Right to Bigotry
Tibor R. Machan
the press and other media cherish the First Amendment, few of its
members truly understand its implications. Nor, does it seem, do
some of the courts in the USA, the leader of the free world! This
lack of grasp is evident when people in the media call editorial
control "censorship." It isnít only when government forbids
and doctors thought is it censorship. And in his recent branding
of editorial proselytization a kind of brainwashing, Ben Bradlee,
the former executive editor of The Washington Post, gave further
illustration of how ignorant the mainstream press can be about this
vital constitutional principle.
thrust of the First Amendment is that one has the right to think,
say and publish what one wants, including bad stuff or even, yes,
nothing at all for example yellow and tabloid journalism may be
bad, but must not be banned and those who apathetically or for other
reasons decline to get involved in discussing politics, culture
or science may not be forced to mend their ways. In other words,
having the right to do something includes having the right to do
it badly or not to do it at all.
it is not an explicit constitutional principle but freedom of association
has similar implications. If you have the right to voluntarily associate
with those who want to do the same with you, you also have the right
to refuse. I do not have to be a friend or business partner of everyone
who might wish to be mine. I may even be a bigot in certain areas
of the market place, by refusing to eat in certain establishments
or buy from certain stores because I irrationally dislike the owner.
My right to consent also means my right to refuse. That is the mainstay
of individual liberty.
we come to the Boy Scouts who, in New Jersey at least, do not want
to have gays among them. This may well be the height of bigotry,
for gay boys are certain boys and to refuse them admission is to
discriminate against them on grounds that may be entirely beside
the point. But that is not the issue at hand in this debate. What
is at issue is just how free a society ours is. If government forbids
the Boy Scouts from making bad decisions about associating with
certain people, do we have any claim to live in a free society at
New Jersey Supreme Court has basically abandoned championing liberty
and ruled, instead, that when the Scouts refuse admission to gays,
they are bigots and should be stopped. And to the argument that
they are a private, not a public, organization, they answered that
in effect they are open to the general public well, boys, at least
and thus have become, like restaurants and other establishments
marketing themselves to anyone who wishes to enter, a public accommodation.
this there is an answer. First of all, only government may not discriminate
since it is by definition the servant of all of the people. However,
the designation of restaurants as public accommodation is misguided few
of them really are for all the public.
vegetarian restaurant caters to some of the public, as does a seafood
place or one offering Italian food. If it were the case that a restaurant
announced itself to welcome only blacks or women or Christians,
this would even further limit the terms of entry. However indecent
this would be, in a free society such limits are exactly what would
be tolerated, otherwise the term "free" would only be
a ruse, a propaganda device, not a description of reality.
our society there is a lot of liberty left, but there are also serious
threats against it. On the plus side there are, for example, match-making
services that cater only to Christians. This restriction on who
one will admit to such establishments is entirely unobjectionable
and the law hasnít yet tried to ban it. And true freedom of association
is evident, also, in the personal ads of various media, where all
kinds of specifications are laid out to ward off people who arenít
wanted! Nor are people forced to make purchases from establishments
where they do not wish to shop, for whatever reason. In the enthusiasm
and urgency of the civil rights era it was accepted that the choices
people made about with whom they wish to do business could be constrained
by the state. Yet that was wrong. Eliminating one bad thing, namely,
racism, does not justify killing off something good, namely, freedom
of choice in the area of human associations of any kind.
Machan is Distinguished Fellow and Professor, Leatherby Center
for Entrepreneurship & Business Ethics, Argyros School of Business
& Economics, Chapman University, and Research Fellow at the
Hoover Institution, Stanford University.