not its owner would have permitted her to do so. Again, in a society that respects private property, the owner would be free to dictate what types of activities were and were not permissible on his or her property. The problem is that Book wasn't on private property when she removed her shirt...she was on "public" property, which is property owned by everyone or, more appropriately, by no one.

The institution of public property confuses a plethora of issues that should be relatively simple. In the case of freedom of speech the existence of public property necessarily creates controversy over who is allowed to say what, why, and where. On private property the owner decides, making the issue a non-issue. On public property the "public" (often in the form of a jury or ballot initiative), or a government official (in this case, a judge) decides what is and isn't acceptable behavior, so the decision must be left to the arbitrary whims of the majority, the persuasive powers of a litigator, or the subjective valuation of a bureaucrat. With all of these voices subject to persuasion by the whims and fancies of the day, the concept of "free speech" can never be truly defined. It is only through the institution of private property, from which stem all other individual rights, can freedom of speech be put into its proper context.

As previously stated, Elizabeth Book (and indeed all humans) is the owner of her body and all its parts. If she chooses to expose it to the elements that is her right, and she violated no one else's rights by doing so. Not a single person was forced to view her nudity, as by a simple turn of the head or the aversion of his or her gaze any and everyone could have avoided looking at Elizabeth's breasts. She is, however, bound by the responsibility to not violate the property rights of any other person in doing so. This means that she cannot expose her body in a manner inconsistent with the wishes of the owner of whatever property on which she happens to be at the time. If she doesn't want to abide by the property owner's wishes she is free to find some other piece of property whose owner is amenable to her nakedness.

Indeed, the city ordinance prohibiting women from exposing their breasts in Daytona Beach could be considered a violation of the property rights of business owners in the area. It is entirely possible that the businesses who choose to operate in the area do so in anticipation of attracting a particular type of clientele, and prohibiting certain activities may actually hinder their ability to do so, thus costing those businesses to lose potential profits. For those of you who would argue that decency is more important than profit, I challenge you to define "decency" in any objective manner.

By the same token, a ruling stating that any woman MUST be allowed to expose her breasts on public property violates the property rights of those businesses who wish to attract the type of customers who may find nudity offensive. Herein lies one of the problems with the concept of public ownership of streets and roadways. Behavior may be protected in public streets that is harmful to the owners of adjacent private properties, but it must be allowed because the law says so.

The 1st amendment was a valiant attempt to protect Americans from a government that would at times desire to suppress dissent by curbing free expression. As glad as I am that it exists, I take umbrage to its being trotted out to defend any activity that violates the rights of private property owners. The classic example of yelling "Fire!" in a movie theater is a perfect illustration. The yeller has clearly violated the property rights of the theater owner (by costing profits and possibly physical damage to the theater) as well as the rights of all the patrons who paid to see the movie, but many a lawyer would argue that his right to yell "Fire!" is protected by the 1st amendment. Elizabeth Book's right to bare her breasts shouldn't have been protected under the 1st amendment, but rather by a basic right to private property, not only Elizabeth's right to ownership of her body, but also the rights of private "real estate" owners to use their property as they see fit.