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When Libertarian Judges Rule

Libertarians have a distorted sense of what counts as free speech.

Billboards and advertising clutter the roadside in Leakey, TX, June 1972. Marc St Gil / The US National Archives

Prominent libertarian jurist Alex Kozinski has been accused of sexual harassment by six women, all of them former clerks or employees. One of the women is Heidi Bond. In a statement, Bond gives a fuller description of Judge Kozinski’s rule, sexual and non-sexual, in the workplace.

One day, my judge found out I had been reading romance novels over my dinner break. He called me (he was in San Francisco for hearings; I had stayed in the office in Pasadena) when one of my co-clerks idly mentioned it to him as an amusing aside. Romance novels, he said, were a terrible addiction, like drugs, and something like porn for women, and he didn’t want me to read them any more. He told me he wanted me to promise to never read them again.

“But it’s on my dinner break,” I protested.

He laid down the law — I was not to read them anymore. “I control what you read,” he said, “what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?”

The demands may seem peculiar, but the tyranny is typical. Employers control what workers read, when workers shit, all the time.

But Judge Kozinski has the added distinction of being one of the leading theoreticians of the First Amendment. And not just any old theorist but a libertarian theorist — he has a cameo in the film Atlas Shrugged: Part II — who claims that the First Amendment affords great protection to “commercial speech.”

Where other jurists and theorists claim that commercial speech — that is, speech that does “no more than propose a commercial transaction” — deserves much less protection than political or artistic speech, Kozinski has been at the forefront of the movement claiming that the First Amendment should afford the same levels of protection to commercial speech as it does to other kinds of speech. Because, as he put it in a pioneering article he co-authored in 1990:

In a free market economy, the ability to give and receive information about commercial matters may be as important, sometimes more important, than expression of a political, artistic, or religious nature.

And there you have it: watching a commercial about asphalt? Vital to your wellbeing and sense of self. Deciding what books you read during your dinner break? Not so much.

Government regulations of advertising? Terrible violation of free speech. Telling a worker what she can read? Market freedom.