There are circumstances in which the rights of Americans come into conflict with one another, and when that happens people will tend to differ on the priority of one right over another. Take property rights and freedom of expression, for instance. The First Amendment to the United States Constitution guarantees Americans’ freedom of speech. But that right has been taken to exist mainly in the public arena; when a person purchases server space and a domain name, they are said to own a website and have a right to moderate the comments of others there. Newspaper owners have the right to accept or decline letters to the editor. Moving away from written media, you aren’t free to budge into your neighbor’s bathroom and hold forth for hours about the relative merits of American League versus National League baseball teams. Your neighbor’s ownership of her home and her bathroom grant her control over what is said and done there. Her property rights trump your speech rights, and if you don’t like it, you’ll have to take your whining about out of her bathroom and back over to your porch where it belongs.
Matters become more complicated when the nature of ownership is blurred and expression moves from words to actions. What if your neighbor rents? Could the actual owner of her bungalow include a provision in the property lease that allows you to at least enter her living room on demand and quote baseball statistics? Could the property owner require tenants to refrain from holding political meetings in the homes tenants rent? Could the property owner ban the placement of political campaign signs in the yard?
What if a property owner prohibited tenants of a property from flying a flag from the home? What if a homeowner association, which has control over the covenants home buyers sign, dictates that home owners in a development cannot fly a flag from their home? Such cases have arisen in the United States, and in those cases property rights conflict directly with freedom of expression — particularly, the freedom to express oneself by flying a flag. Back in 2005, both the House and the Senate passed H.R. 42, the Freedom to Display the American Flag Act, without a single recorded vote in opposition. Republicans and Democrats alike took to the floor in our nation’s Capitol to extol the virtues of free speech in the promotion of patriotism, and to condemn the dastardliness of property owners or homeowners’ or condominium association boards who attempted to prevent residents from displaying American flags. President George W. Bush signed the Freedom to Display the American Flag Act into law. Action on this bill by Republicans and Democrats alike clearly prioritized the right to place a flag on a property over the right of property owners to dictate how their property is used.
On May 28, 2009, the Maine House passed LD 73, An Act To Protect the Right To Use Solar Energy. LD 73 would make it illegal for deeds, covenants or any other contracts (presumably including leases) to prohibit the erection and use of clotheslines to dry clothes using the clean, renewable energy of the sun. The breakdown of this vote was 76 in favor and 65 against. Every Republican member of the Maine House but one was either not present for the vote or voted against the bill.
When it comes to putting up a flag, Republican legislators are gung-ho about putting property rights on the back burner and supporting the right of residents to do what they wish. When it comes to putting up a clothesline, Republican legislators suddenly are very much interested in property rights and rather uninterested in the right of residents to do what they wish. That’s interesting.