In determining the proper boundaries of government action consistent with a free society, it is instructive to explore whether drug prohibition is an appropriate response to actions that are clearly self-destructive to some. Following from concern over the harmful effects of drugs, the prevailing view is that government has a responsibility to protect its citizens from that harm through prohibition. Yet that position runs directly counter to the foundation and maintenance of a free society. Indeed, in today’s context, drug prohibition represents one of the single greatest threats to our liberties.

Foremost to understanding the threat prohibition poses to liberty is a proper understanding of rights. According to the Declaration of Independence, we are endowed “with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” The underlying assumption is that one’s life is one’s own. Thus the choices a person makes with his own life properly belong to him.

This principle is not hard to embrace. The idea that the individual owns his own life is accepted almost implicitly, especially in countries with a tradition of free thought and institutions, such as the United States. Yet it is a principle readily abandoned when it comes to drugs. Underlying the idea that government, and not the individual, has the right to determine what one may or may not ingest is the assumption that government, and not the individual, has ultimate authority over, and ownership of, life itself. Taken to its logical conclusion, this principle leads to slavery.

This does not mean government has no right to restrict and prohibit harmful behavior. But it must do so only to enhance and protect freedom of action. The old axiom that “my freedom to swing my arms ends where your nose begins” applies here. The essential point is that the individual has the right to do whatever he wants with his own life, since he has a property in that life, provided that he does not interfere with the same freedom of another.

With drug prohibition, the government attempts to coerce citizens into abstaining from something it deems harmful. This, in essence, is criminal behavior elevated to the status of law because it involves the initiation of force, or threat of force, against a class of citizens (illicit drug users) who are engaged in voluntary, non-coercive behavior. Moreover, the policy is doomed to failure as witnessed by the daily news reports on the government’s drug war, which clearly show that the government will never be able to stop individuals from taking drugs short of imposing an Orwellian 1984 level of surveillance on its citizens. And judging from the ready availability of drugs in prison, even that is unlikely to work.

The bottom line is that “criminal” action implies a victim, where force, or the threat of it, is imposed on another. However, what the individual freely does to himself—such as taking drugs—does not constitute the imposition of force, and is therefore not a crime. On the contrary, it is the prosecution of the drug war that is the crime.

Some Pragmatic Considerations

The devastating impact of the drug war on society, along with its inevitable failure, is a consequence of its protagonists’ failure to recognize a salient fact of human nature—namely, there will always be some individuals strongly driven to take drugs because they provide pleasure or block pain, and no legal sanctions, no matter how severe, will prevent that. Furthermore, the more draconian the drug enforcement the more draconian the consequences by every measure imaginable, from diminished civil liberty to increased violent crime.

Criminal activity normally involves no more than a small fraction of any given population. Yet when laws are dramatically at variance with the legitimate exercise of freedom, wide-scale disobedience is often the result. Such was the case with alcohol prohibition, conscription during the War Between the States and the Vietnam War, civil disobedience during America’s civil rights movement, and general disregard for the national 55-mph speed limit.

Prohibition also fails to acknowledge the power of markets. By making a desired substance illegal, prohibition increases profitability by making the substance scarcer and more risky to handle. In the pursuit of self-interest, and in light of the enormous profits earned from the illicit drug trade, there will always be a plentiful supply of risk-takers willing to run the gamut of government interdiction efforts to meet the demand for drugs. Ironically, the scarcer drugs become because of prohibition, the more profitable they become for dealers and the greater the incentive to sell them.

Thus it is profit, and the pleasure derived from taking drugs, that thwarts the increasingly militant calls for an “all out” drug war. Not surprisingly, when government attempts to deny basic individual sovereignty, it must intrude with reckless abandon on other rights to enforce its objectives. Protection from unreasonable search and seizure, as guaranteed by the Fourth Amendment to the Constitution, is a prime target for the drug warriors. Calls for universal drug testing are beginning to surface, regardless of any concern for probable cause. Former New York Mayor Ed Koch and others have even called for shooting down planes merely suspected of carrying drugs.

Tragically, the war on drugs, allegedly being prosecuted to protect human life, has instead claimed many innocent lives. Take, for example, those caught in the crossfire between warring gangs of drug dealers fighting over turf, or trigger-happy drug-enforcement agents who raid the wrong homes and accidentally kill residents defending their families against violent assault. Additional fatalities in the drug war include deaths attributed to drug overdoses or poisoned drugs owing to the adulteration and unknown potency of drugs traded on the illicit market. The war on drugs has also become a significant factor in the spread of AIDS; almost 7,000 intravenous drug users a year have died of AIDS from sharing needles.^[1]

Despite this tragic loss of life, prohibitionists claim that legalization will result in a dramatic increase in use, thereby dwarfing the number of fatalities directly attributable to prohibition. However, considering that 80 percent of deaths from ingestion of heroin and cocaine is caused by their adulteration on the black market,^[2] leaving 20 percent who die as a result of factors that would exist after legalization, it would require a 400 percent increase in use to equal the current death toll. This is unlikely; at the end of alcohol prohibition, estimates of increased consumption have ranged from zero to 250 percent.^[3]

On the contrary, it could be argued that consumption of hard drugs such as heroin and cocaine would actually decline with legalization, especially among vulnerable youth in the inner cities. This is because tens of thousands of hard-core users would no longer be pushing drugs to non-users in order to make money to support their own habits, a common and well-known practice throughout the drug culture. When we look at how alcohol is marketed and distributed, we can see how legalization will put the neighborhood “pusher” out of business.

In addition to the death toll coming from prohibition, the costs related to drug enforcement are staggering. Since President Reagan launched his much-heralded “war” in the early 1980s, the United States has spent nearly $300 billion to stem the flow, with indirect costs put at $67 billion annually as government continues to beef up the budgets of law enforcement agencies and the military to prosecute the drug war.^[4]

The courts are so overwhelmed with drug cases that the administration of justice is being hampered to an intolerable degree. For example, in 1998 more than 400,000 Americans serving prison terms (one in four imprisoned) were doing so for drug offenses, up from 50,000, or one in ten, in 1980.^[5]

Prohibition also has the unfortunate consequence of corrupting law enforcement agents lured by the easy availability of huge sums of tax-free income in return for their cooperation in the drug trade. According to reporters Jack Nelson and Ronald J. Ostrow, “Law enforcement corruption, sparked mostly by illegal drugs, has become so rampant that the number of federal, state and local officials in federal prisons has multiplied five times in four years, from 107 in 1994 to 548 in 1998.”^[6]

On the civil liberties front, the drug war has led to the property of non-drug users being confiscated without due process. In operations labeled “zero-tolerance,” leased boats are searched (sometimes without satisfying the legal standard of probable cause) and then seized from their owners when even minute quantities of drugs are found onboard. Indeed, fully 80 percent of total asset seizures related to the drug war occur without a criminal charge being filed.^[7]

Another casualty in the war on drugs is legitimate scientific research with drugs such as LSD and MDMA. In addition, marijuana has been almost universally prohibited for use as a treatment for glaucoma, which leads to blindness, and for ameliorating the severe side effects of chemotherapy.

Denial of Individual Responsibility

Inherent in the prohibitionist position is the failure to recognize individual responsibility and autonomy as operating principles for an efficacious life. While taking drugs involves the freedom to engage in what may be self-destructive behavior, it also, and more importantly, involves the principle of allowing for life-enhancing activity. The freedom to fail is also the freedom to succeed, and vice versa. Ultimately, only the individual can determine what is in his best interest. While that is not a fail-safe mechanism, the alternative is tyranny. Drug prohibitionists embrace that alternative by presuming to know what is best for others, and in the pursuit of their vision of the good life they are willing to impose that vision on others by force.

To counter the argument for individual responsibility, prohibitionists claim that drugs necessarily hurt others and society at large. Discounting the preponderance of evidence that prohibition imposes a much greater cost on society than legalization ever could, the fact remains that even for those who use drugs in a life-threatening way, it is their lives that they threaten. Society, and even loved ones, do not have a property right in the life of the drug abuser. To assume otherwise is collectivism, pure and simple.

If prohibitionists were interested in consistency, their line of reasoning would take them down a path I doubt many of them would want to follow. Would they propose banning tobacco or alcohol consumption because of potentially harmful effects? How about high cholesterol foods? With heart disease being the single greatest killer of Americans today, are prohibitionists prepared to follow their own logic and ban bacon and eggs? And what about high-risk occupations and activities such as stunt-car driving, hang gliding, and motorcycling?

Assuming you could successfully ban such activities and substances, what would be the implications for the role that risk-taking plays in enhancing the enjoyment of life? While most people avoid risk in the realm of health or physical activity, others are drawn to it because it enriches their lives. The very essence of individuality implies that different people have different requirements in achieving happiness.

Drug prohibitionists, however, will claim that illicit drugs can never have any other effect than to debilitate and destroy. Yet even among the most dangerous drugs, “addiction” is far from guaranteed. Dosage has everything to do with a drug’s potentially harmful affects, and if doses are low enough, and taken infrequently enough, no long-term or short-term ill effects will result.

Besides, the critical point, which cannot be emphasized enough, is that ownership of one’s life entitles one to do with it what one chooses, even if that choice leads to self-destruction.

The Roots of War

In light of the futility in waging the war on drugs, what leads the government to pursue it and most Americans to support it? Part of the answer lies in the coercive nature of government itself. If war, as Randolph Bourne stated, is “the health of the state,” then the American government is on a very healthy diet.

Since government is predicated on the use of force, it oft-times sees its reason for being in exercising it. If this power is used to protect rights, it is a benevolent force. But the temptation to abuse that power is sometimes irresistible. While the line between using government force in retaliation against initiators and being the initiator itself is a clear one, it is a line easily crossed.

There is also a need on the part of government to fight an enemy, take on a menace, and be the paternalistic guardian of the people. Indeed, if officeholders do not have the commodity of fear and the specter of menace to incite people to rally around them for support, they risk, in a democracy, repudiation at the polls from bored and fickle voters, and in a dictatorship, the violent overthrow of the government.

Hollywood and the media have certainly done their parts in feeding the current frenzy. Grisly news reports on the drug war and its victims boost ratings and provide ample grist for sensationalized TV specials and movies. This in turn creates the popular illusion that it is the drugs themselves that cause the violence and crimes associated with them, rather than their prohibition. Yet we have only to look back to the era of alcohol prohibition to identify the real source of drug-related violence. In the ten years following the end of alcohol prohibition, the murder rate from assault by firearms went down from a prohibition high of 16 per 100,000 of population in 1933 to less than nine per 100,000 by 1943.^[8]

America’s drug war is also a manifestation of the historical pendulum swinging toward social conservatism. Operating in cycles that run on the order of 20 years, America is reacting to the social excesses of the 1960s. Sexual mores have become more restrictive, drinking is less socially acceptable, and smokers’ rights have become severely circumscribed.

Indeed, the current trend—popular among both conservatives and “liberals”—is to place under cultural and political assault activities that give pleasure and hold the potential for harm. The “safety at any cost” approach toward regulating consumer choices, championed by environmental and consumer activists such as Ralph Nader, is but one variant of the kind of government paternalism now in vogue.

America’s puritanical heritage, while dramatically at variance with its heritage of political liberty, has endured as well as it has owing to the lure of messianic perfectionism. Few countries in the West are as “blessed” as the United States with the number and intensity of moral crusaders determined to use government to impose their moral values on others by force.

This puritanical impulse is enjoying a major resurgence in the United States. Historically, America has been a magnet for cultural extremes, ranging from the free love communes of the sixties to the abstinent Shaker communities of the early nineteenth century. In the history of the Western world, no other country embarked on the bizarre path of alcohol prohibition, despite alcohol’s deep historical, cultural, and economic roots.

The U.S. Constitution and Bill of Rights have held America’s crusading impulse in check. Nevertheless, it persists, ebbing and flowing as circumstance and public opinion dictate.

Another factor fueling the drug war is an undeniable increase in drug use, a trend that started in the sixties. Yet can the increase in any way correlate with the hysteria that has overtaken America in the decades that followed? Indeed, deaths attributed to drug use are but a small percentage of deaths related to alcohol and tobacco. And despite hyperbolic claims by politicians and the media over the threat that drugs pose to our society and culture, the economy continues to grow, life expectancies continue to increase, technological advances continue unabated, and Americans in all walks of life continue to build lives of meaning and value, both for themselves and their families.

The most tragic consequences related to drug use persist in America’s inner cities. Yet here it is government paternalism that is the culprit, leading people without hope into lives of drug dependency. As the debilitating effects of welfare dependency strangle motivation and opportunity, the seductive lure of drug profits or the temporary relief that drugs bring provides a market for drugs that otherwise would not exist.

Where Do We Go from Here?

Predicting the future is always a risky business, but when it comes to determining what path Americans will choose concerning drug policy, both history and a proper understanding of human nature give us some guideposts.

People eventually tire of moral crusades. No matter how lofty or seemingly righteous, there comes a time when people’s energy and direction must go elsewhere. For example, the wave of progressive reform that began at the end of the nineteenth century eventually burned itself out, to be replaced by the relative social liberalism of the roaring twenties. The strident anti-communism of the McCarthy era in the fifties gave way to the New Left that engulfed America’s universities in the sixties.

But the real undoing of the drug war will be the eventual realization that government cannot alter human nature and that society is no longer willing to pay the price required, in money, social disruption, and reduced liberty, to prosecute this war. In the past decade especially, many prominent voices have been raised against prohibition, and no doubt many others will join them in the near future. Moreover, prohibitionists are finding themselves compelled to respond in public to the growing call for legalization to an extent that would have been unheard of ten years ago.

Yet until the current level of support for prohibition burns itself out, vigilance and the courage to speak out are required if we are to avoid the permanent establishment of new forms of government intrusion into our personal lives. That is the real threat facing us today.

Notes

1. Centers for Disease Control and Prevention, HIV/AIDS Surveillance Report, 1997.
2. James Ostrowski, “Thinking About Drug Legalization,” Cato Institute Policy Analysis, No. 121, May 25, 1989.
3. David V. Kyvig, Repealing National Prohibition (Chicago: University of Chicago Press, 1979), pp. 24, 112-13, 131,186.
4. “Poison across the Rio Grande,” The Economist, November 15, 1997, p. 36.
5. Jacob Sullum, “Prison Conversion,” Reason, August/September 1999; http://www.reason.com/9908/fe.js.prison.html.
6. Jack Nelson and Ronald J. Ostrow, “Illegal Drug Scene Spurs Rise in Police Corruption,” Los Angeles Times, June 13, 1998.
7. DEA data reported by A. Schieder and M. Flaherty, Pittsburgh Press, reprinted in the San Francisco Examiner, August 25, 1991, p. 1.
8. U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970, part 1 (Washington, D.C., 1975), p. 441.

Mr. Lamberton is the Public Affairs Director for a cable operator in Texas, and the former Deputy Director of the White House Office of Policy Information under President Reagan.

To answer this question, and to find a way out of the perplexing confusion which surrounds the First Amendment, it is necessary to determine the proper philosophical underpinnings upon which it is based. The First Amendment, as with all political institutions and ideas, does not exist within a void. It is based upon a view that freedom of expression is a positive good; that without it citizens are defenseless against capricious and tyrannical acts of government—which by having a monopoly on the legal exercise of force—will be able to stifle dissent against actions which violate the rights of its citizens. So in essence, freedom of speech exists to enable the exercise of rights which the founding fathers regard as unalienable; the rights to “life, liberty and the pursuit of happiness.”

In the course of human history, the idea that citizens have the unfettered right to express themselves is relatively new, owing its genesis to Age of Enlightenment philosophers. Prior to that, it was generally assumed that either the state or the church had ultimate sovereignty over one’s life, liberty, and property, and that the individual had no a priori claim over such rights. Thus, the great struggles which bloodied the pages of history before the Age of Enlightenment were between the conflicting claims of church and state over the soul and property of man.

It was the English philosopher John Locke who first made popular the idea that it was neither the church nor the crown who had first claim upon the life and property of man, but that those rights resided in the individual himself. In laying the foundation for his startling theories, he maintained that private property rights are the cornerstone of all other rights. By “mixing one’s labor” with the soil the individual obtained a property in the product of his labor. Thus, any state or religion which abrogated that property was engaged in theft and violation of the conditions necessary for life to have meaning, fulfillment, and efficacy. To the extent that the individual was not free to enjoy the fruits of his labor, he was unfree and a slave.

Property Rights Antecedent to Free Speech

It was out of this philosophical heritage that America’s founders created a new nation, based on the principle that each individual is a sovereign within’ his own right, free to enjoy the blessings of liberty, and free to realize his true potential without interference from church or state. Property rights then became the ac knowledged foundation upon which other constitutional freedoms rested, including freedom of speech. It was not until this century, when private property came under relentless ideological assault, that the First Amendment was subjected to ambiguous and convoluted contention.

Indeed, it is the failure to recognize property rights as the antecedent of free speech that has led to uneven, conditional application of the First Amendment in the twentieth century. Why is this so? First we need to look again at what “life, liberty and the pursuit of happiness” really means. By having the right to “life,” we own, from the moment of birth, our life, which no one has the right to take away. Since infants and children cannot sustain their lives without support from adults, parents and/ or guardians have an obligation to sustain that life with their labor. That does not mean, as it would with inanimate objects and animals, that adults, by mixing their labor for the maintenance of children, have a “property” in the child. That would make children slaves, and would deny them their unalienable adult rights to liberty and the pursuit of happiness. How ever, it does give parents and guardians the right to restrict a child’s freedom until the child reaches sufficient maturity where it is possible for him to make decisions about his own welfare and where he at least has the potential to be self-supporting.

Once a child evolves to maturity, he can then exercise his “liberty”; meaning he can be free to take whatever actions he deems appropriate for his happiness and well-being, provided in so doing he does not restrict the rights of others to exercise their liberty. John Smart Mill, the nineteenth-century utilitarian philosopher, put it succinctly when he wrote: “The right to swing my arms in any direction ends where your nose begins.”

So by “life” man is free from the fight of another to take that life without consent, and “liberty” is freedom of action. Unfortunately, many civil libertarians who appear to be in the forefront of defending the First Amendment are content to rest their case for free speech on life and liberty precepts, and look no further, ignoring the significance that the “pursuit of happiness” plays in protecting and preserving freedom. For once an individual has liberty of action, it is essential, if that freedom is to have meaning, that he be able to realize the fruit of his liberty. It is a shallow liberty indeed if he is not free to exchange voluntarily with others the product of his efforts on terms that are mutually agreeable.

With a consistent application of property rights, where all property but essential government facilities are held privately, conflicts which currently abound over where the proverbial nose of another begins would virtually cease. Within the confines of private property, the property owner would have undisputed right to determine the kind, extent, and terms by which speech could be exercised. Thus, the irreconcilable disputes over, for example, what speech should be permitted in public schools would become irrelevant. This is because a pure application of private property rights would preclude the existence of public schools, since they are supported by taxes, and taxes are the involuntary expropriation of property by force.

In today’s polity, this is a radical statement, yet how else can taxation—and the “public” property on which it is founded—be viewed? For despite the bold pronouncements of Enlightenment philosophers that the individual has absolute sovereignty over his life, liberty, and property, the twentieth century, up until very recently, has seen a resurgence in the statist doctrines which held man in bondage to others. With that resurgence has come an enormous increase in the taxing powers of the state, to the point where the average American surrenders more than forty per cent of his earnings to government.

Not surprisingly, freedom of speech, as with most other freedoms Americans take for granted, is perched on an increasingly shaky foundation. Without a comprehensive philosophical base built on the sanctity of property rights, the vagaries of each First Amendment Supreme Court decision are as uncertain and unpredictable as a loose cannon on a rolling deck, and the task of protecting First Amendment rights in the face of a growing public sector seems to become ever more difficult. As I shall argue later, a counter-trend is developing which is slowing, and now seems to be reversing this otherwise inexorable process.

Returning to the issue I alluded to earlier, where freedom of speech issues become irreconcilable with the existence of public schools, it is instructive to look at the famous 1962 and 1963 Supreme Court decisions which banned prayer in the public schools. These rulings were made on behalf of a nonreligious minority of parents who felt that religious observance was being forced upon their children without their consent. As contributors to the public school system, and consistent with First Amendment guarantees of separation of church and state, they were within their rights to have the prohibition imposed. Yet what of the rights of the majority of parents who also contribute to the school system, and would like to have prayer in public schools? Are they not entitled to consideration for what they judge to be in the best interests of their children? Given the existence of public schools, whereby the entire community is forced to contribute through the imposition of taxes, there is no way to equitably resolve the inevitable conflicts over publicly held property. No matter how the conflict is ultimately resolved, someone’s property rights will be subordinated, without their consent, to the wishes and desires of others.

However, in a society without public schools, First Amendment rights would not become an issue. Parents who wished their children to partake in religious observances in school would be free to choose the school which offered it. Alternately, parents who do not want religion in school, could likewise choose schools which provided that option. Neither the religious nor nonreligious would be imposing their preferences on each other’s children, with the rights of both being respected. It can be argued that those options are available today, and that parents can send their children to religious schools, but that does not negate the fact that they are still forced to contribute to schools they neither use nor approve.

Another area where the First Amendment comes into conflict is the right to assemble, march, and speak on public roads and in public parks. In the Supreme Court case, Clark v. Community, the Committee for Creative Non-Violence took legal action against the U.S. Park Service for imposing a ban on camping in Lafayette Park, which is across the street from the White House in Washington, D.C. The Supreme Court ruled in favor of the Park Service, accepting their argument that to allow camping would impose excessive wear and tear on the park, thereby reducing the aesthetic value of the park for visitors who pay for its maintenance through their taxes. Thus, the interest of the taxpaying public was upheld over the interests of those who wish to engage in symbolic speech on land which they have just as much a claim to as visitors and tourists.

Solving the Problem of Rights in Conflict

The same sort of conflict arises whenever the streets are used for demonstrations and marches. While few would want to deny the rights of most groups to use the streets for this purpose, nevertheless, the rights of motorists who pay taxes to maintain the roads are being violated. The problem then arises in trying to determine how often and how long may a group use the streets for protest, versus the rights of motorists to use the streets which their taxes support for commercial and personal use. Would a proper interpretation of the First Amendment permit a given street to he given over to protest once a week, once a month, once a year, or none of the above? What formula could be applied which would equitably and fairly distribute the publicly owned streets between motorists and protesters? For that matter, how about nudity on public beaches? Must the minority of taxpaying citizens who support public beaches and wish to enjoy them in their birthday suits have their wishes subordinated to the majority?

Again, as with the public school illustration, if roads and beaches were all privately held, then protesters and nudists could contract with the owners of such property for usage under whatever mutually agreeable terms could be arranged. Adjudication and rights conflicts would not exist in a society which did not recognize the right of government to seize a portion of its citizen’s property without their consent.

Defenders of the status quo will claim it is possible, under such an arrangement, that some groups, because of the unpopularity of their ideas or behavior, would not have the means to exercise their “freedom” to speak or disrobe because there may be no property holders willing to offer them terms for use of their property; or failing that they may not have the resources to meet the terms which might be offered. Yet do these hypothetical circumstances legitimately constitute an unconstitutional restriction on First Amendment rights?

On the contrary, property rights prevent some individuals from seizing the property of others to promulgate their own views or activities. It is no more a denial of freedom to prevent the use of private property to exercise speech which the property holder does not approve, than it is a denial of freedom to not allow property to be taken from the affluent to the indigent so that the indigent may have the “freedom” to enjoy Iranian caviar or Dom Perignon champagne.

As long as individuals have the rights to life, liberty, and property, they will always have the freedom to obtain the means to exercise their freedom of speech. If the talents and energies of those holding unpopular views are sufficient, they will be able to earn a forum within the marketplace of goods and ideas. Instead of fearing that there would be less opportunity for expression in a society which holds private property as an absolute, there is every reason to expect there would be more.

Take, for instance, the striking contrast between what is available to the public through the printed versus the electronic media. In the United States, where private ownership of the press is widespread, there is no limit to the avenues of expression through that medium. On the radio and TV airwaves, however, where a “property” in airwave channels does not exist, broadcasters are subject to censorship, where airing offensive programming risks the prospect of a license not being renewed. In 1931 the Federal Radio Commission (precursor to the FCC) denied the renewal of a broadcasting license to a Mr. Baker, who operated a station in Iowa. The Commission ruled that Mr. Baker’s “. . . cancer cure ideas and his likes and dislikes of certain persons and things [and] his infliction of all this on his listeners is not the proper use of a broadcasting license.” (Decisions of the FRC, Docket No. 967, June 5, 1931)

In a more recent case, the FCC threatened the nonrenewal of a Honolulu radio station’s license because the station broadcast libertarian programs several hours a day for two years. When the FCC opened lengthy hearings in 1970 to consider nonrenewal of the station’s license, the threatened cost forced the owners to shut down.

Such forms of censorship could be prevented by homesteading the airwaves, and abolishing the restrictive franchises which currently exist with cable TV. In this way, consumers would be offered a greater variety and higher quality of programming instead of the bland, noncon- troversial fare now available.

Admittedly, the policy prescriptions advocated here for clearing up conflicts relating to the First Amendment depart so radically from current realities that it may appear pointless to even suggest them. Yet history has shown that ideas are a powerful force for achieving change. When allied with technological advances, the possibilities are limitless.

Already, the remarkable advances in telecommunications and computer technology, combined with a growing appreciation for free market economics, are creating something of a revolution within the FCC, where the emphasis is increasingly upon deregulation and privatization of the airwaves. The provision of services formerly considered the exclusive domain of local government is being increasingly called into question, as are exclusive government-sponsored franchises such as electricity, telephone service, and the exploration of outer space.

Even the sacred cow of universal public school education is coming under indirect assault with the policy initiatives of the Reagan Administration for tuition tax credits. While it would be naive to assume that the public schools or the interstate highway system will be privatized any time soon, the powerful trends toward greater recognition and appreciation for the free market—and the private property concepts on which it is founded—bode well for the furtherance of First Amendment protections over the long term.