The Dale Problem: Property and Speech Under the Regulatory State

Abstract

A contradiction lies at the core of the modern law of speech and property. The contradiction is captured by four propositions, all of which are widely accepted, but all of which cannot be true. Proposition 1: Freedom of speech is not subject to political revision. Proposition 2: Within broad limits, property entitlements are subject to political revision. Proposition 3: The freedom of speech does not include the right to use another person's property in order to convey one's message Proposition 4: All speech requires the use of some property. These four propositions cannot be reconciled. If it is true that economic entitlements, including most property rights, are subject to political revision, and if it is true that there is no right to use another's property for speech, and if it is true that speech requires property, then it cannot also be true that speech rights are immune from political revision. This article explores the ramifications of this simple but puzzling syllogism, using the Supreme Court's decision in Boy Scouts of America v. Dale as a central example. It concludes that contradictions in Supreme Court doctrine at the intersection of property and speech law make both our speech and property regimes less stable than they might at first appear to be.