Timothy Sandefur joins us this week to talk about his new book, The Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do About It.
What’s the difference between a society where people are free to do whatever they please and one where they must first get permission from the government to do things like owning land, building a house, or starting a business? What’s wrong with these systems of permitting?
Aaron Ross Powell: Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I’m Aaron Powell.
Trevor Burrus: And I’m Trevor Burrus.
Aaron Ross Powell: Joining us today is Timothy Sandefur. He’s the Vice President for Litigation at the Goldwater Institute and today we’re discussing his new book The Permission Society: How the Ruling Class Turns Our Freedom into Privileges and What We Can Do about It. Welcome back to Free Thoughts, Tim.
Timothy Sandefur: Thanks. It’s great to be back.
Aaron Ross Powell: What’s the Permission Society?
Timothy Sandefur: The Permission Society is my term for a society in which the individual’s freedom is seen as a privilege or a permission that is given to the citizen by the government as opposed to a free society where people are presumed to be free and it is the government that has to ask the people’s permission. Now that sounds like sort of your ordinary civics lesson from eighth grade about how we the people will create the constitution and all that.
But while that’s true, it’s also important on a deeper level that the American Revolution, what made it different, what makes the declaration of independence different is that is reversed the presumption of an earlier generation that freedom is given to us by the king. If you look at the wording of the Magna Carta, it starts out, “I, King John, hereby give the following freedoms to my people,” and then it lists all the freedoms that he’s giving to the people, as opposed to the declaration of independence in the constitution that says the people have all their freedom and they are choosing to give the government its powers. That’s a profound, philosophical shift and it’s one that I’m afraid is being eroded over time.
Trevor Burrus: Is it being eroded because people have changed their philosophy of what rights are or is it just being sort of nitpicked to death by the kind of various organizations and entities’ bureaucracy that you talk about in the book?
Timothy Sandefur: A little of both. I think it’s being chipped away philosophically by the lawyers, judges, law professors, political – science professors, political leaders on the upper end who have persuaded people to think of freedom as a privilege that the government gives to us and on the lower end, it’s being gradually wheedled away by the fact that it’s always easy for a bureaucrat to think of freedom as a permission and to narrow it down without even realizing sometimes that that’s what they’re doing, so like a building permit.
California courts have repeatedly said that they regard the right to develop property as a privilege that the government gives to you in the form of a permit. But of course if you own property, the whole purpose of owning property is so that you can develop it or do something with it.
So I don’t think the judges who say those things realize that what they’re doing is basically in a philosophical sense overturning the entire point of a system of rights, which is that the individual has the right to decide what to do, unless he’s going to harm some other person because it’s just easier to regulate people if you regard freedom as a permission that you have to come to me, the bureaucrat, and persuade me to let you do this thing.
Aaron Ross Powell: Making it easier for regulation would be one possible response to this question. But is this a – mostly a semantic difference or mostly a philosophical difference? Like, why does this matter so much? Because if on the one hand we say, “OK, you have rights,” and the government, when it acts, is – it’s restricting your freedom. But we don’t tend to care much about how much it restricts your freedom. Like, we think it’s OK that it restricts your freedom and all of these ways.
So the government is there for big and meddlesome versus you have to ask permission and the government just says no a lot. So therefore the government is big and meddlesome. The real world consequences of this, does this matter much outside of those of us who care about philosophical purity or first principles being thought about the correct way?
Timothy Sandefur: Well, I’m not sure how to answer that because I think that the – when we talk about the philosophical basis of the transformation of our society from one in which a person is basically free to act to one in which a person is basically not free to act unless the government gives them permission, that philosophical change explains the many different areas of our lives in which we’re seeing this happen in practical reality.
So I think when I wrote this book, it was inspired by some conversations with some friends about the old rule of prior restraint. Lawyers talk about prior restraint in the realm of free speech. It used to be that back in the 17th century, that you had to get a government permit before you could publish a book or something like that, and the British were very proud of the fact that they abolished that rule and said, no, there’s freedom of speech in Great Britain, which means you can’t be required to get the government’s permission before you speak.
Now, you could still be punished after you spoke. So there’s a good argument. That’s not really all that free. But it was still an improvement. Well, we got to talking about this and it occurred to me that you can see a lot of our lives in terms of prior restraint. For example, medicine. You can’t possess many medicines in this country, probably most medicines, without a prescription. What is a prescription? A prescription is a permit. It’s a government permit that allows you to possess a medicine. It’s exactly like the prior restraint rule in freedom of speech. It says you’re not allowed to possess the medicine unless you get the government’s permission or even something like architecture.
The government, in many local communities, has a rule called “architectural design review” where you’re an architect. You design a house. You go to the government for a permit and the officials look at it and they say, “Well, we don’t really like this. We prefer if it looked like an English tutor house instead. It’s perfectly safe and everything. We just think it’s ugly.”
Well, that’s a form of prior restraint on free speech. Architecture is a form of speech. It’s a form of artistic expression like sculpture. Nobody can look at a Frank Lloyd Wright house without seeing that it’s a sculpture, you know.
So for the government to come in and say, “Well, we don’t like the way this looks. We’re going to impose this rule on you and prohibit you from constructing because we don’t like it aesthetically,” that’s prior restraint on free speech. So I see it as looking at all these different areas of our lives where it might look like different problems. But actually, it all boils down to one problem, which is saying that freedom is a privilege that the government gives to us.
Trevor Burrus: But with permits and – most people think that a lot of the permitting systems that we have – so you brought up building permits for example and maybe even architectural, aesthetic permitting. But with building permits, some people might – it sounds like you might be saying we shouldn’t have any of these things where we have to ask the government permission. But in say San Francisco or a town that is beset with earthquakes and a possibility of fire, like the permitting system helps make sure that buildings can withstand earthquakes and that they’re not going to burn down and especially when a fire in a city was probably the biggest concern you could have for a lot of human history. So permitting helps figure out, you know, we’re not going to have certain types of factories or coal burners like right next to a bunch of houses. This seems like a good idea. Yes, you’re asking permission from the government. But doesn’t that really help us out generally and for the public good?
Timothy Sandefur: It’s a very good point and I try to make clear in the book. I’m not saying that permits are never a good idea. It’s just that they’re much more rarely a good idea than people seem to think. So a permit is a good idea if what you’re doing is very dangerous and very likely to cause a severe injury to other people and there’s nothing you can do about it afterwards if that does happen.
So for time out of memory, doctors have been required to get some sort of permit before they can practice medicine because if you kill a patient, the patient can’t sue you afterward. Maybe his family can. But the patient is dead and there’s nothing you can do about that. So it makes sense to require a person to prove their qualifications before they are working on the operating table.
But when it comes to things like pollution for instance, there’s another system that we have to – that normally operates in that case and that’s the nuisance system. That’s the system that says you’re allowed to do this thing. But you run the risk that if you hurt somebody else in what you’re doing, they can sue you or they can get an injunction from a court to stop you from doing that thing.
That’s typically preferable than a – over a permit system for a number of reasons. The most important one of which in my mind is that the permit system discourages innovation, experimentation and new ideas. A nuisance system allows you to try some new idea just knowing that if you hurt somebody, you’re going to be reliable to that person. That is typically preferable because it allows us to try out new things.
When you’re talking about a building permit system in San Francisco or something, what that is supposed to do ideally is it’s supposed to be like just a pre‐approval nuisance kind of thing. It’s supposed to say, well, we’re going to make sure that you’re not going to commit any nuisances at this property ahead of time. A lot of the time that’s sensible.
The problem is, it’s always easy to go the next step and say, well, we’re not going to grant this permit because we just don’t like the way your building looks or because some wise government planner 100 miles away has an idea of what this neighborhood should look like 10 years from now, those sorts of things.
It’s a very tempting invitation to centralize planning and as we know from the work of Friedrich Hayek and others, central planning fails because bureaucrats don’t know what the public really needs. They’re influenced by lobbyists and rent seekers who want to control the system for their own benefit and again, it hinders innovation and experimentation.
Aaron Ross Powell: So when you talk to someone who thinks of themselves as a Marxist and you raise problems with communism say, one of the bad arguments that they will give in the defense of communism is, look, it’s a good system in theory. But it’s just the people who – the people who instantiate it, the people who practice it screw it up. But that doesn’t mean –
Timothy Sandefur: Homer Simpson himself says that – so in an episode of The Simpsons. In theory, communism works, in theory.
Aaron Ross Powell: So, is this a similar thing where the problem with the Permission Society is not the Permission Society per se? Like if the people who were giving permission were all‐wise and all‐knowing and thought about things the way that they ought to and were maximizing the correct things, then the Permission Society would be fine. The problem is just that we flawed human beings are bad at giving permission in the correct ways.
Timothy Sandefur: Well, I mean that brings to mind the famous line from The Federalist that if men were angels, no government would be necessary. I don’t think that in terms of being flawed or perfect or anything. I just think the nature of human beings is such and the nature of information and knowledge is such, that nobody can possibly know the amount – the information necessary to predict the future.
So I have a chapter in the book where I talk about a case that I litigated in Kentucky challenging the licensing laws that regulate moving companies and one of the rules in Kentucky was you were not allowed to start a moving company in the state unless you persuaded the government that it would be convenient for the public in the future to have an additional moving company.
In the depositions in the case, I asked the government’s expert witness. I said, “How exactly do you calculate what would be convenient for the public 10 years or 20 years from now?” and his answer was, “We have no objective criteria.” Well, of course they don’t because nobody can possibly know what would be convenient for the public 10 years from now or 20 years from now.
So it’s not a matter of – that human beings are flawed. It’s just that it’s not possible to know the future and it’s also not possible to prevent the lobbying and jockeying for favors from the government and things that spring up whenever the government is in the position of redistributing wealth.
I’m reminded of Isabel Paterson who once said to say that socialism is a great idea but human beings just aren’t good enough to practice it is like saying that sawdust is the perfect diet for human beings. It’s just that they’re not good enough to eat it.
Trevor Burrus: Earlier in the book, early on in the book, you discussed something called Propiska, which I had not heard of before, which is a Soviet entity that really gives an idea of how far the Permission Society could go. So what was the Propiska?
Timothy Sandefur: Propiska is a Russian term that means it’s a permit system. It’s a permit that you are required to have in order to possess a job, to live in an area, to obtain government housing and all these sorts of things. It was basically your permit to be a citizen and without one, you are essentially an illegal immigrant in your own country. They existed under the czar. They were abolished briefly after the Soviet Revolution and then Stalin reintroduced them again, and they of course became extremely valuable.
There’s an old saying among Russians sometimes attributed to Dostoyevsky that a human being is composed of three things – a body, a soul and a passport. The reason is because without this paperwork, you would be unable to obtain an appointment and of course it was a crime to be unemployed and you could then be shipped off to the Gulag.
So I refer in the book to a very powerful passage in the novel Life and Fate, which is a novel written by a Soviet writer whose name suddenly – Vasily Grossman, which is a – one of these epic Russian novels kind of based on War and Peace set during World War Two and there’s a passage in it, in which one of the characters is desperately trying to get the permit that will allow her to legally live in her apartment building.
She’s illegally living in it while she’s trying to get this permit and finally at last, she goes through all of the hassle and bureaucratic paperwork and waiting in lines to get this thing. Her application filed and it is refused. Then a few days later, a man who kind of is interested in her that she’s not interested in, he has some political influence and he gets her the Propiska and a few days later, he comes by and says, “You know, in exchange for me having gotten you this passport, maybe you should let me come inside for some tea.”
I think it’s a beautiful and chilling representation of how when the governments in the position of giving you the permissions you need to live your life, that gives them a lot of leverage over you and that – against bureaucrats who have political influence. A lot of leverage over you.
Trevor Burrus: Well, that is a great point. But I think a lot of people miss about the kind of little despotisms that individual bureaucrats can have and it’s not just that you need to have – as Aaron asks, is this a question of like, “Can we have good enough people that have a good permitting system?”
You need a lot of good people because at every little step of the way, the guy who decides if you’re allowed to build in – build your house or alter your land or get a job or whatever, can have an incredible amount of power over you and that can become very dehumanizing and corrupting in its own way.
Timothy Sandefur: Oh, absolutely. In fact, it can be – it’s even worse for that reason. It’s even worse to the moral and good people than it is to the bad people who are willing to lie and cheat and steal to get their way. There’s a passage in a pamphlet by the poet John Milton where he says, “Good men alone love liberty. The rest desire not liberty, but license, which has no greater scope than under tyrants.”
What he means by that is the bad flourish under bad rule because they’re able to gain – they live in that environment. They’re able to gain the system and use political influence and poll to get what they want because the good, they have – the good people, they have these scruples and I doubt that there’s a single person in the United States who has not at some point or other lied or hedged or done something like that, to get a government permit of some sort.
I can think of an example from my own parents. When I was a child, my parents wanted to get me into a better school in Pasadena, California. So they said on the paperwork that I was living at the address that was actually my grandparent’s house, in order to get me into that house.
So that sort of – and into that school. So that’s the sort of thing that permit systems tend to encourage is misrepresentation or hedging a little bit to get what you want and over time that can corrupt the good person.
Trevor Burrus: In your – the book – I think we get some of the actual chapters here because you have chapters on speech and property and earning a living and things like this, with the prior restraints of speech, which you mentioned previously. That was one of the big aims of the First Amendment of getting rid of prior restraints. But it seems that we still have some prior restraints on speech just in suddenly different forms. What kind of prior restraints exist today?
Timothy Sandefur: We do and actually that was one of the most interesting things to me in writing the book was learning about some of these things that I have not known about previously. Many people may not know that when the motion picture was first invented, the Supreme Court declared that it was not protected by the First Amendment at all. Movies were simply not a form of speech.
The Supreme Court said in the 1910s and that wasn’t changed until 1940s and 50s when the Supreme Court finally said, “OK, yeah, movies are a form of expression protected by the First Amendment.” Well, by that time, over those decades, what had happened was that states and local governments had imposed these permit rules that didn’t allow you to display a movie at a theater unless you had a permit from a local censorship board. They were called “censorship boards”. Nobody was embarrassed about it at the time.
If movies are protected speech, then the rule against prior restraints should have meant that all of those permitting rules were immediately unconstitutional. But of course the court didn’t do that. What it did was it said, yeah, movies are speech. But this rule against prior restraint, we’re going to water it down and change it into a sort of wishy‐washy test so that these permit requirements can stay on the books.
Now for the most part, they’ve gone away. But what that meant was that other kinds of prior restraint, particularly FCC licensing for radio and television stations, remained on the books, which meant that for several more decades, the government control the speech that went on in television and radio stations.
There are other kinds of prior restraints on speech too. One that is really shocking is the increasing restriction on speech when it comes to political campaign. The rules about regulations and restrictions on donating to political campaigns are so strict and so complicated and confusing now, that even lawyers often can’t understand them and in the Citizens United case, the Supreme Court pointed out that – you basically have to hire a lawyer and go to the FEC and ask them if it’s legal for you to do such and such in your campaign.
Well, that’s basically a prior restraint, a violation of the First Amendment and yet every year, we get more and more restrictions on who can support political candidates and how, which of course only benefits the incumbents because they’ve already got all the free press that they need whereas true citizen politicians who are doing it because they believe in it, they need that money. They need to get money to buy television ads. A lot of the times, they can’t get those resources that they need because of these complicated restrictions.
Aaron Ross Powell: Let me push back on I think both of these examples because I can see counterarguments against both the FCC and campaign finance as being the kind of prior restraint that we would be concerned about or even really prior restraint in the first place. So the first one, if you’re arguing like, of course we need licenses to do broadcast, television broadcast, radio, not because the government wants to control what we say, but simply because there’s only so much spectrum and if we don’t give people licenses or in some way control this, there’s going to be – it’s going to be impossible to listen to the radio or watch TV because it’s going to be so overrun with alternate stations jamming each other in a sense. So this isn’t really prior restraint so much as like if you want to use this communal resource. We have to make sure there’s enough for you to use it without making it terrible for everyone else. Then on the campaign finance, the counterargument there is it’s a non‐starter because what you’re talking about here is not actually speech. What you’re talking about is donations and how people can spend their money and money is not speech.
We routinely will limit people’s rights if the way that they exercise them is not itself a right. So like I can’t – I have a right to enter and leave my own home. But I can’t choose to do that in a way that involves me say driving over your lawn to get there. So we simply say like, look, you can use your property rights. But you can’t – that doesn’t mean you can do it in these certain ways and us saying, “I can’t drive over Trevor’s lawn to get to my house.” It’s not really violating your property right.
Timothy Sandefur: OK. So with regard to the FCC regulations, I think the permit requirement for broadcasters is a great example of how a permit system that might look at first as a benign way of resolving a problem with – about limited resources can gradually turn into censorship. What happened was that these licensing requirements were imposed for the reason that you say.
But then, because – about the same time, lawyers and judges and law professors were saying, you know, freedom of speech is really a privilege that the government gives to people and not a fundamental right. It exists in order to foster democracy and public debate. Because they said that, the regulator said, “Oh, OK. Well then it’s better to foster public debate by, among other things, requiring equal time.” So the equal time rule said if you allow a person to express an opinion in one area, you have to allow the opposition to come in and express their opinion in another area.
If a radio station owner didn’t want to allow a person he disagreed with to take up his air time, to broadcast his views that the owner found objectionable, he had no right to say no and that was a form of compelled speech. People were being forced to subsidize speech that they disagreed with as a result.
With regard – so that shows how a permit system that was intended in a benign, content‐neutral way wasn’t intended at first as censorship, very quickly became a form of censorship and regulation of the content of speech for just that reason.
With regard to the election thing and money being speech, I think the last part you said is a form of question begging because what you’re saying is, yeah, you can exercise your right. But just not in a way that violates another person’s rights. Of course I agree with that. The very concept of rights I think inherently includes that idea. But if you exercise your right in a way that doesn’t harm somebody else’s right, I think that just brings us back to where we started with, which is the government shouldn’t be in a position of stopping you.
Now, the whole contributing to campaigns and is that speech thing is kind of outside of the scope of my book. But I think it’s a distorted debate because really, it’s a property right. Your right to donate money to support a campaign that you agree with really ought to fall into the category of private property rights. It’s just that the courts have done such a terrible job of undermining private property security and restricting people’s right to use their property, that instead we’re forced to make this argument in the realm of free speech.
I do think it’s a form of free speech. I mean if you say money isn’t speech, then that means that a person who pays to publish his opinions in a pamphlet and hand them out, that he has no right to do that or that a person has no right to buy or sell a book or to publish a newspaper and print advertisements in the newspaper to subsidize the newspaper.
Money is so inherently connected to speech that it essentially is speech. But again, I don’t really get too much into that subject in the book.
Trevor Burrus: Discussing the FCC licensing which I – the license system actually says that you’re granted permission to broadcast in the public interest convenience and necessity, which is a very – example, one of these great broad terms that they can use to force you to do things like the Fairness Doctrine as you mentioned.
But that brings up the question of the sort of right not to speak and to not have to carry the broadcast of someone you disagree with or with a great story you tell in the book to not have to say the pledge of allegiance. That’s an interesting little sort of Supreme Court saga. Can you walk us through that?
Timothy Sandefur: It is and I think it – the reason that it’s so important is because it’s one of these areas where the difference between freedom as a right and freedom as a permission really makes a difference in the outcome. If you believe that freedom of speech exists as a privilege that the government gives to you in order to foster democratic decision making and deliberation, which is the prevailing few in the law schools today, is championed among others by Cass Sunstein.
If you believe that, then there’s really no realm for the right not to speak. What right does the citizen have not to participate in the democratic system then? If freedom of speech exists in order to encourage democratic decision making and public debate, shouldn’t you basically force people to participate in public debate and you – of course every few years, you hear people say, “Well, we should force people to vote and things like that.”
This comes down – on the other hand, if you believe that freedom of speech is a basic individual right and that it exists because a person owns himself and his opinions and has the right to express his own views as he wants to, then you cherish the individual’s right not to be forced to express an opinion or participate in public debate. This really made a difference in the pledge of allegiance cases, Gobitis and Barnette.
In the Gobitis case in 1940, the Supreme Court said it was constitutional for the government to force children to pledge allegiance to the flag against their will and of course there are many people and particularly Jehovah’s Witnesses who object to being forced to pledge allegiance to the flag. They’re regarded as a veneration of the flag that conflicts with their religious beliefs.
So Jehovah’s Witness children were being thrown out of school and Jehovah’s Witnesses were being even jailed and punished and persecuted and beaten up by their peers in the schools for refusing to pledge allegiance. Only three years later, the Supreme Court reversed that decision in the Barnette case and upheld the – or I mean struck down rather the laws that forced children to pledge allegiance to the flag.
It’s a stirring opinion by Justice Robert Jackson, one of the best of the Supreme Court justices who went on to prosecute the Nazis are Nuremberg and he has a stirring passage in the opinion where he says that the whole point of the Bill of Rights was to remove our freedoms from the vicissitudes of political opinion and to say that no matter what we might vote on, our rights to freedom of speech and private property – he includes private property – cannot be subjected to majority vote. They’re off the table as far as politics is concerned.
Aaron Ross Powell: As an aside here, I’m always struck, like the pledge of allegiance. There are these things that government does that our theory of government and it’s embodied in our founding documents as the social contract model that government is a contract that we got together and we imbued this thing with power in order to get certain things out of it and we entered into an agreement and it has an agreement with us.
I was always struck by how many little instances there are of the government saying no, this isn’t actually a contract.
Trevor Burrus: Praise me, praise me, yeah.
Aaron Ross Powell: Yeah. Like, so pledging allegiance is not the kind of thing you do in a contractual agreement.
Timothy Sandefur: Well, think about it this way. I mean what if instead of pledging allegiance, the children were presented with a copy of the social contract and asked to sign it?
Trevor Burrus: That would be interesting. I wonder how long that social – this is like the constitution. We just say you have to sign the constitution every time. Well, that could be a little different.
Aaron Ross Powell: They first get Lysander Spooner and then they get to …
Trevor Burrus: Yeah.
Timothy Sandefur: The pledge of allegiance case has actually opened up a fascinating philosophical can of worms really, because on top of that point, which is a very good one, what about the Supreme Court’s decision in the Smith case where it says – Smith versus Employment Division where it says that a generally applicable law that conflicts with a person’s religious beliefs, that person can still be forced to abide by the law. It makes logical sense.
Justice Scalia writes his opinion. He says, look, we can’t have like a heckler’s veto over the laws just because a person objects for religious reasons to what the law requires them to do. If the law says take off your hats, then that means everybody has to take off their hats including people who wear yarlmukes or turbans, unless the government gives them a special exemption. OK, that makes sense.
But then what do you do about the pledge of allegiance cases? That would mean that Barnette would basically have to be overruled or the Yoder case where the Amish schoolchildren were exempted from higher levels of education because of their religious beliefs.
Justice Scalia gives a pretty, I think, unsatisfying answer to that in the Smith opinion. He says, well, yeah, but those cases involve hybrid rights that were both religion and free speech and so those are different. I don’t buy that argument. Fortunately, that’s not a paradox that I had to resolve for purposes of the book.
Trevor Burrus: You also write about a different sort of professional speech licensing situation such as tour guides, psychologists, interior designers and talk about how there’s a class of professionals who are getting – having to get permission in order to speak about these issues.
Timothy Sandefur: Yeah, there are businesses that consist entirely of speech and psychology is a really good example of this. Psychology is different from psychiatry. Psychiatry people are prescribing medicines in addition to other things. But a psychologist is only engaging in talk, in speech or communication of some sort.
So doesn’t psychology fall entirely under the First Amendment’s protection for speech? In my opinion, there’s just no justification for requiring a psychologist to have a license at all. There’s no difference fundamentally between what a psychologist does and what I do when I go to talk to a friend about my personal problems or when I go to talk to a pastor about my personal problems.
The states recognize this and so they fill their laws, the psychology licensing laws, with all sorts of exceptions that don’t make any sense. Like for instance, it’s legal for a lawyer to practice psychology without a license in California.
Trevor Burrus: Wait, wait, wait. A licensed lawyer to practice psychology but a person – a psychologist needs to get a different license if they’re not a lawyer.
Timothy Sandefur: Exactly right, even though – I can guarantee you, none of us California lawyers have ever received any kind of psychological training in our law school and some of us could have used it probably. So I don’t think that there’s any justification for requiring a license for businesses that engage entirely in speech. But the Supreme Court – and it’s very strange because the court has never actually ruled on this issue at all ever, except in some very oblique ways into opinions that are not binding anyway and disagree with each other.
But anyway, the court has struggled a little bit with this because there are businesses where you’re advising a client. Like, you’re taking the person under your wing and giving them one‐on‐one advice in a sort of private, confidential professional relationship, like a stockbroker who’s advising you on your investments.
So if the government can regulate stockbrokers, can’t it regulate the advice a stockbroker gives? That seems logical. So what has happened is that courts have kind of put together this doctrine called “professional speech” where the government sometimes has even broader authority to regulate what a professional says than what a non‐professional says.
Now I say sometimes because there are – actually, there are a couple of cases that go the opposite way and say that that speech by professionals is more protected than other kinds of speech. This is a totally chaotic realm of law where there is almost no precedent to begin with and the precedent that does exist conflicts with itself so badly that it doesn’t make any sense at all.
I think it should just be abolished. I don’t think that there is any basis for the government to regulate speech when – or regulate the profession and that profession consists entirely of free speech.
Trevor Burrus: Well, it seems like they might be scared about the implications of giving – lawyers do a lot of speaking and no one – no reasonable person – I put reasonable in air quotes there – wants to abolish legal licensing and say that anyone can practice law because it’s a form of speech. So they worry about striking out something like a tour guide licensing system because they want to be able to separate out the free speech element with the just straight professional elements to protect the people from shyster lawyers for example.
Timothy Sandefur: Yeah, that’s exactly what’s going on and it’s a fool’s errand. It cannot be done. Speech and – rights cannot be divided up this way. Rights do not come in discreet little packets that can be separated out from each other in neat categories. Rights are connected in a very fundamental way because really, when you get down to it, rights are just a way of categorizing a person’s liberty. Liberty means your freedom to do what you want as long as you harm no other person.
So that includes the liberty to speak which we call the “right to free speech” and the liberty to buy and sell things, which we call “economic liberty”. So if I buy and sell a book or a newspaper or tickets to hear a political speaker give a speech, is that speech or is that economics?
We can try and divide those things, but they don’t actually separate out. So that’s the problem that you run into there. You’re actually right. Now the best argument I’ve heard for lawyer licensing is that lawyers do things other than speech.
For example, we have the power to issue subpoenas to people that compel them to attend a deposition and brings paper with them and things like that. So the government can regulate that. OK. Fine. Take that away and I don’t think that there’s any justification in free speech terms for requiring a lawyer to get a license before he can practice. And again, we recognize that fact, by the fact that we allow people to represent themselves in court.
Trevor Burrus: True, true. I want to get back to some of the best stories you have in the book and you mentioned it briefly when you were discussing a moving company I believe with the certificates of need, which are really quite astounding if people haven’t heard of what certificates of need are and how blatantly just protectionist – they’re protecting existing businesses from competition.
Timothy Sandefur: Yes, absolutely. These certificates of need or certificates of public convenience and necessity laws, as they’re called, they were invented in the late 19th century to regulate railroads. But they today regulate a wide variety of industries, everything from moving companies and taxi companies, to hospitals. In many states, it’s illegal to open a hospital or even buy new medical equipment, unless you get permission from the existing hospitals. That’s the way these laws work.
The idea, if you can even call it an idea, behind these laws is that there are some industries where competition is a bad thing. So therefore, it’s good for the government to restrict entry into those businesses. It’s I think fundamentally absurd and even the economists who have suggested this theory have admitted that there are no actual markets where this is actually the case. But nevertheless, that’s the law in most states and most major metropolitan areas. I believe …
Trevor Burrus: What kind of things – I mean moving companies was a weird one. But in hospitals – what other things have certificates of need?
Timothy Sandefur: Well, it depends on how you define it. So the term “certificate of public convenience and necessity” applies to public utilities. So gas pipelines and things like that, they have to get certificates of public convenience and necessity. Certificates of need, that’s a term that’s often used in the hospital context. But it’s the same thing. It says that you have to file an application and then existing companies are allowed to object to you getting a license. When that happens, you have to go to the government and prove to them that there’s a public need or a public convenience or whatever that will be served by your new company.
We at the Goldwater Institute actually are challenging the constitutionality of a certificate of need law in Georgia where the state has a provision in its constitution that prohibits monopolies and yet the state makes it illegal to compete against a hospital unless you get permission from the hospitals you’re competing against.
Other companies like liquor stores, car dealerships have things that are very similar to certificates of need. They call them by different names but they essentially say you’re not allowed to open a car dealership within a certain radius of another car dealership. There are just ways of dividing up the market to serve the politically powerful because the existing companies don’t want to actually compete economically.
Aaron Ross Powell: We’re recording this. This is our first episode of Free Thoughts that we have recorded, that Trevor and I have recorded since Trump was elected because we got quite far ahead in recording episodes. So this will come out quite a bit after the election. But we’re all still kind of processing it and I am curious how this notion of the Permission Society and it being wrong from the perspective of the basic principles of liberalism, that this country was founded on and that you argue for that you’ve – you know, created your career to seeking to advance.
Where do those principles of liberalism exist in the emerging narrative that seems to have come out of Trump’s success and the way that we talk about it? So what I mean is maybe the argument that look, the government exists to protect our rights. We have these rights that it’s – everyone should be able to live how they want to as long as they don’t actually hurt the people around them. It’s just not the way that America wants to think about its society anymore, that the government does not exist to do that. But instead, the government exists to protect an American way of life, to make sure that Americans live the way that Americans are supposed to live, that America is this nation that has an identity and protecting that identity is what matters.
So the government isn’t violating your rights, but is doing precisely what it exists to do when it’s say – like let’s say that it goes after the New York Times for being critical of Trump and his supporters because the New York Times is undermining the American way of life or it restricts immigration in these really profound ways because we as an American community have a right to keep out people who think different from us or have a different religion, that these restrictions on speech are just simply like look, it’s not that you have a freedom of speech. That’s just completely wrong‐headed. What you actually have is a – you get to participate in this thing called American.
If you do it the right way, great and if you don’t, we get to punish you or kick you out. That maybe it’s just that that – this whole project of enlightenment liberalism is wrong‐headed and the country has simply embraced a more robust nationalist communitarianism and that that’s what we ought to be advancing and that that’s what the Permission Society does and we should just kind of bite the bullet and accept the will of the American people.
Timothy Sandefur: Well, there certainly are people who believe that. A lot of people who believe that, both on the left and the right. I hesitate to draw large conclusions about the direction of the nation as a whole from Trump’s election, keeping in mind that the vast majority of people voted either against Trump or held their nose very strongly when voting for him.
So I don’t think that we should take – be in too much despair about the future of the enlightenment project as a result of Trump’s ascendancy. There are certainly some people who mistakenly supported Trump because they thought they were defending the enlightenment legacy. So although they may have made a mistake tactically, their strategic mindset was to defend the principles that we agree with. That doesn’t mean he’s any less dangerous. Of course he’s tremendously dangerous to both now and the legacy that he leaves behind in the form of his supporters.
But no, I don’t think that we need to despair about that. I think the reason for that problem is that if – we take your average person who doesn’t know a lot about political philosophy or political theory or things like that. They’ve got much more important things to do with their lives. Living their lives would be number one.
So they hear the term “Leave us alone,” and they agree with it and they attract – that attracts. So, you and I, when we say, “Leave us alone,” we mean leave individuals alone to maximize their own lives and in freedom. But a lot of people hear that in terms of leave my neighborhood alone to impose its own restrictions as a community on how we live our lives.
That kind of ambiguity infects the libertarian and conservative world very strongly. You find a lot of libertarians and conservatives who have this reflexive appreciation for local control or they often use the term “state’s rights” and things like that, even though what they really mean by that is their right to oppress their neighbors without interference from the federal government, which you and I would strongly disagree with.
So that’s the reason why I think when you boil it down, why you really have this problem, this attraction toward what you and I would call proto‐fascism, from a realm that ought to – in all sense and likelihood, should go in the direction of freedom. Instead people get drawn to these movements that are more nationalistic and communitarian because of this ambiguity about what “Leave us alone,” really means and I see it as a major importance for people in our community to clear up that misunderstanding and say local is not always good and freedom for me also means freedom for the other guy.
Trevor Burrus: I think Aaron’s question, we’re tying it into the Trump election, is that this book is relevant in another way too because as you subtitled the book, How the Ruling Class Turns Our Freedoms into Privileges, the idea that the system is rigged, this sort of – this part of the narrative that a lot of people feel like there’s a sort of an elite cabal who are in different ways succeeding and that normal people can’t succeed in a sort of typical American fashion anymore and there are people who get ahead because they get permission and that’s – and I think that that is true. It’s something that your book touches on in a timely fashion. We now have – I think the statistic is one in three jobs require a license and it might just seem like well, maybe all these jobs need to have a public safety element to them.
But if you’re a poor person who needs to spend $1000 to get a job, and you can’t get that job, then you need to get permission to get this job, then you start to think, wow, the system is really rigged against me in a variety of ways.
Timothy Sandefur: Oh, yeah, definitely.
Trevor Burrus: That becomes a bad sort of cancer on a society when you have 1000 different ways you have to ask permission and the people who get permission are on average more connected and wealthier.
Timothy Sandefur: Yeah, I swear when I – watching these Trump rallies in these past fall, I kept thinking of Oscar Wilde’s Sonnet to Liberty, when he ends with the line, “God knows I am with them in some things,” because that attitude, that resentment toward political elites is right. That’s well‐founded and that political elitism is fostered by a system that rewards political influence instead of actual work and skill.
Unfortunately, what the people chose to support is just more of that and in fact twice as bad. But they are right that our system is gradually dividing into the haves and the have‐nots or the can‐gets and cannot‐gets. That is a result of the government’s increasing influence over our economic and personal lives.
All I can say is that the solution to that is not more government. It is more individual freedom.
Trevor Burrus: Yeah, and there’s another factor too, which I’ve been doing some work on and some media appearances, dealing with how Trump will – what he can do in the presidency, especially as a businessman and how he can get some of these businesses. For example, when he was saying he’s going to make a good deal with these businesses to make them keep jobs in America or something.
Timothy Sandefur: That’s already going on.
Trevor Burrus: Exactly. But the power that he actually has, that he can put the thumbscrews on these companies, a lot of it has to do with permitting and different types of things that you write in there. But he can give them a land use permit or he can say, “I’m going to free up your employment or I’m going to stop a lawsuit from EEOC,” or he can do a variety of things that come back to the massive amount of government and permitting a “permission” kind of system that he controls.
Timothy Sandefur: And the reverse is also true. Isn’t it remarkable that the permit for him to construct them on the property in Argentina was approved very swiftly after he was elected president, when there had been such a long delay beforehand? You know, it’s a way of influencing him as well. You know, the social consequences of this I think are something that the libertarian world has failed to emphasize as much as it ought to. We tend to focus so much on the – on wealth, creation on free markets on the political and economic consequences of policies. But when you talk about the social consequences of creating a society in which those with influence succeed and those without influence fail, regardless of their hard work and skills, that typically breaks down along the racial lines. It typically breaks down along family lines. It worsens the divide between the haves and have‐nots in our society and it fosters what you and I would regard as vices instead of virtues. That is a willingness to invest one’s time in political influence instead of hard work, which is not something that our society used to venerate.
We have always been a society ideally that respects hard work and perseverance and inventiveness and we are gradually, I fear, going to become a country that resents those things and instead respects the gangster strong man mentality that we are already seeing in our culture. I mean look at how many television shows already feature this sort of prurient fascination with these tough man figures who come in and impose their will by force, instead of the democratic attitudes of cooperation and deliberation and persuasion and things like that.
I think our culture is primed for the strong man to take over if he really pushes it and that’s the real fear. I don’t think Trump is that strong man, but I think that he benefits a lot from that attitude on the part of the people.
Aaron Ross Powell: If you’ve enjoyed listening to Free Thoughts this past year, I encourage you to check out Libertarianism.org’s Facebook page where you can vote on your favorite episode of 2016.