I am glad I finally read all those comments I received over the past few days. As usual they have inspired a number of new posts. However, rather than following my usual practice of listing each and every idea here, let me save us both some time and just dive into writing. The list can always come later if I start running out of steam.
The first thing I noticed in reading my comments was how much Caday5 writes. Not that I am one to comment on excessive writing, and even if I were, that isn't exactly the basis of a scintillating post. But I did note two recurring themes in Caday5's posts on my various articles on racism ("In Defense of Discrimination","A Statute of Limitations for Race","How to Handle Idiots","Back Again"). First, an inability to distinguish between action by the government and action by private individuals (especially when those private individuals banded together into businesses or clubs or other groups). Second, an argument that basically ran thus: Racism is a bad thing, and it hurts people, so we need to ban it, whether private or state in origin. It is that second position I plan to address here, though, in the process, we will also need to address the first.
The problem here is simple, and one the left usually understands, in fact one they obsess about in other contexts.Think about their vehement defense of the first amendment. They understand that once you start banning unpopular ideas you run the risk of destroying individual freedom. After all, persecution always begins by demonizing the opponent, making their ideas unpopular and then banning those ideas. So, in other contexts, the left understands that allowing the banning of even "bad" ideas is the first step in the destruction of personal liberty, but somehow, once you move on to "business" and "public accommodations", they lose this understanding, and think they can "draw lines" and limit the state in ways they would never accept in terms of personal liberties.
Since it seems there is some confusion, let me begin with the most basic points, ones on which we can all agree, and move on to the more difficult positions, such as the lack of difference between "individual liberties" or "civil rights" and "economic rights" ("Economic Versus Social", "A Question for Artists of the Left", "Cognitive Dissonance Part 2", "Liberal Bait and Switch"), the lack of distinction between "public accommodations" and private action ("In Defense of Discrimination"), or the significant differences between state and private action ("Private Versus Public Racism","Economic Versus Social").
So, starting with the basics. Banning "bad" ideas is dangerous. No one is going to argue that there are not certain ideas which may be dangerous, ideas which, through their simple expression, can cause problems for society. To return to the comments on which this post is based, racism is one such concept.In a society made up of many races, ethnic groups, cultures, religions, and so on, in short, in a pluralistic society, the existence of openly bigoted groups can cause tensions which can lead to all manner of social problems. Granted, if individuals respect one another's rights there will be much less trouble, but the existence of such bigotry tends to fuel tensions which can lead to violations of the law.
Having said all that, yes, it is clear there are "bad" ideas, ideas which the vast majority consider dangerous to society, destructive and harmful. For example, freedom of speech or religion. Open homosexuality. Voting rights for women. Labor activism. I'll stop now, as you probably got the picture.
And that is the point. Any idea which is sacrosanct today was once dangerous and viewed as harmful to society. Freedom of religion led at one time to just such tensions as we are arguing arise from open bigotry. And that brings me to my first point. Now, I highly doubt that racist views we find offensive today will ever be acceptable again, or will prove to be correct, but I can't KNOW with certainty. And since I can't know with certainty, every time I ban an idea, or prevent the open expression of that idea, I run the risk of being cast in the future as the inquisitors of Galileo. Yes, we are fairly certain that racism is bad, we can even make logical arguments against it, but so could they. No one ever thinks they are wrong, but from history we can see they often were. So, without absolute, inhuman certainty, banning any idea runs the risk of placing one on the wrong side of history, and harming society by preventing the expression of a possibly beneficial idea.
Of course, making that argument using racism is unlikely to win many converts, even though the argument is correct. So let me move to the second argument. Yes, everyone agrees that racism is bad, but is that a valid standard? What if tomorrow the majority were to agree your treasured ideas were wrong? What if they decided liberalism, Christianity, pluralism, or some other idea precious to you was as unacceptable as we find racism? You see, once you allow that the majority can ban something it finds "bad" there is no way to draw a line1. Any belief is a possible target, including those you find most precious. Short of placing yourself as a dictator, and thus above the reach of the law, the only way to ensure your beliefs will be respected is to extend the same respect to all others. As I described in "A Rational Approach to Punishment", we all would love a legal system which bound all others and gave us infinite freedom, but as I responded in the same post, that is not going to happen. The only viable system is for us to extend the same respect to others, even when their beliefs offend us, we ask them to extend to us.
So, unless you are willing to risk having your rights violated and your beliefs branded impermissible, unless you are willing to risk being jailed for holding the wrong thoughts, then you ,must accept that ideas, even those you find offensive2, must have the same protections your thoughts do.
Which brings me to the usual rebuttal. Liberals often argue that, yes, individuals do have unfettered rights, but those rights no longer apply when they provide a "public accommodation". In that case, because they are acting in some sort of quasi-governmental capacity, they are subject to different rules.
I wrote before ("In Defense of Discrimination"), that this is absurd for a number of reasons, foremost because it is almost impossible to know where to draw a line. Is a dinner party a "public accommodation"? How about a party where I ask people to help[ pay for the beer? What is the entry fee is fixed? If strangers are allowed? If poster are put up? If it is held on a regular schedule? At a fixed location? How about if the place where it is held is used only for such parties3?When does it stop being a private party and become a public accommodation? Were my college parties subject to nose counting by the EEOC and was I open to suit if I turned away black guest without adequate justification or a similar number of rejected white guests?
But even if we accept that somehow this line can be drawn, if we approve some sort of Potter Stewart "I know it when I see it" argument for the definition of "public accommodation", there are still issues with applying rules intended for government to "public accommodations." The most obvious example would be applying the establishment clause, now modified into the "separation of church and state". To see how this would be a problem, ask whether a church is a "public accommodation", and try to imagine how a church could comply with today's definition of the establishment clause. Or try to imagine censorship rules to theaters hosting plays and movies. It should be clear trying to apply all the rules under which government operates to "public accommodations" would be impossible.
But let us ignore that for now, and, despite the illogic of it, let us accept that public accommodations are restricted by only a limited subset of restrictions that apply to government. Which brings us, at least, to asking the final two questions. First, why should public accommodations be treated differently (even if we could identify them with certainty, and even if we accept that they are under only a limited range of restrictions)? Second, is it beneficial to limit public accommodations differently than individuals?
The first is easy to answer, or at least easy to recite the justification.The argument is that because the businesses, clubs and so on deal with the public, they are subject to different rules. Beyond that, some very large entities, such as malls and resorts, are often argued to be acting "in loco government" as they are large and provide security and similar services.
As the second is the most incorrect, let us dismiss that now. Businesses are NOT anything like a government. Yes, a shopping mall may employ security and may detain individuals, they may make rules for those visiting, but those are only extensions of private property rights. I can detain someone I think stole from me4, and I can make rules for my house or business. Malls, resorts and stores do not have the right to take life, to deprive an individual of property, or otherwise to carry out acts we associate with government power. And that makes it absurd to hold them to higher standards than ordinary citizens.
And what about the claim that businesses, by "dealing with the public" have to forgo property rights and the right of association? The problem there is, what does "dealing with the public" mean? I deal with the public daily, seeing coworkers, strangers, all manner of people. Does that mean I lose the right of freedom of association? And what about private clubs? They allow in new members, and thus "deal with the public", but they are also closed, private associations. So how do we determine if they "deal with the public" or not?
I could go on, but let me just point out what should already be obvious.
YOU CANNOT DRAW LINES.
When you say "it is bad to ban holding and expressing ideas, but we will do just that, but only for 'public accommodations'," you set yourself up for failure. And for two reasons. First, because there is no clear line to draw. Once you start banning the expression of ideas in public accommodations, people will exploit those grey areas I mentioned to expand that to ever larger bodies. Just as the banning of smoking extended from small "common sense" rules to near total prohibition ("In Defense of Discrimination"), the banning of ideas in "public accommodations" will spread, as we have seen in university speech codes, anti "hate speech" proposals and other efforts to limit even the private holding or expression of "bad" ideas.
Second, even if the lines could be drawn, one cannot fight logic. In any dispute, the more consistent side will win. ("Inescapable Logic II") Just look at the last election. McCain wobbled back and forth between conservative and "moderate", but mostly supported larger government, Obama supported larger government, and more of it, and so he won.("Need to Change Direction?", "The Big Lie", "Why Obama Won, And Why He Is Losing Support Now") He was more consistent. Similarly, once we allow that speech can be restrained, that ideas can be banned, that freedom of association, of speech and so on can be abrogated, there is no logical limit ("A Strange Reaction"). If rights are not absolute("The Wrong Way to Argue", "It Is So Simple"), then they cease to exist.
Oh, it may not happen right away5, but it will. History shows that is inevitable. Unless we change course, unless we repeal the old laws, once we accept an argument which logically leads to a conclusion, be it in favor of freedom or tyranny ("Conservatives and the "Big Picture"","WSJ Misses the Mark AGAIN"), we will start ourselves on the path to that final conclusion. To think anything else will happen is pure fantasy.
1. As a geeky aside, this is why I always thought Spock's "logical" principles were so illogical. "The needs oft he many outweigh the needs of the few" would lead simply to mass metaphorical cannibalism. The many would basically expropriate the minority. Once only the majority remained, it would fragment, with the new majority consuming the new minority, and so on and so on. Unfettered majority rule is far from logical and leads to little but gang warfare. Spock's "logical" society would not resemble the Vulcan culture we saw, but the culture of the Road Warrior. (And thus ends my geeky aside.)
2. As has been pointed out repeatedly, it is the offensive which needs protection most of all. Popular thoughts are never at risk of being banned, only those without broad support. No politician will try to ban the majority's biases, they will attack a convenient, unpopular minority. Which means that one who fights for principles will always end up defending the most reprehensible. It is an unfortunate truth, but one we have to recognize. It is part of why principle stands often arouse such scorn, while those willing to "compromise" and sell out their principles when they prove inconvenient often enjoy much greater popularity.
3. Some may think a regularly scheduled party, with a fixed entry cost, held in a location specially built for that event and where nothing else is held sounds like a clear "public accommodation", but think a bit. What if you have a $10 buy-in poker party every Saturday, held in a basement room you sue for nothing but poker games. Is your game a public accommodation? It meets all those criteria. And if you allow friends to bring their friends, you are even "open to strangers". Hopefully this makes clear how vague such definitions can become.
4. Yes, if I am wrong, I may later be sued or even criminally charged if I acted improperly, but citizens do have the right to detain fugitive felons or those they see committing a crime. So the shopping mall or store owner is acting in no way differently than any private citizen could.
5. Some will argue that we have had these laws for years and yet have not seen the total restriction of freedom of conscience. My response would be that just because something has not yet happened does not mean it will not. You haven't died yet, but does that mean you are immortal? Did my youthful lack of sexual encounters mean I would always be a virgin? Things can be delayed and yet still be inevitable. Those who take such a position are akin to those who ahve skin cancer yet refuse to have it removed as "it didn't hurt me so far". Just because we have delayed the logical outcomes of violating our rights does not mean we will forever.
Originally Posted in Examining the War on Drugs on 2009/09/29.
NOTE: This was accidentally posted twice, once on February 14, 2011 and once on October 20, 2013.