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J. H. Huebert, J.D.
Columbus, Ohio USA

Walter Block, Ph.D.

Harold E. Wirth Eminent Scholar Endowed Chair in Economics
Loyola University New Orleans
New Orleans, Louisiana USA

ABSTRACT and the money the sponsors pay presumably

goes to fund further space ventures.3
The prospect of orbiting “space Hereafter, when this paper refers to
billboards” visible from Earth has disgusted “space advertising” it has in mind something
many, and prompted a law against them in more novel and provocative than those
the United States along with plans to ban relatively mundane efforts: space billboards.
them by international agreement. We, For more than a decade, technology has
however, disagree with the conventional existed that could put billboards in space.
view, and find legal prohibition of such Not merely billboards for the many
signs unjustified. This paper examines anticipated space tourists of the near future
proposals to put billboards in space, to see as they pass by,4 but actual signs in
considers the laws affecting such billboards, low orbit that would be visible from the
refutes the aesthetic and astronomical Earth’s surface.
objections to space billboards, and finally The first and, to our knowledge, only
concludes that restrictions on space serious proposal to place billboards in orbit
billboards are not justified. Instead, space around the Earth came from Michael
billboards should be permitted out of respect Lawson, chief executive officer of Space
for private property and free-speech rights. Marketing Concepts, Inc., in April 1993.5
He proposed “environmental billboards” that
I. BILLBOARDS IN SPACE would carry – in addition to a marketing
message – scientific instruments such as
Advertising in space is not new, or “ozone measuring devices.”6
particularly controversial in itself. Pizza According to a report by the
Hut, for example, paid to place its logo on International Astronomical Union, the Space
the side of an unmanned Proton rocket in Marketing billboards would have been about
20001 – and Columbia Pictures advertised one square kilometer in dimension and
the famous Arnold Schwarzenegger flop, would have been comparable to a full moon
The Last Action Hero, on the side of a rocket in their size and brightness in the sky.7
carrying the first private commercial space Other reports, however, have suggested that
mission.2 Such publicity stunts have met space billboards might appear half the size
with little, if any, negative reaction because, of the moon, perhaps one tenth as bright,
after all, they involve ordinary space and only visible during certain hours, around
vehicles people might not otherwise look at, dusk and dawn.8

Lawson’s grandest and most specific being recognized by a human being on the
proposal involved space billboards surface of the Earth without the aid of a
promoting, or visible during, the 1996 telescope or other technological device.”15
Olympic Games in Atlanta.9 The City of The statute,16 added October 30, 2000,
Atlanta’s marketing director even proposed provides:
advertising the city itself on a space
billboard to then-Mayor Maynard Jackson. Notwithstanding the provisions of
He rejected the idea, deeming space this chapter [49 U.S.C. §§ 70101 et
billboards “environmental pollution” and seq.] or any other provision of law,
noting that – proud as he presumably was of the Secretary [of Transportation]
his city – he did not want to see a space may not, for the launch of a payload
billboard promoting it or anything else in the containing any material to be used
sky.10 for the purposes of obtrusive space
Lawson’s scheme failed for lack of advertising--
funding – i.e., no one wanted to pay what it
would have cost to advertise on one of his (1) issue or transfer a license under
proposed billboards.11 Nonetheless, his this chapter; or
plans prompted the United States Congress
to ban “obtrusive space advertising” and (2) waive the license requirements of
establish a policy of encouraging other this chapter.
countries to do the same, as discussed in
detail in the next section. As a result, no The statute further prohibits anyone
new space-billboard schemes appear already holding a license from launching
imminent, at least in America. such a payload,17 and exempts
Russian spacecraft designer Alexander “nonobtrusive commercial space
Lavrynov, however, purports to have advertising, including advertising on (1)
invented a method by which multiple commercial space transportation vehicles;
satellites employing sunlight reflectors could (2) space infrastructure payloads; (3) space
create advertising images in the sky visible launch facilities; and (4) launch support
from Earth.12 His plan’s technological and facilities.”18
economic feasibility remain unknown, but Finally, when it passed the above statute,
Russia has been at the forefront of other the U.S. Congress also made requests of the
space advertising efforts,13 and also notably U.S. President:19
launched a failed space mirror intended to
light up the night sky in 1999.14 (1) The President is requested to
negotiate with foreign launching
II. THE LAW OF SPACE nations for the purpose of reaching
ADVERTISING one or more agreements that prohibit
the use of outer space for obtrusive
A. The United States space advertising purposes.

As noted above, entrepreneurial efforts (2) It is the sense of the Congress

to launch space billboards prompted the that the President should take such
United States Congress to essentially ban action as is appropriate and feasible
“obtrusive space advertising,” defined as to enforce the terms of any
“advertising in outer space that is capable of agreement to prohibit the use of

outer space for obtrusive space that the 1967 Outer Space Treaty – the
advertising purposes. foremost document in international space
law – bans private property or restricts
In May 2005, the Federal Aviation commercial activity in outer space generally.
Administration proposed new regulations Such views have been widely rejected,
enforcing this statute – essentially seeking to however, and seem unlikely to find much
add to the Code of Federal Regulations the support in light of the ever-increasing drive
same language already in the statue, for private entrepreneurial activity in
directing the FAA to review payloads “to space.24 Some might also argue that the
determine if the launch of [a] payload would Outer Space Treaty bars advertising because
result in obtrusive space advertising.”20 it requires that outer space be used “for the
Although the proposed regulations would benefit of all mankind.” As we will see
have added nothing substantive to the below, however, benefits are subjective, and
already-existing law, they drew strong what is a benefit to one person almost
comments pro and con from the public.21 certainly will not be viewed as a benefit by
Ultimately, the FAA did not adopt the another – and conflicts between the two can
proposed regulations because it concluded only be resolved by the arbitrary exercise of
that “the statutory prohibitions are sufficient violence in the absence of private property
to prevent the launch of a payload rights.
containing obtrusive space advertising.”22
To our knowledge, the United States so III. AESTHETIC AND
far has not had an occasion to enforce its ASTRONOMICAL OBJECTIONS TO
prohibition on obtrusive space advertising. SPACE ADVERTISING

B. The Rest of the World The primary objections to advertising

have been in two categories: aesthetic and
The international agreements on space astronomical. That is, people have claimed
advertising that the United States Congress that space advertising should be restricted or
exhorted the President to enter have yet to banned because of the advertising’s
materialize. Other major spacefaring supposed aesthetic offensiveness, or because
nations, notably including Russia, have not this mode of communication would restrict
enacted similar bans. the supposedly more important activities of
Little evidence exists that an astronomers.
international ban is a high priority. Sergei In this section, we consider these
Negoda of the United Nations Office for arguments and offer some ideas on why
Outer Space Affairs told NEWSWEEK in these objections fail to justify a ban on space
2005 that the issue was “not on the agenda” advertising. In the next section, we will
and likely would not be “unless all member offer our view that private property rights
states . . . reach a consensus.” He added that are the only means of resolving the disputes
the present push for the commercialization regarding the appropriateness of space
of space (also spearheaded by Americans) advertising.
made such an agenda item unlikely.23
To our knowledge, no one has attempted A. Aesthetic Concerns
to argue specifically that existing
international law bans space advertising. Perhaps the most widespread objection
Some, however, have of course maintained to space advertising is aesthetic.

For example, in exhorting his fellow advertise its Playstation Portable video game
Congressmen to enact the U.S. ban on space machine in Philadelphia. Some “anti-blight”
billboards, Representative Edward Markey advocates were appalled – but others
disparaged such advertising by claiming it appreciated the graffiti as “art” and
would “turn our morning and evening skies, considered it an improvement over the status
often a source of information and comfort, quo.31
into the equivalent of the side of a bus.”25 A Further, in holding their apparent view
pamphlet from a gloomily monikered group that advertising is everywhere and to
called the International Dark-Sky everyone unpleasant, anti-advertising
Association declares that “worse still” than advocates seem to forget that advertising is
the alleged astronomical problems space intended to appeal to as many people as
billboards cause is “the destruction of the possible in order to sell them a product.32
pristine beauty of humanity’s view of the An advertisement that disgusts its viewers is
universe.”26 A commenter on the FAA’s unlikely to serve its purpose well. As
proposed regulation of obtrusive space economic journalist Virginia Postrel has
advertising argued that such advertising noted, “Competition pushes commercial
should be prohibited because of its similarity artists to create attractive, visually appealing
to “ugly billboards along highways.”27 And images.”33
a legal commentator advocates a treaty Indeed, given that advertisements are
banning such advertisements worldwide generally designed to be pleasing to people,
because of their potential to “interfere with it seems that those who only wish to see
nature in a truly profound way.”28 nature unfettered have the more peculiar
These negative views, however, do not view. After all, it is merely an accident that
tell the whole story. the Moon’s face has been scarred in the way
that it has been over the eons. What if,
1. Some People Just Might Like instead of looking somewhat like a “man in
Space Billboards the Moon,” the Moon’s face coincidentally
looked like the Pizza Hut logo? In that case,
While it is true that many people dislike presumably the anti-advertising advocates
the sight or even the thought of billboards or would have no problem with the logo’s
other publicly displayed advertising, it is not presence and would insist that no one
true that everyone feels that way. If tamper with it. So why is a given image
everyone agreed, there would be no acceptable only because it occurred
controversy. according to no one’s design? It seems to us
In fact, some people appreciate that anti-advertising advocates bear a heavy
terrestrial billboards for the information they burden in attempting to defend the
convey.29 Others may appreciate them accidental status quo over images actually
simply for breaking up what they consider to intended to please and presumably benefit34
be the monotony of the natural landscape.30 humans.
In some cases, people may enjoy
billboards aesthetically, independent of the 2. A Sky Full of Spam?
substance of the billboards’ message. For
example, Sony recently hired graffiti artists Granted, there is at least one form of
to paint the sides of abandoned buildings – advertising that virtually everyone hates: e-
without even mentioning its brand names or mail spam. Indeed, spam has been invoked
indicating that it was advertising – to to scare people into supporting space

billboard prohibition.35 But e-mail spam is provides another example of an arguably
fundamentally different from ordinary spam obtrusive advertising presence overhead –
in two critical ways. which tends to delight rather than disgust
First, there are the economics. E-mail virtually all who catch a glimpse of it.
spam is almost costless to transmit, so A case of space-advertising-in-reverse
although almost everyone other than its also recently occurred, as men’s magazine
senders hates it, even a tiny handful of Maxim placed a 75-by-100-foot
favorable responses may make the enterprise reproduction of a magazine cover featuring
worthwhile.36 Further, spam is not actress Eva Longoria in the Nevada desert.40
necessarily intended to advertise to or Whether or not this was actually “big
otherwise please the recipient – often it enough to be seen from space,” as the
contains nonsense or obscenities serving no magazine boasted, it surely was visible to
apparent purpose. Space billboards, in those, say, flying over in an airplane,
contrast, would be expensive to create and whether they liked it or not.
launch. Indeed, the billboards Lawson Some may distinguish these examples by
proposed in 1993 apparently were so stating that those advertisements can only be
expensive (reportedly $15 to 30 million)37 occasionally seen in a relatively limited
that no one was willing to buy space on one. geographical area, while space billboards
Presumably as technology improves, costs could conceivably always be visible.41 But
will decrease – but it seems highly unlikely to date no one except space billboards’
that a spam-like glut will occur, with or opponents has raised the prospect of
without a ban. advertising that would be visible at all times,
Another crucial distinction between or in all places. A gigantic space billboard
spam and space advertising is relevant to our would likely have a limited lifespan in any
argument in the section that follows. The event because of the large number of
spammer invades the property rights of the collisions with space debris it would face.
computer owner who does not wish to The Space Marketing project, for example,
receive spam,38 often with impunity because expected its billboards to be struck by
of the ease of hiding one’s identity online. 10,000 pieces of debris per day until its
Space advertising, however, does not ultimate destruction.42
necessarily intrude upon property rights: a
person who owns property on Earth does not B. Astronomical Concerns
own the sky above it, nor does anyone else
who has not in some way actually possessed The present authors are not astronomers,
the space.39 and therefore do not question astronomers’
claims that space advertising would make
3. Space Advertising is Not ground-based astronomical observation
Aesthetically Unique more difficult.43 We do, however, question
their claim that this justifies them in telling
The idea that space advertising presents the rest of the world what it can and cannot
a novel situation requiring unprecedented do in the sky.
legal restrictions fails, because similar forms The common law has never recognized a
of advertising already exist. right to a view – and, though it may have
For example, at present, one can already been altered in various cases by legislation,
advertise in the sky by pulling a banner it still does not.44 That is, for example, if A
behind an airplane. The Goodyear blimp buys a piece of property and makes

observations out of his window with a Another rule from the Roman and
telescope, then B comes along and puts up a common law under which astronomers
high rise on an adjacent piece of land such might claim a right to an unrestricted view
that A can no longer make his observations, of the skies has been rejected almost
A has no cause of action against B. Space universally: the ad coelum doctrine. Under
advertising does not present a situation this rule, a party who owned a piece of land
fundamentally different from this. also owned everything above it, all the way
There are several serious practical and up through the heavens.47 This dubious
philosophical objections that can be leveled doctrine necessarily died because it would
against the position that people have the have outlawed aviation and non-advertising
rights to own views. First, on the pragmatic satellites.48
front, it would be extremely difficult to Thus, rather than invoke a property-
establish who owns which view. Merely rights rule, concerned astronomers seem to
looking at something is surely less want an exception to the rules of property
discernable, not to say objective, than rights. We, however, will advance an
“mixing one’s labor” with virgin territory, as argument for strict property rights – with no
in the case of homesteading.45 Then, too, to exceptions for astronomers, astronomer-
own something is not merely to be able to lovers, or anyone else – in the following
(continue) to use it; it is also to be legally section.
able to prevent others from so doing. For now, we will simply observe that
Suppose Jones is the first to see the moon. astronomers have failed to make the case
Thus, under this theory, he owns the view of that ground-based astronomy is so essential
it. How is he to be able to prevent others to human well-being that it requires a
from looking at this heavenly body? The deviation from the usual rules of property
problem here is that views are not rivalrous. rights. After all, the space-based Hubble
More than two people, to say the least, can telescope has offered unprecedented views
appreciate the sight of the moon. In contrast, of the universe in recent years, free from the
cows, cars and candles are rivalrous: if one so-called light pollution that hampers
person uses these things, then others cannot. astronomers’ efforts with earthbound
But the whole point of ownership in the first telescopes. Undoubtedly, space advertising
place is to have a rule determining which could reduce the overall level of
person can, and thus which one cannot, astronomical observation that occurs – but
access the thing to be owned. If more than astronomers have not made the case that an
one person can look at the moon without astronomy that tramples on the rights of
interfering with another’s view, and if, others results in the economically optimal
indeed, millions of people can do so, then amount of astronomical research. In the
what is the point of ownership? There isn’t absence of such evidence, the astronomers’
any.46 Then there are truly anomalous efforts appear to be little more than common
situations; the first person to see a newborn theft-seeking:49 that is, seeking government
child will in many cases be the obstetrician, privilege to ensure their continued
not the mother or father. If view ownership employment or, at least, advancement of
is strictly interpreted – and how else are we their own special interests.
to interpret it? – this would mean that the As with the aesthetic concerns, we again
medical man, not the parents, is the rightful face a situation of conflicting subjective
guardian of the child. preferences: some favor advertising and less
ground-based astronomical observation,

while others more highly rank no advertising 2. Or It Might Not Happen at All
and more ground-based astronomical
research. In Section IV, below, we turn to It may also be that space advertising will
our proposal to resolve these conflicts: strict not proliferate regardless of whether it is
private property rights. But first, we address prohibited or permitted. After all, the Space
some other pragmatic concerns. Marketing venture failed because no one
wanted to pay the $15 to 30 million the
C. Other Pragmatic Concerns advertisements are reported to have cost.50
If that is the case, then the prohibition may
1. Space Advertising May Be appear to be harmless. It is not necessarily
Inevitable . . . harmless in any event, however, because it
may discourage otherwise-useful innovation
Regardless of the merits of the and technology that ultimately unsuccessful
advertising haters, space advertising may be space-advertising ventures would have
inevitable. The technology exists, and if developed, or that those not primarily
someone wants to put up the money, he can engaged in advertising do not develop for
have his name in lights in space. If the fear of running afoul of the space-
United States will not allow the launch, advertising prohibition.
Russia or another country that cannot afford
the luxury of turning down such business IV. SPACE ADVERTISING,
If this is the case, then the issue is not SPEECH
whether we should allow space advertising,
but whether individuals in a given country, There are no objective criteria for
such as the United States, should be allowed resolving the aesthetic and subjective
to take advantage of it. It seems to us a disputes discussed above. There is,
difficult case to make that one’s countrymen however, a non-arbitrary means for
should be disadvantaged vis-a-vis foreign determining whether space advertising
competitors simply to make at best a fuzzy should be permitted: private property rights.
moral point. Several points must be made in this context.
Further, although we favor no regulation Private property rights are the basis upon
(as discussed below), those who dislike which all sorts of potential disputes are
advertising may find the results of a lightly solved every day, before they become
regulated domestic market more pleasing contentious issues. Who has the right to use
than the products of unfettered launches a particular piano or canoe? Why, the owner
elsewhere – just as those who hate of course. If ordinary decisions of this sort
prostitution might, in a lucid interval, prefer had to be settled by courts on a case-by-case
regulated brothels to the crude streetwalking basis, we would all die of starvation as
that results from absolute prohibition. litigiousness reached epic proportions and
Advertisers may find it more economical to we simply had no time to do anything else.
obey mild regulations restraining their Judges, properly, only rule on the smallest
advertisements at home than to go overseas tip of the iceberg in this regard. Virtually all
to avoid them. Thus, those who succeed in other disputes of this sort are settled by
achieving absolute prohibition of space property rights, with no fuss. How does this
advertising in their own country may come about? Initially, virgin territory is
actually harm their own cause. turned into the private domain by

homesteading; then, it changes hands fashion the law so that this is allowed, and
through any legitimate title transfer51 such as then make a determination post hoc.
trade, purchase, gifts, settlement for Our property-rights view, though it may
gambling debts, etc. Should this grocery strike many as radical today, was once the
store carry venison? Should that pizza parlor law, not only in space, but also on Earth. In
feature red or blue tablecloths? Should this the United States, at least, Courts long
car be painted orange? Such decisions are recognized that aesthetic issues are
commonly made by their owners. Why inherently subjective52 and accordingly
should the decision as to whether or not to refused to allow governments to violate
allow advertising be made in any other way? property rights solely on aesthetic grounds.53
Second, property rights and free speech As the Ohio Supreme Court put it, “[M]ere
are inextricably intertwined. There cannot be aesthetic considerations cannot justify the
the one without the other. For, precisely as use of the police power. It is commendable
in the case of all these other “pedestrian” and desirable, but not essential to the public
decisions, the determination of what may need, that our aesthetic desires be
properly be said in any given place gratified.”54 Similarly, the California
inevitably falls upon the owner of the Supreme Court struck down a prohibition on
property in question. May David Duke or terrestrial billboards in 1909, finding that the
Louis Farrakhan speak at the college fact that “appearance of billboards is, or may
campus? This depends upon the views on be, offensive to the sight of persons of
this matter of the owners of the university, refined taste” does not suffice to justify such
the board of trustees. Is it licit that the “a radical restriction of an owner of property
sonnets of Shakespeare be recited in to use his property in an ordinary and
someone’s living room? That crucially beneficial way.”55 In recent years, however,
depends upon the opinions on this matter of the Courts have abandoned this view,
the owner of said living room. The surest essentially giving lawmakers carte blanche
enemy of free speech is to allow government in restricting uses of private property
to own all pens, paper, ink, printing presses, because of aesthetic concerns, allowing
and the like. For then the issue becomes one them to do so either for its own sake or
of allocation of “society’s” scarce resources, where ostensibly linked to putative “health
and, seemingly, no long a matter of free or safety” concerns.56
speech rights, of which there can be none
without such implements. V. CONCLUSION
Third, it is entirely possible that
advertising in space will not prove Those who would abrogate private-
economically feasible. Or, if it does, and property and free-speech rights face a heavy
there is an outcry against it, that anyone burden, and here they have failed to meet
whose products are advertised therein will it.57 Therefore, space advertising through
lose customers, not gain them. It is entirely private property should be presumed
possible that advertising might be allowed legitimate, all laws against it should be
on Mount Rushmore or in the Grand repealed, and no treaties restricting it should
Canyon, and that it would backfire in this be established.
regard: a corporate emblem there would be
the death knell of sales. But the only way
this can be determined is empirically:

Notes Billboard in the Sky, ADVERTISER
(Adelaide, Australia), Mar. 12, 2004, at 32.
1 13
Living Rooms in Orbit, AUSTRALIAN, See, e.g., Todd Halvorson, Russia Takes
July 13, 2000, at 9. the Lead in Space Age Advertising,
Don E. Tomlinson & Rob L. Wiley, SPACE.COM, May 31, 2001,
People Do Read Large Ads: The Law of
Advertising from Outer Space, 47 FED. ussia_market_010531-1.html
COMM. L. J. 535, 541 (1995) (quoting Russian Prototype of Artificial Moon
Devera Pine, Selling America on Orbiting Hits Snag, ST. LOUIS POST-DISPATCH, Feb.
Ads, OMNI, Feb. 1994, at 27, 27). 5, 1999, at A7.
3 15
Presumably criticism of such advertising 49 U.S.C. § 70102(9).
efforts would come primarily from those 49 U.S.C. § 70109a(a).
who object to any commercial activity in 49 U.S.C. § 70109a(b).
space. On those who object to human 49 U.S.C. § 70109a(c).
activity in space generally, see J.H. Huebert U.S. Public Laws 106-391, Title III, §
& Walter Block, Space Environmentalism, 322(c) (2000).
Property Rights, and the Law, 37 U. MEM. 70 Fed. Reg. 29,164, 29,168 (May 19,
L. REV. (forthcoming 2007). 2005).
4 21
On the booming space tourism business, These can be read on the FAA docket at
see, e.g., John Schwartz, More Enter Race to
Offer Space Tours, N.Y. TIMES, Feb. 18, ple.cfm?numberValue=21234&searchType=
2006, at C1. docket
5 22
Tomlinson & Wiley, supra note 2, at 71 Fed. Reg. 51968, 51969 (Aug. 31,
539 (citing Orbiting-Billboard Proposal 2006).
Gets Astronomers’ Attention, SKY & Gersh Kuntzman, Space Invaders,
TELESCOPE, at 10, 10). NEWSWEEK web-exclusive commentary,
Id. June 20, 2005,
United Nations General Assembly
Committee on the Peaceful Uses of Outer /newsweek/.
Space, Background paper by the See, e.g., Glenn H. Reynolds,
International Astronomical Union, Obtrusive International Space Law: Into the Twenty-
space advertising and astronomical first Century, 25 VAND. J. TRANSNAT’L L.
research (2001) (hereafter “International 225, 230 (1992) (arguing that academic
Astronomical Union”), available at consensus supports private property under the Treaty). And on the view that,
C105_777E.pdf. regardless of what the Treaty means, it
Tomlinson & Wiley, supra note 2, at should allow for private property, see, e.g.,
539. Kurt Anderson Baca, Property Rights in
Id. at 540. Outer Space, 58 J. AIR L. & COM. 1041,
Id. (citing Joseph B. Allen, New Heights 1083-85 (1993); Huebert & Block, supra
(?) for Advertising, ASTRONOMY, Sept. 1993 note 3; Wayne N. White, Jr., Real Property
at 13, 15. Rights in Outer Space, in 40 COLLOQUIUM
International Astronomical Union, supra ON THE LAW OF OUTER SPACE 370 (1998).
note 7, at 4. No Place in Space for Adverts, NEW
SCIENTIST, July 10, 1993, at 5.

Grass Root Opposition to Space Tobacco Advertising, INT’L J. OF VALUE
Billboards, International Dark Sky BASED MGMT., May 1997, at 221; Walter
Association Information Sheet No. 71 Block, Coordination Economies,
(2000), Advertising and Search Behavior in Retail Markets by Bagwell and Ramey: A
on-sheets/is071.html Comment, CROSS CULTURAL MGMT., Vol.
71 Fed. Reg. at 51,969. 10, No. 1, at 80 (2003); Walter Block,
Tomlinson & Wiley, supra note 2, at William Barnett II & Stuart Wood, Austrian
563 (Mr. Tomlinson advocates a complete Economics, Neoclassical Economics,
ban; his coauthor, Mr. Wiley, does not). Marketing and Finance, Q. J. AUSTRIAN
See, e.g., Lawrence Person, In Praise of ECON., Summer 2002, at 51; Ronald H.
Billboards, 43 FREEMAN 360 (1993). Coase, Advertising in Free Speech, 6 J.
See, e.g., Walter Block, Billboards, LEGAL STUD. 1 (1977); ROBERT B. EKELUND
Playstation Ads, Disguised as Graffiti, THE MARKET PROCESS (1985); DAVID
Spark Controversy, USA TODAY, Dec. 29, OGILVY, OGILVY ON ADVERTISING (1985);
2005, MURRAY N. ROTHBARD, MAN, ECONOMY, AND STATE 978-83 (Ludwig von Mises
g/2005-12-29-graffiti-ads_x.htm; on the law Institute 2004) (1962).
and economics of graffiti generally, see See, e.g., Tom’s Astronomy Blog,
Daniel J. D’Amico & Walter Block, A Legal (May 20,
and Economic Analysis of Graffiti (Ludwig 2005, 06:31 EST).
von Mises Institute Working Paper), Christopher Westley, The Economics of
available at Spam, IDEAS ON LIBERTY, Nov. 2003, at 8.
37 Tomlinson & Wiley, supra note 2, at
co.pdf. 539 (citing Orbiting-Billboard Proposal
See ISRAEL M. KIRZNER, COMPETITION Gets Astronomers’ Attention, SKY &
AND ENTREPRENEURSHIP (1973). TELESCOPE, Nov. 1993, at 10).
33 38
Virginia Postrel, The Esthetics Police, See Walter Block, Roy Whitehead & N.
FORBES, Nov. 1, 1999, at 174. Stephan Kinsella, The Duty to Defend
Some, such as John Kenneth Galbraith Injuries Caused by Junk Faxes: An Analysis
(THE AFFLUENT SOCIETY (1958)) would of Privacy, Spam, Detection, and Blackmail,
disagree with this statement. But see these 27 WHITTIER L. REV. 925 (2006).
critiques: Friedrich A. Hayek, The Non- The precise manner of homesteading
Sequitur of the “Dependence Effect,” in that would be necessary to acquire property
STUDIES IN PHILOSOPHY, POLITICS, AND rights in an orbital path or position above the
ECONOMICS (1967); George Reisman, Earth is beyond the scope of this paper. In
Galbraith's Neo-Feudalism, MISES.ORG, any event, under no proper theory does one For other gain property rights in a space vast distances
defenses of advertising, see Lee Benham, away simply by looking at it in its present
The Effect of Advertising on the Price of state for a long time.
Eyeglasses, 15 J. L. & ECON. 337 (1972); Eva Longoria Seen from Space, MIAMI
WALTER BLOCK, The Advertiser as Hero, in HERALD, Apr. 7, 2006, at A4.
DEFENDING THE UNDEFENDABLE 68 (Fox & See, e.g., Tomlinson & Wiley, supra
Wilkes 1991) (1976); Walter Block, note 2, at 563.

42 49
See International Astronomical Union, The term most economists would use in
supra note 7, at 4. this context is “rent seeking.” See Gordon
See, e.g., id. at 2-3. Tullock, Rent Seeking, in 4 THE NEW
Coelum, Owning Views and Forestalling 147 (1987). But we see no need to besmirch
(2006) (unpublished, on file with the the ancient and honorable practice of renting
author). by juxtaposing it with such a nefarious
See Walter Block, Earning Happiness practice. For more on this, see Walter
Through Homesteading Unowned Land: a Block, Watch Your Language, MISES.ORG,
comment on 'Buying Misery with Federal Feb. 21, 2000,
Land' by Richard Stroup, J. SOC., POL. &
ECON. STUD., Summer 1990, at 237; HANS- International Astronomical Union, supra
(1993); JOHN LOCKE, SECOND TREATISE OF For economic and philosophical support
CIVIL GOVERNMENT (Henry Regnery 1955) for this contention see JAMES M.
(1690); ELLEN FRANKEL PAUL, PROPERTY BUCHANAN, The General Implications of
RIGHTS AND EMINENT DOMAIN (1987); Subjectivism in Economics, in WHAT
N. Stephan Kinsella makes the same ECONOMIC UNDERSTANDING (Israel M.
point with regard to patents and copyrights; Kirzner, ed., 1986).
once the information is widely known, A’s Mark Bobrowski, Scenic Landscape
use of it detracts from B’s use by not one Protection Under the Police Power, 22 B.C.
whit. See N. Stephan Kinsella, Against ENVTL. AFF. L. REV. 697,703 (1995).
Intellectual Property, J. LIBERTARIAN STUD., Id. (quoting Youngstown v. Kahn Bros.
Spring 2001, at 1. Bldg. Co., 148 N.E. 842 (Ohio 1925)).
47 55
This highly problematic doctrine could Charles F. Floyd, Billboards, Aesthetics,
be interpreted to cut both ways. That is, and the Police Power, AM. J. ECON. & SOC.
according to ad coelum, the owner of a few (forthcoming),
square miles of earth, and thus the proprietor
of an increasing sized conical area extending f (quoting Varney & Green v. Williams, 100
up into the “heavens,” would be justified in P. 867 (Cal. 1909)).
placing advertising in “his” area of See Bobrowski, supra note 53, at 708.
ownership miles above the earth. We would argue that they fail to meet it
Murray N. Rothbard, Law, Property in all cases, but that is beyond the scope of
Rights, and Air Pollution, 2 CATO J. 55, 84- this paper. But see generally Rothbard,
86 (1982); see also Walter Block & Richard supra note 45.
A. Epstein, Walter Block and Richard
Epstein Debate on Eminent Domain, 1 NYU
J. L. & LIBERTY 1144 (2005); Walter Block,
Homesteading, Ad Coelum, Owning Views
and Forestalling, supra note 44.