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The Freedom Convoy Debate Demonstrates Why a ‘Right to Free Speech’ Makes No Sense

It’s hard to believe, but the one-year anniversary of the Canadian Freedom Convoy is upon us. It was January 22, 2022 when the convoy began to form across the country. Over the following week, thousands of trucks made their way to Ottawa, and on January 29 they arrived in the nation’s capital, loud and determined as ever.

The following month was one of the most tumultuous times in modern Canadian history. Downtown Ottawa was completely gridlocked, bridges were blocked, and politicians along with the media took every opportunity to smear the protesters.

Four weeks later, it ended quite a bit faster than most people expected. Armed with special powers from the never-before-invoked Emergencies Act, the government successfully dismantled the protest in a matter of days.

In hindsight, the practical effect of the protest on legislation is difficult to detect. Some Covid policies were probably relaxed a few months earlier than they otherwise would have been, but for the Convoy organizers, this was far from a decisive victory.

An Insoluble Conflict

A debate has been raging in Canada ever since: were the protestors within their rights to do what they did? Those who support the convoy argue that they were, since the Canadian Charter of Rights and Freedoms guarantees the right to freedom of expression and freedom of peaceful assembly. Those who oppose the convoy largely agree with these freedoms, but argue that such freedoms should be subject to certain reasonable restrictions. Major obstructions to traffic, and especially obstructions to critical infrastructure such as bridges, are simply going too far in their view. Is the government supposed to stand by and let a group of hooligans bring the country to its knees?

The question of who was in the right legally is intriguing, but that question is best handled by lawyers. The more interesting question is who was in the right philosophically. Were the protestors merely exercising their freedom of speech and assembly, and thus cracking down on them was violating their rights? Or does the government have a legitimate purview to ensure streets and bridges are clear?

As libertarians, it’s tempting to take sides in this debate, but this is a temptation we ought to resist. There’s a third, better position that reframes the entire issue, and that is the position we ought to take. This position was laid out rather explicitly by Murray Rothbard in his 1970 book Power and Market. In fact, reading his explanation, you’d almost think he was weighing in on the convoy debate itself.

Rothbard begins by challenging the very concept of “human rights,” arguing that a much better principle is that of property rights. He specifically calls out the “human right” of free speech as a problematic concept.

“Freedom of speech is supposed to mean the right of everyone to say whatever he likes,” Rothbard writes. “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.”

Having dispensed with the “right to free speech,” Rothbard steps back and discusses the broader issue at play.

“The concentration on vague and wholly ‘human’ rights has not only obscured this fact but has led to the belief that there are, of necessity, all sorts of conflicts between individual rights and alleged ‘public policy’ or the ‘public good.’ These conflicts have, in turn, led people to contend that no rights can be absolute, that they must all be relative and tentative.”

A public protest is the perfect example of this problem, Rothbard explains.

“Take, for example, the human right of ‘freedom of assembly.’ Suppose that a citizens’ group wishes to demonstrate for a certain measure. It uses a street for this purpose. The police, on the other hand, break up the meeting on the ground that it obstructs traffic. Now, the point is that there is no way of resolving this conflict, except arbitrarily, because the government owns the streets. Government ownership, as we have seen, inevitably breeds insoluble conflicts. For, on the one hand, the citizens’ group can argue that they are taxpayers and are therefore entitled to use the streets for assembly, while, on the other hand, the police are right that traffic is obstructed. There is no rational way to resolve the conflict because there is as yet no true ownership of the valuable street-resource.”

As Rothbard makes clear, there is simply no good answer about the proper course of action when the government is in charge of the land on which the protest takes place. Both sides have an equally valid case, and no matter which side you take you will be accused of violating the rights of the other side.

The Solution: Privatize the Roads

The best solution to this quagmire is as simple as it is radical: privatize the roads. Rothbard explains how this solves the problem.

“In a purely free society, where the streets are privately owned, the question would be simple: it would be for the streetowner to decide, and it would be the concern of the citizens’ group to try to rent the street space voluntarily from the owner. If all ownership were private, it would be quite clear that the citizens did not have any nebulous ‘right of assembly.’ Their right would be the property right of using their money in an effort to buy or rent space on which to make their demonstration, and they could do so only if the owner of the street agreed to the deal.”

As Rothbard’s analysis demonstrates, the idea that rights must be “relative” and balanced with the “public good” only sounds convincing because we have fundamentally misconstrued rights to begin with. If one accepts and advocates vague “human rights” such as the right to free speech and to freedom of assembly (as the Canadian Charter does), it must be admitted that if the situation is dire enough these rights must simply be violated, lest the country grind to a halt.

But if, on the other hand, one champions property rights, and all public land is privatized, no such compromises to principle are necessary. If people are eager to use private streets and bridges for transportation, they can easily outbid would-be protestors for use of the land. Private road owners, being the greedy capitalists they will undoubtedly be, will happily reserve the road for the more profitable use—the use consumers generally prefer—and would be well within their rights to forcibly remove any trespassers attempting to set up an unauthorized blockade.

But what if the road or bridge owners are allied with the protestors and determined to block the corridors they possess? They would of course be welcome to do this, but consumers would quickly take their business to parallel corridors, inflicting tremendous losses on the defiant owner. If things got really bad, the owner could even be ostracized by disapproving businesses and workers. Thus, any road owner foolish enough to cut off critical access points would find themselves out of business in very short order.

That said, in all likelihood it would never even get to that point. Road users and especially bridge users, foreseeing this possibility, would demand prearranged contracts guaranteeing use of the corridor for a certain period of time. With these contracts in place, the owner would be legally required to keep the corridor open.

Challenging the Framing

In light of the above, I’m inclined to follow after Michael Malice in dropping the phrase “free speech” from my vocabulary—and “freedom of assembly” for that matter. As both Rothbard and Malice point out, these phrases mean so many different things to different people, and they create tremendous confusion about what exactly it means to advocate for civil liberties.

Now, you may not agree with that approach, and that’s totally fine. The more important point to take away from this is that the job of the libertarian in most debates is to challenge the framing, not to take sides.

It’s so tempting to identify “our team” and “their team” and to join the chorus of voices that seems to be on our side, but we need to be better than that. Defending the blockage of bridges and city streets is not a libertarian position, strictly speaking. Then again, neither is condemning a blockage. The libertarian position is simply the meta-point that this wouldn’t be a problem in the first place if the bridges and streets were privately owned. That’s the drum we need to be beating.

Taking a side does nothing to solve the underlying problem. Challenging the framing is what actually moves toward a solution.

This goes for many other issues as well. Should the Republicans or Democrats be in power? The answer is, we should challenge the idea that anyone should be in power at all. Should there be prayer in schools? The answer is, we should challenge why there needs to be a one-size-fits-all government answer instead of allowing a free market in education.

Taking sides in existing debates often serves to reinforce the status quo, because it’s implicitly accepting the way the debate has been framed. It also invites your opponents to tune you out, because you sound to them like just another NPC.

But if we have a unique position, if we can question the assumptions both sides are taking for granted, suddenly people will want to hear what we have to say. They may not agree with us, but they will at least be challenged to think about the issue differently.

And quite frankly, that’s half the battle right there.

This article was adapted from an issue of the FEE Daily email newsletter. Click here to sign up and get free-market news and analysis like this in your inbox every weekday.

Content syndicated from Fee.org (FEE) under Creative Commons license.

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  1. Semantic BS. While I would agree that demonstrators/protestors should not be able to obstruct traffic or certainly not destroy public or private property (i.e. BLM or Antifa) they should be able to legally assemble on government property (paid for by it’s citizens) if they are not impeding traffic or entering restricted areas. A simple and non convoluted standard. For example the grounds of the Lincoln Memorial and the Washington monument have been used that way for a 100 years; including for MLK’s famous “I have a dream” speech.

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