David Boaz

Libertarians sometimes say that they are “liberal on free speech but conservative on economic freedom,” or that “liberals believe in free speech and personal freedom, while conservatives believe in economic freedom.” That proposition got another test in the Supreme Court yesterday. Conservatives and liberals split sharply on two free-speech cases.

And let’s see . . . in two 5-4 decisions, the Court’s conservative majority struck down some of the McCain-Feingold law’s restrictions on campaign speech and upheld a high-school principal’s right to suspend a student for displaying a “Bong Hits 4 Jesus” banner. Liberals disagreed in both cases.

So the liberals strongly defend a student’s right to engage in nonsensical speech that might be perceived as pro-drug, but they approve a ban on speech criticizing political candidates in the 60 days before an election.

Now I’m for free speech in both these cases. But if you had to choose, which is more important–the right of a high-school student to display silly signs at school-sponsored events, or the right of citizen groups to criticize politicians at the time voters are paying attention Political speech is at the core of the First Amendment, and conservatives are more inclined to protect it than are liberals. That’s a sad reflection on today’s liberals.

The liberal attitude toward speech is also on display on the front pages of our leading liberal newspapers. A banner headline in the Washington Post reads “5-4 Supreme Court Weakens Curbs on Pre-Election TV Ads/Ruling on McCain-Feingold Law Opens Door for Interest Groups in ‘o8.” This long headline mentions “TV Ads” and “Interest Groups” but never uses the words “speech” or “First Amendment.” But the sidebar on the high-school case is headed “Restrictions on Student Speech Upheld.” For that issue, a straightforward understanding that speech is involved. And the New York Times website leads with “Justices Loosen Ad Restrictions in Campaign Finance Law,” while the sidebar on the school case reads, “Vote against Banner Shows Divide on Speech in Schools.” Though I should note that the old-fashioned, tree-destroying version of the Times does have a subhead reading “Political Speech Rights.”

Maybe libertarians should try to describe their philosophy by saying “libertarians believe in the free speech that liberals used to believe in, and the economic freedom that conservatives used to believe in.”

Juanita Swedenburg, the Virginia winemaker who took her battle for economic liberty to the Supreme Court and won, died June 9 at the age of 82. Clint Bolick, who argued her case as a lawyer for the Institute for Justice, discussed it in his new book David’s Hammer:

My curiosity was sparked, however, during a visit in the early 1990s to a small winery in bucolic Middleburg, Virginia. The proprietor was a striking older woman, Juanita Swedenburg, who owned and operated the winery with her husband. She produced several good wines, including a chardonnay with the toastiest nose I can remember. We got to talking and Mrs. Swedenburg asked me what I did for a living. When I told her that, among other things, I challenged regulatory barriers to entrepreneurship, she exclaimed, “Have I got a regulation for you!”

Most states, it turned out, prohibited direct interstate shipments of wine to consumers. So that if tourists from another state visited Mrs. Swedenburg’s winery and asked how they could obtain her wines back home, she would have to reply, “You can’t.” …

As a descendant of settlers who fought in the American Revolution, Mrs. Swedenburg was outraged that such a stupid law could exist in a nation with the greatest free-enterprise system in the world.

Eventually, Bolick writes, the Institute for Justice took Mrs. Swedenburg’s case to the Supreme Court. He argued against a New York law, and Stanford law school dean Kathleen Sullivan (who also spoke recently at the Cato Institute) argued against a similar Michigan law. The Court ruled 5-4 that such laws “deprive citizens of their right to have access to the markets of other States on equal terms.” When Bolick launched his new book at the Cato Institute in April, Mrs. Swedenburg was sitting in the front row.

Juanita Swedenburg was the kind of citizen a free republic needs. After a career in the foreign service, she and her husband “retired” to a Virginia farm that had been in business since 1762. They set up a winery and worked seven days a week to make it a success. As the Washington Post says, “Mrs. Swedenburg did not take the Constitution for granted.” She knew that there was something wrong with a law that prevented willing customers from buying the fruits of her labors, wherever they lived. And when she found a lawyer who shared her enthusiasm for both wine and constitutional liberty, she pressed him to take the case on behalf of her and her customers.

Like John Peter Zenger, Rosa Parks, Allan Bakke, Michael Hardwick, Bill Barlow, and many others, Mrs. Swedenburg made our constitutional rights real by using them. Raise a glass to her memory.

The New York Times reports that Venezuelan president Hugo Chavez “is carrying out what may become the largest forced land redistribution in Venezuela’s history…in a process that is both brutal and legal.” In what way is this process legal The article never says. Presumably the Venezuelan congress has passed legislation authorizing the seizure and redistribution of land. But Chavez controls all 167 members of the National Assembly, and the Assembly has granted him the power to rule by decree. It’s hard to call anything in Venezuela “legal” at this point. One might as well say that Stalin’s executions or Pinochet’s disappearances were “legal.” (And by the way, have you noticed that the Times always refers to Pinochet as a dictator, but to Chavez and Fidel Castro as President or leader )

If the term “legal” has any meaning other than “the ruler has the power to do it,” then it means that something is done in accordance with the law. The Oxford English Dictionary defines law as “the body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.” One of the key elements of law is that it provides stability and certainty. I doubt that all the people of Venezuela recognize land seizures as proceeding in accordance with a body of rules. And certainly the arbitrary rule of a president or a rubber-stamp congress does not provide any certainty in the law.

At least the Times paused to tell us that the process was legal, even if it failed to specify just how. The Wall Street Journal article on the same topic doesn’t bother to consider the question of legality; perhaps that’s just a clearer recognition that in Venezuela there is no law, there is only Chavez.

And the rest of the Times article makes the process pretty clear:

The squatters arrive before dawn with machetes and rifles, surround the well-ordered rows of sugar cane and threaten to kill anyone who interferes. Then they light a match to the crops and declare the land their own….

Mr. Chávez’s supporters have formed thousands of state-financed cooperatives to wrest farms and cattle ranches from private owners. Landowners say compensation is hard to obtain. Local officials describe the land seizures as paving stones on “the road to socialism.”

“This is agrarian terrorism encouraged by the state,” said Fhandor Quiroga, a landowner and head of Yaracuy’s chamber of commerce, pointing to dozens of kidnappings of landowners by armed gangs in the last two years….

But while some of the newly settled farming communities are euphoric, landowners are jittery. Economists say the land reform may have the opposite effect of what Mr. Chavez intends, and make the country more dependent on imported food than before.

The uncertainties and disruptions of the land seizures have led to lower investment by some farmers. Production of some foods has been relatively flat, adding to shortages of items like sugar, economists say.

John R. Hines Freyre, who owns Yaracuy’s largest sugar-cane farm, is now trying desperately to sell the property and others in neighboring states. “No one wants this property, of course, because they know we’re about to be invaded,” said Mr. Hines, 69….

“The double talk from the highest levels is absurd,” Mr. Machado said. “By enhancing the state’s power, the reforms we’re witnessing now are a mechanism to perpetuate poverty in the countryside.”

To be sure, the Times does stress the concentration of land ownership in Venezuela and the delight of many of the squatters at getting the seized land. But it’s a balanced article, other than that pesky word “legal.”

As I’ve written before, too many journalists are treating Chavez’s growing dictatorship in a guarded way. They report what’s happening — nationalizations, land seizures, the unanimous assembly, the rule by decree, the demand to repeal presidential term limits, the installation of military officers throughout the government, the packing of the courts — but they still treat it as normal politics and even report with a straight face that “Chavez stresses that Venezuela will remain a democracy.” Some law, some democracy.

On Tuesday, it was Nebraska senators Chuck Hagel (R) and Ben Nelson (D) who provided the winning margin for a Senate bill to begin a phased withdrawal of troops from Iraq.

Today it’s five-term congressman Lee Terry (R-Neb.) deciding that Attorney General Alberto Gonzales should resign.

Pretty soon, the neocons are going to be calling for an invasion of Nebraska.