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The Freedom Not To Associate, In Light of Charlottesville


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If the private market decides to flee racism and terrorism, everyone will be better off.

In the last week, America has been saddened by the outpouring of violence in Charlottesville and Boston. When these winds of clashing protest whip up, innocent people are caught in the middle, communities are broken, and local businesses are left in shambles.

In the wake of these events, nearly everyone agrees that racism, rioting, and politically-charged violence are evils that should be extinguished. Well and good. But this agreement must lead to action to have any lasting effect on our society.

Businesses and other private organizations may wonder how they can discourage the hateful actions that led to these horrible protests. True, several CEOs have abandoned the councils advising President Trump after his belated response to Charlottesville, but those maneuvers were more a PR stunt than an attempt at problem-solving.

If private institutions really want to put a dent in ideologies that preach violence and terror, they should exercise their right to refuse association with those who peddle them.

Private organizations have long possessed First Amendment rights under the Constitution. The Supreme Court has notably reaffirmed this principle twice in the past decade. These freedoms are due, at least in part, to the private status of these organizations. Like any American citizen, private groups can independently choose what they want to fund and support, mostly free from legal restriction.

In fact, the Supreme Court has recognized that private organizations may choose not to associate with certain people or groups under the First Amendment. In Boy Scouts of America v. Dale, a former scoutmaster sued the Boy Scouts for excluding him from membership based on his participation in the LGBT movement. He argued that the Boy Scouts, a private organization, could not discriminate against him based on his own private choices. Yet the Court found in favor of the Boy Scouts, famously stating that the First Amendment’s freedom of association “plainly presupposes a freedom not to associate.”

This fundamental, legally-recognized liberty to refuse dealings with others has wide-reaching implications. Under its banner, private institutions may choose not to associate with another person or group by barring them from membership or entry. This freedom is not unlimited, of course, but it is still broad enough to reach those participating in speech or expression that aims to incite terrorism and violence.

The “freedom not to associate” opens an array of acceptable avenues for private groups to combat such views. Imagine Twitter instituting a policy of no tolerance for overtly racist tweets, or for accounts that regularly advocate for jihad against non-Muslims. Private colleges could feel free to bar Antifa, the Ku Klux Klan, and divisive demagogues from their campuses. Such actions would make up a privately manufactured groundswell of rejection toward racism and violence, tarring them as socially unacceptable.

This kind of discrimination would also benefit markets – both economic and ideological. If businesses and other private institutions barred those with certain viewpoints, they could always find other spaces where they feel more welcome, or else create their own. In a free market, services will spring up where demand exists. This is especially true of the marketplace of ideas, which has low barriers to entry.

There will be those who find this proposal to be censorious. Wouldn’t banning those who express certain views or take certain actions violate their rights of free speech and expression? First of all, a private person’s free choice not to associate with another private person is not censorship because it does not bar that same person from associating with others elsewhere. Private entities may distinguish themselves from certain free expressions in this way, but the government may not.

Second and finally, the freedom not to associate is an unqualified good because it protects moral minorities and majorities equally. Businesses should be allowed to not only exclude those who spew racism and terror, but also those whose views and practices run counter to their sincerely held beliefs. For instance, a Christian baker that does not want to provide his goods for a same-sex wedding or a gay clothier that chooses not to make T-shirts for Westboro Baptist Church should both be allowed to refuse service.

As a nation, we should give private businesses the same freedoms that we allow private individuals and let them refuse association with whomever they choose. If the private market decides to flee racism and terrorism under the protection of the freedom not to associate, everyone will be better off.

Connor Mighell is a third-year law student at The University of Alabama School of Law with an undergraduate degree in Political Philosophy from Baylor University. He is a contributor at Merion West and the curator of “Five in a Flash,” a weekday newsletter. His work has been featured at The Federalist, SB Nation, The San Francisco Chronicle, The Hill, The Dallas Morning News, and The New Americana. He may be found on Twitter at @cmigbear.

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