Will Baude

Like there used to be a property right to your reputation.

That was what libel was about.

And then of course, the Supreme Court said, well, obviously the property right in your reputation still implicates free speech and we have constitutional scrutiny of libel.

Or copyright.

There's like property rights to various kinds of expression.

And most of the time we just think that's fine.

But there are cases where courts worry about whether that property right in your own expression would interfere with freedom of speech and you end up with fair use doctrine and all that stuff.

But it takes on like graffiti, right?

Like if I complain that if I like try to put my Ayn Rand graffiti on your house and then they prosecute me for it, I don't even get to the stage of saying like strict scrutiny or something.

They just say like this is not a first-time case at all.

Like you're just not allowed to spray people's houses.

It doesn't really matter whether it's speech at all.

Although there are also cases about like soliciting.

So there are cases about, you know, can the states have a default rule that says nobody is allowed to ring anybody's doorbell to hand out pamphlets?

And the answer is actually, they probably can't have that rule.

And so why can you have a default rule about no graffiti, but not a default rule about no knocking on people's door to give them, you know, pamphlets about saving their soul?

Probably, yes.

And certainly you can have a default rule that says, like, you know, you can go up to somebody's door, but you can't open the door and, like, come up to the second floor and knock on their bedroom door if you can't find them, right?

Yeah.

So also, so the way the case has gotten framed, the challengers are limiting their challenge to the application of this law to private property that is otherwise open to the public.