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New York Times Co. v. Private Property
[January 3, 2003]

by S. M. Oliva

Last month CAC issued a report addressing the continuing controversy between the National Council of Women’s Organizations and the Augusta National Golf Club. Our report was not meant to assess Augusta’s membership policies, but to assess the policies and motives of NCWO, which for months has been attacking Augusta as symbols of discrimination against women. It was CAC’s view that the media coverage to date notably lacked any serious scrutiny of NCWO and its chairwoman, Dr. Martha Burk.

We concluded that Dr. Burk was running what amounted to a smear campaign against Augusta. She’s employed tactics that are facially irrational, and her various efforts to persuade Augusta’s corporate partners to boycott the Masters tournament amounted to argument by intimidation. In short, Dr. Burk is a bully, and the organization she heads is not making a good faith effort to debate the merits of their stated position. Indeed, CAC found that NCWO’s agenda goes far beyond the resolution of the Augusta dispute, although bullying the club into submission is likely a key to NCWO’s long-term plans.

The other facet to the Augusta story has been the coverage of the New York Times, ostensibly the foundation of the media establishment. The extent of the Times’ coverage of the Augusta story—and their editorial biases thereto—has been well reported in numerous outlets. We need not rehash those stories here. What should be noted, however, is the root of the Times’ ideological thinking, and how it comports with NCWO’s own agenda.

When all is said and done, the central issue of the Augusta dispute is private property rights. NCWO does not believe in private property. Their support for the United Nations so-called women’s treaty specifically abolishes private property rights by empowering the government to forcibly eliminate any gender “distinction” in society; this would extend to using legal force to integrate all-male clubs like Augusta. On a broader scale, the treaty would force the government to establish massive social welfare programs—on par with countries like Sweden—in order to liberate women from their roles as mothers. Children would become wards of the state as a matter of policy, and most private businesses would bear the burden of increased taxes and decreased worker productivity. This is what Martha Burk and NCWO, by their own admission, want to see. Augusta is just a means of winning attention and sympathy from a clueless mainstream media.

For its part, the Times rarely defends private property rights. The paper’s editorial board never met a tax cut they didn’t hate, or a government program they didn’t want funded. But the Times’ hostility to private property rights is more fundamental—and more concrete—than mere editorial policy. At this moment, the Times is a key player in a lawsuit now pending before the U.S. Supreme Court. The Times is not actually a party in Three O Realty v. Empire State Development Corp., but the newspaper stands to gain or lose the most from the final judgment. ESDC is a New York state agency that takes property away from its owners using eminent domain power and gives it—at a price far below market value—to other companies favored by the state. It was ESDC that re-developed Times Square in this manner, and now they’re seeking to expand the program. The ESDC is seizing buildings that house lawful, thriving businesses—which the state euphemistically characterizes as “urban blight.”

Under the Constitution, the government may only take private land for a “public use” after the owner is justly compensated. Three O, however, found their building seized for the “public use” of the New York Times, which plans to construct their new headquarters on Three O property. The state justifies their action on the grounds that the new Times building will provide valuable economic benefits to the city. But economic benefit is not a public use. Nor is the architectural benefit of the planned building a public use, despite the claims of some Times supporters, who say that the city will be “uplifted” by the building’s design. A public use is limited to those functions necessary to carry out a constitutional function of government, such as the courts or national defense. What the State of New York is doing amounts to pure redistribution of land.

The Times defends their action as necessary to protect their economic viability. They claim the cheaper cost of developing the stolen building—and the $29 million in special tax breaks that come with it—were simply too good an offer to refuse. The Times would violate their fiduciary duty to stockholders if they turned down the state’s offer. But duty to stockholders does not justify theft. The ethical desire to produce profit can never justify initiating force against another innocent individual. I could certainly use more money, but that need does not permit me to rob a bank in the name of “public use.”

The Times’ position is hardly surprising, as followers of their Augusta crusade should realize. The Times’ editorial board effectively seeks to confiscate Augusta National’s property and covert it to “public use.” Now, you might say that it’s not the same thing. After all, the Times isn’t using eminent domain to confiscate the Augusta golf club. That’s facially true, but not entirely accurate. A golf club’s membership, after all, is simply a method by which rights to the use of the club’s property is allocated. The argument of the Times and Martha Burk is that such decisions belong in the public sphere—that outside interest groups have a moral right to decide what membership policies are appropriate. If Augusta were to capitulate, they would effectively nullify their property rights.

Both the Augusta crusade and the Three O case emanate from exact same philosophical principle: All property belongs to the “public,” and individual rights are morally inferior to the will of the public. In turn, the public will can only be divined through competition among interest groups for political (and media) influence. If anything, the Times argument comes down to one of crude power: We’re a large newspaper, and therefore we’re entitled to decide what’s in the public interest. For her part, Martha Burk would like to think the same thing about her group, only she relies on gender tribalism—I represent women, therefore all women want what I want. Both viewpoints are equally irrational and noxious.

Augusta thankfully has the law on its side for now. Three O faces a more uphill battle. There’s no guarantee the Supreme Court will review this case, and even if they do the ultimate result is uncertain. Last Term, a 5-4 Court upheld an unconstitutional taking of property in another case, although to be fair, the violation in the Three O case is much more cut-and-dry. At the same time, New York law in the past 50 years has increasingly become anti-individual rights, especially anti-property rights. Without Supreme Court intervention, there will be no relief for Three O, and the state will continue their theft of private property essentially without restriction.

 

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