Although 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 isn't – 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.
The 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.
Well, 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.
Now 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 all?
The 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.
To 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.
A 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.
In 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 hasn't 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 aren't 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.
Tibor 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.