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Does taking free newspapers to prevent others from reading them constitute an act of speech protected by the First Amendment?
Maryland may be the first state to legislate against such actions, deeming them a form of censorship. For constitutional reasons, Maryland would be right to protect the marketplace of ideas with a slightly modified version of the bill it is currently debating.
Although opponents of this law, including the Washington Post, correctly point out that taking free newspapers is itself a form of expression, they wrongly conclude that this kind of expression should be privileged over the forms of expression that it suppresses.
Free newspapers are both symbolic of and integral to the marketplace of ideas. As much as publications that must be purchased, free publications provide the public with a conduit for the exchange of information and opinions.
More importantly, they reach people who ordinarily do not spend much money on the print media (like high school students and the homeless) and they give a mouthpiece to groups whose perspective is often either rejected or narrowly represented by the mainstream media.
In case the obvious needed to be restated, free reading materials are produced so that they can be read, not confiscated or destroyed. If a group of people finds the content of a free publication to be misleading, wrong, or even repugnant, it has many other ways of protesting the publication's content without jeopardizing free speech: denouncing or rebutting the content in an editorial or a public speech, boycotting the advertisers, or holding a public rally.
Such democratic tactics actually enhance the public dialogue. But removing newspapers only removes the dialogue, for the obvious reason that people cannot discuss what they have never seen.
To add insult to injury, depriving the public of the ability to read certain, free publications paternalistically assumes that readers are not intelligent enough to come to the right conclusions on their own. Those who prevent others from reading a free publication act as censors precisely because they assume that they have the greater moral and intellectual insight to discern the good ideas from the bad ones, and that they have the right to impose this understanding on others.
If, in a mature and reasonable forum of intellectual discourse, one group deprives another of its voice, it would be ludicrous to claim that those suppressing speech have thereby made a meaningful contribution to the dialogue. On the contrary, speakers who, through their putative protests, gag their opponents, effectively destroy dialogue as seriously as book burners do.
According to The New York Times, a Washington weekly for homosexuals was repeatedly seized from public libraries by people who claimed that the newspaper was "antifamily." The weekly's staff even furnished the state prosecutor with photographic evidence of "a man loading the papers into a car," but the state refused to prosecute.
The Times reported that "Matthew Campbell...Maryland state's attorney who decided not to prosecute, said papers that are available free of charge do not have the same legal status as papers for which people pay." He supported his conclusion with two arguments.
He first asserted that "the requirements of the theft law are such that you have to prove that...the property is wrongfully taken from its rightful possessor. In this instance, the paper gave up its possession by placing the papers in libraries...Second you have to prove value."
Campbell's second argument was an economic one: "It's a free paper. The ordinary, objective economic value of something is its sales price. Here there is no sales price."
But both of the arguments advanced by Campbell are specious. It should not be too difficult to identify the rightful possessor of a free newspaper: the publishers, because they produced it, are the legal owners.
If they place their paper in a public place because they want to give it to the public, then they have transferred ownership to the public. The public does not mean one person or even ten people. The public means as many different people as there are copies. After all, if the public referred to only ten people (for example), then why would the paper's publishers produce copies far in excess of the public's supposed population? So confiscating papers in effect takes them wrongfully from the rightful possessor, i.e. the public.
Campbell's second argument is just as bad. The fact that a paper is free does not imply that it has no objective economic value. Products with no economic value do not last very long, and yet many of these free papers persist far longer than one would expect for economically worthless entities. How would Campbell resolve this paradox?
The fact is that free papers generate economic value by selling ads to advertisers. These advertisers value (and thus pay money for) the public exposure which the newspaper gives to their products and services.
Thus advertisers have an interest in seeing the free papers they advertise in circulated as widely as possible. Hence it is only when the papers are confiscated and kept from the public that they lose their economic value.
Opponents of the proposed law who argue that taking free papers is a form of free expression make a valid, but limited point. When could taking free papers in protest express something that should be protected by the First Amendment? This condition would be met only when taking the paper adds a symbolic value to the protest which would be absent if the paper is not taken.
So, for example, taking one paper and burning it would certainly add symbolic value to a protest of the paper's content, in the same way that burning a flag might add symbolic value to a protest.
Thus the bill that Maryland is considering goes a little too far. The bill would make it a misdemeanor, punishable by a $500 fine or 60 days of imprisonment, to take "one or more newspapers with the intent to destroy the newspapers or prevent other individuals from reading the newspapers."
To ensure that protesters can still make use of the material against which they are protesting, the line on free paper confiscation must be drawn a little more leniently, allowing protesters to take or destroy at least one paper.
But with each additional paper that protesters destroy, it becomes increasingly difficult to argue that the "marginal protest value" of the destroyed newspapers outweighs the threat posed to free speech.
In an open and free society, censorship must be fought, whether it comes from the government or from individuals.
Book-burning and suppression of speech are artifacts of a less civilized world. There is no reason for America to undo the progress it has made in striving to attain its principles of liberty.
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