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Free Speech, Free Association, and Private Property

May 6, 2003

Stephen Downs was arrested wearing a "Peace on Earth, Give Peace a Chance" T-shirt while walking with his son at Crossgates Mall near Albany, New York. Security guards approached the two men and instructed them to remove their shirts, which were made at the mall. The 31-year-old son complied with the order but the 61-year-old father did not. The guards returned with a police officer who removed the father in handcuffs.

Mr. Downs' perspective, which has been supported by the New York Civil Liberties Union, is that he had the first amendment freedom to express himself. In other words, the mall denied him his right to free speech. The mall's perspective is that the men were being disruptive to other shoppers; furthermore, they argued that as the mall is their private property they can choose their rules.

The mall's ownership claims that it has the court-approved right "to restrict actions and behaviors deemed inconsistent with its intended purpose." Crossgates Malls' rules "strictly prohibit loitering, disorderly, or disruptive conduct, harassment, offensive language, fighting, or any illegal activity." The mall's management obviously believed that anti-war shirts were offensive or had the potential to cause problems. 

In a true free market, businesses, parks, libraries, schools, sports stadiums, municipal golf courses, and roads would be financed privately.[1] Now here is where the issue can become unclear: does a business (i.e. mall) partly financed by government subsidies qualify as a private business? Arguably, a "public" park or "public" venue cannot prevent people from using their resources on the basis of gender, color, religious views, or political beliefs because all of these groups of people have paid the taxes that built these things—but decisions concerning these issues are ultimately determined by political considerations.

But what about a private mall that was completely financed by private money? Then the answer is simple—they should be able to discriminate against whomever they wish. Yes, this means discriminating against people for whatever reason (color, religion, sexual orientation, political views, or dress). Why? Not because discrimination is moral in the usual sense of the word.

As a Christian, I am called to love my neighbor (no matter what color, gender, religion, etc.). But in a free market, it is immoral to force people to associate with each other. If an atheist built a mall without government assistance, then he or she should have every right to discriminate against Christians. If the person or group of investors that built a mall hates Middle Eastern people or Hispanic people, then they should be able to turn them away (even though that would prevent me from shopping there since my father is from Iran and my mother is from Ecuador). 

Some would argue that this type of "libertarian world" leads to violence. To the contrary, there would be no incentive for violence because every association would be voluntary. As economist Edward Stringham correctly points out:

Strangers do not come into conflict with one another on the golf course at a country club, because only members are only allowed to enter. On college campuses and in amusement parks such as Disney, all people on the premises have agreed to abide by the property owner's rules. Just as easily, were this legal, store and restaurant owners, as well as street and road owners, would create private rules to govern all patrons.[2]

However, what must be made clear is that in this "libertarian world" the racists, sexists or "whatever-ists" can't act with impunity. If they physically harm another person or destroy their property because of their senseless hatred, then the law should do its legitimate job of prosecuting the violator and punishing him or her severely.

This view is controversial, but not to those who believe in freedom and liberty. As long as a person does not violate the property rights of others, there should be no problem. And for those angered by not being able to shop at a mall, I would assert that the real basis for this anger is that they believe it is their right to shop at the mall. 

The "entitled-ists" (my term for those who believe it is their right to benefit from the property of others) express their anger at the Masters Tournament in Augusta. Augusta National is a private golf club that only allows male members. William "Hootie" Johnson, Augusta National chairman defends this policy.

Leading the charge against Mr. Johnson is Martha Burk, chairwoman of the National Council of Women's Organizations. Steve Wilstein, a national sports columnist for The Associated Press, wrote an article entitled "Change Due at Augusta National." In that article he states that William "Hootie" Johnson is fighting a tough opponent in Martha Burk. Burk claims: "it's become emblematic of the sexism that is still going on in the sport and outside the sports world. . . . The CEOs who are members are going to be under extreme scrutiny." Why? What's the problem? They are not hurting anybody. In order to hurt somebody you have to violate his or her rights.

The country club members are basically in a type of fraternity. Not only should it be Augusta National's right to grant membership to whomever they wish, but also there is no moral justification to protest their policy. The only motivation for protest in this case is that many women believe it is their right to play golf there. Why don't a group of female investors purchase land and open up an all women's country club? Now, if the government prevented this there would be a legitimate reason to protest.

Wilstein stated that Augusta's policy "is not the private matter of a small private club." He believes it is a disgrace to uphold this policy, much as Augusta used to exclude blacks until 1990. Burk has said regarding the prominent status of many of the members, "They're CEOs of America's major corporations and we know that business is done there. Their policy places businesswomen at a disadvantage at that venue." Why is their policy a disgrace? Augusta National is an organization that develops camaraderie among men. Female CEOs enjoy the right to form their own groups. Even though it wouldn't be the same thing because there are more men who hold the title CEO, who ever said it was a woman's moral right to be CEO of a company?

I ask my students if they were to come to my doorstep and ring the doorbell and I ended up telling them to leave, should they sue me? They unanimously respond with, "No Mr. Malek. It's your house and your property." My next question is, "Then why isn't my restaurant or my mall that I built with my own money like my house?" I usually follow up with "If I don't want Hispanic friends, should I be sued by Hispanic people?" They again unanimously say, "No, it's your right to choose your friends." I usually end the line of questioning with, "Then why should I get sued if I don't want to associate with Hispanics at my place of business?" Some respond that my examples are not fair—my house and restaurant are different establishments—one is public and one is private.

Private means a business built without government subsidies. Who says a privately funded restaurant is for the public or that a mall is for the public's benefit? My place of business is for my benefit. It is not your right to eat at my restaurant or shop at my mall. Yes, of course, I understand the economic insight that I have an incentive to serve others if I want to benefit myself. The point is that the owner should be able to decide who the public is. It is not my duty to provide benefits to others.

Some people say it is fair for a business to discriminate based on looks, gender, or whatever reason if the criterion is vital to the success of the business. For example, if someone applied for a sales position and the business believed that this person's appearance would cost the business profits, then that person should not have to be hired. If Hooter's wants to hire only women, and only women who look like model Nikki Ziering for example, then no problem. Most people also would not have a problem if a Christian school discriminated against applicants who were atheists, Buddhists, or Muslims. That would be a "reasonable" criterion. However, those who support these exceptions are still missing the point. That is, any criteria that the owner chooses are moral from the perspective of liberty.

The reality is that businesses practicing discrimination would face a cost—not allowing a certain segment of the population to spend their money and also losing money from those who support the "oppressed" group. The beauty of the free-market is that consumers are sovereign and can punish these establishments. However, if the discriminatory business was still a financial success, then so be it. The law should protect property rights but not give people rights they do not have.

Mr. Downs has the freedom to express his views and believe in what he does. But Mr. Downs' belief that it is his right to express his views in a private mall is proof that he really doesn't believe in freedom. 

The final criticism that must be addressed is that if we lived in a free-market world, the segregation of the past would return. In a free market we would not have government-mandated segregation. However, I do believe in some exceptions such as banning women from combat and not allowing homosexuals in the military. But what is wrong with people wanting to privately associate with others based on ethnic, gender, or sexual orientation criteria? If a man wants to open his own nightclub that only hires women who look like "Baywatch babes," nobody should protest. If the owner is homosexual and only wants to hire homosexuals, it is no one else's concern. If the owner is a woman and only wants to hire men who look like today's leading actors such as Brad Pitt, Ben Affleck, or Vin Diesel, where is the problem? There should not be a law preventing the owner's right to choose. 

Business owners love green more than they hate black, white, or yellow. Most people have friends, men and women, from various ethnic groups. There is no law that prevents us from discriminating when it comes to our friendships, and yet we don't see strict segregation. In any case, if people did want to associate only with a homogeneous group of people and segregate themselves from others, then so be it. Freedom means voluntary association and peace. There is no other way around this: disagreeing with this point means believing that force ought to displace freedom and property rights.

The right of citizens to discriminate is a fundamental freedom. Shopping at a mall, joining a country club, or working for a business are not rights. Before you get angry at not being able to stay at the mall, not being able to play golf at Augusta, or not getting hired because you don't look the part, remember that nothing was taken from you. In order for something to be taken from you or denied to you, it must be yours in the first place. 


 

Ninos P. Malek teaches economics at San Jose State University (San Jose, CA), De Anza College (Cupertino, CA), and Valley Christian High School (San Jose, CA). ninosmalek@hotmail.com

 


 

[1] Many “free-market” economists will argue that roads are public goods that must be provided by government. I will not discuss this important issue in this article.

[2] Edward Stringham, “Market Chosen Law,” The Journal of Libertarian Studies (Winter 1998–1999) 75.


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