speech and respect - College of Social Sciences and International ...

The Poverty of Civil Libertarianism
environments everyone has equal opportunity to speak, and each
voice carries equal weight with the attentive unbiased audience.
This section questions those assumptions, arguing that state action
constructs the value of speech, state withdrawal exposes speech to
powerful market forces, and private action is the greatest constraint
on speech.
A. The State Valorises Speech
The "marketplace of ideas" in which Oliver Wendell Holmes urged
that a proposition's truth be tested is no more free than any other
"free market." 48 Politics constructs all markets; the state defines
every right to property, including intellectual property. In an era of
mass consumption, such rights can be incredibly valuable. During a
recent two-year period, the pop group New Kids earned $115
million from their music. In 1992 Madonna signed a seven-year deal
with Time Warner worth $60 million, similar to the one Michael
Jackson had concluded with Sony a year earlier; Barbra Streisand
had to make do with $40 million. Time Warner was not giving
anything away; during the previous decade Madonna had generated
gross revenues of $1.2 billion. Prince sought to top both rivals by
valuing his contract with Warner Bros. Records at $100 million. But
all this was petty cash to the software industry, where Apple Computer
Inc. is suing Microsoft Corp. for $5.5 billion, alleging copyright
infringement. 49
Because habituation leads us to see property as a natural attribute
rather than a political artefact, some marginal examples may usefully
highlight its contingency. McDonald's Dutch subsidiary settled
a $2.7 million claim by Paul Bocuse for an advertisement picturing
the chef preparing chicken, on which was superimposed a bubble
showing him thinking "Big Mac." 50 McDonald's is no less possessive
of its carefully cultivated image. Claiming to have created a
"McLanguage" by naming more than 75 products, it has sued La
Capoterie for selling McCondoms, using a stylised yellow M as the
logo. 51 Several American universities have commenced legal action
against entrepreneurs selling notes taken without the lecturer's
permission. 52 In order to promote its paper nappies and soap
powder, Proctor & Gamble leased the panda logo from the World
Wide Fund for Nature for £300,000 and the image of a mother
cradling an infant from The National Childbirth Trust for
£250,000."
The state defines the rights of creative and performing artists.
When Jeff Koons sculpted a "String of Puppies" to parody Art
48