It’s another Independence Day weekend, and I can’t help but notice that we find ourselves this year grappling with some unfortunate consequences of liberty run amok. We’ve got open-carry nuts sporting assault rifles in department stores and coffee shops to prove how free they are; and we’ve got the supreme court granting business owners the right to discriminate against employees on the grounds that said discrimination can be considered the free exercise of religion. These real-life manifestations are borne in the logic of narcissism in which the self-righteous individual believes in liberty that is not bound by the limits imposed by the rights of others. It is the same logic that says legalizing a same-sex marriage is an infringement on religious exercise. And like it or not it is the same logic that attempts to absolve many sins of the digital age in the name of free expression.
It sounds good on paper, but in reality, freedom without limits isn’t freedom for anyone but the powerful, whether that power is derived by wealth, political influence, technological prowess, or violence. On July 1, a debate was held at the American Enterprise Institute on the matter of intellectual property rights during which Mark Schultz of the Center for the Protection of Intellectual Property at George Mason University said the following:
“If our only understanding of liberty is if I get to do whatever I darn well please, it is a five-year-old’s understanding. A grown-up understanding of liberty is ordered liberty, competing claims that need to be reconciled through a system.”
The underlying question in that debate was whether copyrights are a right or a privilege, but it is instructive that even in this academic forum on intellectual property, Schultz feels the need to affirm a definition of liberty that (he’s right) ought to be obvious to any adult. In short, liberty is not all about what we want. One of the reasons I began writing about digital age issues and intellectual property is that many of the arguments used to rationalize negative social behaviors (e.g. piracy) are First Amendment arguments; and it seemed to me the right of free expression was being stretched beyond reason in ways that mirror the aberration of free religious exercise we saw this past week with the Hobby Lobby case.
Do women have a right to comprehensive health care, including contraception? Yes, according to federal law, they do; but the supreme court just said they kinda don’t, that this right has been recast as a privilege to be offered at the discretion of an employer based on his personal moral code. Many of us are hopping mad about this, and we should be, both in practice and in principle. It is quite simply a grotesque distortion of the free exercise clause that sets a precedent begging for abuse by people in positions of power over individual workers.
But what about my colleague Mark Schultz debating copyrights with academic libertarians like Jerry Brito of the Mercatus Center at George Mason University, who want to recast this longstanding right as a government granted privilege? Copyright is less emotionally charged (and ultimately less critical) than the health of American women, but the false logic being applied is very similar, as would be the consequence in that the wealthy and powerful would ultimately win another victory over individual workers.
Central to the arguments made to eliminate or severely weaken copyrights is a claim that the rights of individual authors limit the right of free expression. This is similar backward reasoning to “your right to contraception violates my right of religious expression,” and again it is an idea based in narcissism and backed by corporate interests. We all are entitled to the right of free expression and the right of intellectual property protection, if we want the latter; so why give up either right when we can have both? It’s as much a false dichotomy as religious freedom vs birth control. It’s what happens when we can’t tell the difference between freedom and a free-for-all. And in a free-for-all, the biggest bullies usually win.
