Freedom of Speech and Property Rights are Inseparable

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The use of zoning as a political tool recently made news when the mayors of Boston and Chicago threatened to prevent Chick-Fil-A from building in their cities. While these threats shocked many, the fact is, zoning has long been used for such nefarious purposes.

For example, zoning was used to stop Wal-Mart from opening a store in Hayward City, California. The store was opposed by unions, who flooded a hearing to oppose Wal-Mart’s labor practices. “I want my children to have the same opportunity I have, and that is good union jobs,” said one of the protesters.

While zoning can be used to punish those with views contrary to the politicians and bureaucrats in charge, zoning can also be used to reward individuals and businesses when the mood strikes. For example, zoning officials can use variances, permits for “non-conforming” use, and other exceptions to allow a land use that would otherwise be illegal.

But why are such exceptions made? If zoning officials are so wise as to have the power to control all land use within a community, why must they make exceptions to their previous dictates? The obvious answer is: their previous dictates weren’t so good, and so they must be modified. But if their past dictates were in error, why should we believe that their current dictates are any better?

The fact is, when government officials can change the law at their discretion, the law is non-objective and a source of arbitrary power.

To demonstrate their commitment to the “public interest,” zoning officials hold hearings when they consider a variance or other change to the zoning code. These hearings attract loud mobs which debate over what constitutes the “public interest.” Non-owners of the property sanctimoniously assert their “right” to dispose of the property and lives of their neighbors, while the rightful owner helplessly waits for others to decide his future.

Yet, ownership means control. It means the freedom to use one’s property as one judges best, free from government controls and restrictions. Under zoning, land ownership is nominal—in name only. Under zoning, a property owner must grovel at the feet of zoning officials for permission to use his property.

Large companies, such as Wal-Mart or Chick-Fil-A may consider such rights-violating policies a cost of doing business. And unfortunately, it is. A large company may be absorb such costs (though they are ultimately passed on to the consumer), but what of a small business or home owner who does not have the same resources? They too are subjected to the same arbitrary rulings of zoning officials. While Chick-Fil-A may have to abandon its plans of opening a restaurant in Chicago, a small business owner may have to abandon his dreams.

For example, when Ahmed Ahmed wanted to open a hookah lounge in Hampton, New Hampshire, zoning officials denied his application for a variance. The town’s zoning ordinance does not specifically allow hookah lounges, and thus a variance was needed. From a local website: “John Nyhan, chairman of the Hampton Beach Area Commission, said the goal of the Hampton Beach Master Plan is to make the beach a family destination. Nyhan said a hookah lounge—where patrons smoke shisha (flavored tobacco) from a hookah, a multi-stemmed instrument that can be shared among patrons—is not a part of that plan.”

In other words, Ahmed’s plans don’t mesh with Nyhan’s, and Nyhan holds the trump card—the coercive power of zoning. But zoning officials in every community issue variances and other exceptions to that plan. Which means, they abandon their plan when it is politically convenient or popular.

Of course, businessmen often change their plans. The market is dynamic—the needs and wants of consumers can change often. Technology can open new opportunities. When businessmen change their plans, they do so with the knowledge that they will bear the costs and consequences. Their job is to assess risks and rewards. But who can predict the arbitrary rulings of zoning officials? Who knows when his plans will conform or conflict with the “public interest”?

If the citizens of a community do not want a particular business, they can make that point by refusing to buy its products or services. This is true whether the business is selling spiced tobacco or chicken sandwiches. A business that does not make sales will not be a business for long. But unless zoning officials are psychic—which variances demonstrate is not the case—how do they know if a business is desired or not? They can only rely on the noisy mobs that flock to zoning hearings.

The threats by politicians in Boston and Chicago sparked a debate over the right of free speech, but the rights of property are no less important. Indeed, property rights are the means by which we express our opinions, whether through our purchasing choices, what we publish on our website, or what we print on our press. It is not a coincidence a violation of property rights was the means by which freedom of speech was threatened—the two are inseparable.

Those who support the right of free speech must also support property rights. Just as they protest government intervention in the expression of one’s ideas, they must protest government intervention in the use of one’s property.

Two Wrongs and Rights

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In 1914, Henry Ford voluntarily raised the wages of his employees to the rate of five dollars per day—nearly doubling the prevailing wage. At the time, many thought that Ford was destined for financial ruin. But because he was free to act on his own judgment, Ford proved his critics wrong. His business flourished.

At one time, Ford had 60 percent of the market in automobiles. But he refused to innovate, declaring that customers could have a car in any color they wanted, as long as it was black. Chevrolet began offering consumers more color choices and substantially cut into Ford’s market share. Ford had to relent and began offering more color options. Even though Ford dominated the market, he could not prevent Chevrolet from acting on its judgment. Nor could he prevent consumers from acting on theirs.

When individuals and businesses are free to act according to their judgment, they will demonstrate the practical benefits of rational ideas. The self-interest of each individual will motivate him to reject irrational ideas and embrace rational ideas. Those who do not, ultimately suffer the consequences of their ideas.

However, a growing number of politicians reject this fact. They believe that irrational ideas can be simply outlawed. They believe that those who hold irrational ideas should be punished, not by the marketplace, but by government.

As an example, consider the response to comments made by Chick-Fil-A President Dan Cathy, who has expressed his disapproval of gay marriage. Boston Mayor Thomas Menino wrote a letter to Chick-Fil-A, which stated, “I urge you to back out of your plans to locate in Boston…. There is no place for discrimination on Boston’s Freedom Trail and no place for your company alongside it.” Menino later recanted his threat.

Similarly, Chicago alderman Joe Moreno has said, “There are consequences for freedom of speech (and) in this case the consequences are… you’re not going to have your first free-standing restaurant in Chicago.” In other words, you can say what you want, but if I don’t like it, I won’t let you do business in my city.

Chicago Mayor Rahm Emanuel expressed support for Moreno’s position, saying that building a Chick-Fil-A in Chicago “would be a bad investment, since it would be empty.” Emanuel may be correct, but why is that his concern? If opening a Chick-Fil-A in Chicago is a bad investment, Cathy will discover that fact.

To be clear, this isn’t about gay marriage. This is about the freedom of individuals to speak freely and operate their businesses as they choose. I do not agree with Cathy, and I express my opinion by shunning his restaurants. He has a right to his opinion, as do I, and we each have a right to express it as we choose, so long as we do not use force or fraud.

Emanuel and his ilk, however, seek to punish Cathy by using force—the coercive power of government. They seek to use arbitrary zoning laws to prohibit Cathy from operating his business, not because Cathy compels consumers to buy his products or misrepresents what he is selling. They seek to punish Cathy because his ideas do not mesh with theirs.

Interestingly, in this instance, both Cathy and the politicians hold irrational ideas. Cathy does not believe that gay individuals possess the same rights as heterosexual individuals. The fact is, all individuals—gay or straight—possess the same rights. But Cathy does not seek to use force to impose his views on others. Those who agree with him are free to patronize his business; those who disagree can shun his business.

In contrast, Emanuel and his brethren do seek to use force. They seek to make the construction of a Chick-Fil-A in their cities a crime. The alleged crime is the audacity to hold an idea that these politicians do not like.

Further, both Cathy and the politicians deny that individuals have the right to contract freely, and marriage is a contractual agreement. Cathy would deny this right to gays. The politicians would deny this right to Cathy, property owners, and consumers.

If Cathy’s views are as unpopular as the politicians claim, the market will pass judgment, just as it did when Henry Ford refused to paint his automobiles different colors. Ford did not need the mayors of major cities issuing threats. A free market was all that was required. And that is all that is required to stamp out any irrational idea.