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Continuing to Resist the Further Politicization of Society

I’m dismayed by the number of people who are willing to further politicize American society by holding private companies liable for First Amendment violations.

Mr. E___:

Thanks for your e-mail.

After reading my letter in today’s Wall Street Journal – a letter in which I object to holding private companies liable for alleged violations of the First Amendment – you ask:

How do you compare your thought that “Government may not silence speech and other expression that it dislikes—private citizens may”, to a fellow letter to the editor writer using the lunch counter analogy of refusing service to anyone they choose. In the latter, you are going to feel the wrath of government for violating a person’s civil rights. Why is there any difference? Do corporations have rights to refuse service to one group doing something the corporation doesn’t “like” and grant service to another group that does the same as the first because they are of the same mind-set as the host?

First and for the record: When I say “private citizens may … silence speech” I mean as long as, in doing so, they violate no one else’s property or contract rights.

Second, as I explain in this January 16th blog post, I don’t see how having taken one or a few steps down the road of government improperly prescribing or proscribing private behavior renders acceptable the taking of further steps down that treacherous road. While I deplore bigotry, I believe that individuals in their private affairs (including operating businesses) should be left free by government to discriminate in whatever peaceful ways they wish. The fact that we Americans long ago lost this particular freedom does not justify the loss of other freedoms – including the freedom to determine what is and what is not said or otherwise peacefully expressed in our privately owned spaces.

But the most direct answer to your question involves the First Amendment’s explicit reach. That amendment prohibits government from obstructing people’s freedom of speech, of the press, of religion, of assembly, and of petition. It says nothing about prohibiting government from obstructing people’s freedom to choose whom to serve commercially and whom to employ.

Regardless of your, my, or anyone else’s attitude toward anti-discrimination legislation, such legislation doesn’t plausibly violate anyone’s First Amendment rights. Therefore, the existence and widespread acceptance of anti-discrimination legislation does not excuse the use of government power, including that of the courts, to superintended and obstruct private citizens’ freedom to use their private property to express themselves, using speech or the written word, in whatever peaceful ways they choose.

Donald J. Boudreaux
Professor of Economics
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030