I’ve written here, here, and here, about how the public accommodation principle deprives business owners of economic liberty. Consider, now, an interesting story about efforts to organize a protest at the Mall of America in Minnesota.
In brief, Black Lives Matter protest organizers were looking to stage a large gathering at Minnesota’s Mall of America. Lawyers for the mall sought an injunction against this protest by citing past experiences, including lost sales. A judge issued a temporary restraining order, which is a somewhat positive conclusion. The telling element of this story is the presumption by protest organizers that they’re entitled to stage protests on private property without the permission of the property owners. I attribute this presumption to the pervasive sense of entitlement to access to others’ property that’s fostered by half a century of public accommodation overreach (born out of Title II of the 1964 Civil Rights Act). While I believe that, as a remedy for the pervasive racial discrimination of the Jim Crow era, the Civil Rights Act was a better approach than a mere repeal of Jim Crow laws and a debarring of discrimination by government at all levels, I also believe that the public accommodation principle is a fundamental infringement on individual liberty, and that its codification in law should have been a temporary measure. But, instead of being sunsetted or repealed, the law and its reach have been expanded by aggressive judicial interpretation.
It’s hard to imagine that a business operator today could engage in discriminatory clientele selectiveness without incurring the wrath of society at large. It’s even harder to imagine that, should such businesses exist, consumers who’d been turned away would be unable to find accommodation at competing businesses. A discriminating business would suffer not only lost sales from those it turned away and lost sales from those who boycotted in solidarity, but would suffer competitively as other businesses, benefiting from the extra sales, could offer better prices and quality. Basic economics – if you do things to artificially shrink your market, you’re harming yourself and benefiting your competitors. The evolution of society over the past few decades away from discrimination offers the opportunity to correct an infringement on liberty that was intended to correct a previous, more egregious infringement. In short, it’s time to rethink public accommodation theory before it completely erodes the last vestiges of economic liberty that exist in people’s consciousnesses.
Imagine that you decide to start a business that serves the public. You may have some skills and some experience in a particular trade or field, or you may believe you can find people who do. You invest some of your own money, you borrow some more, you rent out a storefront, you have some remodeling done, you buy some equipment, you buy some inventory, you hire some staff, and you open your doors, hoping customers come in. You’ve done the work, you’ve taken the risks, you’ve used private capital and are operating on private property. By right, you should be able to conduct your business as you wish, subject only to liability and consequences for doing harm to others. You should be able to serve whom you wish and deny service to those you’d rather not serve. Your choices can reflect badly on you, and others are as free to boycott you and to tell unpleasant truths and offer opinions about you and your business in the public sphere.
Sounds nice. Too bad it’s utter fantasy. The moment you open your doors, you forego your basic economic liberty. You are required to conform to a seemingly endless list of mandates and restrictions, and you are required to serve whoever walks in, with few exceptions (e.g. no shoes, no shirt no service, a customer exhibits behavior that’s sufficiently disruptive to warrant a call to the police, etc). Even something as offensive as wearing a swastika pin is insufficient cause for refusal of service, no matter that such a customer might chase away a dozen others.
While we tolerate and protect speech that we deem offensive because we know it’s a “cost” of living in a free society and a protection against governmental overreach, we’ve defenestrated similar protection in the economic realm. We’ve created tools to effect certain desirable outcomes (i.e. the dismantling of systemic and institutional racism), but are now witnessing the use of those tools in ways that have drifted far from their original intended purpose. This is the norm when it comes to government, and listing instances of government misusing the tools it has been given would take far more space and far more time than this one essay accommodates. While the current case (the Mall of America targeted as a protest site) does contain some elements of protection for property owners and those to whom they lease space, the protestors retain the sense that they are entitled to enter that private property and disrupt both the tenants and the other consumers who wish to transact with the tenants, and indications are that they’re planning to show up en masse to disrupt the lives of others.
This leads us to another news story and another demonstration of this sense of entitlement to interfere. Protestors who block public highways and roads and who interfere with the free movement of others are infringing on others’ rights. The right to assemble is protected by the Constitution, but that right does not legitimize infringement of others’ rights. Just as the Occupy Wall Street protestors were trespassing and violating property rights when they set up camps in Zuccotti Park, the Black Lives Matter protestors are violating individuals’ rights to move about freely when they block roadways. The Zuccotti Park landlords permitted the encampments for a while, for reasons I won’t presume, and that’s their right. On the other hand, the road blockaders were dispersed or arrested, and that is a defense of the rights of others.
That is the ultimate lesson. The exercise of one’s rights must not infringe upon the rights of others. Once we start permitting such infringements, we declare that some rights are more important than others, and that some people are more deserving of rights than others. This declaration is and always was the inevitable outcome of the public accommodation principle, and it’s the reason that it should be sunsetted.
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