David R. Henderson  

For Freedom of Association

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There has been a lot of controversy lately about Indiana's religious freedom law. There's a simple solution to the problems that the law deals with: freedom of association.

I don't claim here to understand all the ins and outs of the Indiana law. As the title of my post implies, this is not about the Indiana law: it's a defense of freedom of association.

Duke University economist Michael Munger wrote a piece yesterday, titled "Indiana," that leads off by making the point that there is a fundamental "freedom of association." He writes:

First, there is a fundamental freedom of association, both the choice of whom to associate with, and also with whom not to associate. Acting as a private person, this right is at the core of civil liberties, both in politics and in economic contracts.

When I read that, I figured I wouldn't need to write this post. But then I continued reading. Munger, it turns out, does not completely defend freedom of association. He wants to limit it. He continues:
Second, a clear, venerable, and useful common law doctrine is the "implied contract" associated with being open for business. This is is in the realm not of private individual, but of a commercial enterprise. I advertise prices and goods/services, and when someone makes a valid offer I have substantial-not absolute, but substantial-obligations to honor the offer implied by my being "open for business." For me not to act on the advertised terms is a kind of "bait and switch," bordering on fraud. So, for example, if I open a pizza restaurant with prices, sizes, and toppings I am obliged to provide such pizza and such toppings at such prices. If I present a bill where all my prices are arbitrarily doubled, that would violate the contract implied by my posted prices. There are limits on this: I may run out of toppings, or one topping, I may find that my oven breaks and I can't cook pizza that night, etc. Further, I might have the right, under some circumstances, to refuse service to someone who is very drunk, very noisy, or might otherwise prevent other customers from enjoying their pizza. (UPDATE: Though one could argue that restaurants are not either "common carriers" or "public accommodations," though that distinction matters for statutes, as referenced here...)

I agree with Mike about the prices, sizes, and toppings. I don't agree that that reasoning carries over to whom the business deals with. Maybe we take it as given that when a business is open, it's open to all comers, but maybe we shouldn't take it as given. I don't see the implied contract.

On the other hand, there is a way out of the apparent "implied contract." That way is to make the implied contract the default. That is, unless the business states differently, there is an implied contract. I don't think that's as good as my solution of complete freedom of association, but it's not terrible. Then a business can say, "We reserve the right not to deal with heterosexuals" or "we reserve the right not to deal with homosexuals" or "we reserve the right not to deal with black people" or "we reserve the right not to deal with people who hate black people." That business would then take the risk of losing customers who disagree. And so be it.

That's where I expected Mike Munger, one of the sharpest economists in the business, to go in his reasoning. But, alas, he did not. In fact, he explicitly rejected such a solution, writing:

It would be wrong to have signs that limit the implied contract associated with offers to do business. So if a pizza restaurant had prices and toppings listed, but also had a sign that said "No Gays Will Be Served" or "Jews Will Be Charged Double" that cannot be a protected right of association, even if it's true that the person is a Baptist and thinks gays are evil, or even if the person honestly thinks Jews are evil. It's not clear to me that anyone proposed that this would be an application of the Indiana law, mind you, but I would not concede that such things could be protected.

As a matter of fact, I think it's wrong too. But the discussion about freedom of association is not mainly about whether it's wrong to discriminate in various ways; the discussion is about whether we should be allowed to. As his last clause states, though, Mike Munger thinks people should not be allowed to discriminate in those ways.

Rarely do I find comments on blog posts to be as good as, or better than, the posts themselves, especially when the author is someone as sharp as Mike Munger. In this case, however, I did. Someone named "SeanII" wrote the following:

A sign that says "wedding cakes for sale" is not a binding agreement to do business with anyone and everyone. It's certainly not a binding agreement to refrain from discriminating against a list of categories, some of which were not even recognized when the cake shop opened.

Of course it's no more ridiculous than the "common carrier" notion itself. Either way, the theory boils down to "you brought forth a good or service and abracadabra you now have fewer rights".

That's as morally atrocious as it sounds...unless of course you happen to believe that the bringing forth of goods and services is a bad thing, and so to be punished. Not a belief I expect from anyone but habitual market-haters.


Comments and Sharing


CATEGORIES: Business Economics , Liberty




COMMENTS (59 to date)
Levi Russell writes:

I went through exactly the same thought process when I read Munger's post, right down to agreeing with "SeanII." I don't see why "We reserve the right to refuse service to anyone" isn't a legitimate right for any privately-owned business. Gov't-provided services are, of course, a different matter.

Paul Bogle writes:

Governor Pence claims that the Indiana RFRA isn't a defense for discrimination. It's understandable that supporters want to feel this way but it is a false claim. Christians who wish to refuse service to homosexuals for reasons of conscience are looking for a pass, not a sign placed conspicuously in their place of business outlining the fact.

Freedom of association is an individual right guaranteed by the Constitution. Defenders of this right should be honest about this and not engage in double-speak.

Brent writes:

Sounds like a quick way for businesses to be forced to change their signage to something like "Stuff / Service for Sale. Prices and Terms Negotiable."

ThomasH writes:

Sean II is one of the best commentators at BHL marred only by the idea that people who disagree with him on this kind of issue are "habitual market haters."

Of course I happen to believe that certain ways of organizing your wedding cake business may properly entail fewer rights than other ways. And while refusing to do business with Category X persons ought not be illegal for a single proprietor, this need not apply to Wedding Cakes, Inc. with thousands of branch ovens.

A different (second best) issue is whether, given an unjust law that does oblige single proprietors not to refuse to do business with persons of Category X1, X2, X3 ...Xn, should we make an exception to this for those that wish not to do business with Category Xj for "religious" reasons? In this case it is hard to escape the impression that the State Legislature would be singling out Category Xj people as less worthy of protection than other categories and raising "religious" reason above other reasons for wishing not to do business. My general position is that making narrow exceptions to unwise to unjust laws are often more unjust than not making any exception (although there may be exceptions = :) = to this rule of thumb).

ilya writes:
So if a pizza restaurant had prices and toppings listed, but also had a sign that said "No Gays Will Be Served" or "Jews Will Be Charged Double"

I like this solution! Let them try that, I bet that won't last long.

Since this will actively remind of the discrimination factor to those going to that place, not only will they lose the gay/jewish customers, but most of the silent majority as well.

john hare writes:

I am a bit tired of the whole discussion being based on religious freedom in most articles. In my business, I routinely no bid jobs that don't fit our business model. I have done construction work for gays and Christians with no problems, and have no bid work for people in the same categories. I think people should be able to refuse service to me for any reason, or no reason at all, as I can take my money down the street while they enjoy their preferred association freedoms.

It should not be forgotten that some discrimination is necessary. For example, a woman must discriminate among the men she dates. Coercing her into dating indiscriminately should be recognized as wrong by any party, as she would be nothing more than public property. By the same token, a business should have some control over the clientele.

trent steele writes:

I watched an interesting interview with Jason Collins, the first openly gay NBA player. He criticizes the proposed Indiana version of RFRA as a way to "legalize discrimination."

Jason Collins is black. Why is that fact relevant? I am quite sure he hasn't thought his position through, because if he had, I don't think he would advocate a legal regime where someone can force another person to work for them against their will.

Slavery is really all about the freedom of disassociation. The job that a slave does could be done by a free man. The difference is that the slave (of whatever color, ethnicity, age, sex, orientation, etc.) is not free to refuse his labor to the slaver; nor is he free to disassociate himself from the slaver.

Kevin Erdmann writes:

Note that nobody appears to be concerned at all about customers, employees, friends, and family who might act on any prejudice they please. In fact, many customers are explicitly directing their business with moral considerations here, by boycotting Indiana or specific businesses because they disagree with their anti-gun positions. Anti-gay customers could choose to boycott gay businesses, also. It wouldn't even make the news. They wouldn't even need a law. They wouldn't even need to have a religious excuse.
Customers, employees, friends, and family have this thing called a presumption of liberty. Everyone seems ok with that. Let's have a presumption of liberty that isn't prejudiced.

RogC writes:

No person should ever be forced to engage in private commerce with anyone they don't wish to. Public workers assume responsibility to accept everyone. Employees agree to abide by the wishes of the employer. Otherwise to say that as a condition of livelihood a private citizen must serve someone they don't wish to is a partial enslavement.

Dan W. writes:

Of the many lies I have heard about this topic one that is most obvious to me is the notion that providers of service are obliged to serve all requests. This can only be possible if the service or product is a commodity that does not involve any extra effort by the provider. Otherwise, any request for service can only be fulfilled if the provider (a) has time to handle the request (b) finds the offer of payment compelling to accept the request and (c) wishes to apply his efforts for the cause that is implicit in the request.

Because of this a provider of service can always find a non-controversial reason not to perform a request. I am confident that the progressives know this as well as anyone else. Surely progressives who labor in self-employment are reserving their right to turn down work that disagrees with their sensibilities (ie the anti-gun publicist will not work for the local gun club). So what the progressives really seem to be saying is that it should not be permitted for a service provider to decline service by voicing displeasure with homosexuality.

What this means is the argument is not even about Free Association. It is about Free Speech. The argument is about the most basic principle of liberty – are people free to speak openly about their thoughts and ideas or does the law (or absence of protection under the law) dictate that speech must conform to government limits?

Bob Murphy writes:

It doesn't affect the broader issue of freedom of association, but I think what the vast majority of people on this issue are overlooking is that (to my knowledge) no business owner is coming forward and saying, "We want to be able to refuse service to gays." Rather, they are saying, "We want to decline serving at a gay marriage ceremony."

For example, the pizza place in Indiana that is receiving arson threats / donations had the daughter of the owner (the one who gave the interview that led to the attention) on a FOX show, and she was quite explicit that they are happy to serve pizza to customers who are gay. What they don't want to do, is provide the catering for a gay wedding, because they think that would implicitly be condoning the event which they don't want to do.

So in terms of the actual controversy facing real people in the US, this isn't about, "What should we do if there's a group of people out there who don't like gay people?" It's rather, "What should we do if there are a group of business owners who don't approve of gay marriage?"

AZOG writes:

"Either way, the theory boils down to "you brought forth a good or service and abracadabra you now have fewer rights"."

Not at all. What it means is if you advertise a product or service then you need to honor your advertisement, be it an ad, a sign, or whatever.

Libertarians have a basic principle called the non-initiation of force or fraud. Announcing that you are selling something, then refusing to honor that announcement is fraud. The person has spent time, money and effort to come to the restaurant based on your advertisement.
Refusing to serve them at that point has cost them. Will the person turning them away pay for the cost he imposed on them?
Some libertarians have a hard time understanding that their rights don't extend to imposing costs on others.
It's not a case of 'abracadabra'. It's a case of not committing fraud.

David R. Henderson writes:

@Bob Murphy,
You make a good point and your blog post on this is excellent. I didn’t cite it or make the point you’re making because I wanted to focus on defending freedom of association.

David R. Henderson writes:

@AZOG,
Announcing that you are selling something, then refusing to honor that announcement is fraud. The person has spent time, money and effort to come to the restaurant based on your advertisement.
Refusing to serve them at that point has cost them. Will the person turning them away pay for the cost he imposed on them?

I think you would have trouble generalizing your principle. One thing retailers will tell you is that they often deal with people saying they will come down and purchase something and then not showing. I got to experience the life of a retailer when I sold a car. By your principle, those no-show customers committed fraud.

hari writes:

AZOG, should the bakery be obligated to cater at any legal event? What about a KKK rally? A vegas style burlesque? Does being in business mean you forfeit the right to say "I'm not comfortable with this"?

AZOG writes:

I'm not following your argument. If a person calls up and says they will come down and purchase something and then deliberately doesn't come by, then it is fraud. Why is that hard to generalize?

Of course if the reason they didn't come by was because they tried to, but got held up by children, job etc and ran out of time, then it's just a case of life intervening. That's why most of the time people call, to minimize the impact of their behavior on others.

How is that in the same category as advertising that you are selling a product, having the person come by, and then refusing to serve them because they are black or gay or whatever?

Or are you implying that sometimes life intervenes and otherwise 'normal' people become black and gay while driving to the restaurant?

When you advertise yourself as a restaurant, the expectation is that a customers race, religion, sex, orientation of anything else doesn't matter to the advertised transaction.

If it does matter to the business, then announce your policy so that you aren't imposing costs on others. It's basic libertarian principle. It's basic manners.

AZOG writes:

Hari,

No. No one is obligated to cater an event they don't want. No one is obligated to serve people they don't want.
They are, however, obligated to fulfill their advertisements. Otherwise it is fraud.

If they, as a rule, refuse to serve gay people, then it needs to be part of their advertisement, so that gay people, and those of us who care about bigotry, will not waste our time and money, either getting turned away, or supporting businesses that violate our conscience.

KPres writes:

Life intervened, LOL! Sorry, I know I said I was going to oay you back the money I borrowed from you, but then I saw this great deal on a shiny new car and just had to buy it. What can I say? Life intervened!

Anyway, a business wouldn't need to advertise anything specific, just say "we reserve the right to refuse service" and that would cover it. Especially since any business wanting to refuse service for any reason would need the same disclaimer, meaning such a notice would quickly become the standard.

James writes:

AZOG,

You clarify your error perfectly with "When you advertise yourself as a restaurant, the expectation is that a customers race, religion, sex, orientation of anything else doesn't matter to the advertised transaction."

When other people form erroneous expecations about what a business owner is willing to do, any the business owner does not satisfy those false expectations, that does not make the business owner guilty of fraud.

This whole line of argument is a red herring. The opponents of the Indiana law are opposing the law because they believe it permits forms of discrimination which they do not approve.

What opponents of the Indiana law need is a way to formulate a law that will permit all of the types of discrimination that they approve of (like a print shop run by homosexuals refusing to print invitations to a fundamentalist religious education program), while prohibiting types of discrimination they disapprove of (like a fundamentalist run print shop refusing to print gay wedding invitations). Good luck with that.

Jared writes:

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Lorenzo from Oz writes:

Some folk take freedom of association to the point of refusing to associate with their own (gay) children. There is a question of varying vulnerability here--especially in small towns--which sees to be somewhat glibly overlooked.

Massimo writes:

Henderson, are you really defending "the right not to deal with black people"?!? I understand the freedom of association libertarian logic, but the entire basis of the civil rights movement has been removing people's freedom to associate based on race or religion. Do you really oppose all of that? Do you support people to open ethnically exclusive restaurants, schools, and hospitals? That seems outrageous and extreme.

You've also celebrated Mandela for his violent fight against Apartheid. Why was South African Apartheid any more wrong than the Jews wanting to have a Jewish state or some of the ethnic French wanting to keep France as an ethnic homeland?

Phil writes:

In the United States, at least, that common law doctrine was superceded generations ago.

I thought that libertarianism said that Person's A's rights were limited when they interfered with Person's B's rights. (E.g., you can walk your dog through the neighborhood, but you cannot let it poop in my yard.)

Are you saying that the Civil Rights Act and 60 years of jurisprudence (starting with Heart of Atlanta v. U.S. or Katzenbach v. McClung) is wrong?

dsylexic writes:

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RPLong writes:

I'm no legal expert, but the way I learned contract law was like this:

If A makes an offer, and that offer is subsequently accepted by B, and then A rescinds the offer for any reason, then B has a legitimate tort-level claim against A.

Because this is a tort, there can be no legitimate objection that A's freedom of association has been compromised. If A didn't want to make his offer public, then A could very well have circulated his offer only among whomever it is that A wanted to do business with. But if A opens his shop to the public, and the public accepts his offer, A cannot back out without violating tort law.

Right?

It seems that a lot of people want to overlook the fact that you can't claim a rights violation as a means of backing out of a contract. Either the contract is legally enforceable or it isn't. You can't open your shop to the public with a list of products, services, and prices, and then back out of the acceptance you get.

That is, you won't go to jail for it, because it's not against the law - but you can be sued, and you will lose.

Or did I misunderstand all my business law courses? Anyone?

Brad writes:

But can't you offer prices as "Indicative" like saying "New cars from the low $8000's, inquire for details"

Or in the sense of catering just as sign that says "Catering. Inquire within for details"

I don't see how either of those bind you to anything.

RPLong writes:

Good point, Brad, which is why I think Munger is correct to differentiate between refusing to serve at a restaurant, versus declining a catering opportunity on the basis of a prejudice.

R Richard Schweitzer writes:

Munger:

"Second, a clear, venerable, and useful common law doctrine is the "implied contract" associated with being open for business. This is is in the realm not of private individual, but of a commercial enterprise."

Thus does Professor Munger "imply" that by engaging in commerce, the individual is no longer "an individual" operating or acting with liberty in a condition of freedom of relationships with others; but, instead becomes a participant in relationships ("realm")with constraints.

What is this "realm?" Is it not made up of private individuals (with all their peccadillos)[no shoes, no shirt, no service]?

This disposition is where Rules of Policy, not Law, take our society.

LR writes:

RPLong:

What if a business has a sign saying "We Reserve the Right to Refuse Service to Anyone?" This, I think, gets around your statements and exempts them from torts.

Doesn't your view apply more broadly, precluding limits on liability?

Steve J writes:

The answer should be very simple. If you don't want to deal with the obligations of running a public accommodation make your business a private club. In private your idea of freedom of association should be completely protected. In public it is not. The answer is not to reduce obligations on public accommodations but rather to make it simpler to run a private club.

David R. Henderson writes:

@Massimo,
Henderson, are you really defending "the right not to deal with black people"?!?
Please don’t call me “Henderson.” If you want to be familiar, call me David. And yes, I do defend that right just as I defend the right of black people not to deal with white people.
Incidentally, I think you do too, unless you think that black people or white people should not be allowed to discriminate on race in whom they marry or date. I’m simply applying freedom of association consistently.
the entire basis of the civil rights movement has been removing people's freedom to associate based on race or religion.
That is absolutely false. A large part of the civil rights movement was about removing people’s freedom to associate. Another large part, possibly even larger, was about allowing people to have freedom to associate. Street car companies for example, were forced to segregate even though they didn’t want to. See “The Market Resists Discrimination,” the box at the end of this article.
Another large part was to prohibit governments from discriminating on the basis of race. Your statement shows that you’ve missed a lot about what happened in the civil rights movement.
Do you support people to open ethnically exclusive restaurants, schools, and hospitals?
No, but I do support their right to do so.
Why was South African Apartheid any more wrong than the Jews wanting to have a Jewish state or some of the ethnic French wanting to keep France as an ethnic homeland?
You’ve opened up a whole new topic and done so with inexact language. I have no objection to the French wanting to keep France as an ethnic homeland or Jews wanting to have a Jewish state. My objection comes, as with Apartheid, when they use force and government discrimination to do so.

David R. Henderson writes:

@Phil,
I thought that libertarianism said that Person's A's rights were limited when they interfered with Person's B's rights. (E.g., you can walk your dog through the neighborhood, but you cannot let it poop in my yard.)
It does. If a black person who owns a business does not want to serve me, he has that right. I don’t have a right to be served just because he has put up a sign announcing his business. Ditto the white person who runs a business.
Are you saying that the Civil Rights Act and 60 years of jurisprudence (starting with Heart of Atlanta v. U.S. or Katzenbach v. McClung) is wrong?
No. I’m saying that the parts of the law that prohibit private discrimination are wrong.

David R. Henderson writes:

@RPLong,
LR above has answered your question well.

AZOG writes:

'Reserving the right to refuse service to anyone' when one means 'We will not serve gays or blacks or whatever' is fraud.
If, as a rule, you will not serve gay people, the rule needs to be stated "We will not serve gays."
Otherwise you are imposing costs on the people you won't serve, as well as tricking people into purchasing your good or service who wouldn't if they knew your policy.

Jon Murphy writes:

This whole point/counter-point between Mike Munger and Prof. Henderson has really shifted the issue onto its head for me.

I'm no longer sure where I stand. This is a fascinating conversation.

LR writes:

AZOG

As has been pointed out to you in this thread at least twice, your notion of fraud is confused and is a red herring.

Phil writes:

David replied,

If a black person who owns a business does not want to serve me, he has that right. I don’t have a right to be served just because he has put up a sign announcing his business. Ditto the white person who runs a business.

Does that depend on the nature of the business? For example, is a lawyer who evaluates each potential client on the individual merits of the case different from a restauranteur or hotelier who provides a uniform service?

David R. Henderson writes:

@Phil,
Does that depend on the nature of the business?
I don’t think so.
For example, is a lawyer who evaluates each potential client on the individual merits of the case different from a restauranteur or hotelier who provides a uniform service?
I think it’s different, of course, but I don’t think it’s different in a way that matters for this discussion. Also, my experience of the world over the years, and I would bet yours too, is that restaurateurs and hoteliers rarely provide uniform service. I’ve been in a restaurant queue where some people who got there after me, but who appeared to be regulars without reservations, were seated ahead of me. On the other side, a Mexican restaurant that I go to for takeout about every 10 days has a sign saying that they will charge extra if you get an extra chips and salsa. I’m guessing that they were dealing with people who abused it by asking for more than one extra chips and salsa. I always get one extra chips and salsa and I have never been charged extra.

David R. Henderson writes:

@R Richard Schweitzer,
I forgot to say “well done.”
@Jon Murphy,
This whole point/counter-point between Mike Munger and Prof. Henderson has really shifted the issue onto its head for me.
Thanks, Jon.
I'm no longer sure where I stand. This is a fascinating conversation.
Thanks again. If you care to share, what was your view before reading either Mike or me?

Massimo writes:

David,

You strongly support individual discrimination/association but strongly oppose government discrimination/association and government force.

This seems completely contradictory.

The instant people organize into any type of group, such as a religion, tribe, ethnic group, company, or other, you have governance and government. There is no clean separation between individuals and governments.

It seems contradictory to say that Jews have every right to affiliate/discriminate and form a Jewish state to serve those aims, but that Jewish state should not have any right to affiliate/discriminate, which defeats the whole point.

Secondly every right or freedom, by definition, is the inverse of another right or freedom. The right to own property is the inverse of the right of someone else to use that property and more specifically it is the inverse of the nomadic tradition of using land and property as you need it. Ultimately, the competition of which right supersedes the inverse right boils down to force or coercion backed by force and might makes right.

With the open border debate, there are individuals on both sides of the issue, what each side wants is a direct inverse of what the other side wants. The contest is always settled by coercion backed by force. To claim opposition to force used by side A and implicitly support the force used by side B, seems silly.

And lastly, while a free market will drive out inefficient racial discrimination in favor of productivity and efficiency, a free market will promote those who use racial discrimination to improve efficiency and will drive out those who cling to a naive falsehood of racial equality. For example, if renting property to a certain race or ethnicity really is bad for business and is a rational prejudice, a free market would reward the landlord who used that prejudice to improve efficiency.

I am happy to call you by your first name. Most professors prefer the opposite.

Tom West writes:

I think you likely see disagreement here because I think it's quite possible, if one is a consequentialist Libertarian, to decide that in many cases the consequence of allowing freedom of disassociation is going to be coerced disassociation.

Human psychology and history has shown that we have very blurry lines between "allowed" and "approved of". One person putting up a sign in a shop window saying "We don't serve blacks" is a deviant and is silenced by social pressure and violence (and eventually government policy).

A majority putting up such a sign means that those who *don't* will be face social pressure and violence (and eventually government policy - private and public spheres are sharply divided in the Libertarian philosophy, not the human experience).

History is replete with enough examples, that I think a consequentialist Libertarian can decide that the cost in human misery for allowing complete freedom of association far outweighs the benefits of adhering to the principle.

vikingvista writes:

Sure, there is a moral question about whether it is proper for a person to refuse a particular type of association with a particular type of other person. There may even be a (different) moral question about whether or not a business owner doing so violates some sort of implied contract (even one concretized in common law, as Munger believes). And there certainly is a question about whether or when one should violate a contact.

Unfortunately, those moral questions are all trumped by typical state enforcement. Because then the overriding question becomes, does this offending person deserve to become the target of violent assaults.

And it is difficult to argue for violence in retaliation for *mere* contract violation or refusal of association, when there are morally and economically less costly and more proportionate ways to retaliate.

David R. Henderson writes:

@Massimo,
You strongly support individual discrimination/association
Your first sentence is wrong. Think about why.
It seems contradictory to say that Jews have every right to affiliate/discriminate and form a Jewish state to serve those aims,
I didn’t say that they have a right to form a Jewish state. I don’t think they do have that right. Again, pay more attention to what I actually write. Wanting something and having a right to something are two very different things.

mickey writes:

I'm surprised some see it as fraud to decline a sale by not accepting the offer.

Tom West writes:

does this offending person deserve to become the target of violent assaults.

Human experience has shown that visibly demonstrating once's willingness to either associate or discriminate that are sharply at odds from the surrounding society will likely be subject to violence.

Sometimes the mechanism is the state, sometimes it's not. From the point of view of the victim, it's almost immaterial, except that at least with the state, there's the hope that enough voters can change things.

And it is difficult to argue for violence in retaliation

We can argue all day, but we see the reality of violence across the world as well as at home.

Personally, I'm willing to limit freedom of association to some degree (it's always a trade-off) in order to avert violence, both against the lone bigots and against those who won't discriminate.

Most of all, I see it as averting the violence that is inherent in the significant proportion of people are unable to differentiate between government acceptance of private discrimination and social approval of acts violence against those discriminated against.

AZOG writes:

"LR writes:
AZOG

As has been pointed out to you in this thread at least twice, your notion of fraud is confused and is a red herring."

I heard you, and disagree. I found your arguments unconvincing. If you find my notion of fraud confusing, ask me to explain it better, or point out how it is confusing to you.

AZOG writes:

There seems to be some confusion as to what a sign or advertisement actually is in this context.

It is an offer that states if you come to my business, I will offer you the opportunity to purchase a good or service.

Once that offer is made, and a person comes to that place of business, a refusal to honor that offer, to provide that opportunity, is fraud.

If the parties cannot come to an agreement on the specifics of the sale, that's one thing.

But to deny a person the opportunity to negotiate a sale in the first place is quite another.

Jon Murphy writes:

@david R Henderson
Thanks again. If you care to share, what was your view before reading either Mike or me?

My original view was along the lines of what you are saying: it's the business owner's right to associate/dissociate with who he chooses.

Prof. Munger complicated that for me with the "implied contract" argument.

Your critique of his argument has me wavering back to my original thoughts, but I'm not 100% convinced he is incorrect in his reasoning.

I have an enormous amount of respect for both you and he, and to disagree with either one is very difficult.

LR writes:

AZOG

There seems to be some confusion as to what a sign or advertisement actually is in this context.

It is an offer that states if you come to my business, I will offer you the opportunity to purchase a good or service.

Once that offer is made, and a person comes to that place of business, a refusal to honor that offer, to provide that opportunity, is fraud.

This is the same thing RPLong said. A "We Reserve the Right to Refuse Service to Anyone" sign takes care of it. This concept, along with limits on liability, is totally justifiable. People do not cease to be human when they open a business, thus they are still entitled to their rights as persons. Since you seem to be caught up in treating this like an implicit contract, think of said implicit contract as explicitly saying "I can refuse to do business with you if I want."

Here's the legal definition of fraud.
http://legal-dictionary.thefreedictionary.com/fraud

Can you prove "legal injury" for the potential customer in this case? Even if you could, again, a sign on the door saying "We reserve the right to refuse service to anyone" completely blows away the first 4 requirements for fraud mentioned in the article!

Using your line of reasoning, we could just as easily say that having a liquid form of money in your pocket constitutes an implicit offer of said money for some product from some vendor such that by the very act of having liquid funds, you agree to spend it all!

Brad writes:
If the parties cannot come to an agreement on the specifics of the sale, that's one thing.

But to deny a person the opportunity to negotiate a sale in the first place is quite another.

So can one one of the specifics of the negotiation be that catering shall not be used for homosexual marriage?

Or that the price of a wedding cake with two men on it is a billion dollars?

vikingvista writes:

Tom West,

Personally, I'm willing to limit freedom of association to some degree (it's always a trade-off) in order to avert violence

You are willing to use violence against someone to prevent that someone from being a victim of violence?

BTW, pointing out that violence exists, or that people do things they shouldn't, isn't much of an argument against judging such actions.

Massimo writes:

David,

OK, Jews have the right to _want_ a Jewish state, but you do not believe they have any justified basis for actually doing so. That is consistent with the open borders doctrine. You aren't advocating the ethnic warfare that would likely ensue, but you won't support using a closed border as a defense. That is a tangent to this thread so I will stop there.

I've read your post and your comments several times and I don't see what is wrong with this sentence: "You strongly support individual discrimination/association but strongly oppose government discrimination/association and government force."

Michael Byrnes writes:

I don't really think a world where advertised prices are meaningless and every little purchase requires a negotiation along the lines of buying a car would be a step up.

It seems to me that one effect of this would me a massive increase in transaction costs.

David R. Henderson writes:

@Massimo,
I've read your post and your comments several times and I don't see what is wrong with this sentence: "You strongly support individual discrimination/association but strongly oppose government discrimination/association and government force."
What’s wrong with it is that the first clause is false. I don’t strongly support individual discrimination/association. I strongly support the right to individual discrimination/association. Take an example from way back that got me to think that the ACLU really does support freedom of speech. It was when that organization supported the right of Nazis to march in Skokie, Illinois. I strongly supported their right. I didn’t strongly support the march. See the difference?

Massimo writes:

David, sure. I didn't explicitly clarify "the right of individuals to associate/discriminate" but that's what I understood and intended. Most people who supported the right of the Nazis to march were very opposed to the ideology itself.

Hazel Meade writes:

Sadly, If the Skokie case came up today, I doubt the Nazis would be allowed to march.

Too many people would argue that such marching was implicitly threatening or that it made residents feel "unsafe".

And today's ACLU would probably NOT defend them.

David R. Henderson writes:

@Massimo,
David, sure. I didn't explicitly clarify "the right of individuals to associate/discriminate" but that's what I understood and intended. Most people who supported the right of the Nazis to march were very opposed to the ideology itself.
Good. At least we’re agreed on that distinction.

Chris writes:

@David Henderson

I'm glad that you wrote this response to Michael.

I think that he makes good points. For example, I think that he does a good job of explaining how the expansive reading of the 13th amendment creates the standard by which people do not have to enter into commercial agreements that they do not wish to enter (even if he doesn't say that is what he is doing).
However, I also think that his discussion may be missing the mark. Implied contracts would require that both parties meet their de facto agreed upon roles. However, the existence of an implied contract is something that is determined by courts. There are factors that weigh on whether or not there is a "meeting of the minds" that would result in an implied contract. One of these cofounding factors is whether or not the implication of a contract would result in harm to one of the parties. One could view RFRA has introducing violation of deeply held belief has a possible harm.
My previous point may just be a technical issue. However, Michael's use of implied contract to make his argument leads him down another path: He sees no use for the law itself. This seems, at least to me, to be very problematic. The point of RFRA's passage was that as the government expands in scale and scope, we can't predict how it will interact with religious beliefs. The generally applicable laws that were passed began to steamroll religious beliefs, especially minority ones (think peyote). As far as case law is concerned, courts would have ruled almost exactly the same as they do now (due to RFRA) pre-Employment Division v Smith (1990). Post that decision, outside of two exceptions, people aren't granted strict scrutiny when making claims against government action. Without strict scrutiny, private citizens almost always lose. In response, Congress passed RFRA. So look at what happened with Florida prisons and their refusal to provide kosher food to Jewish inmates.
But of course this isn't the really controversial part of Indiana's act. The controversial part is that it defines corporations as people and allows for RFRA to be used a defense in private civil matters. But what people forget is that the act doesn't exist in a vacuum. It still has to interact with common law, anti-discrimination laws, etc. And case law has shown that in a fight between generally applicable anti-discrimination law and religious belief, the generally applicable law is going to win. Why? Because ending discrimination is considered a compelling government interest and the anti-discrimination laws are seen as the least restrictive means at achieving that goal.
So, we are sitting here discussing freedom of association and using that discussion to inform whether or not something like RFRA should exist. But that is just granting a pass to the real issue of how state and federal authority should be able to act on private consciences.

RPLong writes:

LR & Prof. Henderson -

I know it's late in the game, but on the off-chance you're still reading...

Let's suppose instead that the sign read, "None of the things I say shall be considered a contractual offer."

Fine then. If a businessperson wants to post a list of prices and services without making a formal offer, then what more can we say? Nothing. Such a businessperson is wasting everyone's time, including his own. If he wants to post prices such that they merely look like an offer, but are not technically an offer, then he can freely do so. I think we would all agree that such a businessperson has a petty vendetta against anyone to whom he might want to "refuse service," because it wasn't enough for him to make offers to his own constituency; instead he preferred to trick people he didn't like into believing that he had made them an offer.

All that is to say, this doesn't really demonstrate anything other than ill will. In the real world, subject to my understanding, if you publicly post your prices and your goods/services, that constitutes an offer. One cannot suddenly reneg on that offer willy-nilly.

Or rather, there are conceivable circumstances that would allow for it, but none that would maximize utility for anyone.

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