Throw the Imams From the Plane

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The six suspicious
Imams that had boarded and then were thrown off a U.S. Airways flight
last November are now engaging in a great American pastime: they've
filed a lawsuit. As Katherine Kersten of the Minneapolis Star
Tribune reports,
"The imams are demanding unspecified damages from US Airways
and the Metropolitan Airports Commission," as well as from
other, unnamed defendants, presumably those who witnessed and reported
their behavior before and after boarding the plane.

There is
outrage all around. The Imams claim that they have suffered mentally
as a result of being tossed off the flight. According to the Star
Tribune, their complaint "rehearses a catalogue of harms
allegedly suffered by the imams, including fear, depression, mental
pain and financial injury. They have not only endured exhaustion,
humiliation and ridicule, but also have lost sleep and developed
anxiety about flying." On the other side of the coin, there
are plenty of people outraged that the Imams would file a suit like
this; after all, they were behaving like Muslims — possibly evil,
suicidal, terrorist Muslims — and in the wake of 9/11 they should
have known better.

The controversy
over the Imams, though, should rightly be viewed as a tempest in
a teapot, a matter — if society in general these days had any real
understanding of freedom — of little lasting consequence. The first
bit to consider is the outrage over the Imams' action in filing
their lawsuit. The suit, which alleges racial and religious discrimination,
targets, in addition to the airline and the airports commission,
the passengers who reported the suspicious behavior. That, according
to the Star Tribune, is a dangerous precedent: "The
imams’ attempt to bully ordinary passengers marks an alarming new
front in the war on airline security," said the paper.

No it doesn't.
The Imams are free to sue whomever they wish, including other passengers,
the airlines, or whoever. Deciding whether the case has any merit
is the job of the courts. In this case, the decision should be easy.
Properly understood, the suit is frivolous and entirely without
merit and should be dismissed as quickly as it was filed.
As will be seen, though, the issue is not as easy as it should be.

At question
is whether or not a private organization (and by extension, a private
citizen) is within its rights to regulate access to privately owned
property. The issue, at its root, is deceptively simple, as an example
will show. Let's say the six Imams show up at your house one day
and begin to pray in your driveway. Then they enter your house and
sit down. One of them, uncomfortable in your easy chair, wants the
couch instead, so they switch seats. You, hearing the commotion,
enter the living room from your kitchen, looking to see what is
going on. To your surprise and consternation, you find the six Imams.
"Get out," you tell them. "This is private property
and I don't want the likes of you on it."

As a private
property owner you'd be completely within your rights in ejecting
the Imams, on the grounds that they were trespassing. The right
to remove a trespasser stems from the basic natural right of each
person to choose with whom they wish to associate and to determine
when and where that association will occur.

By extension,
since it is an agglomeration of individual stakeholders, a corporation
has the same rights as the people holding title to the company.
Thus, just like private citizens, private companies have the right
to regulate the people they let onto their property and to remove
those who they deem to be trespassing. This gets to the heart of
the matter between the Imams and U.S. Airways. The airline is part
of US Airways Group, a corporation headquartered in Tempe, Arizona.
As a private entity it has the right to choose with whom it will
associate and when — in other words, the corporation has the right
to be discriminating in its associations. There was, in essence,
nothing wrong with the airline's decision to throw the Imams off
the plane, hence the Imams' suit is frivolous and should be dismissed.

The problem
is that, since the passage of the Civil Rights Act, the fundamental
right of freedom of association has been markedly curtailed. The
new law decreed: "All persons shall be entitled to the full
and equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public accommodation,
as defined in this section, without discrimination or segregation
on the ground of race, color, religion, or national origin."
Inasmuch as the Civil Rights Act dismantled public laws that unjustly
discriminated against blacks, the law was a good piece of legislation.
But in its zeal, the law went too far, as Roger Pilon noted in his
essay, "The Right to Do Wrong." As Pilon put it, the Civil
Rights Act "created a u2018right' against private discrimination
on certain grounds and in certain contexts," but it is a false
right, one found nowhere in the Constitution or anywhere else. In
fact, Pilon observed, "if we do have a right to be free, to
plan and live our lives as we choose, limited only by the equal
right of others, then we have a right to associate, or to refuse
to associate, for whatever reasons we choose, or for no reason at
all." Some may choose to associate or not to associate with
others for reasons some others might find unethical and repugnant.
But, as Pilon observes, "if freedom and personal sovereignty
mean anything, they mean the right to make those kinds of decisions
for ourselves, even when they offend others."

since 1964 the right to freely associate only exists in the potential
of natural law and in libertarian theory. In practice, the right
of association, one of the first natural rights to be undermined
in the U.S., has been so far circumscribed that the Imams may just
win their lawsuit.

29, 2007

Dennis Behreandt
[send him mail] is a freelance
writer and historian. His work appears frequently in The New
American magazine.

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