Theft of free papers

[Volokh, Eugene]

        I don't think it's quite a matter of "limit one" forming a
*contract* -- rather, it's the reservation of a *property* right.  It's
saying "I retain my property right in the newspapers; I am not abandoning
them; I am permitting you to take one copy per person, but as to any copies
beyond that, I retain my property right -- they're just as mine as the
bicycle I leave up against a tree, and you can't take them."

        But I'm much more intrigued by Lynne's argument that taking the
papers is "speech."  Two questions:

        (1)  I genuinely dislike the L.A. Weekly, which I think has a
tremendous amount of speech that varies from foolish to evil.  I can
probably find quite a few people who take the same view.  If we made it a
practice to every week take all the copies of the L.A. Weekly we can, and as
a "response[] to the speech" threw them out (or recycled them and donated
the proceeds in the Dartmouth Review), would that really be morally
permissible?

        (2)  Let's say that a state legislature or a university prohibited
such behavior, for instance saying that it's theft to take more than, say,
two copies per person of any free newspaper that is labeled "Maximum two per
persom."  Is the claim really that people would have a First Amendment right
to engage in "expressive conduct" by seizing and destroying -- or selling
for recycling -- the entire print run of a paper despite that law?  Can that
really be so, given O'Brien and Clark, and in fact given any reasonable
interpretation of the First Amendment?

        I don't deny that destroying a newspaper may be expressive conduct,
especially if it's done in public -- it just seems to me that it's
expressive conduct that the government may quite properly punish using (for
instance) the law that I describe above.

        Eugene

Lynne Henderson writes:

> As Leslie said in an earlier post, we've been thorugh this before on this
> list, but I will chip in anyway.  Mark's point on abandonment is certainly
> related ot the question of "free ' papers.  In a way they are abandoned.
> Even if the paper says "limit one", I am not sure that forms any kind of
> contract that would bind.  Even if the papers were still someone's
> "property", someone still would not be guilty of theft if they believed
> the
> papers were free for anyone's taking of however many ..  If someone
> believes
> they are not anyone's property, that's it--no mens rea as to the crime of
> theft, the intent permanently to deprive the owner of her property.  The
> classic old case of U.S. v. Moritsette deals with the question of whether
> converting government property is a strict liability crime, but it also
> involves Morrisette's honest belief that the shell casings he took to sell
> for scrap were abandoned.
> The taking also could be viewed as expressive conduct or responses to the
> "speech" in the offending papers.  "Freeodm of speech" doesn't mean no one
> has a right to respond. Thus,even if some would argue the tehft isn't
> technically illegal but might be immoral, the counterargument is that it
> is
> equally moral to express your views by taking as many of the offending
> free
> papers as you are entitled to.
> Finally, From my experience in criminal law, I cannot conceive of a DA
> charging someone *unless* it were to hassle them because of their
> beliefs--and of course that would not be ethical.
> Lynne
>
> on 10/27/01 11:46 AM, Mark Tushnet at tushnet at LAW.GEORGETOWN.EDU wrote:
>
> > Two (and a half) points.  (1)  Don't know much about property, but isn't
> > there some notion of abandonment that would come into play here?  The
> > bicycle isn't abandoned, the newspapers I put at my curb for recycling
> > are (anyone can take them and read them or -- subject to some municipal
> > regulation granting someone else a monopoly -- pick them up and sell
> > them for recycling).  I haven't a clue about what property-law types
> > would say on the question of whether free newspapers are abandoned, but
> > I'd think it helpful to ask them.
> >
> > (2)  Eugene asks:  "would we all agree that it would be good for
> > universities and state legislatures to enact statutes prohibiting people
> > from taking more than, say, two copies of a free newspaper per person
> > (or something along those lines)?  Or would it be good if, say, those
> > conservatives, libertarians, and moderates who were outraged by the L.A.
> > Weekly's frankly near-socialist and (in many people's eyes)
> > anti-American perspective had a legal right to make a habit of throwing
> > out -- or, better yet, recycling and contributing the money raised to
> > conservative causes -- all the copies of the newspaper that they could
> > find?"  Aren't there two senses of "good" being confused here?  One
> > invokes the first sense in describing a legislative enactment, and the
> > second in describing the actions of individuals.  It's not obvious to me
> > that the criteria of goodness are the same with respect to the two types
> > of action.  (A libertarian might think that the statute was bad --
> > because most statutes are bad, perhaps -- but the actions of the
> > newspaper takers were good, for example.)
> >
> > 2 1/2.  Isn't the concern captured by the rule of lenity precisely that
> > it's going to be really hard to pin down the parenthetical "(or
> > something along those lines)"?  Two? (What about my habit of picking up
> > one for myself and one each for my two daughters?)  Ten?  (What about
> > the teacher who thinks that the weekly local-politics column is valuable
> > for the students in her local politics class and takes twenty every week
> > for one semester a year, and distributes them to her students?)  "A
> > reasonable number"?
> >
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