Property and Civil Liberties...in Space!
Justin Martin
The year is 2045, Blue Ivy Carter releases her third studio album, and space suits are in. Elon Dusk and a Jehovah’s Witness land on Mars.
Dusk’s landing on the planet is the first in a series of missions planned by his company SpaceZ that he hopes will make humans an interplanetary species. Dusk’s expansive career as a venture capitalist, entrepreneur, and political benefactor has been characterized by an ethos of bare metal efficiency that his detractors have called a ruthless pursuit of the future at the expense of people. Yet, this ethos has served Dusk well and he has now carried it to the nascent Mars Colony One (MC1) where he hopes to build a long-term settlement. Dusk’s companion is Ann Marsh, great-granddaughter of prominent Jehovah’s Witness Grace Marsh. Marsh has agreed to accompany Dusk as part of his efforts to promote MC1 as a base of intergalactic religious freedom.
As the two weary travelers touchdown on the rocky, red soil, Marsh unexpectedly unfurls a banner that reads “END SPACE JUNK: Embrace the new dawn of space without Elon Dusk!” Other space travelers near the landing site join Marsh in her protests against space junk, a byproduct of SpaceZ’s aggressive colonization and rocket launch schedule. They chant, “Hey hey, ho ho, Space Junk and Dusk, have got to go!”
Dusk watches the protest as a series of small asteroids rain down… “Freedom of…” *Speech* *Religion* *Expression* He shakes his fist angrily, “Not in my company town!”
Amid the swirling storm, Marsh begins to retell her great-grandmother’s story:
In the 1946 case Marsh v. Alabama, a shipbuilding company owned and operated a “company town” in Alabama. The shipbuilding company allowed residents from nearby towns not owned by the company to access the town’s businesses and facilities via company-owned sidewalks and streets. Religious pamphleteers sought to distribute literature in the company town but were prevented from doing so by town officials. The Court found in favor of the religious pamphleteers and held that after balancing the “Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion,” private ownership of the town was “not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties.”
Dusk, perplexed, but never at a loss for words, probes his interlocutor, “How do civil liberties make it to outer space?”
Marsh responds:
The power of international treaties of course! In 1967, the United States, United Kingdom, and Russian Federation (then the U.S.S.R.) signed the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,” better known as the Outer Space Treaty (OST). As other scholars have noted, the OST in conjunction with 18 U.S.C. 7 plausibly extends U.S. jurisdiction to space crafts and objects originating in the United States and to offenses committed by or against U.S. nationals in space. Elon Dusk is a U.S. citizen, registers his space property with the United States government, and his company SpaceZ is headquartered in the United States, thus establishing a potential basis for jurisdiction over Mars Colony 1 (MC1).
As Dusk puzzles at this new revelation of outside authority, he turns to observe nine figures cloaked in black robes furiously writing. “Must not have heard that SPACE SUITS are in!” he mutters. What they say next alarms Dusk:
AI JUSTICE BRENNAN delivered the opinion of the Court.
The general rule that protection of civil liberties may circumscribe the exercise of property rights applies as strongly outside the confines of Earth’s atmosphere as in it. In the case of Dusk’s Mars Colony One (MC1), Dusk might argue that the colony need not protect civil liberties like freedom of speech because it is a privately owned endeavor with transportation provided by a privately owned space company. Yet, others could persuasively argue that because the colony is promoted as a second planetary home for humankind, such a vision suggests that the colony would be open to the public, like the company town in Marsh. From there, the inference that MC1 would need to allow the free exercise of civil liberties is clear.
. . . . .
AI JUSTICE GINSBURG, concurring.
While Elon Dusk and others have suggested that humanity could be “here today, gone tomorrow,” the same could be said of freedom of speech and other civil liberties when humans once again breach the surly bonds of Earth. Yet here history may be a strong guide. When Marsh was decided, it was not clear that a property owner, even the owner of a company town, could be compelled to honor civil liberties in the same manner that a traditional municipality would. Despite the case’s novelty, the Court reached a conclusion that they believed reasonable considering the importance of the civil liberties at stake. Here, a similar challenge and opportunity exists, to ensure that our future as an interplanetary species honors and upholds the civil liberties that have made our political experiment on Earth possible. If humankind can survive in space, so can our most precious liberties.
As Dusk attempts to stop Marsh and the protesters, he hears the final words of the Court: “This is the decision of the space circuit. …It is so ordered.” Dusk sees the Space Force Marshalls standing in his path and stops.
In a moment of jubilation, Marsh and the protesters break into a modified chorus of their favorite late-20th century tune, “another one gone, another one gone, another one bites the Dusk…”
Justin Martin is a first-year law student at the American University Washington College of Law.
Image: Spongy101010, Future mars.
