Freedom of speech would be a fairly meaningless right if it protected only speech everyone agreed with.

Think about it.

If I stand in the town square and say something every person in town believes, I don’t need the First Amendment.

Nobody is trying to stop me.

I need the First Amendment when I say something that makes somebody angry.

Something unpopular.

Something offensive.

Something the majority wishes I wouldn’t say.

That’s when a right matters.

The United States Supreme Court expressed this principle plainly in Texas v. Johnson, the case involving the burning of an American flag:

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

I believe we should think about private property rights in much the same way.

If I own 100 acres and my neighbors get to determine what I may do with it, exactly what does it mean to say I own it?

If my private property rights protect only the uses my neighbors approve of, I don’t really need property rights.

My neighbors have already given me permission.

I need property rights when I want to do something with my property that somebody else doesn’t like.

There are limits.

There should be.

Suppose I build a factory on my property and a smokestack begins sending billowing smoke across the property line and into my neighbor’s house.

That’s different.

My use of my property is now interfering with his use of his property.

The same principle applies if I contaminate his water, intentionally flood his property, create dangerous conditions or otherwise impose a genuine physical harm on someone else’s land.

My property rights don’t include a right to destroy his.

American law has recognized this distinction for generations.

In Lucas v. South Carolina Coastal Council, the Supreme Court discussed the government’s historic ability to prevent harmful or nuisance-like uses of private property. Property ownership has never meant that an owner can use his land in a manner that creates a genuine nuisance or harms his neighbors.

That’s reasonable.

But now let’s change the example.

Instead of a smoke-belching factory, suppose I want to build an apartment community.

Or a manufactured-home community.

Or a campground.

Or townhomes.

Or small detached houses on 35-foot lots.

Or, for that matter, a gated neighborhood filled with million-dollar homes.

My neighbors may like one of those.

They may hate another.

But here’s the question:

Have I harmed them, or have I simply done something they don’t like?

Those are not the same thing.

And increasingly, our land-use system treats them as though they are.

Someone goes to a zoning hearing and says apartments will “change the character of our community.”

Someone doesn’t want townhomes near his subdivision.

Someone thinks the houses are too small.

Someone thinks the lots are too narrow.

Someone doesn’t want renters nearby.

Someone bought a house beside property he doesn’t own and nevertheless believes he should have some authority over what eventually gets built there.

And government listens.

In many communities, government doesn’t simply enforce objective rules involving sewer capacity, roads, stormwater, fire protection, environmental protection and public safety.

It asks whether neighboring property owners approve.

Why?

Imagine applying that standard to another constitutional right.

You may speak, provided your neighbors approve of what you’re going to say.

You may worship, provided the surrounding neighborhood approves of your religion.

You may publish a newspaper, provided the city council agrees with the editorial page.

We would immediately recognize the problem.

A right subject to the approval of the people who disagree with its exercise isn’t much of a right.

Private property deserves more respect than that.

The Supreme Court has repeatedly recognized property ownership as containing a collection—or “bundle”—of rights. One of the most fundamental is the owner’s right to exclude others. In Kaiser Aetna v. United States, the Court described the right to exclude as a “fundamental element of the property right.”

That principle raises another question.

If I have the right to exclude my neighbor from my property, why should my neighbor nevertheless possess something approaching a veto over its otherwise lawful use?

I’m not suggesting property owners should be able to do anything they want.

I’m suggesting we return to the distinction between harm and disagreement.

That’s an important distinction.

Smoke crossing the property line is harm.

Polluted water crossing the property line is harm.

Floodwater created by my development and discharged onto another person’s property is harm.

Those things should be regulated.

But seeing an apartment building from your backyard isn’t the same thing.

Knowing renters live down the road isn’t the same thing.

Disliking manufactured homes isn’t the same thing.

Preferring five-acre lots to quarter-acre lots isn’t the same thing.

Traffic, infrastructure, stormwater, sewer capacity, fire protection and environmental impacts can be measured. Establish objective standards for them.

Then enforce those standards.

But once a property owner satisfies legitimate health, safety, environmental and infrastructure requirements, government should need a compelling reason to tell that person his otherwise lawful use of private property is prohibited.

“The neighbors don’t like it” shouldn’t be that reason.

This is particularly important during a housing-affordability crisis.

We routinely say America needs more affordable housing.

Then someone proposes apartments.

Not here.

Townhomes?

Not here.

Small detached houses?

Not here.

Manufactured homes?

Certainly not here.

Everyone supports affordable housing somewhere.

Just not on the property they can see.

That’s where the comparison with free speech becomes so important.

Everyone supports free speech when the speaker says something they agree with.

The First Amendment matters when he doesn’t.

Likewise, everyone supports private property rights when the landowner wants to do exactly what his neighbors prefer.

Property rights matter when he doesn’t.

That doesn’t mean either right is unlimited.

You cannot use speech to engage in certain narrowly defined unlawful conduct.

You cannot use your property to create a nuisance that physically harms someone else’s property.

Rights coexist with the rights of others.

But disagreement itself cannot become harm.

Otherwise the word “rights” begins losing its meaning.

Perhaps our land-use system needs a simpler test.

Does the proposed use actually harm neighboring property, or do the neighbors simply dislike it?

If there is genuine harm, regulate the harm.

Require adequate infrastructure.

Control stormwater.

Protect waterways.

Require safe roads.

Provide fire protection.

Enforce building codes.

Protect neighboring property owners from actual intrusion.

But if the objection is simply that someone doesn’t want apartments, manufactured homes, smaller houses or some other lawful residential use nearby, government should remember whose property is being discussed.

It belongs to the landowner.

Freedom of speech doesn’t mean much if it protects only agreeable speech.

And private property rights don’t mean much if they protect only agreeable uses of private property.

Rights aren’t really tested when everybody agrees.

They’re tested when somebody doesn’t.

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Sources

U.S. Supreme Court, Texas v. Johnson, 491 U.S. 397 (1989). The Court held that government may not prohibit expression merely because society considers the idea offensive or disagreeable.

U.S. Supreme Court, Kaiser Aetna v. United States, 444 U.S. 164 (1979), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The Court has described the right to exclude as a fundamental element of property ownership while also recognizing government’s historic authority to prevent genuine nuisance-like or harmful uses of property.

Jay Knight is a Georgia residential developer and the author of Zoned Out: How Cities and Counties Make Homes Unaffordable.