It Is Dangerous to Be Right When the Government Is Wrong

by Andrew P. Napolitano

  Although time, place, and manner restrictions may seem less severe than content-based restrictions, nonetheless they should not give the government any more license to regulate speech. It still must demonstrate that the restriction on expression is necessary to prevent the violation of another’s natural rights. Let us consider a few examples. If you lived in a very crowded area, would the government be justified in preventing you from blaring extraordinarily loud music at midnight, or at least requiring you to pay “damages” to your neighbors for doing so? Certainly, by playing obnoxious music, you are diminishing your neighbors’ natural right to the use and enjoyment of their property. And over time, if you were habitually noisy, then most likely you would decrease the market value of their property. Thus, although the government could not criminalize this kind of expression, it would be more than justified in making it actionable, or in other words, the basis for a lawsuit.

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  But what about restrictions on picketers outside of your house, and not on your property? Assuming you could enter and leave your house just fine and they weren’t being so noisy as to diminish the use and enjoyment of your property, then there would be absolutely no justification for any restriction of their freedom of speech. In what way are your natural rights violated? Although it might be embarrassing, there is no natural right to be free from embarrassment. Does it seem as if they are invading your privacy? Then simply close the blinds. In sum, although it may seem inconvenient and annoying, the protesters’ fundamental liberty to express themselves must prevail.

  I was shocked during a trip to see the Redwoods at the Muir Woods in Northern California to find a small, government-mandated “First Amendment Zone” located adjacent to a parking lot and hundreds of yards away from the Redwoods. How effective can environmental speech activists be when they can’t get anywhere near the trees they want to protect? What gives the government the right to restrict our speech like this on our federal park lands?

  Where Do We Go from Here?

  While the last few decades provided for the removal of many governmental restrictions on our natural right to free speech, it appears as though the War on Terror may halt these best efforts. As we have seen, so often it is fear of insecurity which provides the impetus for restrictions on speech. Under the Patriot Act, for example, the FBI is provided with the authority to write National Security Letters, or in other words, self-written subpoenas and warrants. Moreover, if an FBI agent shows up at your door with a self-written search warrant, the agent may command you not to tell anyone else about the search—not your spouse at home, your priest in a confessional, your doctor, or your lawyer; not even in a courtroom, under oath, without violating the Patriot Act and risking a five-year sentence in prison.

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  Furthermore, the Supreme Court recently held that a section of the United States Code dealing with terrorism is constitutional, even though it makes it a crime “knowingly [to] provide material support or resources to a foreign terrorist or organization.”11 Material support or resources refer to “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance,” a near total ban on not just support to a foreign terrorist or organization, but interaction with. Thus, if you were to encounter an individual identified as a foreign terrorist and attempt to encourage him to read the Constitution and understand the vast amount of freedoms we enjoy in this country, you could be prosecuted and convicted for providing “advice.” Even more frightening is that the secretary of the treasury and the secretary of state are empowered to classify or declassify any group as terrorists at any time. We simply cannot allow our freedoms to be eroded; not in the best of times, and not in the worst of times.

  Conclusion

  The most frightening aspect of recent restrictions on speech is not the loss of our ability to speak, publish, and hear what we wish, but the fact that these are mere symptoms of a fundamental flaw in American political culture: We no longer believe that the government exists to serve our needs as individuals and members of a community, but that the government is our master which is able to determine for itself what is in our best interest, unbound by any constraints. No one seriously believes that granting the government the ability to hack into our e-mail accounts (as the Patriot Act does) is truly in pursuit of American liberty. However, what people do believe is that there is nothing fundamentally illegal or unnatural or unconstitutional about granting government such a blank check: Although these policies may be “misguided,” folks today believe they are not in contravention of the Natural Law per se.

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  With such a view, we are one tenuous showing of necessity away from becoming complacent with such illegitimate commands, as occurred with the Iraq War (few seriously challenged the lawfulness of the war, but merely whether it was militarily necessary). What is needed is not merely greater accountability, propriety, or guidance on Capitol Hill, but a seismic shift in the way Americans think about the constitutionally mandated role—and contours—of government. Anything less will accelerate our eventual path to serfdom.

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  Chapter 4

  I Left My Rights in San Francisco:

  The Freedom of Association

  The notion of a gym being sued for declining to hire a fat aerobics instructor sounds more like a South Park episode than reality.1 However, Jennifer Portnick—a 5-foot 8-inch, 240-pound woman—has gone and done it. Ms. Portnick applied to become an aerobics instructor at Jazzercise, a private gym in San Francisco that markets itself as “the world’s leading dance-fitness program.”2 Jazzercise chose not to hire her, citing its company policy: Instructors must have a “fit appearance.”3

  Ms. Portnick took her case to the San Francisco Human Rights Commission, which enforces the City’s ordinances, basing her argument on hyper-sensitive San Francisco’s “fat and short” ordinance; the law forbids employers from discriminating on the basis of height or weight. In the end, the Commission enforced San Francisco’s anti-discrimination law in favor of Ms. Portnick, and as a consequence, the government forced the gym to hire the 5-foot 8-inch, 240-pound woman as its newest aerobics instructor at Jazzercise.4

  Does the government own Jazzercise? Does the government work in Jazzercise’s HR department? Of course not; the state is grossly overstepping its authority here. The government does not have the right to tell Jazzercise who it can and cannot hire. The government does not have the right to intrude on a private business owner’s right to run his business as he pleases. The government does not have the right to dictate to Jazzercise what is (and what is not) good business practice. All these decisions are solely the interests of the business owner and his or her team of advisors.

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  This ridiculous San Francisco illustration aptly demonstrates how the government, without restraint, continues to violate the fundamental rights of free individuals and private business. In the case of Jazzercise, the state completely obliterates a private business’s fundamental freedom of association.

  Freedom to Associate Also Means Freedom Not to Associate

  The First Amendment of the United States Constitution guarantees the freedom of association. It states, “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble.”5 Simply stated, we may voluntarily gather, come together, or assemble ourselves into whatever peaceful associations we choose, and the government cannot interfere with those choices. It is worth noting that this fundamental right is worded such that it restricts government action; it does not restrict our action. As we have seen, the authors of the Constitution and the Bill of Rights believed that individuals have certain natural rights as human beings, and the government was created to protect these rights, not to violate them.

  However, just because the Constitution says that we can associate with any individual we please does not mean that we may associate with any individual we please. The freedom
to associate is predicated on the existence of mutual consent—each person must agree to associate with the other person. For example, when A and B agree to associate with one another, both A and B have that freedom. But if A wants to associate with B, and B does not wish to associate with A but is required to do so, then B is not legally free to reject that association with A. Rather, he is being forced to associate with A. This concept is called forced association. Forced association is completely counter to our natural rights as free individuals because it infringes upon a person’s right of free choice, and it is counter to the Constitution.

  As a result, the right to associate has two components. Firstly, we are free to associate with those who accept us. This is called positive freedom of association. Secondly, we are free to abstain from associations of which we do not approve. This is called negative freedom of association. Both elements of the right are integral to the freedom as a whole, both are natural rights, and both are protected by the First Amendment to the Constitution.

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  Because forced association is inherently not voluntary, it is a form of involuntary servitude strictly prohibited by the Thirteenth Amendment of the Constitution which states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” No involuntary servitude shall exist, and it is the government’s job to prevent it.

  This tendency to assemble and unite with other human beings is as natural a tendency as they come. There is an internal and innate yearning to be a part of a group with a purpose, a similarity, or sometimes even a distinction. So long as the association does not cause harm to others—“an intentional physical invasion or aggression of another person’s body or rights or property”—we have every right to associate with those who want to associate with us. This fundamental right is at the very heart of liberty because it is an extension of the liberty of conscience and freedom of travel. The government must have no role outside of protecting that freedom.6 The rationale behind the theory is simple. Thomas Paine explains,

  In those associations which men promiscuously form for the purpose of trade or of any concern, in which government is totally out of the question, and in which they act merely on the principles of society, we see how naturally the various parties unite; and this shows, by comparison, that governments, so far from always being the cause or means of order, are often the destruction of it.7

  Where It Gets Sticky in Our Hyper-sensitive, PC World: The Right of the Individual and Private Business to Discriminate

  From the very beginning, we must make a distinction between private and public entities. The rights of a private business are identical to those of an individual because a private business is a compilation of free individuals. This concept is founded on property principles and freedom.

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  These private entities—both individuals and private business—have the fundamental right to associate, and alternatively, the right not to associate. Conversely, public entities—like the government—do not have this natural right because the state is a fundamentally different kind of unit (which I will discuss shortly within this chapter).

  Free individuals have the right to choose the people with whom they associate. The corollary of that right is free persons can choose the people with whom they do not associate. And to take it a step further, the right not to associate with others is synonymous with the right to discriminate against others. Because we are free individuals with mental capabilities and decision-making skills, these choices to associate and discriminate are ours, and the government must not interfere. In fact, the government exists to protect this right to discriminate.

  While the right to discriminate may sound wrong or even immoral, this is not the case at all. Every day, we make discriminating decisions that result in an exclusion of some kind. When I invite a small group of friends to my home, some of my larger group of friends are included, and some are not. When I have a pizza delivered, I choose one restaurant and eliminate the other options. When I hire a new staff member, I hire one person and reject the other applicants. When I board the subway, I choose to sit in the seat next to one person over a seat next to another person. When we say that a person has “discriminating taste,” it signifies a good quality—that she has sophisticated style.

  If we did not have the right to make these discriminating choices (which always result in some kind of exclusion), we would be the victims of force or coercion. Walter E. Williams, a professor of economics at George Mason University, further illustrates this concept and right in his article, “The Right to Discriminate”:

  Should people have the right to discriminate by race, sex, religion and other attributes? In a free society, I say yes. . . . When I was selecting a marriage partner, I systematically discriminated against white women, Asian women and women of other ethnicities that I found less preferable. . . . The Ku Klux Klan discriminates against having Catholic and Jewish members. The NFL discriminates against hiring female quarterbacks. The NAACP National Board of Directors, at least according to the photo on their Web page, has no white members.8

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  There is nothing wrong with these discriminating choices at all. Professor Williams and each of these organizations have every right to exclude people and make discriminatory decisions because they fall into one of the following three categories: Free individuals, private groups, or private companies. Not one is a public entity; therefore, they are all free to associate and to discriminate.

  Regrettably, with all the benefits that come with this fundamental right to associate, there are also unfortunate consequences. People make good associational choices, but people also make bad associational choices. But the truism here is: Freedom entails the right to make bad decisions. As a result, as morally repellant as it may be, a racist has the legal right to be a racist. A misogynist has the legal right to be a misogynist. A homophobe has the legal right to be a homophobe. And while the existence of these kinds of people in the world is disappointing and aggravating, they have every right to discriminate based upon their prejudices because they are free human beings. The government is here to protect free choices—even bad ones—from the tyranny of the majority.

  Why There Really Is No Difference

  If Mrs. Murphy decides to host a garden party in her backyard, she is free to invite her fellow Irish friends over to enjoy her fresh-squeezed lemonade. At the same time, she may also (intentionally or unintentionally) exclude her Italian neighbors because she owns her house and has the right to be the gatekeeper of its front door. She may discriminate between invitees because Mrs. Murphy has the absolute right to decide with whom she associates in her own home. Few would dispute this fact.

  If Mrs. Murphy sets up a lemonade stand outside her home on her property, she is free to serve only those customers she wishes. She may refuse to sell her lemonade to the Muslim family down the street. While this is a bit harder to swallow than the previous example, it is her lemonade to sell, her property to sell on, and her choice to make poor business decisions, which exclude a portion of her lemonade-buying population. Because Mrs. Murphy has the right to decide with whom she associates, she may discriminate between potential lemonade-buyers.

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  Lastly, if Mrs. Murphy opens up a pub down the street, she may still choose to serve only those she wishes to serve. There is really no difference between this scenario and the lemonade stand situation; the food and service are hers to sell, the pub is her property, and it is her choice to make poor business decisions to exclude customers. As a private business owner, she has that freedom because the government has no business telling Mrs. Murphy how to run her private company, the pub. It is not, however, in Mrs. Murphy’s interest to deny her Italian, Muslim, or black neighbors entry because she will lose business, the business of those excluded and the business of those that abhor Mrs. Murphy’s racism.

  Lau
rence M. Vance, an adjunct scholar of the Mises Institute, equates the private home scenario with the private business scenario, as well. There is no distinction, he says:

  Just as no one has a right to enter my home, so no one should have a right to stay at my inn, hotel, or motel; eat at my restaurant, cafeteria, lunchroom, or lunch counter; enjoy a beverage at my soda fountain; fill up at my gas station; view a movie at my theater; listen to a concert in my hall; or watch a sporting event at my arena or stadium.9

  This notion is difficult to accept today because our society teaches us that racial discrimination is wrong. And I completely agree! Racism is morally wrong and thus deplorable. The problem is: When government interjects itself and tells a private business owner with whom he or she can associate on his or her own property—that becomes a constitutional and legal problem that could generate far more harm to natural rights than the owner of a movie theater could. It is not the government’s job to insert itself in this manner. It is the government’s job to protect the voice and actions of the unpopular opinion. It just so happens that the racist is in the minority here. The pacifist, agriculturalist, Jew, or Scientologist may be in the minority next time. Roger Pilon at the Cato Institute explains, “We do not all agree on ‘the good’ . . . one person’s ‘irrational’ discrimination is another’s perfectly reasonable decision.”10 It may feel like the world is upside down when we are defending the racist, the misogynist, or the homophobe, but the Rule of Law is in place to protect the minority from the tyranny of the majority.