David's recent post raises the interesting suggestion that government regulation of public space should, for the most part, mimic the rules that private owners would establish over a given type of space if it were privatized.

I agree with David's point that we would be better off if much of the land that is currently publicly owned were instead private. But I'm not sure he's right that government should have all or most of the same rights as a private owner would so long as the land remains in public hands. Here are my reservations:

1. Diversity.

David is absolutely right that most private owners would ban public (here, in the sense of visible, rather than in the sense of "on public property") sex and nudity on their own land. However, a minority would permit it, or at least would permit a greater degree of nudity and/or sexual behavior than would be acceptable to majority sentiment. If the government's rules for public land simply mirror those that a majority of private owners would enact, this diversity would be lost. This point applies far beyond the nudity issue. There are many behaviors that the majority dislikes, but that minorities differ about. Notice, as David himself points out, that his approach would permit (and perhaps encourage) government to regulate even many activities where the First Amendment is "implicated."

Unlike private space, public space is supposed to be, in effect, co-owned by everyone in the community. Therefore, it would be unjust, as well as often economically inefficient, for the state to exclude all uses of public space that the average or median private owner would forbid on his private property. At the very least, as I argued in my previous posts, the state should not be able to ban public behavior solely on the ground that the majority finds it "yucky," even though most private owners would ban such activities on their own land.

My rule might still not be as good as the private ownership alternative. But if the law does not ban "yucky" behaviors on public property, but does allow the majority to subject them to social pressure and opprobrium, social norms will end up limiting the incidence of "yuckiness" to something very roughly approximating the levels that would prevail if public spaces had a diverse set of private owners. Only those people with very strong preferences for aberrant behavior are likely to be willing to pay the cost of facing ridicule and social isolation. As some support for this conjecture, I note that I am familiar with communities (e.g. - Northampton, Massachusetts) where the authorities do little or nothing to enforce laws against public nudity and even against more discrete forms of public sex. Yet only relatively small numbers of people actually take advantage of this leniency. One of the commenters to my previous post noted a similar pattern in equally permissive Berkeley.

2. Monopoly Power.

Unlike most privately owned spaces, publicly owned space often involves monopoly power over an important amenity. For example, in most communities, the government is the owner of all or most roads. The local government is also often the owner of the only large public park. This monopoly power might not exist to the same degree if we adopt David's proposal of privatization, but it certainly exists in the status quo under government ownership. Basic economics suggests that monopoly providers of a service (here, access to key public spaces) should not have an absolute power to exclude people or behaviors they dislike. And this is in fact the approach that the law takes even with monopolistic private owners such as common carriers. At the very least, monopolistic government owners should not be given as much discretion in regulating land use as nonmonopolistic private ones.