“Imagine if every Tom, Dick and Harry with something to sell or give away had unmitigated access to the park. It wouldn�t be Walden Pond it would be the Walden Supercenter.”

Apparently this is already the case; it’s just a matter of whether you are a Thoreau Society front which will be allowed to run a business there. It’s funny that you choose the word “Supercenter” because Wal-mart calls their largest stores “Supercenters” and they are just one storefront. Walden, according to the article, already has two shops selling their wares there. One of them is an ice cream truck which doesn’t seem to sell what Eldred was giving away.

To me, the question shifts from one of propertizing everything to recognizing the value of the commons and equity (even in the property mindset): does everyone have equal access to get a license so they can use this park in the same way the Thoreau Society does, or is the government mitigating access to the park so that the Thoreau Society may profit on the taxpayer’s dime? The article didn’t say if Eldred would never be able to get a license or if he would even apply for one after this incident. The article made it look like there’s considerable red tape for Eldred, however, and I would not be surprised if his previous ‘infraction’ would be used against him.

Typically, state and national parks grant concessions by competitve bid(that is if they don�t own the concession outright). The law requires competitive rebidding every so many years. If that be the case maybe Eldred should bid for the concession when it comes up for renewal. Of course, where is the protest value in that.

I’ll tell you where it is: Bidding is inherently biased against the poor. It’s much the same ruse the rich use to lure the poor into making every cubic foot of space ownable—the myth of property rights conferring or incentivizing improved maintenance on something. The rich (for instance, corporations) love this because they know they can outbid anyone else. The same problem exists when people recommend “voting with your dollars”, an inherenly undemocratic idea because the wealthy have more “votes” than the poor under this scheme.

Perhaps these “quaint” “old hippies” understand the value of a commons and the power to destroy the commons by carving it up so everything can be perceived in terms of property.

That’s exactly the case. Imagine if every Tom, Dick and Harry with something to sell or give away had unmitigated access to the park. It wouldn’t be Walden Pond it would be the Walden Supercenter.

Typically, state and national parks grant concessions by competitve bid(that is if they don’t own the concession outright). The law requires competitive rebidding every so many years. If that be the case maybe Eldred should bid for the concession when it comes up for renewal. Of course, where is the protest value in that.

These old hippies are so quaint. When I was a kid there was this hippie named Richard who lived in a teepee on his parent’s front lawn for three years. His parents finally told him to get a job and move himself and his teepee somewhere else. Now he lives in his own home but he still has the teepee in the garage.

The first case that came to my mind when reading this article is 1879’s Reynolds v. United States. Reynolds dealt with a polygamist challenged anti-polygamy statutes on religious grounds.

In that case SCOTUS held that a general non-religious law that happened to apply to religious behavior was constitutional. The key in Reynolds was that anti-polygamy laws regulate behavior that is not necessarily religious in nature.

In this “case” we have the government regulating logistical behavior that is not necessarily a free speech concern. It could be argued that the park’s policy is not intended to regulate speech, but rather to regulate activities that affect the tranquility and atmosphere of the park. It is apparent that the park has a compelling interest on behalf of the public in preserving that tranquility.

Open questions: How applicable would the Reynolds principle would be to this situation? Are there specific cases (links greatly appreciated) that would offer over-riding considerations? If it could be authoritatively shown that the park is trying to suppress “competition” from their bookstore, how legally damaging would that be, and more importantly, why?

– Neil Wehneman