Discrimination Is Not a Free-Speech Issue


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Both left-wingers and right-wingers are debating how the Supreme Court should rule in a case arising in Colorado entitled 303 Creative v. Elenis. The case involves the issue of discrimination. The defendant in the case, 303 Creative, creates websites for weddings. It is opposed to same-sex marriages. Therefore, it refused to provide its services to a gay couple who were seeking a wedding website. 303 Creative has been sued under Colorado’s public accommodations law, which prohibits businesses that choose to serve the public from rejecting customers on the basis of race, sex, religion, or sexual orientation.

The litigants and mainstream-press commentators are couching the controversy in terms of freedom of speech, a right that is guaranteed by the First Amendment and, by incorporation, the Fourteenth Amendment. Undoubtedly, that’s what the Supreme Court will do as well, once it issues its ruling.

In actuality, however, the case has nothing to do with freedom of speech. Instead, it is entirely based on another fundamental, natural, God-given right—the right of private property.

As the owner of its business, 303 Creative has the right to decide how to run its business anyway it wants. If the business was owned by the state, that would be one thing. Or if it was owned by society, that would be another thing. But the business isn’t owned by the state or by society. It’s owned by 303 Creative. 

As the owner of the business, 303 Creative has the right to decide to whom it will provide services. It’s not a question of 303 Creative’s free-speech rights. It simply a matter of private ownership of property. It has the right to decide to whom it will provide services because it, not the state or society, owns the business.

A homeowner has the right to decide who comes into his home. That’s because he owns his home, not because he has the right of free speech. Most everyone understands perfectly the principle of private property when it comes to a person’s home.

Let’s assume that the biggest bigot imaginable is a multimillionaire and owns a huge mansion in town. He decides to have a big dinner party at his home. He publicly states that none of his invitees are Jews, Catholics, blacks, Hispanics, Asians, gays, or transgenders because he vehemently dislikes all of them. He publicly says that he will never allow any of those types of people into his home.

There might be plenty of people who would condemn him for his bigotry, but I think 99 percent of the American people would say that he has the right to discriminate against all of those people with respect to his dinner party. They would say that the man’s home is his castle and he has the right to run it any way he wants.

There is something else to note about this hypothetical. The town in which our hypothetical bigot would be residing would not disintegrate because of his bigotry and because of his dinner party. There might well be some social ostracism of the bigot. Many people might even boycott the bigot’s business. But life would go on despite the bigot and his bigotry.

We know this because country clubs are free to discriminate on the basis of race, color, creed, sexual orientation, religion, or on any other basis. In other words, the law protects their right to discriminate. Nonetheless, there is no indication that the United States has fallen into the oceans as a consequence. In fact, over time, social ostracism, rather than the law, has pressured many, if not all, of these country clubs to end their discriminatory practices. 

The problem is that long ago Congress, the state legislatures, and the courts began treating privately owned businesses differently from privately owned homes. They began saying that when a business is open to the public, it automatically subjects itself to state control. That mindset is reflected in the language of Colorado public accommodation’s law.

But that’s just an artificial, made-up justification for adopting a policy of state control over private property. And when the state wields control over private property, obviously the right of private property is destroyed in the process. Either a right is a right or it’s not. If private property is subject to state control, then it’s not a right.

There is no valid distinction between a private business and a private home. Just as a private homeowner has the right to discriminate against others with respect to who he invites into his home, a private business owner has the same right with respect to who enters his business. 

Let’s assume that our hypothetical bigot has a giant retail store downtown, where he refuses to sell his products to the same types of people he refuses to invite into his home. That is every much his right as it is with respect to his home. Again, this isn’t because of his right of free speech. It’s because of his right of private property. In fact, we could also say that the right of freedom of association also comes into play here. People have the natural, God-given right to associate with whomever they wish. That principle of freedom applies whether we are talking about a person’s home or business.

But there is something important to note about our hypothetical bigot. People would have the right to boycott his business and to patronize competing businesses that do not discriminate. That might well cause the bigoted business to lose market share and even possibly go out of business. That possibility could easily nudge and push our hypothetical bigot to move in a non-discriminating direction, just as it has with respect to country clubs. Isn’t that a much better way to handle this type of thing than using the coercive apparatus of the government to destroy rights?

The post Discrimination Is Not a Free-Speech Issue appeared first on The Future of Freedom Foundation.



* This article was originally published here

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