A Sketch of a Libertarian Account of Public Property

Sometimes “bordertarians” argue that the state may restrict immigration because it may dictate how public property—specifically public roads—can be used. On this view, if the state decides that immigrants may not travel on public roads, then immigrants may not travel on public roads.

This is a bad view. I doubt that many of those who endorse it would grant that the state may prohibit citizens from traveling on public roads with books defending libertarianism in their car. States don’t have carte blanche to violate people’s liberties so long as they’re located on public property. This is (one reason) why the “public property” objection to freedom of immigration fails—the state may not violate people’s freedom of association or movement simply because they happen to make use of public roads.

But there remains an interesting question here. How should libertarians think about the rules governing the use of public property that they would nevertheless prefer to privatize like public roads, libraries, or schools?

The view that the state owns public property in roughly the same way that you own private property isn’t going to work—that would permit the state to impose too many restrictions. Consider, for instance, that you’re within your rights to prohibit anyone wearing a Dallas Cowboys shirt from attending the Super Bowl party at your house (not that there’s much of a chance of the Cowboys playing in a Super Bowl). But the state shouldn’t prohibit anyone wearing a Cowboys shirt from entering public libraries (despite the negative externalities the shirt generates).

So what’s a better view of public property? Here’s a first take: the state is justified in enforcing only those restrictions on the use of public property that are needed to ensure its functioning, assuming that the function of that property is, in itself, morally permissible. (Clearly the state is not justified in using public property in ways that directly violate rights, just as citizens are not justified in using private property in ways that directly violate rights.)

For instance, a public library may restrict your freedom to check out books by requiring that you have a library card because that restriction is needed to ensure that the lending system functions properly. But the library would not be justified in prohibiting those wearing Cowboys shirts from entering the library because that’s not needed to ensure that the library is able to do its job.

Similarly, the state may restrict your freedom to drive on a public road when, for instance, it’s being repaired. That’s needed to ensure that the road functions properly. But the state would not be justified in prohibiting you from transporting particular books or people in your car.

No doubt this account will need some refinement, but I think it’s at least the start of an answer to a hard question for libertarians.